Speedy access to lethal force
The Australian • Monday, 5 June 2017
Tragic scenes observed around the world in recent weeks — from London to Manchester to Minya, Baghdad, Jakarta and Kabul — are a sharp reminder of the continuing global threat of Islamist terrorism.
These acts of terror are unlike most criminal violence. Because martyrdom is a tenet of the underlying ideology, the death of the perpetrator(s) — and at least some of the targeted victims — seems all but inevitable. Given these circumstances, two key areas for reform emerge: the use of lethal force and the criteria for deployment of the Defence Ministry’s counter-terrorism tactical assault groups.
Our liberal democracy quite reasonably restricts police to the proportionate use of force, defending the rights (and lives) of both the victim and the perpetrator. The law only authorises the use of lethal force where police act to defend themselves, or the lives of others, against an imminent threat.
This highlights the complexity of the task facing local patrols and police tactical groups, who respond to a range of incidents, from domestic violence through to violent crime, or indeed acts of terror.
Recent events show that “lone-wolf” attacks play out quickly and without prior warning.
As the attack at Westminster in March and the Lindt siege in Sydney in 2014 highlight, however, there are also times where uncertainty exists, exposing both police and innocent bystanders to unnecessary risk.
Where our agencies have reasonable grounds to believe that they are responding to an act of terror, we should empower them to act proactively and prevent unnecessary harm and loss of life, even if this requires the use of lethal force.
Further, if a “high-risk incident” develops into a siege or hostage event, the force best-equipped to deal with the threat must be deployed in a timely manner.
As Robert Mark, the senior British police officer who recommended the establishment of a federal counter-terrorism force here in Australia, stated: “Close quarter battle is a task for the most sophisticated soldiery, not for police, whose role should be that of containment until military aid arrives.” Defence subsequently established the TAGs as highly specialised teams ready to conduct domestic counter-terrorism operations at very short notice, with a focus on direct action and hostage recovery.
The Defence Act requires a state or territory government to request assistance before the TAGs can be deployed. This unnecessarily delays deployment of the most effective force to deal with the threat.
Last year the federal government commissioned a review of Defence’s counter-terrorism support for civilian authorities. The review will form but one element of the government’s response to the NSW Coroner’s findings now under examination by the Attorney-General.
We are indebted to the service of the fine men and women in our intelligence and law enforcement agencies. Equally, we should not be afraid to recognise that there are elements of the system that can be improved. Over the past three years, the federal government has invested an additional $1.5 billion to combat terrorism, boosting investigative resources and introducing several suites of counter-terrorism laws at the federal level.
As reported in parliament by the Attorney-General, the national terrorism threat level remains at “probable” — reflecting credible intelligence that individuals or groups have developed both an intent and capability to conduct a terrorist attack in Australia.
We must ensure that our police and national security agencies have the necessary authority for the challenges they face in tactical response. Now is the time for federal and state governments to co-operate and deliver considered and deliberate law reform that is in the national interest.
This should involve changes to the thresholds for use of lethal force when responding to a terrorist incident.
It should also involve amendments to the Australia-New Zealand Counter-Terrorism Committee protocols, National Counter-Terrorism Plan and the Defence Act. These amendments should clarify that once a siege/hostage incident has been identified as being an act of terror, Defence’s TAGs will automatically assume responsibility for resolution and that intelligence-sharing, co-ordination and support arrangements between the states and the commonwealth should flow from this premise.
Senator David Fawcett chairs the Joint Standing Committee on Foreign Affairs, Defence and Trade, and is a member of parliament’s Intelligence and Security Committee. He served as an army officer for more than two decades before entering politics.