Chapter 5 - Training of defence security officials
Adequacy of training
5.1
When referring the bill for inquiry, the Senate Standing Committee for
the Selection of Bills identified two issues dealing with training for the
committee's consideration including 'whether defence personnel are adequately
trained and equipped to safely detain civilians in accordance with the bill'.[1]
5.2
Indeed, the importance of training was one of the dominant messages
coming from the submissions. Victoria Police was firmly of the view that
authorised officers and contracted defence security guards would require
specialist training to ensure the appropriate exercise of search and related
powers. It noted that they would need this training, 'to deal with statutory
powers of arrest, detention, search of persons as well as search and seizure of
property for both safety and evidence purposes'.[2]
Similarly, the Tasmania Police referred to Defence's 'obligation to provide
training for security officers at an appropriate level in relation to any
legislative authorities, especially stop, search and detention issues for
people and the use of lethal force'.[3]
The Senate Standing Committee for the Scrutiny of Bills also raised questions
in relation to the powers of defence security officials, including contracted
security guards, to restrain and detain. It took the view that the bill 'does
not deal with the adequacy of the training of defence security officials to
ensure these 'police powers' are exercised safely and appropriately'.[4]
5.3
Clearly, training is important to ensure that defence security officials
carry out their duties appropriately. Training is especially important for
officers authorised to use lethal force. Thus, although the New South Wales Police
did not have any major concerns in relation to the bill, it did comment on
training requirements for staff authorised to use lethal force.[5]
5.4
In response to the concerns about the training of security officials,
Defence held that:
Under the provisions of the amendments, all Defence security
officials must satisfy stringent training and qualification requirements before
they can exercise any of the powers contained in this Bill, including the power
to restrain and detain people. These training and qualification requirements,
which will be specified in a legislative instrument, must be determined by the
Minister for Defence or his delegate.[6]
5.5
The bill stipulates that the Minister must, by legislative instrument
determine the training and qualification requirements for—contracted defence
security guards; security authorised members of the Defence Force; defence
security screening employees and those that apply to security authorised
members of the Defence Force in relation to the use of dogs.[7]
5.6
In the case of contracted defence security guards and defence security
screening employees; the Minister may by writing delegate this power to the
Secretary or an APS employee holding or performing the duties of a SES band 3
position, an equivalent or higher position. For security authorised members of
the Defence Force; the Minister may delegate this power by writing to an ADF
officer of three star rank or higher. According to the Explanatory Memorandum:
This will allow developments in training associated with the
use of force, to be more readily incorporated into the training requirements
for security authorised members of the Defence Force.[8]
Training requirements in legislative instruments
5.7
While the Senate Standing Committee for the Scrutiny of Bills
highlighted that the bill does not deal with the adequacy of training to ensure
that conferred powers are exercised 'safely and appropriately' it also
questioned whether 'appropriate parameters' for training requirements should be
included in the bill.[9]
It questioned why training and qualifications in relation to security
authorised members of the Defence Force were not dealt with in the primary
legislation. Its concern was that there are no provisions which allow it to
assess with confidence 'the question of whether officers entitled to use lethal
force will have received appropriate training and instruction'.[10]
The Senate Standing Committee for the Selection of Bills also questioned
whether it was appropriate to leave training requirements for officers
authorised to exercise deadly force to be specified in legislative instrument.[11]
5.8
The New South Wales Department of Premier and Cabinet, however,
cautioned that if training requirements are embedded in the bill, there may be
concerns that 'if an officer uses the requisite powers without having completed
all of the training requirements then he or she may be acting unlawfully'.[12]
The submission acknowledged, however, that the majority of these powers already
exist in any event. Indeed, in such an event where force is used in a
self-defence capacity, such officials would continue to be able to rely upon
the federal and state or territory legislative provisions that provide a
defence of self-defence.
5.9
Given the extraordinary powers involved, the committee acknowledges the
concerns raised in relation to the training requirements for officers empowered
to use deadly force being specified in legislative instrument rather than the
primary legislation. However, it also appreciates that the security environment
is fluid and dynamic and that training requirements must be responsive to such
changes. In this regard, the need for training requirements in relation to all
defence security personnel to adapt in a timely manner is vital to a dynamic
security environment in which such officials operate. In its submission,
Defence highlighted this consideration:
The use of a legislative instrument also enables the training
and qualification requirements to be updated rapidly, for example in response
to the availability of new technologies and equipments, without incurring the
delays that would arise if these requirements were stipulated within the Bill
itself.[13]
5.10
The committee recognises that delegation of legislative power would be
more amenable to such adaptation. The Legislative Instruments Handbook notes in
this regard:
Delegation of legislative power allows matters of a detailed
technical nature to be dealt with more efficiently than is possible through the
Parliamentary processes. Legislative instruments can be made and amended more
quickly and easily than primary legislation. If Parliament did not delegate the
power to make legislative instruments, the legislative process would become
slower and more congested.[14]
5.11
The committee appreciates that any such legislative instrument would
need to be tabled in both Houses of Parliament and be subject to disallowance
in accordance with the Legislative Instruments Act 2003. Defence argued
that this requirement provides significant protection:
As a legislative instrument is subject to tabling and
potential disallowance in both houses of Parliament, the use of this mechanism
affords significant protection. It ensures that the Parliament, at all times,
has control over the nature and level of training and qualification
requirements that will be imposed on people who will be authorised to exercise
powers under this Bill. This affords a far greater level of protection than
having the training and qualification requirement set out in departmental
administrative guidance.[15]
5.12
For comparative purposes, the committee looked at a relevant section of the
AFP regime in relation to the use of force.
