Richard Marles (Corio, Australian Labor Party, Shadow Minister for Defence) Share this | Link to 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.

Nola Marino (Forrest, Liberal Party) Share this | Link to this | Hansard source

I certainly support the government's Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, in front of us today. As you would understand, Deputy Speaker Bird, and the members in the House know, the world today is a very different place from that which existed in 1903, when this type of legislation was formed. The threats we face today are, unfortunately, greater and far more complex than those of many years ago and even in 1903.

Essentially, this bill makes it easier for the state and territory governments to request ADF support in circumstances of a terrorist attack. These amendments complement the practical measures already being rolled out by our government to enhance the ADF's support for national counterterrorism arrangements. As we all know and as we've seen all too regularly both overseas and in Australia, acts of terrorism are hugely challenging. Think of the truck attack in Nice, the attacks in London, the Lindt cafe siege in Sydney, the hijacking of a commercial airliner or a mass casualty or mass hostage event. When incidents such as these happen, local police are put under an enormous pressure, and they respond and react very, very well, but often long and drawn-out or multiple-perpetrator and multiple-location attacks require perhaps additional and specific responses. Under our Constitution, the circumstances where the Commonwealth, through the Australian Defence Force, could step in were very, very limited.

As I started to say, they date back to 1903 and were set out in the Defence Act. Laws were tweaked somewhat in 2000, prior to the Sydney Olympics, to ensure that the New South Wales police had sufficient federal support to provide what was described, as we all know, as the best Olympics ever. Unfortunately, as we're aware, the world keeps changing—certainly since the end of 2000. We all remember the events in 2001; we've all experienced the impact they've had around the world not just in air travel but in airport security, security in public transport and security even here in Parliament House.

As has been said before, the government's first duty—any government's first duty—is to protect its citizens. We have a very proud and enviable record with national security and with supporting our men and women in uniform, and that includes our Defence Force people as well as our people in our local and state police. It's about supporting troops here or overseas, and even our local police. Those of us who live and work in regional areas see the extraordinary work done by our local police with our own families in our own communities. I acknowledge and thank them for what they do every single day.

On the details of this bill: the bill implements the recommendations of the review of Defence support to domestic counterterrorism arrangements. That was announced by the Prime Minister in July 2017. The government initiated the review in response to the changing nature of the threat, demonstrated by the attacks around the world. We've seen so many of those. The key factor in launching the review was actually the Lindt cafe siege in Sydney, which was one of the most significant terrorist incidents in Australia's history. The resultant inquiries, including the coronial inquest, found, among other things, that the option to call out the ADF in support of the New South Wales police was considered but rejected due to the complexity of the process and the criteria involved.

This bill seeks to change those criteria. The government is keen to ensure that states can determine when to call on the ADF to assist in a way that is rapid, effective, predictable and transparent and, ultimately, where it would be beneficial to a potential situation. The changes in this bill remove the threshold requirement that says the state:

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

Changes will also require that, in deciding whether to call out the ADF, Commonwealth authorising ministers consider the nature of the violence and whether, specifically, ADF support would be likely to enhance the state or territory's ability to protect itself or the Commonwealth's interests. It's a key issue.

Police and other emergency services are, and will remain, our first responders in this country. It is the immediate responses and actions of these first responders that can, and often do, have the greatest impact in terms of saving lives, protecting people and neutralising any threats. Each state and territory police force has specifically trained personnel who have expert capabilities to respond to terrorist attacks—hopefully not on Australian soil, but, as we know, we have to be prepared for whatever may befall us. We have to be prepared for what may be ahead, and there may be times when state and territory police actually need additional support to respond in the most effective manner. I see some young people in the gallery today listening to this. All of us in this chamber desperately hope that there is not a major terrorist incident in Australia that affects any of you. The reason we make the laws in this place is to protect young people and people of all ages just like yourselves.

While the Australian Defence Force's primary counterterrorism role is offshore, the ADF has the personnel, resources, specialist skills and assets that can assist our emergency services to respond in the event of a terrorist attack. The support can include capabilities such as tactical assault forces and any form of response and recovery that's required. For this reason, it's really essential that the defence forces are actually able and enabled to contribute effectively to our domestic counterterrorism efforts in every environment. In all honesty, we do not know what's ahead. We are aware of some of the threats and risks, but some are yet to unfold.

There are a number of key underlying principles that inform the operation of the amended call-out provisions. The ADF should only be called out to assist civilian authorities. If the ADF is called out, civilian authorities will remain paramount, but the ADF members remain under military command. And, when called out, ADF members can only use force that is reasonable and necessary in all of the circumstances, and they remain subject to the law and are accountable for their actions.

These factors do not limit the range of matters that authorising ministers can take into account. The amendments here will allow states and territories to request that the Commonwealth call out the ADF in a broader range of circumstances, making the process what we need, which is more flexible and responsible to the needs of states and territories, whilst at the same time recognising and respecting the different requirements of each state and territory. Importantly, the amendments do not mean that the ADF will be called out to respond to every threat; however, they will be given greater flexibility to respond to the wide range of threats that may arise—and we hope they don't arise, but we have to be prepared for them—and the range of response capabilities of every jurisdiction. It will also give responding state or territory authorities more flexible options to deal with an incident. They will make the call.

Recent terrorist attacks in cities like Paris and London have also prompted a reassessment of the scope of the ability to preauthorise call-outs of the ADF. It's known traditionally as the contingent call-out, which allows Commonwealth ministers to preauthorise the ADF to respond if specific circumstances arrive. This removes any potential delay, which is so critical. Time is critical in these situations. We've repeatedly seen how important time and timing is. It also removes any potential delay in seeking ministerial authorisation to act once an incident is actually taking place, and it enables the ADF to already be on the scene and ready to assist the police response. Contingent call-out is presently limited to only aviation and the protection of Commonwealth interests. From the passage of this bill, these amendments will extend contingent call-out to be available to protect state and territory interests, whether they are on the land, in the air or in the maritime domain.

In light of the current threat environment, where terrorist incidents can be over in a matter of minutes, these amendments provide additional options when planning for and dealing with anticipated terrorist threats. It is the case that terrorist threats can be highly mobile and can occur in multiple locations simultaneously. That is what we are dealing with. It's more than conceivable that a threat may arise in one jurisdiction and rapidly move to another; therefore, it's critical that legislative arrangements do not hinder an ADF response in this context. These amendments will enhance the ability of the ADF to respond to incidents across state or territory borders by allowing for call-out orders to authorise the ADF to operate in multiple jurisdictions, as well as an offshore area.

