Richard Marles (Corio, Australian Labor Party, Shadow Minister for Defence) Share this | Hansard source

I rise to speak on the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 and to indicate Labor's support for this bill. Labor knows how important it is to make sure our national security arrangements are kept up-to-date to keep Australians safe and protect the freedoms that make our society what it is.

Just over 12 month ago, the government announced a number of measures to enhance the support provided by the Australian Defence Forces for national counterterrorism arrangements. I note that the Department of Defence and the government have already implemented a number of initiatives to provide greater practical support for state and territory law enforcement agencies which include an enhanced counterterrorism liaison network, an enhanced program of specialist training activities, and streamlined police access to Defence facilities such as ranges. This bill, while implementing relatively minor administrative changes to the existing call-out powers, is part of the measures that were announced by the government back in 2017.

The Defence Act 1903, as it currently stands, outlines two basic types of call-out orders: an order for the Australian Defence Force to be called out immediately, and a contingent call-out order whereby the Australian Defence Force can be called out if specified circumstances arise. This bill amends the Defence Act in a number of ways but mainly for four purposes: the first is to make it easier for states and territories to request ADF support; the second is to simplify, expand and clarify the ADF's powers; the third is to enhance the ADF's ability to respond to incidents occurring in more than one jurisdiction or across jurisdictions; and the fourth is to allow for preauthorisation for the ADF to respond to threats on land and sea as well as in the air, typically used as part of measures during major events such as the G20 or the Commonwealth Games.

It is important to note that, following implementation of these changes, the state and territory police forces will continue to be the first responders to terrorist incidents, and call-out of the Australian Defence Force for the protection of states and territories will only be able to be considered following a request by the state or territory. Call-out of the ADF for the protection of Commonwealth interests may be initiated by the Commonwealth itself or requested by a state or territory. To this end, the explanatory memorandum outlines four principles that underpin the proposed changes in this bill. The four principles are:

That gives the broad rationale for this bill.

I now intend to go through in more detail the specifics of the four general or main purposes of this bill, which I will outline further. The first makes it easier for states and territories to request ADF support. Currently, The Defence Act prevents the Australian Defence Force from being called out until such time as the state or territory:

… is not, or is unlikely to be, able to protect Commonwealth interests against the domestic violence; …

The effect of that provision is to say that a state or territory would need to have exhausted its law enforcement resources before it would be in a position to request the assistance of the Australian Defence Force. The amendments in this bill provide a more flexible and responsive threshold that requires the ministers of the Commonwealth to consider, firstly, the nature of the violence or threat and, secondly, whether the calling out of the Australian Defence Force would be likely to enhance the ability of the state or territory to respond to the threat. That's a much more flexible basis upon which a state can make a request. The effect of the new provisions will be to allow greater flexibility for the ADF to provide the most rapid, effective and appropriate specialist support in responding to terrorist incidents, while at the same time respecting the position of the states and territories as the first responders.

In respect of simplifying, expanding and clarifying the ADF's powers in incidents of this kind, the bill does this in respect of the existing search and seizure powers when the ADF is operating under a call-out order. Currently, the Australian Defence Force search powers in specified areas focus predominantly on 'dangerous things' and do not authorise them for search for or detain people. The effect of this amendment is that ADF personnel will be authorised to search for and seize items, and search for and detain people, that are likely to pose a threat to a person's life, health or safety or to public health or safety generally. This ensures that ADF personnel operating under a call-out order, in collaboration with state and territory police officers, who will be leading the response to a particular incident, have search and seizure powers that complement and assist the state and territory law enforcement powers. However, the amendments will also ensure that Australian Defence Force personnel can only detain a person whom it is necessary as a matter of urgency to detain. The explanatory memorandum makes it clear that where the police are also present, for example, it would not generally be necessary as a matter of urgency for the ADF to detain a person in that circumstance. Again, this highlights the fact that state and territory police forces will be the lead in respect of responding to these incidents, and the ADF are there very much for the provision of support.

