The introduction and debate of the Defence (Amendment) Bill re-named the Miscellaneous Provisions (Defence and Police Complaints) Bill has once again revealed the dysfunctional state of our Legislature.
This is the Bill that purports to give powers of arrest, normally exercised by policemen, to members of the Defence Force sent to assist the police in the fight against crime. While many of its flaws have already been exposed it may be useful to set out simply why this Bill is causing alarm.
The citizens' understanding of what was at stake was of course made more difficult because once again the main focus of the debate in the House of Representatives was personal attack and ritual cries of "you did it too". Parliament condemns us to repeat mistakes of the past and to compound them. We have not moved past the caricature of Explainer that in Parliament they kicksin. In fact the conduct of serious legislative business has degenerated beyond kicksin. It is fiasco laden.
The Bill was puzzling from the outset because it set out to grant the full range of police powers to soldiers and not just the powers of arrest. Moreover on the face of the Bill it made an inaccurate reference to that part of the Defence Act, which dealt with the assignment of additional duties to units of the Defence Force. It took two days of debate for the Government to acknowledge that very elementary mistake and to produce an amendment to rectify it.
What was equally troubling was that the bigger constitutional picture seems to have been ignored. At the top of the list of the core functions of any Government are maintenance of law and order, making and updating laws for the good governance of the country and the administration of justice. These core functions come with the possession and use of coercive powers, such as arrest, search, seizure and jail.
In order to restrain the abuse of these coercive powers the Constitution, which is the supreme law, contains checks and balances. Accordingly the Police Service Commission and the Commissioner of Police, both of whose respective jurisdictions over the Police Service are set up in the Constitution, monitor and manage the Police Service and exercise disciplinary control over police officers. These constitutional arrangements are designed to insulate the police from the exercise of direct political influence.
There is other relevant legislation. The Police Complaints Authority (the PCA) is a statutory body, which deals with citizens' complaints against the police. This body also has powers to investigate and monitor police activities within defined boundaries.
The obvious constitutional hurdle is this: If soldiers are to have police powers could they be validly given those powers without any reference to the checks and balances on the Police Service and on the exercise of police powers? The Bill in its original form never crossed that hurdle. It was then first amended to stick in provisions intended to give the PCA jurisdiction over soldiers charged with police duties and to provide for passage by a special majority.
However the Bill remained deficient because control of the Defence Force resides in the Defence Council comprising Government Ministers in the majority. The Defence Force therefore is not insulated from the political Executive as is the Police Service.
It took a visit from representatives of the Police Association to wake the Government up to that reality and then to produce the promise of yet another amendment reportedly "to remove completely any authority of a minister or politician to direct soldiers when they are exercising police duties." Did the Government not know that the Constitution vested the complete power to manage the Police Service and the resources available to it in the Commissioner of Police?
In any event at the time of writing the Government is still insisting on a command role for the Chief of Defence Staff. This flies in the face of the constitutional provisions giving command of resources available to the police to the constitutionally insulated Commissioner of Police, when these soldier assistants are just such resources. With two commanders in police work the Government looking for cross thread.
Has nothing been learned from the Section 34 fiasco about the duty of care which should infuse the legislative process. All our Governments, for several decades, have lacked an organized legislative programme and rush through important legislation. That is the reason why at the ceremonial opening of each Parliamentary session there is no statement of legislative intent. The President of the Republic fills in with general remarks.
Few accept that the amending and re-amending of this Bill is a demonstration of Government's willingness to listen to complaints about proposed legislation. That forced process illustrates that the Bill was less than half-baked. It was raw and inedible and still is in many parts. Why was it served up to the House of Representatives in that state? Will the Senate eat macafourchette?