1-25-06, 9:26 am
Australian society has become increasingly militarised over the last five years but legislation introduced in the Senate on December 7, as many people were winding down for the summer break, goes much further. If passed it would make it easier to call out the Australian Defence Forces (ADF) to police and shoot Australian civilians. The powers go well beyond dealing with a terrorist threat and they put the military involved above state criminal laws.
Original powers to intervene in civilian public order management were given to the ADF to be used during the 2000 Sydney Olympics, although the government probably always had the power to use the military in certain emergency situations. Since that time, the military has been given more real and symbolic powers in Australian society.
The legal role of the ADF has been expanded in areas to include migration and customs. Its actual role has been expanded by deployment overseas, such as Iraq, Afghanistan and the Solomon Islands. At home, the ADF was used during Tampa incident, when the Special Air Service Regiment (SAS) was used to rescue refugees from a Norwegian vessel because the government had refused permission for the ship to come ashore. With Operation Rolex, the ADF was used – and is authorised to continue to use – powers to prevent refugee boats from entering Australian waters.
On a symbolic level, the ADF’s has a higher profile in civil society. The Governor-General, Michael Jeffery, is a retired Major-General in the SAS, and has seen service in Malaya, Borneo, Papua New Guinea and Vietnam. The symbolic nature of Anzac Day, a celebration that almost died out in the 1960s, has been elevated and conflated with a tribute to all serving ADF personnel, rather than just soldiers who fought on a particular beach in Turkey.
Additionally, of course, the ADF is used to a greater extent in the “war on terror”. It is involved in planning and joint counter-terrorism exercises with the police. This has led to a complementary process – as Melbourne academic Dr Jude McCulloch has pointed out – the increased “para-militarisation” of the police, as a result of the ADF working with and training State and Territory police forces.
“Following orders” defence
The proposed law in the Australian Parliament, which is expected to be passed in February 2006, is the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005.
Highlights from the proposed law include:
•making it easier for the ADF to be called out where there is a threat to any “designated infrastructure” – whether that threat is terrorist threat or not.
•expanded “shoot-to-kill” powers so that civilians can now be shot for the protection of property from “damage or disruption”. The so-called “shoot-to-kill” powers come from the fact that once the ADF is deployed, it may shoot civilians in order to kill them.
•soldiers are given immunity from state criminal law and a “following orders” defence is provided.
•the Prime Minister alone may authorise troops to be called out where a “sudden and extraordinary emergency exists”.
•individual soldiers will be given the power to police civilians, including tasks such as requiring people to answer questions or produce documents.
•no need to notify the public that troops have been called out by broadcasting or publishing the call out.
•soldiers may operate anonym-ously.
•any requirement that troops had to wear identification, typically a surname, has been removed.
Under the amended legislation, the Federal Government may use the ADF to protect “Commonwealth interests”, even if the State or Territory concerned opposes it. The Prime Minister, Defence Minister, or the Attorney-General may advise the Governor-General, who is formally the Commander-in-Chief of the Armed Forces, to call out troops to deal with “domestic violence” – as vague as that phrase is.
Wider than police powers
Many of the powers given to the ADF in these situations are wider than police powers.
•shoot fleeing civilians evading detention (something not available to the ordinary police).
•may detain people without arresting them (something in practice used by the police, but they do not generally have the specific legal power to do so).
•search premises and people and vehicles without warrants (thus avoiding judicial scrutiny).
Secret Army Manuals
One area of particular concern is the failure of the proposed laws to require the public release Army Manuals in relation to ADF rules of engagement with civilians. One submission to the parliamentary committee reviewing the laws has pointed out that Greens Senator Bob Brown has read out extracts from the Australian Army Manual of Land Warfare, which was produced in 1983 and was leaked to the press in 1993.
Even at this early time (1983), the role of the ADF seemed unnecessarily politicised. The 1983 Manual said that “civil disobedience, mass violence and terrorism have become common methods of dissent throughout the world in recent years”. The Manual further spoke of the use of detention centres and the need to open fire on “unlawful assemblies”.
It is worrying, of course, that the words “terrorism” and “civil disobedience” are in the same sentence – almost giving equal weight to both.
Senator Brown makes particular reference to s543 of the Manual, which instructs military personnel to adopt courses of conduct which seem designed to cover up the killing or wounding of “dissidents”.
S543 of the Manual says in part: “Dead and wounded dissidents, if identifiable, must be removed immediately by the police ... When being reported, dissident and own casualties are categorised merely as dead or wounded. To inhibit propaganda exploitation by the dissidents the cause of the casualties (for example, “shot”) is not reported. A follow-up operation should be carried out to maintain the momentum of the dispersing crowd.”
In the absence of current and future copies of the Manual being made public, one can only assume that the widest rules of engagement have been given to the ADF to fire on demonstrators given the immediate social and political environment that has been produced by the “war on terrorism”.
The passage of the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 seems almost guaranteed – given the political position of the Labor opposition in supporting the government on almost all issues involving “national security”.
At the time of writing, the December 16 Australian reports on revived discussion about the practicalities of a National Identification card for Australians. New laws, new restrictions, human rights taken away, are certain to occur throughout 2006.
The text of the proposed law, the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005, and relevant documents can be found at the official Parliamentary website www.aph.gov.au and clicking on Bills, followed by Current Bills and then the name of the Bill.
The Bill was referred to the Legal and Constitutional References Committee on December 8, 2005 and the closing date for submissions was January 16! The Committee is to report by February 7.
From The Guardian
--Dale Mills MA (Camb), Dip.LSIR (Westminster) was the primary researcher for ASIO, The Police and You and is currently a student in the Law Faculty at the University of Technology, Sydney.
