GOVERNMENT BILL: Use of lethal force by police during terrorism incidents
October 18th, 2018
On the 18th of October, Mark gave a second reading speech on the Terrorism (Police Powers) (Use of Force) Amendment Bill 2018.
The Hon. M.C. PARNELL: This bill mirrors legislation that has already passed in New South Wales and Western Australia, and it arises out of the coronial inquiry into the Lindt cafe siege in Sydney in May 2017. It has been dubbed interstate as the 'shoot to kill bill'. The bill provides for the police commissioner or an assistant commissioner to make a declaration that an incident is a terrorism incident and that results in special protection being offered to SAPOL officers who are taking action in these situations. It protects them from criminal liability, and there are a number of exceptions built in. I note in the second paragraph of the minister's second reading speech, he says:
This Bill is the culmination of longstanding Liberal Policy, which the former Minister for Police suggested was not necessary and not required.
It is interesting to see that the Labor opposition has now had a change of heart. I will put on the record that they were right the first time, that this bill was not necessary and not required. How have I come to that conclusion? I have come to that conclusion by reading the Coroner's report into the Lindt cafe siege. When you go to the source material and you have a look at what the Coroner said, you get a very different picture to what we are being led to believe is the pressing situation that needs law reform.
In the Coroner's report, entitled 'State Coroner of New South Wales Inquest into the deaths arising from the Lindt Cafe siege findings and recommendations', dated May 2017, the Coroner says:
31. In my view, the relevant legal principles meant that the police (including the snipers) had lawful authority to use lethal force against Monis from an early stage of the siege. I have reached that conclusion having regard to all the circumstances, in particular Monis' wielding of the shotgun and claim to have an IED [improvised explosive device], his threats, his claimed allegiance to IS [Islamic State], his unwillingness to negotiate and the continuing unlawful deprivation of the hostages' liberty.
He goes on to say that he can understand why the police were unclear as to what their powers were. Ultimately, he says it was not the problem with the law; it was the problem with how you train the police and how you explain to them what their powers are. The Coroner goes on to quote the Johnsons, the family of one of the victims of the siege, and says:
33. The Johnson family submitted that police training in the use of force does not appear to align with the legal framework. They submitted that police applied a threshold much higher than is required by law.
Ultimately, I think that is the problem at the heart of this bill. The Coroner concludes:
44. The snipers and the police commanders believed that police did not have lawful authority to shoot...That belief was an unduly restrictive view of their powers…
In other words, the Coroner said that the police had the powers but did not understand what they were. He goes on to say that the special powers in relation to the right to use force could be more clearly defined, but that is as much a recommendation for defining that in the training provided to police officers as it is in the law. I think there is a serious problem with the bill in that it misunderstands the basis of the Coroner's findings. His number one finding in his summary of conclusions at paragraph 119 was:
i. The police would have been lawfully justified in shooting Monis from soon after the siege commenced.
They did not need extra powers; they did not know what their powers were. They could have shot him early on. I am not for one minute making light of the awful situation the police were put in. It was a situation of life and death. They did not really know what was happening in the cafe. Their intelligence was incomplete, there were innocent hostages, and there was a person who was clearly dangerous, mad and willing to kill.
I am not for one minute making light of that awful situation; however, I think our responsibility in this parliament is to be guided by facts and a sober assessment of the evidence. We should not leap to the conclusion that the problem must be legislative—a lack of police powers—and therefore we must step in and pass new laws. I think, in some way, this plays into the hands of terrorists. As we know, creating a climate of fear in society is one of the main things they are trying to do.
When parliaments leap to pass special laws, I think it just reinforces to the community that we should be fearful and afraid, and it is inviting us to accept that our police do not have the powers they in fact already have. I do not think this legislation is necessary. I think the Labor Party's assessment last year was correct.
I do not doubt that the bill has the support of the majority of members in the chamber, and it is not something that I am going to divide over. I just want to put on the record that I would invite members to go back to primary sources, look at exactly what happened in the Lindt cafe siege and read the Coroner's report. I think you will conclude, as the Greens have done, that this legislation is not necessary. We will not be supporting it.
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