Shoot to Kill Mick Daley © 2018
A former SAS and counter terrorism soldier has described as ‘terrifying’ the Attorney General Christian Porter’s announcement that Australian soldiers with discretionary ‘shoot to kill’ powers could be used to enforce political decisions at civil protests or demonstrations.
Trooper RJ Poole, who in 1978 was the youngest ever soldier to be accepted into the SAS regiment, said that in his experience the ideological culture within the armed forces would not be conducive to the fair and peaceful treatment of civilian protestors under such orders.
“The normal military is pretty right wing, sexist, racist and homophobic anyway. In the special forces that is just ramped up,” he said. “The prevailing culture is of bitter hatred towards other races. It is very much a white supremacist culture.”
Poole points out that the most recent occasion when the SAS were called upon to intervene in a civil matter was during the incident known as the Tampa Affair. In October 2001, then Prime Minister John Howard deployed SAS troopers to prevent a Norwegian vessel, the MV Tampa from entering Australian waters with 443 refugees on board. During an election cycle, Howard claimed that the asylum seekers threw children overboard after they had sabotaged the boat.
Howard’s claims were largely discredited by an Australian Senate select committee inquiry. In 2013 the former head of Military Public Affairs, Brigadier Gary Bornholt, told the ABC that the asylum seekers on the Tampa had not represented a security threat.
“That’s a pretty clear indication that the power to call out the SAS, who are essentially trained killers, can be misused by those in power,” said Poole.
The Coalition government is attempting to introduce a Defence Amendment Call out of the Australian Defence Force Bill 2018, which had a second reading in Parliament on June 28, 2018. That Act would allow a minister to authorise defence personnel to be deployed to quell any kind of protest, if it were deemed by that minister to be a threat to civil order. Army officers in charge would then have discretionary powers to decide whether a ‘peaceful protest’ had turned into a ‘riot’, at which point they would have the powers to order ‘shoot to kill’.
Fahim Khan, Senior Lawyer at Criminal Defence Lawyers Australia, says the Defence Amendment Call subverts democratic norms.
“From what I understand firstly, there is the lack of a suitable test for when they call the military out for a peaceful protest by Australian citizens. Initially it needs to be at a request from the police and secondly, threats to the national security of Australia. At the moment, if this new legislation was to come into effect, it would simply be a discretionary matter of the authorised minister to call out the military, even without police requesting assistance.
“With that comes additional powers for the military personnel and those include arresting, detaining, searching and maybe on a very limited occasion ‘shoot to kill’ if a danger to other human life arises.
“Now that is not something different to what the police have, however the police are civilly regulated by the Law Enforcement Powers and Responsibilities Act (LEPRA). They’re not simply free to do as they wish, because their actions do infringe upon citizens civil rights and liberties.”
Mark Burgess, CEO of the Australian Police Federation says that in principle the the legislation has been supported from a police context.
“But that it would need to be strongly underpinned by guidelines and standard operating procedures to be developed in consultation with police across the country. It needs to be really clear and concise, with no room for misunderstanding about what the procedures look like,” he added.
“When people get deployed to these things, I’ll use as an example the Lindt cafe siege, when you look at a lot of matters that have occurred overseas or even here in Australia, they’re over in a very short space of time.
“The ability to deploy personnel is quite often very limited. More often than not you find the first responders are going to be security guards or in fact general patrol police officers and quite often the incident is over before any specialists can be deployed, but what happens in these situations is they become a critical incident investigation because unfortunately sometimes people lose their lives. Then those investigations are undertaken by police on behalf of the coroner.
“If ADF personnel were involved, they would be subject to the investigation, so how is that going to take place? We operate in a policing context, so our people are subject to certain orders and we have to comply and make ourselves available to give evidence.
“I’m not sure if anyone’s worked out what that’s going to mean in the context of the ADF. What powers would the coroners have to compel them to give evidence, to be interviewed? Where does the buck stop when these things are investigated, post the event?”
Julian Burnside QC is satisfied that Porter’s proposed amendment answers to most legal concerns, but grants that it has the potential for disastrous side effects.
“It is fairly tightly drafted. It remains to be seen whether it will ever be invoked, and (if so) whether it is invoked reasonably,” he observed.
“I accept that the legislation may be used in ways not contemplated by Parliament: that’s true of any legislation which contains normative expressions which are to be interpreted and given effect by people with extreme views (whether left or right). When the results can be fatal, Parliament needs to think very carefully whether the legislation is necessary.”
The Defence Amendment Act comes hard on the heels of the Espionage and Foreign Interference Bill, which promises prison terms of up to 20 years for journalists and Government whistleblowers who leak information deemed damaging to national security.