The government recognises the importance of the ADF working cooperatively alongside state and territory authorities by increasing the consultation requirements to work closely with first responders if called out. Under these amendments, the ADF will be required to consult with every state and territory affected by a call-out order to the extent possible in those circumstances. They also require that the ADF be utilised only in accordance with the written requests of the police force of the jurisdiction in which the ADF is operating—again clarifying the circumstances where the ADF is involved and limits on their involvement.

The bill further clarifies the powers of the ADF members that may be exercised by organising the powers into three distinct divisions. They will apply in both onshore and offshore areas to facilitate the ADF's ability to respond to multijurisdictional incidents and to streamline the legislation.

One important addition is the inclusion of the Minister for Home Affairs as a named alternative minister. Under the existing legislation, in an extraordinary emergency an expedited call-out can be made by the Prime Minister acting alone or, if the Prime Minister is unable to be contacted, the Minister for Defence and the Attorney-General acting together. If only one of the authorising ministers can be contacted, an expedited call-out order can be made by either the Minister for Defence or the Attorney-General together with an alternative minister, including the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer. Following the reorganisation of the security agencies into the Home Affairs portfolio, the Minister for Home Affairs now plays a key role in counterterrorism coordination. He is a member of the National Security Committee of cabinet, with important security agencies falling within the Home Affairs portfolio. These amendments will add the Minister for Home Affairs as a named alternative minister for the purpose of expedited call-out.

In conclusion, can I say that it's a dreadful statement of fact that the world has changed. Many of us in this place are very concerned about what's ahead. It's changed significantly since 1903 and it's changed even more significantly since 2000. One of our important duties as a government—the most important duty—is to keep our citizens safe. The measures in this bill will ensure that Defence's specialist counterterrorism capabilities are readily available to states and territories if and when they are appropriate and needed. It will ensure the most rapid response possible, which is absolutely critical given the importance of timing and, equally, the current threat environment. The bill represents a huge improvement to the Commonwealth's ability to support national counterterrorism arrangements. While we in this place hope that they never need to be utilised, these changes, if they're needed, will help save Australians' lives in the event of a significant domestic terrorism threat. I commend the Attorney-General for his work and I commend the bill to the House.

Mike Kelly (Eden-Monaro, Australian Labor Party, Shadow Assistant Minister for Defence Industry and Support) Share this | Link to this | Hansard source

I'm pleased to rise to speak to the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 because it does address a lot of issues I've been concerned with over many decades. I see over there in the advisers' box a colleague of mine who has been at my side through a lot of these issues over the years—it's good to see you here.

This bill comes at the intersection of critical issues that this parliament must deal with in terms of, as we heard, the safety of our citizens, but also the preservation of our essential democratic values and structures. So this is serious business. It also reflects the changing nature of the threats that our nation faces over the years and the need to remain agile and flexible in dealing with them and to give our agencies the ability to respond effectively. Obviously, the preservation of life is always at the forefront of that, but there's also the management framework within which force is applied in our democracy. In my own service, in places like Somalia, Bosnia, Iraq and Timor, and in the time I spent in Afghanistan, one thing that was very much brought home to me was that democracy is not so much about laws and instruments and elections but about a culture of democracy. So the signals we send when we take these measures are very important.

To reassure the public in understanding what's being attempted here, I want to put it within context. Our modern story of dealing with domestic terrorism threats began predominantly following the Hilton bombing in February 1978. That led to the death of three people, a police officer and two garbage collectors. Eleven people were injured. It was in the context of a regional Commonwealth Heads of Government Meeting. There were 12 heads of state staying at the Hilton at the time. It was really the first significant act of terrorism of that nature, but it came in the context of what had been building up through the sixties and seventies elsewhere in the world. There had been the development of organisations like Baader-Meinhof, or the Red Army, and Middle Eastern terrorism activities had grown in scope and nature around the world. So the bombing was something in the context of those things happening, when Australia had to wake up and say: we need to be ready to respond more effectively in these situations.

At the time, Prime Minister Fraser called out the Army to secure the town of Bowral, where the further meetings for the Commonwealth Heads of Government Meeting occurred. He did that as a direct Commonwealth interest call-out mechanism, which is distinct from responding to a state request for assistance. It did raise questions of how we were prepared, structured and legally provided for in dealing with the terrorist threats we may face. That led to the Hope royal commission which followed. The Hope royal commission canvassed a whole range of issues, including whether Australia needed a paramilitary force, a third force, to deal with terrorism and who should be responsible, whether it be police, military or a paramilitary force. At the end of the day, having duly considered this in detail, looking at experiences from the UK and elsewhere, the decision was made that we shouldn't go down the road of creating a third, paramilitary force and that the close-quarter-combat role should be handed off to the Army in dealing with hostage recovery or confrontations with heavily armed terrorists. That was the decision that was made.

The Special Air Service Regiment was handed that mission. My joining the Army was at the time of that actually taking place—the putting into effect of the raising of the black squadron, as they called it, the sabre squadron responsible for counterterrorism response within the SAS, and training and skilling it up to deal with those issues. That was the time I first entered the Army. Most of the early work I did in the operation space was in working with the regiment on building up its capacity, conducting exercises and working with state law enforcement authorities.

It raised a whole range of issues. One of the things that hit me in the face straightaway was just how archaic the legal framework was for call-out of the Defence Force at the time. A lot of people may not appreciate this, but effectively the old model was built on an 18th century construct. The British Army was responsible for responding to acts of domestic violence; there were no police forces at the time. The framework within the legislation that we had involved the blowing of bugles, the reading of proclamations—which I'm not sure many terrorists would have been too impressed by—and the forming of troops into formations, possibly to conduct firing on crowds, et cetera. It was a terrible construct which didn't have a proper democratic framework around it.

Something really needed to be done. There'd been various attempts to try and do that, but people were always very sensitive to the ability to explain what had to be done and to create the right legal framework. Several stalled attempts followed, and various governments tried to move forward and failed. It was one of the things that I made a particular mission of mine to try and cure. We had the opportunity emerge in the context of the 2000 Olympics. I thought, 'This is it; if we don't use the 2000 Olympics to get this fixed, we may never get it done properly.'

