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senate vote 2006-02-08#1
Edited by
mackay staff
on
2016-12-10 01:44:31
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Title
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] — In Committee- Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 [2006] — In Committee - Protest
Description
<p>Bill—by leave—taken as a whole.</p>- The majority voted to keep certain items (schedule 2, item 5 and schedule 3, item 3) in the [bill](http://parlinfo.aph.gov.au/parlInfo/search/display/display.w3p;query=Id:legislation/billhome/S493) unchanged.
- This vote happened after Greens Senator [Bob Brown](https://theyvoteforyou.org.au/people/senate/tasmania/bob_brown) moved the following:
- > *(1) Schedule 2, item 5, page 26 (lines 11 to 25), TO BE OPPOSED.*
- > *(2) Schedule 3, item 3, page 31 (line 30) to page 32 (line 13), TO BE OPPOSED.*
- This means that Senator Brown wanted the Senate to reject these items. However, he was unsuccessful and the items remained unchanged.
- ### What were the items that Senator Brown opposed?
- Senator Brown [explained](http://www.openaustralia.org.au/senate/?gid=2006-02-08.26.1) that he opposed the two items because they would mean that:
- > *... the Chief of the Defence Force, acting on the direction of the Prime Minister, can intervene on a protest by Australians where he or she thinks there is a reasonable chance of serious damage to property. In other words, the Prime Minister can have the Chief of the Defence Force send troops into action against Australians who are protesting on any account.*
- #### Text of Schedule 2, item 5:
- > *Insert:*
- > *(2A) Despite subsection (1), in exercising powers under Division 2A, a member of the Defence Force must not, in using force against a person:*
- >> *(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member believes on reasonable grounds that doing that thing is necessary to:*
- >>> *(i) protect the life of, or to prevent serious injury to, another person (including the member); or*
- >>> *(ii) protect, against the threat concerned, the designated critical infrastructure in respect of which the powers are being exercised; or*
- >> *(b) subject the person to greater indignity than is reasonable and necessary in the circumstances.*
- #### Text of Schedule 3, item 3:
- > *Insert:*
- > *(2B) Despite subsection (1), in exercising powers under subparagraph 51SE(1)(a)(i) or (ii) or Division 3B, a member of the Defence Force must not, in using force against a person or thing, do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member believes on reasonable grounds that:*
- >> *(a) doing that thing is necessary to protect the life of, or to prevent serious injury to, another person (including the member); or*
- >> *(b) doing that thing is necessary to protect designated critical infrastructure against a threat of damage or disruption to its operation; or*
- >> *(c) doing that thing is necessary and reasonable to give effect to the order under which, or under the authority of which, the member is acting.*
- ### Learn more about the bill
- See the [bills digest](http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/bd/bd0506/06bd092) for more information about the bill.
<p class="speaker">Bob Brown</p><p>The Greens will be moving the amendments that I foreshadowed in the second reading debate. The government amendments (1) to (10) come up first in the order on the running sheet, and they begin with a declaration of designated critical infrastructure. I might begin by asking the minister to explain what limitation is put on that declaration.</p> <p class="speaker">Gavin Marshall</p><p> I will ask the minister to move those amendments first and then respond to your question.</p> <p class="speaker">Ian Campbell</p><p>by leave—I move together government amendments (1) to (10) on sheet PA330:</p><p class="italic">(1)    Schedule 2, item 3, page 24 (after line 30), at the end of section 51CB, add:</p><p class="italic">        (5)    If the infrastructure, or the part of the infrastructure, is in a State or a self-governing Territory:</p><p class="italic">             (a)    the authorising Ministers may make the declaration referred to in subsection (1) whether or not the Government of the State or the self-governing Territory requests the making of the declaration; and</p><p class="italic">             (b)    if the Government of the State or the self-governing Territory does not request the making of the declaration referred to in subsection (1), an authorising Minister must, subject to subsection (6), consult that Government about the making of the declaration.</p><p class="italic">        (6)    However, paragraph (5)(b) does not apply if the authorising Ministers are satisfied that, for reasons of urgency, it is impracticable to comply with the requirements of that paragraph.</p><p class="italic">(2)   Schedule 3, item 1, page 27 (line 21), after “section 51A”, insert “or 51AA (as the case requires)”.