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Monday, 28 August 2000
Page: 16683


Senator FAULKNER (Leader of the Opposition in the Senate) (12:31 PM) —Let me say at the outset that the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 is a bill which we should not be debating here today. This is a bill that the government had ample time to prepare, had ample time to educate the Aust-ralian people about and had ample time to con-sult all parties about, particularly the state gov-ern-ments. Instead, the government chose to draw up this bill without proper consultation, introduce it into parlia-ment without proper preparation and seek to rush it through without proper consideration. Accor-d-ing-ly, the high level of public concern about the bill and widespread suspicion about the govern-ment's motives are problems of the government's own making.

I hope, but I cannot be confident, that the government will learn a lesson from this. The lesson is to not be afraid of transparency and consultation, particularly on such a vital matter of public policy as this is. It may require more effort and more time, but it will pay dividends in terms of public understanding and acceptance. It is puzzling, frankly, that the government has seen fit to embark on a very public and con-sultative review of defence policy, while at the same time trying to keep the public out of any discussion of its legislation governing the use of our defence forces in domestic security situations. The opposition has done its best to correct the situation and encourage community debate and scrutiny, and that is why the opposition initiated the Senate committee inquiry into the bill.

We have appreciated the input and advice that a wide range of community organisations and individuals have provided to us, and their concerns have been taken into account in formulating our position on this legislation. I want to stress this: Labor believes that the Commonwealth should not be given any greater powers to use the ADF in domestic security matters than the Constitution currently allows for. In fact, we believe that the current situation is unsatisfactory and must change. At the moment, there is no appropriate or effective legislative framework to define and restrict the Commonwealth's powers and actions in using the ADF in domestic security situations, and there is no protection of civil liberties when the Commonwealth does decide to use these powers. There are no procedures, no restrictions, no guidelines and no processes stipulated by legislation that the Commonwealth must adhere to if it were to consider using these powers—nor is there any requirement for proper parliamentary accountability following the use of such powers. It is important to realise that these powers are not imaginary. They have been used in the past without any legislative framework governing their use. This is a situation that needs to be corrected.

The Commonwealth should have legislation in place that outlines proper processes, procedures and restrictions on how, when and why it may use its constitutional powers. Labor accepts that this bill will establish a framework for call-out of the Defence Force in security emergencies. The bill will also provide a proper basis for emergency use of the Defence Force as a last resort. I emphasise: as a last resort. This is not a new power; it is simply one that is currently not regulated or restricted in any way. The Protective security review by Justice Hope following the 1978 Hilton bombing points to the weaknesses of the current situation. That report highlighted the unsatisfactory state of the call-out framework, including the lack of accountability and the absence of regulated processes. The opposition accepts that these problems should be corrected now, rather than have a situation occur which demonstrates the inadequacy of the current framework and forces changes after the event. Labor believes there needs to be provision both for safeguards in the exercise of such authority and for accountability for the actions of individuals as well as the government. The absence of strong and effective procedures and processes applying to the use of the ADF personnel for internal security matters is the reason that the Labor Party believes that this bill is warranted, and warranted not just for the Olympic Games but on a more permanent basis.

Whatever the merits of this bill, the government deserves censure for badly mishandling its preparation and its introduction. If the government believes that this bill needs to be in place before the Olympic Games—and there are probably sound arguments why that should be the case—then it should have been introduced into the parliament many months ago so that the parliament and the public had sufficient time to examine and consider it.

The government also deserves censure for not properly consulting with state governments in developing this bill. Clearly, the bill should have been drawn up in consultation with the states so that it was clear that the bill would not impact on current arrangements, such as the national antiterrorist plan. Much of the concern over the bill, both from the general community and from the states, would not have arisen if the government had allowed reasonable time for the bill to be properly examined and properly explained. Many of these concerns arise because people simply do not realise that the Commonwealth is not currently restricted in its use of these powers. The opposition has made it clear from the beginning that we do have concerns with elements of this bill; and, of course, a number of those concerns were highlighted at the Senate committee inquiry. From the moment that this bill was introduced, Labor has been pressuring the government in relation to these matters and urging it to amend the legislation.