I could also see the rise of growing and escalating threats moving into more dangerous spaces, such as weapons of mass destruction. That also informed how we approached the reform to the framework. In particular, we'd had the experience of the Aum Shinrikyo attack in Tokyo in 1995. Using the Tokyo subway, this extremist cult group used the sarin agent to attack the general population of Tokyo in several coordinated incidents within the Tokyo subway, and 5,500 people were severely injured or killed. The injured ran off in all different directions, approaching hospitals in Tokyo, spreading contamination as they went. This raised the spectre of having to contain events like this of a widespread nature. This event actually had a tie to Australia, in that Aum Shinrikyo had come to Perth in Australia to set up chemical-processing facilities. At the time they even looked at acquiring uranium deposits in Western Australia to facilitate the development of so-called dirty bombs or even nuclear devices because of the capabilities of some of the Aum Shinrikyo personnel. This informed how we would approach dealing with the reform of this framework in the lead-up to the Olympics.

It was difficult at the time. There was a lot of misinformation and, frankly, some reprehensible politics played by the Greens at the time. We took them through what we were attempting to do, and I think they were attempting to play politics around it, because they obviously could not see—or would not see—the threats that were coming down the pipe towards this nation. But, in the end, good common sense prevailed, because what we were doing was putting a proper democratic framework around this issue.

It was meant to deal with not only the problem of hostage recovery in stronghold situations but also recovery of vessels, protection of offshore platforms and containment of incidents of weapons of mass destruction. It would mean that we would be able to bring to bear all of the skills and assets that the Australian Defence Force had, which went way beyond what the civil infrastructure and assets were capable of. They included some very refined capabilities; some in technologies that I won't talk about. But obviously that close-quarters-combat role is something that the Australian Army is particularly adept at. There were also other capabilities, such as being able to have large-scale deployments of troops wearing nuclear, biological and chemical clothing and equipment to be able to do decontamination, to contain an area, to prevent what happened in Tokyo, for example. All of that informed what we did. We put boundaries around how we could set up controlled areas to provide for searching for dangerous items and authorising Defence personnel to do particular things.

But all of this, and all of what's still at the heart of this legislation, is encapsulated around fundamental legal standards within this country. The same principles in the use of force apply to members of the Defence Force as apply to our civil law enforcement agencies. Underpinning all of that is the principle that members of the Defence Force, if called out in these situations, are still there at the request of civil authorities. The civil authorities have primacy, and Defence will only be used if it's necessary.

This bill is slightly expanding that concept to where we can look at particular skill sets and assets and capabilities that also might be better used. When I talk about new incidents and new issues emerging, a couple of our recent challenges that have informed these amendments include the Lindt Cafe siege and of course the rise of ISIS and its highly networked global operations using new methods of communication and encryption et cetera—more sophistication in that space—but there are also new styles of attack, which are there not necessarily to take hostages but to immediately cause casualties of any scale they can. So being rapid in your response and being able to deal with situations of hostage recovery or sieges is still a requirement, but there are also these other, wide-scale issues.

The Lindt Cafe situation in particular brought home to me quite a few deficiencies in our response regime. Some of those are definitely in the public space now. There were issues around the communications insufficiencies in the New South Wales Police situation at the time. We had our TAG East team, who were doing constant rehearsals, who were there to be called on to resolve the siege. But we had a problem with the lack of numbers of personnel in New South Wales Police, so doing a rotation meant they were going to have to reach out to Queensland Police to do the backup rotation that was necessary, when we had TAG East sitting out there, doing their rehearsals, ready to go, in Sydney. The other component of that force structure of course was TAG West in Western Australia. TAG East in Sydney was ready to go, ready to deliver that assault, if called upon.

The standard of training is difficult in civil police forces; they are not often called upon to do a lot of actual operational activity, which is different from the 2nd Commando or SAS regiment which the TAG teams are based upon. So it is almost certain that the actual assault that had to take place in the end would not have resulted in the civilian casualties that we saw and would've been done more effectively. Also, our Sierra teams are more sophisticated in terms of sniper capabilities and have the ability to deal with certain other types of threat as well.

It is important that we create this flexibility for the situation where Defence assets are more appropriate to be used in a given situation or where you have a longer-term situation which needs a lot of redundancy built into it and you need the supplementary capacity that the Defence Force can provide. This is an important step forward in helping to deal with that.

We also saw, obviously, a lot of lessons learned out of the Man Haron Monis situation. He came in as an asylum seeker under the Howard government and then the Howard government denied an extradition request from Iran and granted him citizenship. Then of course there was a failure of passage of information between the Attorney-General and the state authorities, and the state coalition government let him out on bail et cetera. There were a lot of issues that emerged out of that about passage of intelligence, communication and tracking and proper vetting of people in this country, which we've been dealing with on several levels through the Parliamentary Joint Committee on Intelligence and Security and proposals that have been put before it.

The essential nature of this legislation was also building on the experience we have with 9/11. There were changes made to the framework then because of the demonstration of those types of aerial mass casualty attacks as well. Already steps were taken at that time to facilitate the pre-emptive employment of air power to be on standby for major events like APEC meetings and heads of government meetings in our region, to provide that support across the region and in that Australian context to have that ability to respond quickly and effectively to deal with those kinds of air threats.

The essential nature of the fine-tuning of this legislation, as we've heard, in dealing with multijurisdictional call-outs, is simplifying, expanding and clarifying the ADF's powers in these situations, particularly in relation to searching, so that it's no longer just confined to dangerous items but also extends to detain persons who pose a threat to life, public health or safety generally, and also to detain people in certain circumstances beyond what had previously been catered for. Giving more flexibility to the call-out regime, in terms of extra ministerial backup, was also a logical step to take.

Obviously this nation's going to continue to need to respond and react as circumstances change. The essence of this type of legislation and the processes which we engage in through the IS committee—I note the chair is here today, and he has personal experience of the sabre squadron I was referring to—this is a situation where we must continue to work together in a bipartisan way. (Time expired)

Damian Drum (Murray, National Party) Share this | Link to this | Hansard source

It's my privilege to be in the House today to talk to the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. We understand very clearly that we, like every other nation, are in the firing line for a whole range of threats into the future. We always hope that these violent threats may not be inflicted upon the people of Australia, but we have to put this type of proactive provision into our legislation so that we can be prepared for whenever we are the subject of these terror threats. We also understand that if people want to get at Australians, they don't actually have to come to Australia. We saw that very much in the Bali bombings, where we had people inflicting great pain and loss of life on Australian people in a foreign country.

