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Thursday, 13 February 2003
Page: 11926

Mr Mossfield asked the Minister representing the Minister for Defence, upon notice, on 2 December 2002:

(1) What are the rules of engagement for members of the Australian SAS in counter terrorist situations.

(2) What penalties can apply if soldiers operate outside these rules of engagement.

(3) Do these soldiers have immunity from any criminal or civil action if they cause death or injury to civilians if operating under rules of engagement.

Mrs Vale (Minister for Veterans' Affairs and Minister Assisting the Minister for Defence) —The Minister for Defence has provided the following answer to the honourable member's question:

(1) Rules of Engagement (ROE) delineate the circumstances and limitations within which armed force may be applied by the Australian Defence Force (ADF) to achieve military objectives. These circumstances and delineations will invariably be situation and incident-specific. For this reason, the ROE which the Australian SAS would use in counter terrorist situations would depend upon the particular circumstances of the incident giving rise to use of the SAS in that role.

The ROE used by the SAS in such situations will always comply with the applicable legal regime. If a counter terrorism operation were mounted within Australia, the ROE would comply with Australian domestic law. Australian domestic law includes provisions in Part IIIAAA of the Defence Act 1903 which permit ADF members to use only that force which is reasonable and necessary in the circumstances. There are also prohibitions on the ADF, in their use of force, from subjecting a person to greater indignity than is reasonable and necessary in all the circumstances. Part IIIAAA of the Defence Act also includes a specific provision which regulates an ADF member's use of force that is likely to cause death or grievous bodily harm to a person.

(2) In the event that a soldier operated outside of the ROE during any military operation, that soldier may be charged with having committed an offence against the Defence Force Discipline Act 1982. The maximum punishment in that Act for a soldier who is found guilty of disobeying lawful general orders such as ROE is imprisonment for 12 months. Such a punishment may be in addition to penalties in respect of other offences, including civilian criminal offences, arising out of the acts by which the soldier has overstepped the ROE.

(3) ADF soldiers, including SAS members, who are used for counter terrorism tasks have no immunity from criminal or civil action arising from their actions. However, civilian criminal law defences, including the defence of `lawful authority', would be available to an ADF member who was charged as a result of his or her lawful actions during counter terrorism tasks.