Stephen Smith MP
Minister for Defence
The Defence Legislation Amendment (Security of Defence Premises) Bill 2010 (the Bill) will insert a new Part (Part VIA) into the Defence Act 1903 (the Act). This gives effect to Australian Government initiatives to enhance the security of Defence bases, facilities, assets and personnel, within Australia, in response to the changing nature of security threats.
In August 2009 a number of individuals were arrested for allegedly planning an armed attack against Holsworthy Army Base. Defence facilities and personnel are potentially attractive targets for terrorist groups.
Defence maintains a framework of protective security measures to safeguard defence personnel and facilities. But, in view of the changing security environment including the increased risk of terrorism, in August 2009 the Government asked Defence to conduct a comprehensive review of base security.
The Review of Defence Protective Security Arrangements subsequently recommended a number of policy and physical security initiatives to complement and strengthen existing security at Defence bases.
One of the recommendations of the Review was to bring forward a number of legislative amendments. These are contained within this Bill. The measures reflect the importance the Government places on the safety and security of Australian Defence Force (ADF) members, Defence employees and the Australian public.
First, the Bill strengthens the legal regime for ADF members who may be required to use reasonable and necessary force in the event of a terrorist attack on a Defence base.
Various Commonwealth, State and Territory legislative provisions recognise the right to defend yourself and others who are threatened. These currently provide a legal basis for members of the ADF to use reasonable and necessary force to defend themselves, or others, in the event of an attack on a base that is likely to cause death or injury.
The Bill provides a scope of conduct that will apply uniformly for designated ADF members for the security of Defence premises.
Appropriately-trained and authorised members of the ADF may use up to and including lethal force where this is considered reasonable and necessary to protect life or prevent serious injury to themselves or others in the event of an actual or imminent attack on Defence premises or people on those premises.
It is modelled on the existing section 51T of the Act which applies to the use of force by ADF members in assisting civilian authorities with domestic security incidents and violence under Part IIIAAA.
The Bill does not alter the primacy of civil law enforcement authorities in responding to security incidents at Defence premises. A full response to a terrorist incident clearly remains the responsibility of civil law enforcement authorities, and would be managed under the National Counter Terrorism Plan.
Second, the Bill establishes a statutory regime of search and seizure powers to reduce the risk of unauthorised items entering Defence facilities, or restricted items being improperly removed.
The Della-Vedova case, involving the theft, possession and sale of Defence owned rocket launchers by a Defence employee, illustrates the risk of improper removal of dangerous, restricted or classified items from Defence bases.
The Bill establishes a statutory regime of search and seizure powers to be exercised by three identified classes of Defence security officials, who will perform security functions at Defence facilities.
These officials, identified in Division 2 of the Bill, are:
- defence contracted security guards;
- security authorised members of the Defence Force; and
- defence security screening Australian Public Service (APS) employees.
All three classes of officials will be empowered under Division 3 of the new Part to:
- request evidence of a person’s identification and authority to be on defence premises;
- conduct a consensual search of a person, vehicle, vessel, aircraft or item on entry to or exit from a Defence facility; and
- in defined circumstances, refuse a person entry to or free exit from the facility, and potentially restrain and detain the person for the purposes of placing them in the custody of the police.
The circumstances where these latter powers might be invoked include when the security official reasonably believes that the individual is a trespasser, has or may commit a criminal offence on the premises, or constitutes a threat to the safety of people on the facility.
Security authorised ADF members or, where such members are not available, Defence security screening APS employees will be further empowered under Divisions 4 and 5 of the Part, to:
- require evidence of a person’s identification and authority to be on the premises;
- conduct a non-consensual search of a person, vehicle, vessel, aircraft or item on entry to or exit from a Defence facility;
- seize items that constitute a threat to safety or relate to the commission of a criminal offence on the premises; and
- in defined circumstances, remove people from Defence premises.
