Thursday, 28 June 2018

RN – Breakfast with Hamish Macdonald



Subjects: Defence call-out, national security bills/Ernest Wong & cross examination in family courts

HAMISH MACDONALD: Elite SAS troops could be deployed to counter terror attacks on Australian streets under legislation to be introduced today to Federal Parliament. The sweeping new call-out powers will make it much easier for the military to help police handle terror incidents and civil disturbances such as wide-spread rioting. The change has been prompted by the Lindt Café siege in 2014, in which two hostages were killed at the end of a lengthy stand-off. Attorney-General Christian Porter joins us from Parliament this morning. Welcome back to Breakfast.

ATTORNEY GENERAL: Thank you, Hamish.

HAMISH MACDONALD: This bill will lower the threshold for the call-out of the military. Can you explain for us under what scenario the Prime Minister would effectively be sending soldiers out onto Australian streets?

ATTORNEY GENERAL: Sure. So the existing threshold is a determination would need to be made inside the state or territory where a terrorist event or incident happens that they were very unlikely or unable to cope with the terrorist event. So effectively, the standard at the moment before a request could even be made is whether or not the state authority, state police, are being completely overwhelmed by the scenario. Now, that threshold's never been met, and what was considered worthy of inquiry after the Lindt Café siege is whether or not that actually involves undertaking the right question. A better question we think, which is reflected in this Act, is whether or not there is, given the particular nature of the incident and the violence or the terrorism threat, whether or not there is a particular asset or skill or personnel inside the ADF that can be deployed to improve the response and assist, protect Australian lives and safety. So the threshold changes, it's still a very, very high threshold, but it's certainly more flexible than a threshold where you'd have to think that someone was completely overwhelmed. And of course, you couldn't even make that determination until well into an event, if you were ever able to make that determination, and usually by that stage it's too late.

HAMISH MACDONALD: And would the Commonwealth have to wait for a request for help?

ATTORNEY GENERAL: Specifically with respect to a state incident, so a terrorist incident inside a state boundary on state infrastructure and state soil, yes, we would have to wait for a request.

HAMISH MACDONALD: But in instances where it's Commonwealth infrastructure?

ATTORNEY GENERAL: Yes. So Commonwealth infrastructure or interests, it'd be able to be a determination made by the Commonwealth, but we'd do that collaboratively and in consultation with the states, but it would ultimately be a Commonwealth decision with respect to Commonwealth interests. But that's actually the case at the moment.

HAMISH MACDONALD: And who would be in command? Because as I understand from everything you've said so far, the military would retain its own command which would be separate to whatever the command in operation in those individual states would be.

ATTORNEY GENERAL: Well that's correct in so far as the personnel if they were deployed would be under the command structure of the military, so they would take their orders as they routinely do from their superior officers in the usual chain of command, but the legislation talks about the fact that in so far as it is practicable, the ADF deployment would be operating under instructions and request from the state-based command, which would usually be a state pol command type scenario.

HAMISH MACDONALD: So, if the example is the Lindt Café siege and the special forces were drawn out onto the streets to respond to that in some capacity, it would still be the New South Wales Police that would be operating the broader scenario.

ATTORNEY GENERAL: Correct. So in a long siege type situation, which is one of the situations that you may see if we were unfortunate enough to ever experience that in Australia again, you might see this type of deployment. But the way that that would work would be that the state pol command, which would be established obviously in the very early stages of the incident, would be making requests and they're giving instructions to the deployed ADF asset - in this example, the SAS - to do a certain thing. Now obviously, they're very fluid and dynamic circumstances, so once the instruction or request has been made from the state authority to the ADF there would be decisions that would need to be made on the ground, necessarily inside the existing command structure of the ADF. But the essential command instructions request for an incident on state soil would always come from the state.

HAMISH MACDONALD: Would these powers, in your view, have changed the outcome of the Lindt Café siege?

ATTORNEY GENERAL: I'm not being evasive when I say it is just- it's the obvious question, but it's almost impossible to give an answer to that. But what I can say is that the Lindt Café siege properly got all the Australian jurisdictions thinking about the existing interface between the ADF and between state police and command structures. And what everyone agreed on was that this question which has existed for some time as the threshold question, which is whether or not the state police command is completely overwhelmed, is actually the wrong question to be asking. The better question is whether or not, given all of the specific circumstances of the violence, there are specific assets that could be deployed to protect Australian lives. And it may be...

HAMISH MACDONALD: ....implicit in everything that you're saying this morning is that things could have been handled very differently back in 2014.

ATTORNEY GENERAL: Well I think that the review of the Lindt Café siege says as much. I mean, there are a whole range of things that with hindsight would've, could've been done differently. But I can't give you answer as to whether or not this power would have been engaged in those circumstances. But I think there are three broad circumstances where you might consider that this power would be more likely to be engaged than other circumstances. One is a drawn-out siege, because of course, the commando regiment on the east coast or the SAS regiment on the west coast have very particular skills in those types of situations, particularly with respect to improvised explosive devices which are sometimes central to siege type scenarios.

Another scenario, you know we hope this never happens on Australian soil, but we've seen the attacks in Paris where you've got geographically dispersed, wide-spread, coordinated terrorist attacks. It may be resources of the ADF both on land and air could be used in those circumstances. And I think the third scenario is, and again, we hope this never happens, but we must be prepared for the possibility - chemical or biological attacks. The ADF has incredibly honed specialist skills in that respect.

HAMISH MACDONALD: What are the other circumstances that the special forces might be drawn out? Because there is some mention of widespread rioting being a circumstance in which this might occur. Can you define that for us?

