Adam Bandt (Melbourne, Australian Greens) Share this | Hansard source

There are a lot of freedoms and rights that we enjoy in Australia that make us the stable, peaceful democracy that we are. Indeed, so desired are we as a place to live that so many people around the world want to come here and live here. A big part of that is that there are, unlike in a number of other countries, a number of basic freedoms that we can all take for granted. When we respond to threats to Australia, we need to be careful that we don't pass legislation that actually takes away some of those rights and freedoms. In this instance, with the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, where we're dealing with a bill that brings about a very significant shift in the role of the military in Australia, this is a time for careful and considered discussion, for nuance and for restrictions to make sure that our freedoms are in fact defended.

In Australia, we are not used to seeing the military on our streets. We're used to seeing a police force on our streets and we accept that as a community; but we are not used, as they are in many other countries, to seeing the military out on the streets. That's because we have a clear understanding in this country that the police have the role of preserving law and order domestically, whereas our military—our defence forces—are trained to do a different job. They're trained to defend the country. They're trained to go overseas and fight wars or they're trained to defend us should we be attacked here. They're trained in a very different matter. Police forces will have an emphasis on keeping the peace. In the military, in a conflict situation, it is a very, very different environment and you are trained for different things and for different objectives.

As is the case in this bill, if we have legislation that comes to us that says, 'We now want to expand the circumstances in which the military can be put onto the streets in Australia,' you would expect that there would be some very significant checks and balances in there, you would expect that it would be very highly restricted and you would expect that it was there to deal proportionately with threats that we are facing. You might expect, given what you've heard some speakers say on this bill so far, that this bill—which allows for the call-out of military personnel and the defence forces into the streets in Australia—was limited to terrorism or had some role in relation to cybersecurity attacks. If that was the case, we might be able to have a debate about it.

Given that this bill arose out of an inquiry dealing with the Lindt siege and some problems that were found there with our laws allowing for the call-out of certain forces, is it there a definition of terrorism or does this bill pick up existing definitions and does this bill talk about the limited instances in which we could call personnel out? That's not what this bill does at all. Every speaker so far has used the threat of terrorism to justify this bill. Pretty much everyone in Australia would want to make sure that we are in a position to deal with threats of terrorism. But this bill goes much further. This bill allows the call-out of the ADF onto our streets not when there's terrorism and not when there's even exceptional circumstances but when there's so-called 'specified' circumstances. That is not even defined in the bill.

That should give a lot of people some great cause for concern. When all of a sudden, now at the whim of a minister or of a government, the military can be called out onto our streets and there's virtually no restriction—legally, in the bill—on how and when that could happen, that should give people grave cause for concern. That's why the Law Council of Australia has said that they are very, very concerned that, under the proposed sections 33 and 35 of the bill, it raises the risk that:

… ministers will feel it necessary to call out defence forces, on a routine basis, in order to enhance the State or Territory's ability to protect itself or Commonwealth interests without exceptional circumstances …

Now, given everything that people have said so far in speaking to this bill — that the government and the opposition are on another unity ticket — there should be no reason we can't amend this bill to limit the ability to call out the Defence Force to exceptional circumstances only . That should cover all the instances that they've raised—but no.

Allow ing this wide-ranging ability to bring the Defence Force out onto our streets is something that most people in this country would not agree with if they knew it was happening. And this is not in any way a slight either to our police forces, who are currently doing this job, or to the defence forces who are being referred to in the bill. It ' s about us as parliamentarians deciding what is the dividing line between the two , and in what instances we think it is okay to become one of those countries where it's the military that is on the streets doing the policing . I would argue, and I think most people in the country would argue , that you would want that to happen in only the rarest of circumstances and you would want there to be some significant checks and balances on ministers who do that so that the Defence Force is not call ed out whe n there's a big disturbance that some might characterise as a protest , that it's not called out because it's seen that there is a threat to a way a particular business is operating— that it's only used in legitimate circumstances. But that's not what this bill does.

That is why t he Law Council is ringing the alarm bells about this bill and saying, to paraphrase them , that we're potentially about to trade off some of the rights that this bill is supposedly about defending. And it goes further in that respect. Under this bill, w hen the defence forces are called out , they will have the power to take away a number of our civil liberties. For example, you lose the right to silence in a number of respects , a nd personnel who are called out are able to demand that you answer certain questions and do certain things. Again, maybe in an emergency situation, in an exceptional situation, that's something the Australian public would accept. But the bill isn't limited to that ; it's basically limited to whenever the minister wants, more or less. G iven that huge breadth, is it right that , when that provision is triggered by a federal government or by a state government, all of a sudden as a citizen you lose some of your right to silence ? Again , I think, if people knew that that was what is being proposed here, they wouldn't agree with that either. But that's what we're being asked to support.