</p><p class="italic">(3)   Schedule 4, item 1, page 33 (after line 29), after subsection 51CA(2), insert:</p><p>Expedited call out by an authorising Minister and another Minister</p><p class="italic">     (2A)    An authorising Minister, together with the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer, may make an order of a kind that the Governor-General is empowered to make under section 51A, 51AA, 51AB, 51B or 51C if the Ministers are satisfied that:</p><p class="italic">             (a)    because a sudden and extraordinary emergency exists, it is not practicable for an order to be made under that section; and</p><p class="italic">             (b)    the Prime Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (1) of this section; and</p><p class="italic">             (c)    the remaining authorising Minister is unable to be contacted for the purposes of considering whether to make, and making, an order under subsection (2) of this section; and</p><p class="italic">             (d)    the circumstances referred to in subsection 51A(1), 51AA(1), 51AB(1), 51B(1) or 51C(1) (as the case requires) exist.</p><p class="italic">(4)   Schedule 4, item 1, page 34 (line 7), after “subsection (2)”, insert “or (2A)”.</p><p class="italic">(5)   Schedule 4, item 1, page 34 (line 8), omit “authorising”.</p><p class="italic">(6)   Schedule 4, item 1, page 34 (line 13), omit “authorising”.</p><p class="italic">(7)   Schedule 4, item 1, page 34 (line 18), omit “authorising”.</p><p class="italic">(8)   Schedule 4, item 1, page 34 (line 28), omit “authorising”.</p><p class="italic">(9)   Schedule 4, item 1, page 34 (line 29), omit “authorising”.</p><p class="italic">(10) Schedule 4, item 1, page 35 (line 28), omit “authorising”.</p><p>I table a supplementary explanatory memorandum relating to the government amendments. I am informed that the memorandum was circulated in the chamber yesterday. My apologies to Senator Brown: I was just seeking some advice on the running sheet when, I understand, you asked a question. If you could repeat it for my benefit, I would appreciate it.</p> <p class="speaker">Bob Brown</p><p>Amendment (1) is to do with a declaration of designated critical infrastructure. The legislation says that the defence forces can be deployed by the Prime Minister, the Minister for Foreign Affairs or the Treasurer—extraordinarily enough—to defend critical infrastructure. But when you look at it, there is no qualification on that. It could be any communication, for example. It could be defending a computer which is connected to the Commonwealth information output in the country.</p><p>The point that I want to establish is that any of those three ministers—the Prime Minister, the Minister for Foreign Affairs or the Treasurer—can determine what is critical infrastructure, and there is no limitation on that. It is not specified. As we know, a minister can find that any piece of infrastructure in the country is critical. I just wanted to have it established that there is no limit on what can be designated as critical under these circumstances. I ask the minister: could a dam in Tasmania; or a coal ship in the ports of Newcastle, Wollongong or Gladstone; or loading facilities—if a protest were taking place for some reason—be designated as critical infrastructure?</p><p>What is extraordinary is the appearance of the Treasurer on the list of the three people who can call out the troops. I was wrong in my speech on the second reading when I mentioned the Minister for Defence. It is not that minister. The Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer are involved here. I would like the minister to make it clear to the Senate just who can call out the troops and under what circumstances.</p> <p class="speaker">Ian Campbell</p><p>The critical infrastructure will be determined at the time, relevant to the threat. I know that Senator Brown would like more clarity around that, but obviously threats are hard to predict. I think the concept of critical infrastructure in a terrorism threat situation is not a particularly complex one. To create some sort of list, or even guidelines, as to what it might be would be likely to be playing  into the hands of the people you are trying to defend the country against in a potential threat—which is the situation in which you would require Australian defence forces to become involved.</p><p>The other question, as I heard it, was in relation to the involvement of senior ministers. My advice, and the government’s view, is that you clearly need responsibility to be held by key senior ministers in the government who are responsible to this parliament. As I understand it, under the existing law the Prime Minister is the only one who can act as a proxy, effectively, for the Governor-General. That was the original concept. We have broadened it to create a bit more flexibility in the circumstances where the Prime Minister would not be available at short notice. The structure that we have put in place to maintain not only accountability but also a high level of responsibility is that, in effect, you have only members of the National Security Committee of the cabinet—of which clearly the Treasurer is a member. That is the reason why the Treasurer is there. It is not because of his day job as Treasurer; it is because of his job as a member of the National Security Committee.