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Wednesday, 7 December 2005
Page: 25

Senator COONAN (Minister for Communications, Information Technology and the Arts) (10:51 AM) —I table the explanatory memorandum relating to the bill and move:

That this bill be now read a second time.

I seek leave to have the second reading speech incorporated in Hansard.

Leave granted.

The speech read as follows—

This Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 amends Part IIIAAA of the Defence Act 1903. These amendments will enhance the ADF’s ability to contribute to operations in support of domestic security and provide appropriate powers and protections for ADF personnel during call-out.

The current legislative basis for ADF operations in support of domestic security does not reflect the evolving threat environment nor does it reflect recent initiatives such as the March 2005 establishment of the Joint Offshore Protection Command. The current legislation does not appropriately reflect the potential range of tasks faced by both Permanent and Reserve forces in periods of heightened alert.

The amended Bill does not constitute a change to the fundamental principles underlying Part IIIAAA. I would like to emphasise that while the current threat environment is likely to remain dynamic, the use of the ADF in domestic security operations remains one of last resort. Equally, the primacy of the State and Territory authorities and retention of the military chain of command are central to this bill.

The amendments give effect to Government initiatives to improve the responsiveness of the ADF to domestic security incidents in the current threat environment. The amendments to the Defence Act 1903 have been drawn from recommendations made by Mr Tony Blunn, MAJGEN John Baker and Mr John Johnson in their Statutory Review of Part IIIAAA, conducted as required no more than three years after the introduction of the original legislation.

The bill will amend current call-out provisions for the ADF in domestic security operations, replacing parts of the legislation which are rigid and complex and inhibit the flexibility and speed with which the ADF could respond should Australia face a terrorist incident in limited or no notice circumstances. Further, the amendments address the lack of statutory legal authority to use reasonable and necessary force in ADF operations involving aviation and maritime security and the protection of designated critical infrastructure. The amendments to Part IIIAAA will clarify accountabilities, facilitate the effective use of ADF capabilities and ensure that there are adequate legal protections for ADF personnel when conducting domestic security operations.

In broad terms, the purpose of the amendments is to permit the utilisation of the ADF to protect States and Territories against domestic violence and to protect Commonwealth interests where State and Territory jurisdictions do not apply.

Turning now to the specific amendments, I will outline the nine key changes of the bill.

The first relates to the use of Reserve forces in domestic security operations. Restrictions on the use of the Reserves have been excised to ensure that any ADF elements can be employed effectively in operations in support of domestic security. This will enhance operational flexibility and ensure that appropriate ADF capabilities are authorised to take action under Part IIIAAA if required. Personnel from the Reserve Forces are increasingly integrated into day to day duties of the ADF. In some cases Reserve Forces might be better positioned to respond quickly.

Moreover, the Government has established specialist Reserve capabilities in recent years to conduct operations in support of domestic security. The expectation is that these capabilities would be required immediately in such a scenario.

Second is the identification of ADF personnel. An ADF member conducting division 2 and division 3 activities should not be required to wear surname identification. This has been addressed as it reduces operational flexibility of ADF members to undertake both types of operations. A suitable numeric or alternative identification will be developed to ensure that members of the Tactical Assault Group or other ADF personnel can be appropriately identified for consequence management purposes while still protecting their identities from the public.

Third, this bill will amend Part IIIAAA to reduce the notification requirement, for cordon areas to be broadcast on radio or television, particularly in those limited circumstances where broadcast could jeopardise ADF operations or give terrorists warning of operations. This amendment will not alter the notification arrangements between the ADF and the civil authorities and all other notification requirements will proceed as normal.

Fourth, Part IIIAAA is currently based on resolving siege or hostage situations, where the location of a threat is well known and where there is sufficient warning time to establishment the requirement for call-out. This is reflected in the requirement for Division 2 to apply to a ‘subject premises’ under the act. While ‘subject premises’ can be defined as a means or transport or other thing, it was unclear whether this would apply to an ADF response to mobile incidents.

As such, the amendment redefines ‘subject premises’ within the broader descriptor of ‘subject incidents’, focussing on assigning the powers of Part IIIAAA to an incident or event, or series of events rather than a narrowly-focussed ‘subject premises’. Similarly, the Part has been amended to include a reference to ‘resolve subject incidents’, preserving the current responsibilities of the ADF under Division 2 but removing the ambiguity surrounding its specific application and allowing the ADF to operate in a mobile environment.

This ensures that the powers conferred to the ADF under Part IIIAAA can be accorded the ADF in the course of dealing with a mobile terrorist incident and a range of potential threats.

Fifth, Part IIIAAA has been amended to allow for expedited call-out arrangements to deal with rapidly developing threats such as a hijacked or rogue aircraft or fast-moving vessel. The requirement is to ensure that there are flexible and responsive mechanisms in place that will enable call-out of the ADF in the event of such a sudden and extraordinary emergency.

The expedited call-out arrangements will enable the Prime Minister to make an order, that the Governor-General is usually empowered to make, in the event that a sudden and extraordinary emergency makes it impractical for a call-out order to be made under existing sections of the Part. In the event the Prime Minister cannot be contacted, call-out can be authorised by the two other authorising Ministers. Should either of the remaining authorising Ministers be non-contactable, an authorising Minister in consultation with the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer can authorise call-out.