The powers of security authorised ADF members will extend to include, where reasonable and necessary, the authority to take any action required to make a seized item safe, or prevent its use.
The statutory regime incorporates a range of safeguards relating to the exercise of powers under the new Part. These safeguards require that officials exercising these powers must:
- have been authorised by the Minister for Defence;
- have completed a minimum level of appropriate training as determined by the Minister for Defence or his delegate;
- carry an identity card in a form approved by the Secretary of Defence;
- surrender their identity card within 7 days of ceasing to be a security official;
- wherever practicable produce their identity card for inspection by a person, prior to exercising powers under this new Part;
- not stop or restrict any protest, dissent, assembly or industrial action;
- not subject a person to greater indignity than is reasonable and necessary;
- only use such force against a person or thing that is reasonable and necessary;
- only restrain and detain for the purposes of handing a person over to the police; and
- in respect of seized items, provide the person with a receipt if it is practicable to do so and, if there is a reasonable belief that the item relates to a criminal offence, give the item to the police.
Moreover, for the purposes of the consensual search regime contained in Division 3, the amendments will create offences for a Defence security official who conducts a search of a person, vehicle, vessel, aircraft or thing, without consent.
In practice, the exercise of these powers and the proposed use of the various classes of Defence security official will be dependent on the nature of the site and the assessed level of the security threat, typically determined on the basis of intelligence.
For example, in practice, the consensual identification and search powers, contained in Division 3, will generally be exercised by contracted security guards, on a random basis, on entry to and exit from Defence premises at low to medium threat levels.
The non-consensual identification, search and seizure powers, contained in Divisions 4 and 5, will be exercised by security authorised members of the Defence Force or, where such members are not reasonably available, by Defence security screening APS employees during higher threat levels on all Defence premises and, at all times, at Defence’s more sensitive sites. Under these circumstances, the powers would be exercised on a more frequent basis to provide an increased level of security in line with the assessed risk.
Third, the Bill updates the existing trespass offence and associated arrest power in the Act to clarify that Defence has adequate powers to deal with unauthorised entry to all Defence premises.
Currently, the Defence Act 1903 imposes a monetary penalty of $40 for the offence of trespass. This is not an effective deterrent to potential trespassers nor does it reflect potential threats to national security. Consequently, in line with current Commonwealth criminal law policy, the amendments impose a new maximum penalty of $5,500 for the offence of trespassing on Defence premises or accommodation.
Defence is the largest Commonwealth landowner and one of the largest landowners in Australia. The Department manages an estate comprised of in excess of 3 million hectares of land, around 88 major bases or facilities, approximately 370 owned properties and a further 350 under lease. This poses a major challenge to detecting trespassers, particularly if detection was to rely exclusively on the use of manned patrols.
Consequently, to support the enforcement of the new trespass offence, Defence intends to increase the use of optical surveillance on Defence premises, including vessels and aircraft, to improve the Department’s capacity to detect and apprehend potential trespassers. This may include video surveillance including Closed Circuit Television (CCTV).
Further, as the purpose of surveillance activity undertaken by Defence would be to identify and deal with potential security threats, the Commonwealth needs to rely on any images captured to assist intelligence agencies, and as evidence to support any action by law enforcement agencies and Commonwealth, State and Territory public prosecution authorities.
Consequently, the amendments will insert new provisions that:
- authorise Defence to use optical surveillance devices for the purposes of monitoring the security of Defence premises and the safety of people on those premises; and
- authorise Defence to disclose information, including personal information, captured by those devices to intelligence agencies, law enforcement agencies and Commonwealth, State and Territory public prosecution authorities for the purposes of carrying out their statutory functions.
In conclusion, this Bill confers a range of powers on designated Defence security officials to allow the ADF and the Department to deter, detect and respond to incidents that threaten the security of Defence bases, facilities, assets and personnel within Australia.
The Bill reflects the Australian Government’s commitment to protect the men and women who safeguard our nation.
I commend this Bill to the House.
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