We are susceptible in many, many ways, and the ability for Australia to respond to specific events is quite difficult at the moment, when we have the primary responsibility as first responders being with our standard police forces from the respective jurisdictions. This legislation is now going to make it much easier, when an event does take place that is beyond the reach of our law enforcement agencies and they need that additional assistance, for them to be able to call out the ADF in a much more expedited manner to get the skill sets that they need. We know that the skill sets that are available within the Air Force, the Navy and the Army are the types of assets that we will need in the event that we have a future terror threat.

This legislation will also make it very clear that in no way will the ADF be called in to disperse what we would call a peaceful protest. This has been an area of the legislation that's needed to be worked through from a legal point of view. People were looking at this legislation and discussing whether it was in any way going to impinge upon the freedoms and rights of people who wished to partake in a peaceful protest, and it has been set aside very clearly that in no way will that be affected into the future.

As I said, this proactive legislation will give us the opportunity to make those call-outs. It's actually going to broaden the opportunity for different ministers. Currently, these types of powers rest solely with the Minister for Defence and also the Attorney-General, but the ministers who are now going to be able to make this call will also be alternative ministers. That's going to be the Deputy Prime Minister, the Minister for Foreign Affairs, the Minister for Home Affairs, and the Treasurer. It's going to make it slightly more flexible for government to be able to enact these call-out orders. I think the law enforcement agencies that will be asking for this assistance are very keen that the government that has to make these calls is going to have this greater flexibility.

Obviously, the ADF understands that the powers it will be given will be at the request and at the instruction of the local police authority and include the ability to search those people who are at an incident and the ability to detain people who are at a particular incident. These are some of the areas where there has been some conjecture and certainly these are the actions that we have seen to be the most critical. But also, when it comes to some of the threats which we are yet to deal with on a large scale here in Australia, it might mean they will have the power to destroy certain assets that are deemed to be either a threat to the Australian people or, in fact, at the time inflicting loss of life on the Australian people.

So these are very serious measures that are being put into the parliament today. It's a very serious issue. We are trying to predict what may happen into the future and trying to predict what types of actions our Australian Defence Force personnel may be called on to assist with. At this stage, this is the way that we have been able to put the legislation together.

We're also talking about not just a standard opportunity to call out the Defence Force. When there are extraordinary circumstances, we're going to have the ability to have expedited call-outs that are also going to be part of this legislation. In the event of a sudden or extraordinary emergency where it is not practical for the normal call-out to be made, the Prime Minister instead of the Governor-General can call out the ADF. In the event that the Prime Minister is not available, these expedited call-outs can be authorised by two other ministers: the Minister for Defence and the Attorney-General. They can do that work jointly. In the event that the Prime Minister and one of the other authorising ministers are not available, an expedited call-out can be authorised by the remaining authorising minister—that is, the Minister for Defence or the Attorney-General, along with the Deputy Prime Minister, the Minister for Foreign Affairs, the Minister for Home Affairs or the Treasurer. These expedited call-outs are designed to be used in response to a rapidly evolving, dynamic terror situation where an immediate response is critical to prevent the loss of life here in Australia.

A contingent call-out is another aspect of this legislation, and part IIIAAA provides a mechanism to prospectively make a call-out order that will only come into effect if specified circumstances arise. The purpose of a contingent call-out is to preauthorise the ADF to respond to anticipated or foreseeable threats, should those circumstances arise. A contingent call-out authorises the ADF to respond immediately once the specified circumstances have arisen. A contingent call-out is currently limited to responding to air threats. The amendments will extend these contingent call-outs to be in relation to land and maritime threats, as well as to aviation threats, in the event of those incidents happening. The contingent call-out is the only type of call-out that has been used to date. These contingent call-out orders are made regularly as part of security measures to protect major Commonwealth events, such as the Commonwealth Games and the ASEAN summits.

We are putting this in place, hoping that we won't have to use it and hoping that, if we do use these provisions, they are used incredibly sparingly. We would also like to see the situation where our law-enforcement agencies are able to deal with most of these issues on their own. But, as was mentioned by the previous speaker, we have other areas, issues and events, such as the Lindt siege which took place in Sydney a few years ago. The subsequent reviews into the procedures that took place on that day suggested that that may have been an event where some ADF skills and personnel would have been able to come up with a better result, rather than the loss of life that we saw in that event. As was also put forward by the previous speaker, we know that there is always a raft of other circumstances behind many of these events that we see on the local news bulletins. Again, I would just like to acknowledge the incredible skills that we have available within the ADF—the most disciplined, humble and well-trained soldiers that we could possibly hope for. We understand how crucial they are for us in the work that they're doing, both here in Australia and overseas.

This is a commonsense piece of legislation, where we are planning for the future. We understand that it's a future where we'll be living in very uncertain times, and we understand that in those uncertain times there will always be a threat where we may need this type of assistance. We always hope it doesn't happen, but the fact is that we have some of the best-trained soldiers and the best-trained troops in the world.

This type of legislation is going to assist in keeping Australians safe. Every government that has the opportunity to govern this country should have as its first duty keeping Australians safe. This legislation is going to enable us to do that in a more proficient manner. It's going to create greater workability between our current law agencies and our ADF. It's also going to set out clearly the legal platform for what our ADF can and cannot do, to make sure there isn't confusion at the time of an event and to make sure that, in the days following the event, everybody knows exactly what they are supposed to be doing and what they are legally allowed to do.

With no further effort, I commend this bill to the House. I would like to thank the Attorney-General for putting this legislation together. The Senate Legal and Constitutional Affairs Legislation Committee inquired into this legislation, and it supported the legislation and said that it should be enacted. Various levels of consultation have arisen to this point, where it has now been set out. I wish this bill a speedy passage through the House, and I commend this bill to the House for it to be part of ongoing legislation.

Mark Dreyfus (Isaacs, Australian Labor Party, Shadow Attorney General) Share this | Link to 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.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

At its heart, this bill is about keeping all Australians safe. Now more than ever before, there are increasing threats to our domestic security. Terrorism is no longer contained abroad, and we know from credible intelligence that both individuals and groups have the capability and intent to carry out a terrorist attack on our home soil.

