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Wednesday, 28 June 2000
Page: 18409

Dr STONE (Parliamentary Secretary to the Minister for the Environment and Heritage) (10:46 AM) —I move:

That the bill be now read a second time.

The Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 proposes to amend the Defence Act 1903 to bring the framework for call-out of the Defence Force in law enforcement emergencies up to date. I believe the bill provides a sound basis for the use of the Defence Force as a last resort in resolving such emergencies.

The drafting of this bill follows a process of examination of Australia's counter-terrorist capability and response framework, which has been in place for over 20 years. The impetus for this examination was the Hilton bombing, which occurred at the time of the Commonwealth Heads of Government Regional Meeting in 1978 which, it may be recalled, led to the call-out of significant numbers of the Defence Force to secure the town of Bowral. Following these events, the government appointed Justice Hope to carry out a protective security review. Justice Hope produced a report which contained numerous recommendations relating to Australia's counter-terrorism preparedness. Many of those recommendations have been acted upon over the years, focusing on aspects relating to physical reaction capability, coordination amongst relevant authorities and intelligence capability.

Justice Hope made a number of recommendations regarding the use of the Defence Force assisting in law enforcement, and he proposed that legislation be enacted to provide for the process, powers and accountability regime for when the Defence Force is called on in such circumstances. The Hope report highlighted the unsatisfactory state of the existing call-out framework, including anachronistic provisions. There was no express accountability to parliament and there was a lack of authority vested in members of the Defence Force when called out. These concerns were also echoed by academic legal commentators at the time.

The existing legislation is not responsive to contemporary needs. Rather, it reflects its 18th century English origins, which focused on riot control—at a time before modern police services were developed. This can be seen by the archaic references in this legislation to the presence of magistrates, the blowing of bugles and the reading of proclamations, requirements that do not assist, or may possibly even inhibit, the resolution of modern-day terrorist incidents.

The present legislative framework does not provide sufficient accountability to parliament. Nor does the legislation provide members of the Defence Force with appropriate authority to perform the tasks they may be required to carry out, either in an assault upon terrorists or in a related public safety emergency. Furthermore, there needs to be provision both for safeguards in the exercise of such authority and for accountability for the actions of individuals as well as government.

Our expectations for use of the Defence Force have been distilled over the years since 1978 in the national antiterrorist plan, now in its sixth edition. This plan was formulated in coordination with all those agencies, state, territory and Commonwealth, that are involved in counter-terrorist response. Under the plan, the Defence Force will only be called out to assist state or territory law enforcement agencies where they may not have the capability to resolve an incident.

Tasking for the Defence Force may include the use of specialised assault equipment and skills to deal with the more sophisticated security threats in order to release hostages or to recover hijacked aircraft, ships, vehicles, offshore oil and gas installations and buildings. They may also be asked to perform tasks related to resolution of such incidents by providing cordons, assisting in evacuations, searching premises for and seizing and making safe dangerous items such as firearms and bombs, control of public movement, picketing and guarding and temporarily detaining suspects. Such support might be required in a situation involving a chemical, biological or radiological device where the assistance of the Defence Force is required to evacuate and secure a large area.

The response in other democracies has been varied. In many countries a third or paramilitary force has been created that has special legislation governing their actions. Examples are the GSG 9 in Germany, the Gendarmerie in France, the Carabinieri in Italy and the National Guard and Coast Guard in the United States. Such an option is not considered appropriate or necessary in Australia. Another option adopted by New Zealand and Canada is to simply assign to members of their defence forces the same powers, obligations and protections as are available to their police services.

This approach is not considered desirable as it encourages the view that the Defence Force is a substitute for the police force rather than to support them. The powers available to defence personnel would be different from state to state and because it is preferable to make provision only for specific tasks the Defence Force might be asked to perform.

Other unique difficulties exist for Australia in relation to the nature of our federal structure. Each state and territory currently has different emergency legislation. In addition, the Constitution specifically prohibits and precludes the exercise of control over Defence Force personnel other than by the Commonwealth. This situation makes it imperative for federal legislation to provide a cohesive and clear framework for call-out.