The AFP regime
5.13
Section 40EA of the Australian Federal Police Act 1979 states
that the Commissioner may declare an AFP employee (other than a member) to be a
protective service officer if the Commissioner is satisfied that the employee
meets the requirements specified in a determination under section 40EB which in
turn states:
The Commissioner may, by written determination, specify
either or both of the following for the purposes of section 40EA:
(a) competency requirements;
(b) qualification requirements.
5.14
In terms of overriding principles in relation to the application of the
use of force, the AFP Commissioner's Order 3 sets out the operational
guidelines. In the exercise of his or her powers under section 38, the
Commissioner may, by writing, 'issue orders with respect to the general
administration of, and the control of the operations of, the Australian Federal
Police'. Furthermore, section 39 requires AFP appointees to comply with
Commissioner's Orders. The AFP Commissioner's Order 3 sets out the operational
guidelines for the use of force for AFP officers. Order 3 is an internally
generated guideline which:
...gives effect to the policy of the AFP for the use of
reasonable force and its implementation through the establishment and
maintenance of appropriate competency standards, the accreditation of trainers,
the qualification and re-qualification of AFP employees in the use of force,
appropriate reporting mechanisms and management structures for training and
monitoring use of force in the AFP.[16]
5.15
The purpose of order 3 is to ensure that the AFP operates to de-escalate
potential conflict situations within the use of force continuum. The AFP
'stresses the use of minimum force and maintains the preference at all times to
resolve incidents without force.'[17]
The order, which is a confidential document, notes that the 'use of reasonable
force underpins all AFP conflict management strategies and the AFP's use of
force model'.[18]
It determines that the use of reasonable force is the 'minimum force reasonably
necessary in the circumstances of any particular case'.
5.16
Whilst setting out the basis on which equipment and munitions can be
used and emphasising the importance of non-violent options including
negotiation, the code requires officers to submit an AFP Use of Force Report
following its application and detailing the circumstances and manner in which
force was applied.[19]
Committee view
5.17
The committee underscores the importance of training in relation to
defence security officials and emphasises that training undertaken by such
officials should be informed by the AFP and state police regimes. Given the
fluidity of the security environment in which they are expected to operate, the
training regime for defence security officials must be both robust and responsive.
To this end, the committee reaffirms the importance of ongoing consultation
between Defence and the AFP and other federal agencies as well as regular joint
exercises.
5.18
The committee considers that determining training requirements in
legislative instrument is appropriate to the extent that flexibility is
required to enable timely modifications to the training requirements in
response to the changing nature of security threats. It notes, moreover, that
any such modifications would attract parliamentary scrutiny to ensure that
provisions therein are balanced.
5.19
The committee recognises the importance of the principle of
proportionality on which all training should be based especially when officers
are empowered to use lethal force. It encourages the ADF to consider inclusion
of the principle in delegated legislation. In this regard, the committee notes
the AFP Commissioner's Order and encourages the ADF to give consideration to it.
Recommendation 2
5.20
The committee recommends that the Australian Defence Force give
consideration to the utility of the inclusion of the 'reasonable and necessary'
principle in delegated legislation.
Committee conclusion
5.21
The committee recognises that the bill provides a range of powers to
defence security officials to enhance security of Defence bases, facilities,
assets, and personnel within Australia. Notwithstanding its recommendation that
training be consistent with the 'reasonable and necessary' principle, the
committee is satisfied that the safeguards on the powers conferred on defence
security officials are adequate to ensure that such powers are utilised
appropriately.
Recommendation 3
5.22
The committee recommends that the Senate pass the bill.
5.23
Whilst noting that the bill introduces new provisions in relation to
defence personnel including the power to exercise lethal force, to search and
seize, restrain and detain, the committee appreciates that security threats are
dynamic in nature. To ensure that such provisions are adequately responsive to
ever-changing security risks and meet their objectives, the committee proposes
to review the operation of the bill three years after enactment, having
specific regard to matters considered in this report and any other concerns
raised during its lifetime.
Recommendation 4
5.24
That the Senate Standing Committee on Foreign Affairs, Defence and Trade
review the operation of enacted provisions of the bill in early 2014.
SENATOR MARK BISHOP
CHAIR
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