It's thanks to the great work of our talented police and security agencies that Australia has avoided a number of potentially deadly incidents. The very serious threat to an Etihad Airways flight out of Sydney just last year, caused by an improvised explosive device, and the subsequent investigation and arrests of suspects in raids across Sydney are a further chilling reminder of the necessity of this constant vigilance. As security threats cross borders and technology opens up new frontiers of terrorism, it's critical to have the right legislation that is both agile and responsive.

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 is reflective of our current security situation today. The previous legislation has not been updated since before the Sydney Olympics in 2000. In almost two decades, Australia has changed dramatically, and so too have our security challenges. The amendments which are put before the parliament today will strengthen our existing legislation. They will form a key part of our national security framework.

The reforms are just one aspect of a series of new measures designed to respond to the complexities of contemporary terrorism. The central changes to the existing legislation relate to how the Australian Defence Force responds during the event of a domestic security incident. This bill will streamline the process for state and territory police to request help from the ADF. It means the ADF can respond more easily and quickly, ensuring that we are in the best possible position in the event of a terror attack.

Currently, the ADF can only respond to a domestic security incident if state and territory police have exhausted their capability to protect themselves or Commonwealth interests. Under these new amendments, the threshold for a military call-out will be lowered, and the ADF can be mobilised to enhance and support police.

Our Defence Force is highly regarded as one of the best, if not the best, in the world. The combination of talented and determined sailors, soldiers, airmen and airwomen, along with our incredible technology and resources that this government is pouring into the ADF, are the backbone of our national security. Whether the enemy is here at home or tens of thousands of kilometres away across the globe, our service men and women are regularly in harm's way in the defence of Australia.

Last year, I travelled to Afghanistan with five other MPs to experience ADF life in the Middle East. During my time there, I lived side by side with the soldiers, sailors, airmen and airwomen. I attended their briefings and had the privilege of receiving intelligence briefings. That experience brought the security concerns our nation faces into stark focus for me. It showed me that people within the ADF are equipped with critically important skills. These include our Special Forces units and those with the knowledge and expertise to respond to a biological, radiological or nuclear disaster. It's this expertise that is vital and could one day prove life-saving in the event of a domestic security event. Specialist military personnel can be used to manage a prolonged siege such as the Lindt cafe siege. They could coordinate the response to a major terrorist incident stretching across several locations or utilise sophisticated weaponry to counter a chemical attack.

The simple truth is that we do not know what sort of terror attack we could be confronted with, but what we do know is that we should use all the tools in our armoury to ensure that we protect this nation. We need the capabilities of the ADF to protect Australia from the land, the sea and the air. The ADF, as it often says, trains for the worst but hopes for the best, and it would seem incredible that we did not tap into that vein of experience and know-how. It's clear that the Defence Force is an important part of our national security policy, and these amendments highlight our government's commitment to legislative reform that protects our way of life.

Of course, it's important that we recognise the work of our state and territory police officers. They, as our first responders, do great work in relation to security incidents. This legislation ensures that their role as the primary responders, the first responders, is protected, but it sets provisions to allow for increased consultation and collaboration with the ADF. In order for the ADF to be tasked, a request for assistance must be made by police and then approved by a senior government minister. In most cases, the ADF would not be required—for example, terrorist attacks involving a knife are typically over a short period of time, and the threat would not constitute or is unlikely to constitute an intervention involving the ADF. State and territory police will remain in control of such a situation, with the ADF offering any specialised support that the state and territory police may require.

Our police have a very special set of skills to respond to these sorts of incidents, and they are consistently evolving these processes to ensure that they are prepared in the event of such an event occurring. In the region surrounding my electorate of Fisher on Queensland's Sunshine Coast, local police have taken part in a first-of-its-kind training program, tackling the threat of terrorism head-on. The Security and Counter Terrorism Network training equips officers with the skills to assess possible risks, identify persons of interest and conduct threat assessments to prevent such an attack. The training further skills police in responding to and managing a terrorist attack or a major security incident. State and territory police will always remain our frontline defence and first responders in the immediate aftermath of any such incident, where routinely they would secure and preserve life as their principal and primary objects.

But the threat against our nation is, unfortunately, relentless. There are people and groups who wish to cause us devastation and harm. They wish to destroy our very way of life. A change in terrorist tactics means that we too need to change how our government responds. We've seen from the Borough Market attack in London and the Bataclan theatre attack in Paris that incidents can move very rapidly and fluidly. Again, our response needs to be rapid to prevent the senseless loss of life.

While attacks overseas can seem a world away, Australia is not immune to the potentially deadly threats. Our national terrorism threat today remains at 'probable'. Last year alone, there were 76 calls to the National Security Hotline every single day. That's around 27,000 in just one year. Australians reporting information and intelligence on national security and criminal activity have proven that they want to be active in the prevention of terrorism in this country. The phrase that was marketed by our respective governments was 'Be Alert, Not Alarmed'; the Australian people have taken that on board and want to be part of a proactive community to ensure that they do their bit in helping to keep us safe. But those 27,000 calls to the National Security Hotline in a year are a sobering statistic. Combined with the intelligence gathered by our security forces, they highlight the need to make these very amendments that we are debating today.

Changes to our critical defence legislation should not be taken lightly. The amendments proposed in this bill are grounded in the recommendations from the Prime Minister's defence counterterrorism review. Significant consultation has also taken place with each state and territory as part of the development process for this legislation, and that is only fitting when we are looking to amend the way in which the ADF can be called out. Greater collaboration between our Defence Force, our security agencies and authorities is critical so that Australians can be kept safe and secure.

The amendments to this legislation come at a critical time and are an important step forward in how we protect Australia from a range of national security threats. Now is not the time for continued talk. Now is the time to act to ensure that our ADF are able to become involved in these sorts of incidents, if and when they are requested by state and territory police. They have the equipment, the knowledge and the expertise in personnel to be able to provide a greater degree of security to our country, and it would be absolute madness if we did not call upon those skills. I commend the bill to the House.