The concept behind this bill, therefore, is to modernise the procedures to be followed for call-out of the Defence Force, set out safeguards, including parliamentary supervision, and specify the powers and obligations of the Defence Force when used to assist the police, as a last resort, in the counter-terrorist assault role and for related public safety tasks.

The bill amends the Defence Act 1903 by repealing most of section 51 and adding a new part. The government also proposes to repeal those parts of the Australian military and Air Force regulations that deal with call-out. Under the bill, call-out may be initiated to protect Commonwealth interests or on the application of a state or territory to assist that state or territory to resolve a law enforcement incident. The proposed legislation is consistent with the obligation imposed on the Commonwealth under section 119 of the Constitution to protect a state, upon request to the Commonwealth, against domestic violence.

Call-out will occur only if the Prime Minister, Minister for Defence and Attorney-General agree that a state or territory is not, or is unlikely to be, able to protect the Commonwealth or itself against the domestic violence. In making or revoking an order, the Governor-General acts on the advice of Executive Council or, for reasons of urgency, he or she is to act with the advice of an authorising minister. The Chief of the Defence Force is to use the Defence Force for the purpose set out in the order. Subject to directions from the minister, the Chief of the Defence Force will determine the composition of the force to be deployed and will exercise command of it.

The Chief of the Defence Force must ensure that the Defence Force, while remaining under his command at all times, must assist and cooperate with the police force of the state or territory. Members of the Defence Force will only be able to exercise such powers as are specified in the order, which in turn may only be from those powers that are set out in the bill. As far as is practicable, members of the Defence Force will not be able to exercise these powers unless requested to perform a task by the police of the state or territory.

The order must state the nature of the Commonwealth interest threatened and the domestic violence. It must state that it comes into force when made and, unless revoked earlier, it will cease after 20 days. The order must be revoked if the ministers cease to be satisfied that call-out is warranted or if the state or territory withdraws its application. When an order or orders cease to be in force, the Minister for Defence must, as soon as practicable and within three sitting days, table a copy of the order or orders and any declarations and report on the use of the Defence Force.

The Defence Force counter-terrorist assault role will be provided for in division 2 of the proposed new part. This division authorises the assault force to, among other things, rescue hostages and recapture premises. The division also permits these personnel to do things related to this purpose, such as detaining suspects until they can be handed over to a police officer, evacuating persons found in the premises, searching the premises for dangerous objects, and seizing and making safe such objects.

In relation to those tasks associated with public safety arising from an emergency, specified powers will be set out in division 3. I should emphasise that these powers will be conferred on members of the Defence Force when a general or designated security area is declared by ministers, and only on those personnel called out. The fact of the declaration of a general or designated security area, the reasons for the declaration of such an area, and the powers that the Defence Force may exercise in it must be advised to the public.

Within a general security area, if the Chief of the Defence Force or an officer authorised by him believes on reasonable grounds that there is a dangerous object, such as a bomb, chemical weapon or firearm that could be used to cause death, serious injury to persons, or serious damage to property on any premises in the area, and it is necessary as a matter of urgency to make the dangerous object safe or prevent it being used, then members of the Defence Force may be authorised to search such premises. The authorisation requires the following matters to be set out:

a description of the premises;

identification of the member in charge;

the names of the authorising officer and other search members authorised to carry out the search;

authorise the seizure of items believed on reasonable grounds to be a dangerous object;

authorise the search of persons near the premises who are believed on reasonable grounds to have a dangerous object in his or her possession;

to seize that object; and

state the time that the authorisation remains in force, which cannot be for more than 24 hours.

In acting under the authorisation, the member of the Defence Force may use such force as is reasonable and necessary in the circumstances.

A copy of the authorisation has to be given to the occupier, the member in charge must identify themselves to the occupier, and any person searched must be shown a copy of the authorisation. The occupier is entitled to observe the search provided the person does not attempt to impede the search.

