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Thursday, 24 June 2010
Page: 4337

Senator ARBIB (Minister for Employment Participation and Minister Assisting the Prime Minister for Government Service Delivery) (1:49 PM) —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—

I am pleased to introduce the Defence Legislation Amendment (Security of Defence Premises) Bill 2010 (the Bill).

The Bill will insert a new Part (Part VIA) into the Defence Act 1903 (the Act) to give effect to Australian Government initiatives to enhance the security of Defence bases, facilities, assets and personnel, within Australia, in response to the changing nature of security threats.

As you would be aware, in August 2009 a number of individuals were arrested for allegedly planning an armed attack against Holsworthy Army Base.  This highlighted the reality that the threat of terrorism in Australia is real and current, and Defence facilities and personnel are potentially attractive targets for terrorist groups. 

Defence maintains a framework of protective security measures to safeguard defence people and facilities.  This consists of a range of physical and personnel security measures, coupled with intelligence, to provide a layered response to mitigate threats.  But in view of the changing security environment, and specifically the increased risk of terrorism, the Prime Minister asked the Chief of the Defence Force to conduct a comprehensive review of base security.    The Review of Defence Protective Security Arrangements subsequently recommended a number of policy and physical security initiatives to complement and strengthen existing security at Defence bases.

One of the recommendations of the Review was to bring forward a number of legislative amendments, which are contained within this Bill.  The measures reflect the fundamental importance the Government places on the safety and security of Australian Defence Force members, Defence employees and the Australian public.

In broad terms, the Bill introduces measures in three key areas:

  • Firstly, it strengthens the legal regime for ADF members who may be required to use reasonable and necessary force in the event of a terrorist attack on a Defence base. 
  • Secondly, it establishes a statutory regime of search and seizure powers in order to reduce the risk of unauthorised items entering Defence facilities, or restricted items being improperly removed. 
  • And finally, 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 all Defence premises. 

Turning now to the specifics of the amendments.

A key recommendation of the Review was to clarify the legal issues around ADF members acting in self defence in the event of a no-warning armed attack on a Defence base.  Australian law recognises the right to defend yourself and others who are threatened.  This currently provides a legal basis for members of the ADF to use reasonable and necessary force to defend themselves, or others, in the event of a terrorist attack on a base.  This amendment, however, will provide certainty as to the scope of conduct that would be authorised for designated ADF members, rather than having to refer to the various Commonwealth, State and Territory legislative provisions. 

The Bill will clarify the regime for authorised members of the ADF to use up to and including lethal force, where this is considered reasonable and necessary to protect life or prevent serious injury to themselves or others in the event of an actual or imminent attack on Defence premises or people on those premises.  It is modelled on the existing section 51T of the Act which applies to the use of force by ADF members in assisting civilian authorities with domestic security incidents and violence under Part IIIAAA. 

I would also emphasise that the Bill does not alter the primacy of civil law enforcement authorities in responding to security incidents at Defence premises.  A full response to a terrorist incident clearly remains the responsibility of civil law enforcement authorities, and would be managed under the National Counter Terrorism Plan if the attack resulted from terrorist activities. 

Rather, this measure ensures that appropriately trained ADF members, who have been authorised by the Minister, are able to act immediately to defend themselves and others, particularly in the event of an attack that is preceded by little or no warning.  The measure will utilise the skills and training of the ADF to minimise loss of life and serious injury until such time as the police are able to assume full control of the situation.

Turning now to the second key area addressed by the measures in the Bill: the introduction of a search and seizure regime.

Large numbers of people regularly flow in and out of Defence premises on a daily basis, including Australian Public Service (APS) employees of the Department, ADF members, contractors to Defence and visitors.  This amendment will enhance the existing range of security measures Defence has in place to safeguard dangerous, restricted or classified items on Defence bases, and to reduce the risk that they are improperly removed.  It will also reduce the risk of unauthorised items, particularly those that might threaten the safety of people, being brought on to Defence facilities.  The Della-Vedova case, involving the theft, possession and sale of Defence owned rocket launchers by a Defence employee, illustrates these risks.

The amendments will establish a statutory regime of search and seizure powers to be exercised by three identified classes of Defence security officials, who will perform security functions at Defence facilities.  These Defence security officials, identified in Division 2 of the Bill, will include:

  • Defence contracted security guards;
  • security authorised members of the Defence Force; and
  • Defence security screening APS employees.

All three classes of Defence security officials will be empowered under Division 3 of the new  Part to:

  • request evidence of a person’s identification and authority to be on defence premises;
  • conduct a consensual search of a person, vehicle, vessel, aircraft or item on entry to or exit from a Defence facility; and
  • in defined circumstances, refuse a person entry to or free exit from the facility, and potentially restrain and detain the person for the purposes of placing them in the custody of the police.

The circumstances where these latter powers might be invoked include when the security official reasonably believes that the individual is a trespasser, has or may commit a criminal offence on the premises, or constitutes a threat to the safety of people on the facility.

Security authorised ADF members or, where such members are not available, Defence security screening APS employees will be further empowered under Divisions 4 and 5 of the Part, to:

  • require evidence of a person’s identification and authority to be on the premises;
  • conduct a non-consensual search of a person, vehicle, vessel, aircraft or item on entry to or exit from a Defence facility;
  • seize items that constitute a threat to safety or relate to the commission of a criminal offence on the premises; and
  • in defined circumstances, remove people from Defence premises. 