Graham Perrett (Moreton, Australian Labor Party) Share this | Link to this | Hansard source

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

This is a very significant piece of legislation, so I'm going to unpick some of the processes. For many people, the idea of the military being called out on our streets could be of concern. I just want to reassure people about the process. Obviously, in any legislative process there is the original idea, which can come from anywhere—from government, opposition or the public. Then in the Commonwealth parliament we need to look at the Constitution to make sure there is a head of power to support that idea being turned into legislation. Then there is drafting. We rely on parliamentary counsel for that. Then there is the crafting of that legislation through the political process of committees having a look at the proposed legislation. Then there is the debating process through the parliament after the committees have looked at it. Then it becomes law.

I mention that to take us back to section 114 of the Constitution. When the colonies came together, most of those colonies already had a military force. Section 114 of the Constitution, which they agreed to send off to the British parliament, said:

A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force …

The Constitution goes on to say in section 119:

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

Right from the word go, our founding fathers—I have to say that, as it was largely a male show at the time—understood that the colonies would be giving up some of their powers over the military. In fact, section 69 says under the heading 'Transfer of certain departments':

On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth …

One of the departments is 'naval and military defence'—obviously there was no Air Force back in the late 1890s when they were drafting this. And who will be the commander? Section 68 of the Constitution says:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.

So there is clearly a head of power and a contemplation. From that, we draft some legislation.

Just over 12 months ago the government announced a number of measures to enhance the support provided by the ADF for these national counterterrorism arrangements. The ADF are incredibly skilled personnel when it comes to looking after the Australian people. But obviously we need to take things in balance. If we are going to let the military come onto the streets—as a Queenslander, I know that the ADF often come out in times of trouble when natural disasters happen. This is a different use of the ADF. The Department of Defence has already implemented a number of initiatives to provide greater practical support for state and territory law enforcement agencies—not just cleaning up after a cyclone or flood, which the ADF have done so well so often. This is different. This is about an enhanced counterterrorism liaison network, an enhanced program of specialist training activities and streamlined police access to Defence facilities—for example, ranges.

This bill, while implementing relatively minor administrative changes to the existing call-out powers, is a key part of the measures announced in 2017. The Defence Act 1903, as it currently stands, outlines two types of call-out orders: an order for the ADF to be called out immediately—not something that happens very often, obviously; I think there might have been some coal strikes back in the forties during which that occurred—and a more common contingent call-out order whereby the ADF can be called out if specified circumstances arise. This bill amends the Defence Act to make it easier for states and territories to request ADF support; to simplify, expand and clarify the ADF's powers; and to enhance the ADF's ability to respond to incidents occurring in more than one jurisdiction or across jurisdictions. We saw how in the United States during 9/11 it was across different states that the terrorism incidents occurred. It will also allow for the pre-authorisation of the ADF to respond to threats on land, at sea and in the air—typically for a big event like the G20 or the Commonwealth Games, recently held on the Gold Coast, as we saw.

It is important to note that, following the implementation of these changes, the state police forces and the territory police forces will continue to be the first responders. I want to make sure people understand that. Even during a terrorist incident it would still be the state and territory police who were the first responders, and then, following a request by the state or territory, the ADF would be able to go in. Obviously, there is still a capacity for the ADF to be called out to protect Commonwealth interests or if requested by a state or territory.

The explanatory memorandum points out four underlying principles:

which is something for the lawyers to understand. Further:

and I'll come to that in a second. Lastly:

Remember that the ADF, in fact, have a higher system of accountability than normal citizens have because of the military justice system. If a politician falls asleep at work they might get an embarrassing photograph taken of them, whereas if a member of the ADF falls asleep while doing their job they can be in serious trouble. Obviously, if they fall asleep on their watch there is a different set of standards. There is a responsibility for them to act with honour and according to a military code that is above and beyond what most of us would experience.

It's legitimate, important and responsible for any government to make sure it's looking after the populace and protecting them from any acts of significant violence, and that's obviously a legitimate purpose for this piece of legislation. But I'm going to take you, Deputy Speaker, to the balancing act we need to do. If we're going to ask the ADF to have these powers, it's important that we make sure the powers are not so broad. We have existing powers for the ADF to step up, and we needed the Attorney-General to explain why the existing powers are insufficient to protect Australians.

This bill was seen through the prism of the Parliamentary Joint Committee on Human Rights and also the Senate Legal and Constitutional Affairs Legislation Committee, which had an inquiry into this piece of legislation. I'm thinking of those freedoms that we're all so keen to protect. We have the right to life, the right to liberty, the right to be free from arbitrary detention, the right to privacy, the right to have freedom of movement around the nation, the rights of freedom of expression, association and assembly. All of those things were looked at by the Parliamentary Joint Committee on Human Rights, of which I'm the deputy chair. We looked at this legislation in report 8 of 2018, and we asked the Attorney-General to provide a statement of compatibility to show why these rights are being influenced by this piece of legislation. It is serious, because if there was a terrorist incident or something, if we had ADF personnel out on the street, the ADF don't have the same expertise as the police force when it comes to arresting somebody. A military engagement is completely different to the engagement of the police service in dealing with crime.

The powers in the legislation would permit lethal force to be used, even if a person was attempting to escape or flee, if the ADF believed on reasonable grounds that a person could not be apprehended in any other way. We need to ask the Attorney-General to make sure that such a power will be used properly.

Let's have a look at what the legislation provides for. Currently the Defence Act prevents the ADF from being called out until such time as the states and territories 'are not, or are unlikely to be, able to protect themselves or Commonwealth interests against the domestic violence'. So, basically, when the resources of the state or territory have been exhausted, the ADF resources could then be called in.

This amendment provides a more flexible and responsive threshold that requires the ministers of the Commonwealth to consider the nature of the violence or threat. The example given by the previous speaker was that a person with a knife would not necessarily require the ADF to be called out, but a group of people acting in a concerted way might be enough to bring the ADF out.

The second thing the ministers need to consider is whether calling out the ADF would be likely to enhance the state or territory's ability to respond to the threat, keeping in mind—for the sake of those listening—that it will always be the states and territories who will be the first responders. There are also some amendments to ensure that ADF personnel can only detain a person when it is necessary as a matter of urgency. The explanatory memorandum makes clear that where the police are also present, it would not generally be necessary, as a matter of urgency, for the ADF to detain a person.

The sensible part of this legislation is, particularly, the idea of a pre-authorised or contingent call-out. As I said, examples would be the G20, the ASEAN summit or the Commonwealth Games where there is already a process to ensure that the ADF is ready just in case anything happens. The other point to make is that the bill also contains a number of provisions that increase the requirements for the ADF to consult with state and territory police, where it is operating in their jurisdictions. I note particularly that the Minister for Home Affairs is named as an alternative authorising minister for an expedited call-out. One would hope that, before calling out the ADF, the Minister for Home Affairs would use good, calm, sensible judgement.