Defence Force members may also be authorised to search a means of transport in the area if they believe on reasonable grounds that the transport contains a dangerous object, and they may erect barriers and use reasonable and necessary force to stop, detain and search the transport for as long as necessary to search it and to seize any dangerous thing. If there are reasonable grounds for believing that a person in the general security area is in possession of a dangerous object, Defence Force members may search the person and seize the dangerous thing.

Division 3 also introduces the concept of the designated area which the ministers may declare to be in effect within the confines of the general security area. If such an area is declared, it must once again be advised to the public, including its specific boundaries.

Within the designated area, a member of the Defence Force may use reasonable and necessary force to direct a person not to bring a means of transport, such as a car, into the area, to take it out of the area, move it to another place within the area or not to move it at all.

Within the designated area, members of the Defence Force may erect barriers and remove or move any unattended means of transport. They may direct a person not to enter the area, to leave it, or to move from one place to another within it, and enter and search premises or a means of transport for the purposes of directing any person found therein to leave the area. It will also be possible for members to make it a condition of entry that a person or vehicle be searched for any dangerous object.

Defence Force members will be authorised to make safe or prevent from being used any dangerous object seized under these provisions and, if practicable, will be required to issue a receipt for it. If it is suspected to have been used in the commission of an offence, then it must be given to a police officer; if not, then it must be returned to the owner. Someone who is suspected of having used a dangerous object to commit an offence may be detained and handed over to the police. In detaining such persons, necessary force may be used and, if practicable, the person must be advised of the nature of the offence unless this is clear in the circumstances.

When exercising the authorities set out in division 3 it will be an offence for a Defence Force member not to wear uniform and identification attached to the front of the uniform, except where the absence of identification is caused by the act of someone else. It will also be an offence to obstruct a member performing these duties. If a member fails to comply with any obligation in relation to the exercise of these authorities then they will be taken not to have been entitled to exercise them.

The bill has no effect on uses or authorities of the Defence Force under other legislation and powers such as customs, immigration and fisheries legislation. The bill also preserves the current prohibition set out in section 51 of the Defence Act regarding the use of Defence Force elements in connection with industrial disputes.

The bill attempts to provide for the changing nature of the terrorist threat, a threat that was not within contemplation when the Defence Act and its regulations were drafted almost 100 years ago. Today we must be on our guard against not only deadly military style conventional weapons but also the so-called weapons of mass destruction. When the sarin gas device was triggered in Tokyo the lack of control and capability at the scene resulted in around 5,000 people fanning out around the city to contaminate other persons and medical facilities. While there is no expectation that we will ever confront such a threat it would be irresponsible not to be prepared for it. It is scenarios such as this that the division 3 provisions were designed to address.

Whilst it is the government's intention to bring this bill into effect prior to the Olympics, it should be viewed in the wider context of our counter-terrorist preparedness and in that context it should also form part of our long-term deterrence posture. Through these measures international terrorists will know that we are serious and we are prepared.

The bill provides for the limited use of the Defence Force in the last resort where there is a significant threat to public safety or to deal with an armed terrorist attack where the resources or capability of a state or territory may not be adequate. It does so without derogation from our cherished standards of justice and due process of the law. It provides safeguards and accountability. The tasks and authorities of the Defence Force are clearly spelled out so that both the public and the Defence Force know exactly what to expect. This also provides a sound basis upon which the Defence Force can train so that their responses and actions will be measured and appropriate. The bill does not interfere with the jurisdiction of the courts to supervise the actions of the Defence Force. Members of the Defence Force remain accountable for their decisions to use force and the lawfulness of their actions. However, the bill does provide Defence Force members with better protection for the action they may reasonably take.

Finally this bill enshrines fundamental democratic principles in the call-out process as opposed to the current inadequate legislative framework and emphasises and provides for the primacy of civilian control. It is a bill which is long overdue and I commend it to the House. I present the explanatory memorandum to this bill.

Leave granted for debate to continue forthwith.