Further, call-out orders need not be made in writing. That is, a verbal order from the Prime Minister, or from the two authorising Ministers, to the CDF can initiate call-out. In the event such an order is not made in writing, the Prime Minister and the two other authorising Ministers must each make a written record of the order, sign the record and ensure the signing of the record is witnessed.

The sixth amendment provides the ADF with the ability to protect designated critical infrastructure. In the event of a credible terrorist threat or heightened alert, mass transit systems, mass gatherings such as the Melbourne Commonwealth Games or designated critical infrastructure may require protection. The terrorist attacks in New York, Madrid and London have shown that these types of infrastructure are high priority targets for terrorists and that the ADF may be required to protect infrastructure that the Government designates as critical. To undertake this task the ADF may be required to use reasonable and necessary force in specific authorised circumstances.

This measure acknowledges the increasingly close interrelationships between infrastructure, critical services and facilities; and that the destruction or disabling of a system or structure is likely to have significant flow-on effects that may result in loss of life. For example, the potential loss of power to a hospital, the disruption of communications or the interruption of vital utilities.

The Prime Minister, the Attorney-General and the Minister for Defence will be the authorising Ministers for the protection of infrastructure. The authorising Ministers must be satisfied that an attack on infrastructure will result in the loss of life before directing the CDF to utilise the ADF to protect infrastructure.

The potential use of force by the ADF in such circumstances would be informed by a process that identifies the importance of the infrastructure, on its own and within a system, and whether disruption to its operation would endanger the life of a person. That process would be underpinned by a reasonable belief that there is a threat to specific infrastructure and the disruption of that infrastructure would result in potential loss of life.

The seventh amendment concerns the use of the ADF in a domestic security operation which has the potential to result in damage to property, serious injury or death. In circumstances where Part IIIAAA is enacted, the ADF will be employed either as a direct result of a call-out, requested by States or Territories, or by Commonwealth-initiated call-out, particularly in the maritime and air environment. It is also possible that domestic security operations will be cross-jurisdictional.

As the ADF is a Commonwealth entity operating under Commonwealth law and the Defence Act, it is appropriate that any prosecutions arising from a domestic security operation should also be considered by the Commonwealth Director of Public Prosecutions.

The Commonwealth Director of Public Prosecutions would be required to consider the context of a domestic security operation, including relevant Rules of Engagement and the military chain of command. Let me emphasise that there is no intention to seek protection for any ADF member who complies with a manifestly illegal order or undertake an unreasonable or unlawful act. The use of the Commonwealth Director of Public Prosecutions will ensure consistency and to the maximum extent possible, a uniform set of criminal laws that can be applied to ADF personnel acting under Part IIIAAA.

Now I turn to the final changes to Part IIIAAA and introduce two new divisions within the Defence Act. These divisions reflect the requirement for a greater level of authority for the ADF in specific and limited circumstances, in this case, in the air and maritime environments.

Currently there are no provisions within Part IIIAAA to enable the ADF to conduct operations against air threats. At present these operations would be authorised under the Government’s Executive Power. As the ADF is the only agency equipped to conduct aviation operations there is a requirement to ensure a consistent legislative approach for both land-based and air-based activities.

In the event of an aviation security incident, the ADF has the only capability of resolving such a threat. However there is no statutory authority under current Part IIIAAA provisions for the ADF to resolve an airborne aviation threat.

The new aviation division within the Defence Act will enable ‘call out’ of ADF capabilities to respond to threats to Commonwealth interests in the air environment. This division contains a specific authority for ADF members to use force against an aircraft in flight or on the ground, provided that those members are authorised by their orders to use such force, that those orders are issued pursuant to a Ministerial authorisation and are not manifestly unlawful.

The second new division created under the amendments to Part IIIAAA is the offshore division. As with the air environment, there are no provisions within Part IIIAAA to enable the ADF to conduct offshore maritime counter-terrorism activities outside of a State or Territory jurisdiction. ADF personnel do not receive the same powers and protections afforded when conducting land-based hostage recovery operations. Again, as the ADF is likely to be the only agency able to conduct offshore counter-terrorism operations, there is a requirement to ensure a consistent legislative approach for both land-based and offshore activities, similar to the aviation division.

The current Part IIIAAA is focussed on protection of the States from domestic violence, and the protection of Commonwealth interests from domestic violence, within Australia. In this context the current provisions mean that the term ‘within Australia’ does not extend beyond the territorial sea baselines, and therefore the current Part IIIAAA does not extend to the offshore environment between the end of the territorial sea and the edge of Australia’s maritime responsibilities. The current Part IIIAAA is also ‘land-centric’ in its application. The new division within Part IIIAAA will enable ‘call out’ of ADF capabilities to respond to threats to Commonwealth interests, in the offshore areas.

In all instances, the new air and offshore divisions will ensure that Ministers will have due regard to Australia’s obligations under international law.

In summary, this bill will facilitate the employment of the ADF by the Government in preventing, deterring or responding to a wide range of potential threats to Australia’s domestic security. The bill is a response to evolving threats to Australian security and will provide appropriate powers and protections for the ADF operating under Part IIIAAA in land, air and offshore environments. The fundamental principles of Defence Force Aid to the Civil Authority remain the underlying framework of the bill. The provisions outlined are robust and flexible and will provide an effective basis for the employment of the ADF in support of domestic security operations now and into the future. I commend this bill to the Parliament.

Ordered that further consideration of the second reading of this bill be adjourned to the first day of the next period of sittings, in accordance with standing order 111.