The third issue is the pre-authorisation of the ADF to respond to threats on land and sea as well as in the air. Pre-authorised or contingent call-out will allow ministers to pre-authorise the Australian Defence Force to respond if specific circumstances arise. Currently, contingent call-out is limited to the protection of Commonwealth interests from air threats alone. This kind of contingent call-out order has been regularly made as part of security measures to protect major Commonwealth events such as the G20, the ASEAN summit and the Commonwealth Games. This is done now only in respect of air threats, for that is the limit of the contingent call-out power. This bill will extend contingent call-out to be available for the protection of both Commonwealth interests and state and territory interests from threats in the land, air and maritime domains. This reflects a greater conception of what a possible terrorist incident may be. The purpose of this amendment is to remove potential delays in seeking ministerial authorisation for ADF support once a threat is considered imminent or immediately after the event occurs. It will also provide additional support options in planning for major events such as the ASEAN special summit or the G20.

The bill provides for greater enabling of a multijurisdictional call-out. It enhances the ability of the ADF to respond to multiple incidents occurring in more than one jurisdiction, as well as to incidents which cross jurisdictional boundaries, including incidents which may occur in Australian waters and in respect of assets that are offshore. Again, this imagines, or has a greater conception in its underpinning, the potential of what a terrorist incident might look like. We have seen incidents around the world which are coordinated but occur in more than one place at the same time. So this seeks to reflect how a response might be made were that to occur in our country in more than one jurisdiction.

Finally, the bill also contains a number of provisions in support of those amendments which I have outlined above. These include an increase in the requirements for the ADF to consult with state and territory police where it's operating within their jurisdictions, as well as adding the Minister for Home Affairs as a named alternative authorising minister in cases of an expedited call-out, which occurs when the otherwise stated ministers in the chain of responsibility are not present to provide that authorisation.

The Senate Legal and Constitutional Affairs Committee conducted an inquiry into the bill. The committee tabled its report on 3 September and recommended the bill be passed by the parliament. However, the committee also recommended that the government give consideration to providing clear definitions of specified circumstances in the legislation itself or in the explanatory memorandum. I acknowledge that the government accepted the committee's recommendation and I thank the minister for tabling an amended explanatory memorandum just now which provides further explanation of the term 'specified circumstances' in the context of the contingent call-out powers.

As I outlined above, a contingent call-out order is one where the Commonwealth pre-authorises the Australian Defence Force to be called out if specified circumstances arise. The revised explanatory memorandum now states:

It is not intended that contingent call out orders under proposed section 34 will be made on the basis of vague or indefinite specified circumstances.

The specified circumstances must be sufficiently particular to allow authorising ministers to make the assessment required in order to satisfy themselves that the domestic violence or threat in the offshore area is likely and that the call-out of the ADF would resolve the incident. By way of example, the explanatory memorandum now states:

For example, a contingent call out order could be made to protect Commonwealth interests during a major international summit. Commonwealth interests requiring protection in these circumstances could include Commonwealth property, and visiting dignitaries or heads of state. A foreseeable risk may be a chemical, biological, radiological or nuclear (CBRN) attack at the summit venue. Accordingly, it would be appropriate for a contingent call out order to be in place to deal with this foreseeable risk, empowering the ADF to use its specialist capabilities should the specified circumstances of an imminent or actual CBRN attack at the summit arise.

In those words, I quoted from the explanatory memorandum itself.

The explanatory memorandum has also been amended to provide greater clarity on the meaning of 'Commonwealth interests', which includes Commonwealth property or facilities, Commonwealth public officials, visiting foreign dignitaries or heads of state, and major national events such as the Commonwealth Games or the G20. It has also been amended to provide greater clarity on the meaning of 'domestic violence' as conduct that is marked by great physical force and would include a terrorist attack, hostage situation and widespread or significant violence. It is perhaps worth understanding that this is a legal term of art deriving from a previous age and has a very different meaning from the way that term is used in current parlance. And it also has been amended to make it clear that the amended criteria that ministers will be required to consider in making a call-out order recognise that the calling out of the ADF to respond to an incident is a significant and exceptional act and is not to be done in relation to incidents that are within the ordinary capability of the police.

With those comments, the opposition provides its support to this bill and notes that, as I said earlier, the Senate inquiry and the Senate committee unanimously recommended that this bill pass the parliament, with a request for additional explanation to be provided through the explanatory memorandum, which has been done this morning. We appreciate that. Given all of that, it is a piece in the further evolution of making sure that all our agencies in Australia are coordinated as well as possible to deal with the kinds of incidents which, unfortunately, are a fact of our contemporary life.

See this speech in context