Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Hansard source

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 makes a number of changes to the existing legislative arrangements concerning the call-out of the Australian Defence Force in domestic circumstances by state and territory authorities. These changes are part of a broader set of changes already made by the Department of Defence and announced in July 2017 to improve the coordination between the ADF and the states and territories. These changes included an enhanced counterterrorism liaison network, an enhanced program of specialist training activities and streamlined police access to ADF training facilities. The catalyst for these changes was the coroner's report into the Lindt cafe siege of 2014, which discussed the failure of the New South Wales Police Force to make necessary requests for military assistance. The state coroner, Magistrate Michael Barnes, recommended in the report a fresh consideration of the criteria currently in the Defence Act 1903 that govern the circumstances in which state or territory police forces can request assistance from the military during an incident.

The bill before us today is a reaction to this recommendation but also to the broader set of threats that modern Australia now faces. This bill contains a number of measures. It amends the Defence Act to make it easier for states and territories to request ADF support; simplify and clarify the ADF's powers; enhance the ADF's ability to respond to incidents occurring in more than one jurisdiction or across jurisdictions; and allow for preauthorisation for the ADF to respond to threats on land, at sea or in the air, typically used as part of measures during major events such as the G20 or the Commonwealth Games.

There are a number of principles that govern and constrain the new powers contained in this bill. The decision whether or not to call in the defence forces will remain entirely with the state and territory governments, but the threshold for them to do so is lowered. At present, defence forces may only be called in if the states are unable to handle any imminent threats themselves. The new amendments cast that threshold in a more positive light, with the new test being whether a call-out of the ADF will enhance the ability of the state and territory authorities to combat the threat. The bill also makes an obvious improvement that will mean that separate call-outs are no longer required for multijurisdictional incidents. In our current threat environment, it is easy to envisage a terrorist incident crossing borders. Imagine if an Army response unit had to stop at the border because they only had authorisation to be involved in one state. It doesn't make sense.

The bill also introduces a relatively new concept of a contingent call-out, allowing a single authorisation to be made that allows defence forces to, effectively, be on stand-by during major events. This power already exists for use in response to air threats and has, indeed, been used a number of times—for instance, during the G20 and the Commonwealth Games. Adding land and sea threats to this provision makes sense. Doing so would allow rapid response units to be ready to react in circumstances of elevated threat, allowing them agility that they currently lack.

Of course, the changes in this bill are not minor. They are a significant shift in the relationship between our civilian enforcement agencies and our armed forces. That's why it's important to have appropriate safeguards. These safeguards include the following conditions: first, the ADF should only be called out to assist civilian authorities; second, if the ADF is called out, civilian authorities remain paramount, although ADF members remain under military command; third, when called out, ADF members can only use force that is reasonable and necessary in all the circumstances; and, fourth, ADF personnel remain subject to the law and are accountable for their actions. The bill maintains the requirement for an authorising minister to approve the request from a state or territory for ADF assistance. At present, the relevant ministers include the Prime Minister, the Minister for Defence and the Attorney-General.

Labor believes it is also important that the conditions under which the ADF can be called out are very clearly defined, so as to leave no room for ambiguity or misuse. That's why we're pleased that the government has responded to the recommendation made by the Senate Legal and Constitutional Affairs Legislation Committee for a number of terms used in the legislation governing the circumstances in which call-out powers can be used to be more clearly defined.

Importantly, the explanatory memorandum of the bill is to be amended to define the term 'domestic violence', which has a meaning in this legislation that does not match with its commonly-understood modern meaning. It has importance in this context because it is a term used in the Constitution. In particular, it comes from section 119 of the Constitution, which reads:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

You can see that the term is used there in a very 19th-century meaning to describe disorder and violence within a state. It's not being used in the sense in which the term is now understood.

The term is referred to in this legislation as a necessary factor in a request for assistance from the ADF. The amended explanatory memorandum defines 'domestic violence' as 'conduct that is marked by great physical force' and would include a terrorist attack, a hostage situation and widespread or significant violence. The definition explicitly excludes peaceful protests, industrial action and civil disobedience. Needless to say, these are very important exclusions that clarify that these new powers will only be used in extreme circumstances and will not interfere with any regular civil society activities. In addition, we welcome the clarification made by the government in the explanatory memorandum about the threshold that needs to be cleared in order for ADF call-outs to be authorised by a minister. It says:

This proposed threshold is not intended to impermissibly expand the circumstances in which the ADF might be called out, or result in the ADF being called out in response to minor incidents that police routinely and appropriately deal with.

This is an important reassurance.

These changes today will not, as I'm sure the Greens party would have you believe, result in the Army being called on to city streets to handle everyday protests or disturbances. We are talking about extraordinary circumstances that present a significant threat to life. In the unusual circumstances that a call-out does occur, once a request is made by a state or territory authority and approved by the relevant minister, the situation will still be in the control of the state and territory authorities, not the Army. The Army will only legally be allowed to use reasonable and necessary force where it assists civilian authorities.

With the additional clarifications provided by the government, Labor is satisfied this bill is a reasonable improvement on the existing arrangements governing the call-out of the defence forces to deal with extraordinary circumstances within Australia. We will be supporting this bill.

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