As I said, this legislation was considered by the Human Rights Committee and also by the Senate Legal and Constitutional Affairs Legislation Committee. The Human Rights Committee looked at it through the prism of the human rights that I went through, but the Senate Legal and Constitutional Affairs Legislation Committee made a couple of recommendations in terms of the need to provide clear definitions of what the specified circumstances might be—and the minister tabled an amended explanatory memorandum detailing some of those specified circumstances. The EM now outlines:

It is not intended that contingent call out orders … 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 assessments required …

We need to keep that separation clear for most normal circumstances. However, an obvious example would be if there were to be a major international summit and we had to protect some visiting dignitaries or heads of state. We would have to consider the possibility—or there would be a foreseeable risk—of a chemical, biological, radiological or nuclear attack at the summit venue. That would be an appropriate circumstance for a contingent call-out order to be in place to deal with something that would be a foreseeable risk and empower the ADF to use its specialist capabilities, should the specified circumstances of an imminent or actual chemical, biological, radiological or nuclear attack at the summit arise.

The minister has also amended the explanatory memorandum to provide greater clarity on the meaning of Commonwealth interest and also the meaning of domestic violence as in:

… conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence.

This is why the Labor Party is supporting this legislation, and so will I.

Andrew Hastie (Canning, Liberal Party) Share this | Link to this | Hansard source

I rise to speak in support of Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. This is a very important bill and it was triggered by the Lindt Cafe siege of December 2014 and of course the coroner's report, which was released in May of last year. It's timely and important for a number of reasons. The first is that it implements recommendations from the Review of Defence Support to National Counter-Terrorism Arrangements, but, secondly, it optimises the legislative arrangements for calling out the ADF in the event of a terrorist incident. It gives decision-makers in government, authorised ministers—the Prime Minister, the Attorney-General, the defence minister and the Minister for Home Affairs—in extraordinary circumstances, the flexibility they need to keep the Australian people safe. That's the bottom line.

Most importantly, in my view, it unlocks the high-end counterterrorism capabilities that reside in the ADF, specifically within Special Operations Command—and I'm speaking of Tactical Assault Group-West, the Special Air Service Regiment in Perth; and Tactical Assault Group-East, the 2nd Commando Regiment in Sydney. Both of those units are our premier counterterrorism force elements, and I'm very pleased to see this legislation pave the way for their use in the event of a significant terrorist event that affects Commonwealth interests.

Of course, both these force elements serve at a reduced notice to move. They're always prepared for a terrorist event. They're constantly training for a number of contingencies. They benchmark against Five Eyes special operations and law enforcement units, so they have world's best practice at their fingertips. They also have significant combat experience acquired through ADF operations in Afghanistan over the past decade or so. They remain ready to resolve the most dangerous, complex and violent scenarios on behalf of the Australian people. Their training facilities are world-class. They use live ammunition almost every day—in fact, some have regular blood tests for lead, given the amount of time they spend shooting with live ammunition. My point is: nowhere else in government is anyone so equipped to deal with a terrorist scenario or incident involving hostages and people who are seeking to kill and do harm to Australian people in our Commonwealth.

The question at the heart of this bill is: why the amendment? Since 2000, terrorist incidents and attacks have been increasing worldwide. Deaths caused by terrorism since 2000 have increased ninefold. In fact, in 2016, 29,000 people had their lives taken worldwide by acts of terrorism. If we look historically over the past two decades, we think of 9/11, Bali, 7/7 and now Paris and London. Sadly, the names of those cities are synonymous with terror attacks over the last five years.

In December 2014, as I discussed, we had the Lindt Cafe siege in Sydney, which took place over two days, 14 and 15 December. The terrorist Man Haron Monis held 18 hostages in the heart of Sydney's CBD, and this was broadcast live across the world. I recall being overseas at the time and it being run regularly on international channels, which goes to a point I'll make later about the nature of international terrorism. This incident was eventually resolved by New South Wales Police, and tragically Tori Johnson and Katrina Dawson lost their lives in the final moments of the siege. Man Monis—it's up for debate, but I judge people by their actions—claimed to be acting on behalf of ISIS. He requested a flag, and that's good enough for me. My view is that he was acting on behalf of a transnational terrorist organisation committed to undermining Western democracy, the rule of law and our way of life for the persecution of minorities and the disgraceful treatment of women.

I don't want to go into the intimate details of the police siege here; that is covered in the coroner's report released in May last year. Many people—constituents and people in the media—across the country have asked the question: why weren't ADF counterterrorism elements used to resolve the Lindt Cafe siege incident? In short, this legislation will make it easier in the future for states and territories to request ADF support for those sorts of incidents and also for the Commonwealth to set in motion the use of those force elements if authorised ministers are convinced that the Commonwealth of Australia is indeed under threat. It's my personal view, in the event of the Lindt Cafe siege, that the threshold was met and the ADF would have been far better equipped, trained and more experienced to resolve that situation.

The bill makes it easier—among many things, but this is probably the most important point—for states and territories to request ADF support by removing the threshold requirement that the states and territories 'are not, or are unlikely to be, able to protect themselves or Commonwealth interests against the domestic violence'. The EM goes on to say:

However, authorising Ministers will need to take into account the nature of the violence and whether the ADF would be likely to enhance the state and territory response when deciding whether the ADF should be called out.

This goes to subsection 33 of the bill, which details the conditions for making the order. I'll go through it very briefly:

(1) The Governor-General may make an order under subsection (3) if the authorising Ministers—

that is, the PM, the Minister for Defence or the Attorney-General—

are satisfied that:

(a) any of the following applies:

(i) domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia;

(ii) there is a threat in the Australian offshore area to Commonwealth interests …

(iii) domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia …

This is a really, really important point. We've seen the impact of global terrorism and the fear and the chaos that it manages to produce when coupled with social media and media. We've seen it in Paris, and we saw it in London just last year. The Lindt Cafe siege was a good example at home of how terrorists can use propaganda to their advantage. The Lindt Cafe siege was broadcast live across the world to people in many countries. It was very clear that the Commonwealth of Australia was under attack from someone claiming to be a representative of ISIS. In my view, the threshold was met. That's why it's very important that we send a strong message to these people who would attack our citizens and seek to undermine our way of life.