The powers of security authorised ADF members will extend to include, where reasonable and necessary, the authority to take any action required to make a seized item safe, or prevent its use. 

The statutory regime incorporates a range of safeguards relating to the exercise of powers under the new Part.  These safeguards require that officials exercising these powers must:

  • have been authorised by the Minister for Defence;
  • have completed a minimum level of appropriate training as determined by the Minister for Defence or his delegate;
  • carry an identity card in a form approved by the Secretary of Defence;
  • surrender their identity card within 7 days of ceasing to be a security official;
  • wherever practicable produce their identity card for inspection by a person, prior to exercising powers under this new Part;
  • not stop or restrict any protest, dissent, assembly or industrial action;
  • not subject a person to greater indignity than is reasonable and necessary;
  • only use such force against a person or thing that is reasonable and necessary;
  • only restrain and detain for the purposes of handing a person over to the police; and
  • in respect of seized items, provide the person with a receipt if it is practicable to do so and, if there is a reasonable belief that the item relates to a criminal offence, give the item to the police.

Moreover, for the purposes of the consensual search regime contained in Division 3, the amendments will create offences for a Defence security official who conducts a search of a person, vehicle, vessel, aircraft or thing, without consent.

In practice, the exercise of these powers and the proposed use of the various classes of Defence security official will be dependent on the nature of the site and the assessed level of the security threat, typically determined on the basis of intelligence.  So, for example, in practice: 

  • The consensual identification and search powers, contained in Division 3, will generally be exercised by contracted security guards, on a random basis, on entry to and exit from Defence premises at low to medium threat levels. 
  • The non-consensual identification, search and seizure powers, contained in Divisions 4 and 5, will be exercised by security authorised members of the Defence Force or, where such members are not reasonably available, by Defence security screening APS employees during higher threat levels on all Defence premises and, at all times, at Defence’s more sensitive sites.  Under these circumstances, the powers would be exercised on a more frequent basis to provide an increased level of security in line with the assessed risk.

Clearly though, one of the most fundamental means to improve security at Defence bases is to deter unauthorised access to these sites.  Consequently, the third key area of the amendments modernises the trespass offence and related arrest powers in section 82 of the Defence Act and relocates these measures in the proposed new Part to ensure these are recognised as an integral part of the proposed security regime.

The amendments preserve the areas that are presently covered by the trespass offence in section 82, including Defence aircraft and buildings used for accommodating any part of the Defence Force.  In addition, they clarify that Defence has the power to deal with trespassers on naval vessels.

Currently, the Act only imposes a monetary penalty of $40 for the offence of trespass.  Clearly, this is grossly inadequate and does not act as an effective deterrent to potential trespassers, nor does it reflect the seriousness of the offence or its potential impact on national security.  Consequently, in line with current Commonwealth criminal law policy, the amendments impose a new maximum penalty of $5,500 for the offence of trespassing on Defence premises or accommodation. 

As you might appreciate, Defence is the largest Commonwealth landowner and one of the largest landowners in Australia.  The Department manages an estate comprised of in excess of 3 million hectares of land, around 88 major bases or facilities, approximately 370 owned properties and a further 350 under lease.  The sheer magnitude of these holdings poses a major challenge to detecting trespassers, particularly if detection was to rely exclusively on the use of manned patrols.

Consequently, to support the enforcement of the new trespass offence, Defence intends to increase the use of optical surveillance on Defence premises, including vessels and aircraft, to improve the Department’s capacity to detect and apprehend potential trespassers.  This might include video surveillance, such as Closed Circuit Television (CCTV). 

Moreover, as the purpose of any surveillance activity undertaken by Defence would be to identify and deal with potential security threats, the Commonwealth needs to be able to rely on any images captured to assist intelligence agencies, and as evidence to support any action by law enforcement agencies and Commonwealth, State and Territory public prosecution authorities.

Consequently, the amendments will insert new provisions that:

  • authorise Defence to use optical surveillance devices for the purposes of monitoring the security of Defence premises and the safety of people on those premises; and
  • authorise Defence to disclose information, including personal information, captured by those devices to intelligence agencies, law enforcement agencies and Commonwealth, State and Territory public prosecution authorities for the purposes of carrying out their statutory functions.

In summary, this Bill confers a range of powers on designated Defence security officials to allow the ADF and the Department to deter, detect and respond to incidents that threaten the security of Defence bases, facilities, assets and personnel within Australia.  It acknowledges the contemporary security environment, including the threat posed by terrorism, and clarifies the authority of authorised ADF members to defend themselves or others from death or serious injury in the event of a terrorist attack on a Defence base.  It provides a statutory regime of search and seizure powers to reduce the risk of dangerous items entering Defence premises, or weapons or classified material being improperly removed.  And, it strengthens the Department’s ability to detect and deal with trespassers.  The Bill reflects the Australian Government’s commitment to protect the thousands of men and women who dutifully work to safeguard our nation, and the many more who work diligently to support them in this role.

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, commencing on 24 August 2010.