Senator HARRIS (1:28 PM) —Senator Brown has raised an issue in relation to the legislation being tested down the road. That is tantamount to shutting the stable door after the stallion has bolted. Senator Faulkner made a comment in responding to Senator Brown, saying that he hoped that the Australian Defence Force would act with responsibility and only use appropriate force. Every senator in this chamber would not only support Senator Faulkner but also like to ensure that that is a reality.

It is not in the best interests of the committee to allow this bill to proceed when there are so many uncertainties. Where do Defence personnel stand if, having been ordered to carry out an action, they then find themselves subsequently, down the road, possibly facing criminal action? I would like to again turn to the Bills Digest that was prepared on this bill. Just prior to the end notes, under `Practicability', it says:

The Bills Digest goes on to say:

And that is where the problem with this bill lies: between discretion, on the one part—that is, the bill is drafted so widely without being specific—and, in this case, putting these Defence personnel in a position of personal liability. Just the uncertainty of that situation is sufficient for this committee to recommend that the bill not even go ahead. But, even more paramount, if it does go ahead, we have to clarify where the personnel stand.

I will go back now to the Bills Digest. It continues:

So no matter where the power comes from for the Australian Defence Force to carry out the action that they have been ordered to do, if they do not carry it out in the appropriate manner, there are concerns as to whether they were entitled to exercise the power in the first place. The Bills Digest continues:

In effect, their actions are reviewable, although it is unclear whether they would be open to—

one—

two—

So we have an opinion expressed through the Bills Digest where, should a member of the Defence Force find themselves in a compromising situation, the bill may not even indicate where the jurisdiction lies. The Bills Digest goes on further to say:

I return to an earlier question period that we went through with the minister in which we were trying to clarify very clearly where these Australian Defence Force personnel would stand. Will they be exposed to judicial review? Will they be exposed to internal disciplinary procedures, or will it be criminal proceedings?

Honourable senators interjecting—

Senator HARRIS —I take the minister's interjection: `What are we going to do? Sit here for the rest of the week?' That is definitely not contributing to the context of this debate. We are clearly asking the minister for an opinion as to where the Australian Defence Force stand if they are called out and if they are ordered to carry out an action and do so. The questions are: one, what are the instructions they are to follow; and, two, having followed those instructions, under what jurisdiction would they be assessed as to whether they carried out those instructions correctly?