It's something that, again, the Law Council, together with Lawyers f or Human Rights, have said should be amended in this bill. It should be narrowed, given the grave threat to our civil liberties and to our human rights that are in the bill . I stress the point : most people in this country are up for the discussion about whether we've got the balance right. But what is really worrying is when governments use horrific incidents to then engage in a process of overreach and say, ' The only thing that will prevent that happening again in the future is to trade away your rights in a variety of other respects. '

Again I make the point that this bill is not limited to terrorism. This bill is not limited to terrorism. It's expansive, and it covers a very, very broad range of situations. Not only is there the power to force people to answer questions, the loss of the right to silence; it goes together with the power to have your property seized and your personal liberty restricted. That's in an instance where there is a threat to a person's health or safety — not where there's a terrorist threat to the nation but whe re someone could potentially be seen as inconvenienced. It doesn't even need to be a threat to someone's life; i t's a threat to someone's safety. When that threshold is met, you lose your rights then as well.

It goes further, because it grant s Defence Force personnel a much greater range of legal protection s for activities that might even be outside the purpose for which they were called out. What does that mean? It means that , if a member of the Defence Force is called out to deal with a certain threat and they exercise force as part of being called out, they would gain a much greater level of immunity for the exercise of that force than, say, members of the police force, depending on which state or territory you're in.

So that, again, has attracted the concern of the Law Council of Australia. They have made what I think is a very sensible recommendation, which is: let's limit that to minor or technical noncompliance with the obligations that are set out in the intent of the bill. That would seem to make a lot of sense, given that, if you listen to some of the speeches in support of it, they're saying, 'There should be instances in which—for example, where someone forgets to wear their name badge—even though it's something they might be required to do, they shouldn't lose their protection just because they haven't done that.' Well, if that's what the bill is about, let's limit it to that.

But what this does is something much, much broader. For example, there could be an exercise of violence in this situation where someone is called out; it might be inadvertent; it could result in someone being seriously injured or dying. You may have no recourse in that situation because of the effect of this bill.

Again, most people would be up for a discussion about it. We understand that, in situations, for example, where there are legitimate acts of terrorism, people are required to make decisions very quickly, and people are doing it to protect life, limb and property. Most people in Australia are up for a discussion of and understanding about the difficulties of acting in that situation. We just need to think back to the Lindt siege.

But what people aren't up for is the removal of the checks and balances that allow us to have the confidence in our institutions that we currently have. There's a simple answer to that, which is: listen to what people like the Law Council are saying when they say that this bill trades away many of the rights that it is supposed to defend, or it is there to allow our Defence Force defend us from attacks, and go back and have another look at getting the balance right, because there are a number of experts in the field who've looked at the drafting and said, 'No. This goes much, much broader than what its stated purpose is. It goes much, much broader than terrorism.'

The reason this is so significant—and here I come back to the point that I made at the start—is that not only do you, as an individual citizen, lose a lot of your own rights when the provisions of this bill are triggered, but it allows a line to be crossed. This bill allows a line to be crossed, where it's not the police on our streets who are keeping law and order but the military.

We can and we should continue to have debates in this House about when our military are deployed overseas. I and the Greens have argued for some time that we should have a parliamentary debate before we deploy troops overseas. It should come here, at a minimum, to parliament, and parliament should be involved in the process, as is the case with many other democracies. And there's a lot of support for that. I understand that there are some arguments against it, but there is a lot of public support for the idea that we should have that debate here.

I think people would want the standard to be even higher when it comes to calling out the military on our own streets not because we're calling them out to deal with a crisis from a natural disaster—and those crises are going to become all the more common under climate change—but when we're calling them out to deal with another kind of incident. I think people would want to know that we haven't crossed the line to the point where it becomes, potentially, normal to have that happen—where, in response to a law and order issue, it becomes normal to call out the military onto our streets. But that is the road that this bill is taking us down, the Law Council and others are telling us.

The bill should not pass in its current form. The drafters should go back and pare it back to what they say is its intention. Let's deal with exceptional circumstances. Let's limit the ability to remove people's rights. If the government is serious that that's what it's all about, then they should have no objection to doing that. So, in its current form, this bill cannot be supported.

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