Path needs to be cleared so defence force can respond to terror attacks

By Rob McLaughlin and David Letts

The laws of engagement need refinement in an age of hostage-taking and mass killing.

In the wake of atrocities in Belgium and Paris, and as Australian authorities strengthen their show of force at airports around the country, it is timely to consider how security agencies and defence resources are used in the "age of terror".

This becomes especially important in thinking about how the Australian Defence Force might be used to respond to a terrorist situation, and whether the legal arrangements for it to do so are sufficient. The power to call out the ADF to deal with a terrorist situation (or support state or territory authorities in doing so) is primarily a function of Part IIIAAA of the Defence Act 1903 (Commonwealth).

Set in place in preparation for the Sydney 2000 Olympics, and expanded in 2006, Part IIIAAA is well calibrated, even against the backdrop of recent forms of extremist violence and hostage-taking. However, if reform was contemplated, there are two overarching issues that might be considered in terms of strengthening Part IIIAAA to address those situations where terrorists appear focused on killing and shock value, not on a negotiated outcome.

The first is the question of when Part IIIAAA is invoked - and when the ADF is called out to assist. This relies on three factors, including the threat of "domestic violence" occurring or likely to occur; that the violence must affect or be likely to affect "commonwealth interests"; and that the state or territory must generally ask for commonwealth assistance, or be consulted prior to the employment of the ADF.

This makes sense, given the constitutional division of powers means criminal law matters are primarily the bailiwick of each state or territory. Thus a hostage situation - a criminal law issue becomes a matter for the Commonwealth only where it engages a Commonwealth interest and/or the state or territory asks for assistance, although there is the ability for the Commonwealth to act without consultation if the urgency of the situation so requires.

So what might be improved? In terms of the legislation, probably not much. However, two issues might benefit from further consideration. The first is a clear and comprehensive agreement that any hostage-taking incident which looks like it might also be terrorism under commonwealth law automatically engages "commonwealth interests", thus enabling a Part IIIAAA call out of the ADF, even in the absence of a state or territory request.

The second question is much trickier. When the ADF is used under Part IIIAAA in land settings, it is still expected to form part of the overall response being co-ordinated by the local authorities. Once the ADF is given a particular task, this is carried out under command of the chief of the defence force, who - in a legal sense, at least - is not answerable to local authorities, although the ADF must still co-ordinate with them. In a terrorist situation where state or territory assets have similar roles and capabilities to the ADF, the state or territory may disagree with the commonwealth on who is best suited for a task. The processes to resolve such disagreements - which need to function quickly and definitively in situations where killing is the terrorist endgame - will require clear-cut understandings between states and commonwealth.

Additionally, legal arrangements for, and justification of, the use of lethal force by ADF elements under Part IIIAAA may require some refinement. This is significant given the need for commonwealth compliance with domestic law, and the question of when and how the commonwealth might order its agents - such as the ADF - to use lethal force. If the ADF used lethal force - killing the terrorist hostage-takers while under Part IIIAAA orders, the main legal justification would be self-defence of themselves or the hostages. But Australian law on self-defence generally carries a requirement for imminence that the threat of death faced by the hostages (or others) is imminent.

Terrorist actions such as those seen in Paris would, on any sensible interpretation, trigger sufficient imminence. However, to be absolutely certain, Part IIIAAA might be expanded to include the criteria of inevitability as a substitute for imminence in certain circumstances. If a situation suggests hostage takers are likely to employ tactics like those seen in Paris, but the killing has not yet started, then the inevitability of the eventual killing of the hostages would substitute (if necessary) for the imminence requirement, allowing for use of lethal force at the first operationally appropriate opportunity.

This is easy to say but wickedly difficult to apply. What sorts of indicators will be sufficient to justify a determination that hostage killing is inevitable, even if not imminent? What indicators will separate a Paris-type attack and hostage situation from a Martin Place siege of "contain and negotiate first" situation? That is a much harder, and more urgent question than whether Part IIIAAA remains fit for purpose.

Rob McLaughlin and David Letts are co-directors of the ANU's Centre for Military and Security Law. This article was originally published in The Australian.

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Updated:  10 August 2015/Responsible Officer:  College General Manager, ANU College of Law/Page Contact:  Law Marketing Team