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New laws to give soldiers controversial powers in domestic emergencies

http://www.abc.net.au/7.30/s161830.htm

KERRY O’BRIEN: As authorities start stepping up security
measures for the Sydney Olympics — now only 36 days
away — Australia’s defence forces are set to receive new
powers that could put them on a collision course with the
host city’s police.

The Federal Government is trying to introduce controversial
new laws that will allow soldiers a range of sweeping
powers, including the discretion to shoot civilians, if the
military is called out to assist the police in an emergency.

The 7:30 Report has learned that senior defence officials
urged that the new laws be in place by October last year.

But the law is now being pushed through the parliament in a
last-minute scramble before the Olympics.

Matt Brown reports.

MATT BROWN: If terrorists strike during the Olympic
Games, these soldiers could be the Government’s last
hope.

Last-minute attempts to make their powers clear are running
into serious trouble.

PAUL BARRATT, FORMER HEAD, DEFENCE
DEPARTMENT: The question has always been if they shoot
other than in their own self-defence, have they committed
murder?

MATT BROWN: By the time of the Olympics, these soldiers
will have the clear legal power to shoot civilians on
Australian soil.

JOHN MOORE, DEFENCE MINISTER: The bill was put into
place with the agreement of the Opposition.

It’s done so to place Australian ADF members in a position
where they can’t be legally challenged if they are carrying
out their legal duties.

MATT BROWN: But the proposed new laws would also give
soldiers the sorts of sweeping powers usually reserved only
for the police.

MARK FINDLAY, INSTITUTE OF CRIMINOLOGY, SYDNEY
UNI: Under these laws, the soldier could stop, he could
search, he could apprehend an arrest.

He could detain.

There is a shoot to kill possibility in this legislation.

Reluctant as the legislation is for it to occur, it’s still there.

MATT BROWN: Ever since the Hilton bombing, the powers
of soldiers in a civilian environment have been left uncertain.

PAUL BARRATT: When the Fraser Government called out
the soldiers in the wake of the Hilton bombing, they were in
a very uncertain legal environment.

I was briefed on this when I first became secretary of
defence.

I just thought it was outrageous.

MATT BROWN: The new law attempts to define the powers
and remove any confusion, but the law itself seems to be
creating confusion.

After the Hilton bombing, defence and security officials
created the national anti-terrorism plan.

It is today the crucial blueprint for combined action by the
State police, intelligence agencies and the military.

The national anti-terrorism plan is at the heart of the
Olympic security machine.

But the NSW Government is worried that the new Federal
laws could override the plan because it would mean the
Federal Government could make a unilateral decision to
send in the troops.

The director of the State Cabinet Office has written to a
Senate committee asking for the laws to be redrawn.

DOCUMENT FROM THE NSW CABINET OFFICE: This
approach leaves open the possibility of conflict between
State police and Commonwealth Defence Forces, which
should obviously be avoided at all costs.

JOHN MOORE: There are limits to what can happen.

So for any State Government to say that means that they
don’t have faith in their own police force.

MATT BROWN: Both the commander of Olympic security in
NSW and his police commissioner are aware of the
concerns expressed by their Government and say they have
nothing to add.

One of the crucial conditions on sending in the troops is
being faced with terrorism, or what security officials call
domestic violence.

But the NSW Government says the Federal Government
could be about to weaken that crucial threshold.

DOCUMENT FROM NSW CABINET OFFICE: The provision
applies that where it is considered that domestic violence is
merely “likely to occur.”

Again, this broadens the scope of the Commonwealth’s
power in a manner which gives rise to doubts about its
Constitutional basis.

MATT BROWN: And in WA there are similar concerns.

RICHARD COURT, WA PREMIER: There is no need to
bring about these changes.

We are very concerned that a change would mean that the
Commonwealth would have unfettered powers to bring the
defence forces into the State without any consultation.

MATT BROWN: And consider what might happen once
Australian soldiers do start getting into contact with civilians
in tense situations.

The Victorian police force says the military are not up to
dealing with the public.

They’ve also written to a Senate committee asking for the
law to be redrafted.

VICTORIA POLICE DOCUMENT: Cross-training during
operation safety and tactics training conducted by Victoria
Police revealed that members of the Defence Force are
ill-equipped in this area.

The legislation does not adequately deal with the
accountability to the criminal justice system.

MARK FINDLAY: It might be that Aboriginal people are
demonstrating about a reconciliation issue which has been
settled in a State, but is a problem for the Commonwealth.

It might be that the PM is going to a university campus and
wants a military escort.

I think there are a wide range of situations where we think
we should have the opportunity to express ourselves in
public and that we wouldn’t necessarily want the military
controlling that.

MATT BROWN: Officials here at the Department of Defence
in Canberra have been working on the new laws for two and
a half years, but it’s only recently that the Defence Minister,
John Moore, got his bill through the House of
Representatives and it’s yet to clear the Senate.

It’s all supposed to be in place in time for the Olympic
Games, but more than 20 years after the Hilton bombing,
questions are now being asked, why has it taken so long?

PAUL BARRATT: Here we are, a few weeks ahead of the
start of the Olympics.

You have State Governments expressing Constitutional
concerns about the legislation which is in the Senate.

MATT BROWN: Paul Barratt was the head of the Defence
Department.

Then he had a bitter dispute with the minister, John Moore,
and he left.

PAUL BARRATT: I became very concerned by the middle of
last year that there was one very obvious event approaching
which could lead to a terrorist incident, that was the
Olympics.

So, in about the middle of last year, the chief of the Defence
Force and I started jumping up and down, saying, “We’ve
got to get on with this.

We’ve got to get the legislation passed.

We need a clear 12 months.”

JOHN MOORE: I wouldn’t comment on that.

That’s a matter within the department.

Departments make all sorts of suggestions here on a daily
basis, sometimes on an hourly basis.

The only thing that matters is the Government decision.

PAUL BARRATT: It’s a pretty poor performance.

Mr Moore never tires of telling us he’ll accept nothing less
than the highest standards of performance from the defence
organisation.

It would be nice if he would apply those same criteria to his
own performance.

JOHN MOORE: I’m not aware of any particular advice, and if
I was, I wouldn’t be disclosing it.

MATT BROWN: The new laws are presently before a Senate
inquiry.

With support from the ALP all but guaranteed, they’ll be in
place for the Olympic Games and beyond.