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Monday, 25 October 2010
Page: 1465


Mr ROBERT (4:58 PM) —If anyone is unsure that the world has changed since September 11, the Defence Legislation Amendment (Security of Defence Premises) Bill 2010 should disperse any misconceptions about that. This bill has been developed in direct response to a foiled terrorist attack on the Holsworthy Army Barracks, the home of my old unit, the 3rd Battalion, RAR. It was a foiled terrorist attack that had been planned around August 2009. The terrorists were part of a group called al-Shabab. The terrorists are currently before the Supreme Court on trial for their acts of terrorism. This was a group of extreme Islamic individuals who sought to use violence on the orders of an Islamic leader from, of all places, Somalia.

In response, the government has moved, quite rightly, in many areas to enforce and strengthen the base security we have around our Defence Force. It has been done, in part, due to the widely accepted fact that the six accused men were planning on entering the base and killing as many military and civilian people as possible before they were caught or killed. They believed this act was justified by the mullah in Somalia giving his concurrence.

This case demonstrates that the threat of terrorism within Australia is both real and current. Following the foiling of the attack, the security of defence bases came under close scrutiny by the media and the wider public, with some members of the media highlighting the physical deficiencies in base security. There was, of course, that wonderful incident when a Daily Telegraph reporter and photographer were arrested for gaining access to Holsworthy soon after the foiled plot was made public, all in an attempt to press home the journalists’ point that base security was reasonably lax. At the time, the coalition sought briefings from the government and Defence officials as to the current range of security measures for Australia’s military bases. These briefings, of course, were classified. However, it is fair to say that the introduction of this bill justifies the coalition’s concerns with current defence security arrangements.

Defence currently employs private contractors to man the gates and entrances to defence establishments around Australia. These contractors administer the right of entrance to the bases. This involves, obviously, ensuring that identification is provided and that that identification is checked. Such a system has worked well. I fully remember in 1993 being part of the military-manned guard at the base of 3rd Battalion, the Royal Australian Regiment, with nine soldiers heavily armed with pickaxe handles, ready to deter any would be bad-doer from entering the home of the parachute battalion. We have obviously moved on, with defence contractors now administering that right of entry to bases. Defence also utilises a range of physical and personnel security measures, including the use of intelligence, to form a layered approach to base security.

However, since 9/11 the world has changed. As we have seen with this group of Islamic terrorists that sought to gain access to Holsworthy with the sole purpose of indiscriminately and randomly killing, the current global security climate requires us to be ever vigilant. Given the changing nature of this environment, it is therefore necessary, as I concur with the government, to strengthen security measures at defence establishments. I think these planned attacks by those people that would seek to do incredible violence to those who are completely innocent have brought home the very real threat that Australia’s military personnel face at home, besides those facing perils in combat operations overseas. Therefore, strengthening the legislative base in order to protect those who protect us simply makes sense.

The review of defence protective security arrangements that followed on from the Holsworthy incident recommended a range of policy and physical security initiatives to complement and strengthen existing security at defence establishments. Given the changing nature of the security environment, this bill seeks to strengthen the security measures across a range of areas, particularly to enhance the security of defence bases, facilities and assets and, most importantly, the security of our personnel.

Accordingly, the bill will insert a new part VIA into the Defence Act 1903 and make associated amendments to the Australian Federal Police Act 1979. Broadly, the bill will do a range of things. Firstly, it will strengthen the legal regime for appropriately authorised ADF members who may be required to use reasonable and necessary force—including, it is important to articulate here, lethal force—to prevent the death of or serious injury to a person in connection with an attack on defence premises. Secondly, it establishes a statutory regime of search and seizure powers, including for those who do not actually submit to that, in order to reduce the risk of unauthorised or dangerous items entering defence facilities or restricted material or information being unlawfully removed. Thirdly, it updates the existing trespass offence and associated arrest power in the act to clarify that Defence has adequate powers to deal with unauthorised entry to defence premises. Fourthly, it will allow Defence to use overt optical surveillance devices to monitor the security of defence premises. Defence will also be able to disclose the information captured by this equipment to law enforcement agencies and Commonwealth, state and territory public prosecution authorities.