Described as ‘creeping Stalinism,’ by Ethicos Group specialist Howard Whitton in The Guardian, it has drawn widespread condemnation from human rights and media groups. It was passed in tandem in June 2018 with the Foreign Influence Transparency Scheme Bill, which the Law Council of Australia’s president Morry Bailes warned may inhibit public policy dialogue.
Christian Porter claimed such measures will enhance Australia’s national security. But Fahim Khan warns that if these distinct Acts were used in unison they would endanger democracy in Australia.
“If the Defence Amendment Act were combined with some of the other legislations, we’re essentially criminalising dissent.
“After 9/11 there have been up to around 70 legislations passed in Australia, the effects of those are slowly abolishing our individual civil rights and liberties, one act at a time.
“What is even more concerning for Australia, we don’t have an entrenched Bill or charter of rights, nor do we have a separation of powers between the Parliament and the judiciary, so in effect, not too far in the future we may reach a position where our very basic fundamental civil rights are abolished through the enactment of such legislations.”
Sue Higginson, the former head of the Environmental Defender’s Office (EDO) and currently campaigning for the Greens in the state seat of Lismore, has made resistance to anti-protest laws a mainstay of her campaign policy. She is specifically campaigning against a new regulation under the Crown Lands Management Act, which removes the traditional right to peaceful assembly, gathering or protest on public land anywhere in NSW.
“You have to ask the question, where is this ideology taking us? Is it a deliberate plan? It’s definitely from the same song sheet – this NSW anti-protest law is consistent with what the feds are doing. They say they’re concerned with national security and terrorism and so forth, the states are saying they’re trying to look after business interests, but the two meet to a massive extent, it’s all very neat and why is it all happening at the same time?”
During Higginson’s work as a public interest lawyer with the EDO, she successfully defended the town of Bulga in NSW against mining giant Rio Tinto’s plans to extend its Warkworth mine, only to have the government change the laws and approve later appeals. She says that under pressure from the resource extraction lobby, the NSW government is dispensing with democratic procedure.
“I think the NSW laws are part of a broader attack on democracy and all of the elements within it,” she said.
“This regulation is part of a suite of control laws creating new aggravated offences that seek to protect resource extraction projects. Previously we saw massive increases in penalties for people protesting about coal and gas projects specifically and now this next round of control applies to people merely protesting on public land together. By preventing the community from doing that you are literally stifling the democratic process.
“These laws are drafted to give capacity of decision makers to exercise discretion in a draconian way – they are not best practise laws under an advanced and healthy democratic system.”
Higginson says that introducing the armed forces into protest situations would only exacerbate threats to democracy.
“These laws are really problematic in the sense that they’re disempowering civil society from doing the very thing that helps maintain a safe, peaceful and humane democratic system, because governments can act corruptly, can act complicity and they can just get it wrong. They may make a decision that has a really terrible impact, so the one safeguard you have is that people can come together to express dissent, and the minute you take that away you’ve lost that last resort safety net of protection, whether it be against wilful corruption or just really bad decision making.”
Aidan Ricketts is a lecturer in law at Southern Cross University, Lismore. He was part of the police liaison team at the Bentley Blockade, a 2014 protest action against speculative coal seam gas mining company Metgasco’s bid to drill up to 50 CSG wells in the Northern Rivers area.
In that role he was in close contact with senior police right up to the eve of May 19, 2014, when 800 police were deployed to evict protestors the following day.
Ricketts has accessed a document through the Freedom of Information Act which shows that police considered Bentley the biggest public order crises they had ever faced. It also shows that they were warning the NSW Energy Minister Anthony Roberts that human casualties were expected.
“These are documents which the police provided to the minister as advice,” says Ricketts. “They attest to (the blockade’s) growing support throughout the region, to extensive support from local mayors. In their final document they advise the government that the risk of casualties, including death, was high to very high and the risk of litigation was catastrophic.”
“But in the end, for good political reasons they decided that foisting 800 police on 5-10,000 people was bad politics. The alternative outcome, if this legislation enabling the call out of the military was used, is that that the kind of consideration that went into handling the Bentley Blockade could be missing. What you could have seen is potentially terrible violence against ordinary people, whereas the police had some sense of restraint.”
Ex-SAS trooper RJ Poole points to his experience at the Bentley Blockade.
“I can remember being out at the Bentley protest and we had the prospect of the riot squad rocking up and I can remember feeling like, ‘wow, I don’t know how I’m going to react to that, too old to do anything but could still kick up a fuss’.”
“I know the regiment would have viewed all of us at Bentley as a pack of left-wing, tree-hugging hippies. They wouldn’t have had any qualms in dealing with us whatever way they were told.”