</p> <p class="speaker">Bob Brown</p><p>That means that if the Prime Minister, in any manner of ways, were to be temporarily out of contact—he may be ill, on holidays or at the pictures—and an urgent situation were to arise, the Treasurer could take over the authority that this bill so wrongly gives to the Prime Minister, with the states excluded, to call out the troops. Ditto the Deputy Prime Minister—which would be the Leader of The Nationals under the current situation—and the Minister for Foreign Affairs. What we have here is a creeping authorisation of members of government, usurping the Constitution, to authorise the call-out of troops against Australian citizens. This is fundamentally dangerous legislation.</p><p>We cannot say, ‘Let’s look at this as this nation currently works.’ What we have to do is project a century ahead, look at the history of other countries and ask, ‘In circumstances in which we could find ourselves of an erosion of our democratic security and the cohesion of this nation, could not this legislation be interpreted in such a way that a future Treasurer or Prime Minister could call out the troops against the interests of the citizens of the country as a whole and with the state governments, who are constitutionally empowered to authorise such a call-out, put aside by this piece of legislation?’ The answer is, very worryingly—yes, that can happen. The amendment is not acceptable to the Greens.</p> <p class="speaker">Ian Campbell</p><p>I think two points need to be made quite clearly. Firstly, the rhetoric of Senator Brown, effectively advising people that the intent of this law is to have some sort of Dr Strangelove character unleashing the lethal force of the Australian defence forces against Australians, is certainly stretching things or at the very worst building a straw man. One of the features of the law is that one of the authorising ministers would have to be the Minister for Defence or the Attorney-General and at all times two ministers are required to authorise a call-out in the circumstances envisaged by this law. The circumstances envisaged by this law, based on all legal advice given to this government and previous governments, are that the use of the Australian defence forces in these circumstances is entirely constitutional. It does not usurp the Constitution, as Senator Brown claims.</p><p>A call-out would be done in the event that the civilian forces—these would generally be authorities of the state government such as the police force or some other force—had been overwhelmed and there was a need for a greater force to come in and assist. This is the design that is envisaged. It is something that national security requires, and this law as it stands and the amendments we seek to make today are to add clarity to that, not to usurp the Constitution. That is not what we seek to do. We are trying to make Australia a safer place and to do so in a way that would deal with a potentially extraordinary situation. We seek to ensure, to pick up Senator Brown’s, I think, fair point, that when we make laws in this place we do need to think 10, 20, 30 or 50 years down the track.</p><p>This law is being amended because it was put in place back in 2000, as I recall, and has been reviewed, quite properly, by eminent Australians with expertise in this area. These amendments before the chamber at the moment reflect that review. That is not to say that a future parliament could not review the operation of this act; I am sure it will. But we are putting in place what we think are sensible, sound accountability measures that ensure that one of the authorising ministers is the defence minister or the Attorney-General and that at all times two ministers are required. It is the government’s view, and I think we have the support of the opposition on this, that those ministers should, appropriately, be members of the National Security Committee of cabinet. The practical and sensible reason for that is that these are the ministers who are on a regular basis in touch with and briefed on security issues that affect the nation and the world and so have a context and a level of information built up, generally speaking, over a long period of time as would help and guide them in the decisions to utilise the powers within this law.</p><p>Question agreed to.</p> <p class='motion-notice motion-notice-truncated'>Long debate text truncated.</p>
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