I note the report of the Senate committee—I commend that report to senators and members of the public—and of course I note the recommendations that the Senate committee has made for amendments to the bill. They are important and sensible improvements to this legislation. Ensuring that there is an obligation on the Commonwealth to notify the state or territory where the call-out is going to occur is absolutely necessary. Extending the proviso that reserve and emergency forces of the ADF be prohibited from being used in connection with an industrial dispute is essential. Labor also believes that the current subsection 51I(2) is not acceptable. We do not believe that there is any reason for the bill to allow for some powers to be delegated to a minister other than the authorising ministers. We endorse the committee's recommendation for the deletion of that part of the bill.

The opposition is pleased that the committee identified that the bill, as it stands, does not provide adequate requirements for proper accountability and reporting to the parliament. We fully support the committee's recommended amendments in this area. Parliamentary scrutiny is essential if these powers are to be used. We acknowledge that the Minister for Defence and the Attorney-General finally announced last week that the cabinet had agreed to address all of the committee's concerns. The opposition welcomes the amendments that the government is moving to the bill. We believe that those amendments do address the committee's recommendations and will substantially improve the bill, and we will support them. However, we do not believe that the government's amendments go far enough, and so I take this opportunity to inform the Senate that the opposition will be moving further amendments to the bill—beyond those that the government is moving as a result of the report of the Senate committee.

The amendments go to four key areas. Firstly, and most importantly, the opposition will be moving an amendment to prevent the ADF being used against protest or dissent—for example, in an industrial dispute on the waterfront or, say, a community sit-in at a local school. While we accept that the passage of this bill would for the first time actually place a restriction on the Commonwealth, we do not believe that the bill as it stands properly addresses the genuine concerns held in the community about ADF personnel being used to quell protests. Labor's amendment will ensure that the ADF cannot be used for such a purpose. This is not only important with regard to the protection of the civil liberties of those who wish to exercise their democratic right to protest but it is also required to ensure that the ADF is not compromised by a government looking to misuse it in an inappropriate domestic security situation. The ADF should only ever be able to be used—and, if Labor's amendments are successful, they will only ever be able to be used—for the protection of Australians and not against them.

Secondly, Labor believes that the legislation must specifically recognise a more realistic relationship between the Commonwealth and the states, regarding the call-out of troops. Although the Commonwealth has the power to initiate a call-out of its own accord, Labor believes that it should be a legislative requirement that the Commonwealth consult with the executive government of the state in which troops would be deployed, prior to the Governor-General making such an order. To this end, the opposition will be moving an amendment that makes it a statutory requirement that the Commonwealth consult with the Premier of a relevant state prior to an order being invoked. While a formal notification of the order to the relevant state is an important step, the opposition believes it is ridiculous for the Commonwealth to even contemplate call-out without consulting the appropriate Premier.

The third opposition amendment goes to the issue of reviewing this legislation at some future point. We note that the Senate committee recommended that a review be undertaken within six months if the Commonwealth ever uses these powers, or within three years of the enactment of the legislation if the powers are not used before that time. We also note that the government has given a public commitment to undertake such a review, in line with the Senate committee's recommendation. There can be no question as to the good sense and the value of such a review, particularly in the light of the Howard government's rushed handling of this bill. However, I have to say that the opposition believes that just a public commitment to a review is not sufficient. We require an obligation in the legislation itself that will ensure that a proper parliamentary or independent review occurs and that the parliament has the opportunity to examine the findings of such a review.

Our fourth and, I think, final amendment will require notice of a call-out of troops to be placed immediately before the Presiding Officers of the parliament. In this way, parliament will be kept fully informed of any use of the defence forces in a domestic emergency.

Some have called for a sunset clause to the bill as a means of achieving a review. Labor believes that that is not the best approach. It would mean a return to the status quo—a situation that all those interested in circumscribing the Commonwealth's powers should not support. Labor believes that the amendment that we are moving, to review the legislation, is the best option for meeting the genuine concerns that have been raised. Our amendment will facilitate a thorough public examination of the new legislative regime. We believe the opposition's amendments, combined with those being moved by the government to address the Senate committee's recommendations, will ensure that concerns that have been raised by the community and the states are thoroughly dealt with.

Contrary to the myth that has grown up regarding this bill, the bill does not change the powers of the Commonwealth executive government with regard to the call-out of troops. These powers exist without restriction at the moment, and we believe it would be very unwise to wait for a case to arise where the Commonwealth uses its armed forces inappropriately before we take action. The restrictions, procedures and protections that the bill seeks to put in place are an improvement on the current situation. It is for that reason that the opposition will be supporting this legislation with the amendments that I have outlined to the Senate.