In detail, under the new part VIA of the Defence Act there are several divisions that need to be amended. Briefly, division 1 is simply an overview. Division 2 sets out three classes of persons—defence security officials—the bill refers to, who will be empowered to exercise some or all of these powers aforementioned. Firstly, contracted defence security guards, who include subcontractors or their employees, will be authorised to ask to see a person’s identification—similar to what they do now—conduct consensual searches and, in defined circumstances, restrain and detain a person for the purposes of placing them in the custody of a law enforcement officer. Secondly, security authorised members of the Defence Force—uniformed personnel—will be authorised to use the full range of powers proposed in the bill including, when necessary, the use of lethal force. Thirdly, defence security screening employees—Defence public servants, ostensibly—may exercise the non-consensual identification, search and seizure powers only if it is not reasonably practical in all the circumstances for a security authorised member of the Defence Force to do so. Furthermore, they are not authorised to seize an item or use force likely to cause death or grievous bodily harm.

Division 3 sets out the measures relating to the prevention or reduction of risk from authorised entry to defence premises, to detect and deal with trespassers and to prevent or reduce the risk of dangerous items entering defence premises or material being unlawfully removed. This section, importantly, sets out the conditions in which a defence security official can exercise their consensual search or seizure powers. This includes when they may request identification and under what grounds consensual searches may indeed take place. It also establishes special provisions that apply to declared explosive ordnance depots given the inherent risk to public safety from the unlawful removal of weapons, munitions and explosives.

Division 4 sets out the non-consensual identification and search powers which will be exercised as a matter of defence policy by special defence security officials during higher threat levels on any defence premises and at all times on sensitive sites. This section also outlines the circumstances which enable authorised members of the ADF to protect persons on defence premises if an attack is imminent or intended and would result in the death or serious injury of persons.

Division 5 sets out the special Defence security officials and the provisions under which they may seize an item, including a vehicle, vessel, aircraft or anything unattended on Defence premises or found during a search if, indeed, the official reasonably believes that the item constitutes a threat to security of persons on the premises or relates to a criminal offence that has or may be committed on the premises.

Division 6, importantly, establishes the limitations and safeguards on the exercise of the powers of Defence security officials conferred by this part. This section includes provision for Defence security officials to provide identification, for persons to be informed of the substance of the offence for which they have been detained and limits the use of reasonable force.

Division 7, the final area, covers other matters and includes provisions for a member of the Defence Force, a civil police officer or an Australian Federal Protective Service officer to arrest without warrant a person for unauthorised entry on Defence premises or accommodation. This section preserves the areas that were previously covered in the trespass offence in section 82 of the Defence Act. In addition, it clarifies that Defence has the power to deal with trespassers on naval vessels.

The coalition regards the welfare, safety and security of our Defence personnel and their families a top priority. Therefore, we have said, and we clearly maintain, that these changes should be implemented as quickly as possible. Indeed, I was critical in the last parliament that it took from August 2009 to the proroguing of the parliament for an investigation and for legislation like this to actually come to the floor of the House. It is time that those personnel who serve and protect us are themselves afforded proper protection at home.

We support these measures; we support the bill as drafted. However, the bill has been referred to the Senate Standing Committee on Foreign Affairs, Defence and Trade for inquiry and report. It is due to report back on 16 November 2010. There are a range of questions that remain outstanding with respect to the orders for opening fire in heightened threat levels, when the Defence Force personnel are actually required to use lethal force or when there is the potential for it to save life, limb or property on Defence bases. What do orders for opening fire actually look like for those Defence personnel on a base? What are the rules by which they must abide, and how will that actually work out? There are a range of fundamental questions like that where we honour our men and women by providing precise and detailed answers to them as to the level of the powers and how and when they can be used.

The coalition has reserved its right to make further amendments once the bill has passed through the Senate committee and when it is debated in the Senate so that we can actually make sure that soldiers, sailors and airmen—those men and women in uniform—will not be put in a position that may become untenable upon further investigation later on. However, we view the legislation as important and, quite frankly, we view it as overdue.

We look forward to receiving the report on this bill by the Senate Standing Committee on Foreign Affairs, Defence and Trade. We view its passage through the committee as an important step in fully understanding all of the issues that this bill would bring for members of the Defence Force. We believe that passage through the committee is important to understand the considerable legal complexities of the bill, and how the powers that the bill confers will be used and how they will play out. We look forward to all of those questions being answered, and we look forward to the bill receiving full and frank support on the floor of the Senate and becoming law.