ATTORNEY GENERAL: Well, that's very difficult to define, but the constitutional term which we have to of course rely on in this legislation is the term domestic violence. Now, I would suggest that it's almost inconceivable to consider what specialist assets the ADF could deploy in anything other than a type of terrorist scenario. But domestic violence could include things other than terrorism. But really, this is squarely devoted at types of terrorist attacks......

HAMISH MACDONALD: ....but why would we need the Australian Defence Force to become involved if there was a riot?

ATTORNEY GENERAL: Well, I think you likely wouldn't. I mean, the idea that the ADF has some kind of specialist skills with respect to some kind of domestic riot that occurred in a state I think's pretty fanciful.

HAMISH MACDONALD: So why create provision for that?

ATTORNEY GENERAL: Because we need to rely on the constitutional language which is domestic violence. Now, domestic violence is a term used in our constitution which I think, as a matter of legal interpretation, is broader than terrorism. But that's the term that we're compelled to use for the legislation.

HAMISH MACDONALD: So you acknowledge then that you can see why people might be concerned about this particular component of it?

ATTORNEY GENERAL: Well, I've not had any particular concerns. I mean, we've run through this with all of the states and territories on a consultative basis over a very long period of time and, I mean, you would know from your experience that the states are very properly protective of their jurisdiction. This is a very, very high standard still and not as inflexible as the old standard, but a very, very high standard and a very, very well-known and cautiously engaged-in process. In fact, a process that's never been used before...

HAMISH MACDONALD: ....but what's there to stop the federal government of the day deploying the military to further its own interests if, for example - this was 20 years ago - the Howard Government was trying to handle the waterfront dispute with Patrick's and the Maritime Union. Is that a circumstance in which the military might be deployed?

ATTORNEY GENERAL: I think it's inconceivable.

HAMISH MACDONALD: Okay. Your foreign interference bill should pass the Senate today. It coincides with this Fairfax investigation that claims Chinese government operatives cultivated the New South Wales MP Ernest Wong. Obviously, no suggestion that Ernest Wong ever acted inappropriately or wittingly divulged any information. But under your new laws, how much harder would it be for foreign agents to get close to politicians in this way?

ATTORNEY GENERAL: Well, they're designed to make that a more difficult process for two reasons. First of all, there will be a law for the first time ever which would criminalise covert deceptive foreign interference. So for instance, if people presented to politicians to try and get them to change their view or vote on a certain matter - and they did that in a deceptive way by posing as a constituent or concealing who they really were - that would itself amount to a criminal offence. And that offence is actually not known to Australian law at the moment. So when these laws pass, that will be an offence for the first time. And then of course parallel to that, the laws would establish a register where people operating in Australia on behalf of foreign principals in a way designed to convince politicians of one thing or the other would have to do so transparently. So these laws are designed to make that more difficult.

HAMISH MACDONALD: But in the Ernest Wong case, the operatives didn't disclose their ties to the Chinese government. What's in these new foreign influence laws to actually compel foreign agents with nefarious intentions to come clean? Surely it's the people that are acting innocently, if you like, that would be voluntarily registering themselves.

ATTORNEY GENERAL: Well, it goes to the former of those two offences I mentioned, which is that for the first time ever these laws will establish a criminal offence of foreign interference, and that offence in essence is an offence of someone deceptively and covertly trying to influence an outcome with a politician or with the government, but doing so deceptively. So, as you point out, if someone deceptively tried to affect a politician's decision making, at the moment now, you know, you might argue that that's fraud or civil offence. But up until these laws are passed it is not a specific criminal offence in Australia, which makes it easier to commit on behalf of foreign intelligence agencies or foreign interests. So if someone came into a politician's office pretending to be a constituent - pretending to be concerned about an issue and posing as an Australian citizen when they were actually not, and were acting on behalf of a foreign principal and acting in a deceptive way to try and get a politician to change their mind on something - then for the first time ever that could be a criminal offence.


ATTORNEY GENERAL: ...and in the absence of that type of criminal offence, of course you encourage the behaviour.

HAMISH MACDONALD: On another front, you're introducing a bill today to stop perpetrators of domestic violence or alleged perpetrators of domestic violence cross-examining their victims in court. Will this actually ban the practice or is this just about giving judges more discretion?

ATTORNEY GENERAL: No, it certainly won't ban cross-examination, but what it will require is that cross-examination be conducted by counsel. So, this would stop an in-person litigant, who was themselves either convicted or seriously alleged of having committed the violence against the victim, from personally cross-examining the victim. Now, it only happens in a very small number of circumstances. We've calculated it at possibly 170 over the last two years, and of course it's everyone's right to cross-examine an allegation and to test an allegation. But many years ago in the criminal law context, we prevented in-person litigants from personally cross-examining the victim and that's quite appropriate and we think equally appropriate for the most serious circumstances inside the family law system.

HAMISH MACDONALD: On that - specific and serious circumstances - what's the threshold...?

ATTORNEY GENERAL: So the, yes, so the threshold is where there has been a family violence order already determined by the court, or where someone has been the subject of a criminal conviction, or a charge for a violence offence against the person they would otherwise be cross-examining, or where there has been an injunction under relevant family law that's been already determined by the court. So, it's a very small number of very serious circumstances. But we think in those circumstances it's appropriate that if the person meets the asset and income test that they're legally represented for the cross-examination or otherwise. They need to get counsel for the purpose of the cross-examination. When I was a prosecutor and I saw children and women, victims of violence and sexual violence, being cross-examined. That in itself is a very harrowing thing. But the idea that you'd allow that to happen by the actual person who was convicted or seriously alleged of having conducted that violence, I think is something that we can avoid. There are better ways of doing it.

HAMISH MACDONALD: Christian Porter, thank you.

ATTORNEY GENERAL: Thank you very much, Hamish.

HAMISH MACDONALD: Christian Porter is the Attorney-General.