We need to have a robust response in the event of a terrorist incident. Last year the Australian Federal Police Commissioner said that most terrorist incidents are over within 10 to 15 minutes. This was true of the London attacks last year. Our state and our Federal Police will always be the first responders. They need the right training, equipment and legal authorities, including provisions for the use of lethal force, to deal with the evolving threat posed by radical Islamist terrorists specifically. The Lindt Cafe siege coroner's report released last year did raise some troubling points about the readiness of New South Wales Police to deal with a terrorist incident that involved multiple hostages held captive in a stronghold that, to be frank, wasn't overly complex. There were two entry points, I think, and we had the blueprints. A mock-up, I understand, was built at Holsworthy in preparation for an assault. I want to say that the New South Wales Police acted bravely on that night, and it's easy to make judgements in hindsight, but we shouldn't shrink from seeking to learn from this. I think the stakes are very high in these sorts of incidents.

So I'm very glad that the coalition government has reviewed ADF call-out arrangements in the event of a future terrorist incident. I've argued for some time that we should consider using the ADF counterterrorism elements drawn from those two units—the 2nd Commando Regiment and the SASR—if we have a prolonged terrorist incident involving a listed terrorist organisation, a proscribed terrorist organisation, holding Australians hostage. There are a number of reasons for that. First, an attack on the Australian people by a listed terrorist organisation is not a state criminal matter; it's a Commonwealth matter. It's an attack on the Commonwealth of Australia, so it's in our national interest—and I would argue that our reputation is at stake as well—to deal with these threats. The majority of these people who commit these terrorist attacks on behalf of Islamic State clearly don't want to negotiate. In my view, nor should we. The most lethal means of statecraft reside with the Commonwealth, specifically the counterterrorism units within the ADF. Terrorists who attack and kill Australian people need to be killed quickly to protect our citizens and to deny them a propaganda victory. We saw how quickly social media and the worldwide media broadcast the Lindt cafe siege, particularly when the New South Wales police made entry and resolved the situation.

Finally on this point, our ADF counterterrorism elements are world class. They train especially for these sorts of situations over and again, not just for strongholds like the Lindt cafe siege but also for aeroplanes, offshore environments, ships. There's nowhere else in the Australian government where people are equipped and trained and experienced enough to handle these sorts of complex situations. They are surgical in the application of lethal force. Culturally—this is a key point between our police and military—they're ruthlessly mission focused, particularly when it comes to resolving these sorts of situations. I mentioned the combat experience that is resident in both of those units.

The legislation also makes a number of amendments which will improve the operational and tactical effectiveness of ADF units. I'll go through them very briefly. It enhances the ability of the ADF to respond to cross-jurisdictional incidents by allowing a Commonwealth-interest order to authorise action in multiple jurisdictions so we can have multiple ADF elements deployed across the country, including offshore areas. It expands the contingent call-out to allow the ADF to be pre-authorised to respond to land and maritime threats in addition to aviation threats. That means our decision cycles are just that little bit quicker. We can get people out, stage them and be more prepared for contingencies, which is really important.

The legislation increases the requirements for the ADF to consult with state and territory police where it is operating in their jurisdictions. We know that state and federal police will always be first responders, so we need to have those linkages at the lowest tactical levels with the ADF. Having them train together and liaise regularly together will mean that, when a moment of crisis comes, we'll have a more seamless operation launched against terrorists who seek to undermine the Commonwealth of Australia.

The legislation simplifies, expands and clarifies the powers of the ADF to search, seize and control movement during an incident. I won't go into the details here, but that's very important, obviously. It removes the distinctions between general security areas and designated areas to reduce complexity and uncertainty. Again, amendments that have tactical effect are very important for a seamless operation, especially in the midst of chaos.

I want to make it very clear, because I know some of the colleagues opposite made this point, that at no point does this legislation undermine the principle of civilian control of the ADF. That remains unchanged, and it's upheld at all points through this amendment. That's a really important thing. Civilian control of the military is what marks us out as a Western democracy. I want to make that very clear. Moreover, ADF units, when deployed in response or called out to a terrorist incident, are still operating under the Australian rule of law. No obligations are lifted for them to accord with what is expected of them in the ADF and within our judicial system.

I commend this legislation. I think it really does make our options for resolving these situations in the future much greater. It gives flexibility to our decision-makers, and, of course, at the end of the day, when we have a terrorist attack we want our best people on the ground resolving the situation. This legislation makes that possible. I commend it to the House.

Meryl Swanson (Paterson, Australian Labor Party) Share this | Link to this | Hansard source

I rise today in support of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. Many of us don't think about our first responders unless there is an incident that draws our attention on the news—or, increasingly these days, on social media. Every day someone in our community needs the assistance of the police or emergency services, including firefighters and our ambulance officers. On rare occasions this will also include our defence forces, and that's ostensibly what this bill is about.

This bill will make it easier for our state and territory governments to request the assistance of our Army, our Navy and/or our Air Force under certain circumstances. Labor knows and very much understands how important it is to make that sure our national security arrangements are kept up to date, to keep all Australians safe and to protect the magnificent freedoms that we have here in our country under our great democratic principles.

The Defence Act 1903, as it currently stands, outlines two types of call-out orders: an order for the ADF to be called out immediately and a contingent call-out order, whereby the ADF can be called out if specific circumstances arise. But the world as we know it, including Australia, is a very different place to what the lawmakers of 1903 experienced, and we have to respond today as modern lawmakers for the new demands of security in our world. Fortunately, Australia has had little experience of terrorism on domestic soil compared to the rest of the world. That is a great thing, and it's testimony, first and foremost, to our democratic rule of law. It's also testimony to the spirit of the Australian people, and I think it's testimony to the fact that here in Australia we have a very rigorous set of laws. As the previous speaker mentioned, we all operate under the Australian rule of law. That includes our police forces and our Defence Force, and that is still one of the great tenets of living on the Australian continent: that we all live by the laws that we make.

Due to the diligence of our security services, we can feel safe when we need to go to the supermarket or to the football or to some of those important events. Also, when we have lawmakers from other parts of the world visit our country, we want to know that they will be secure. But we can't ignore things like the Lindt cafe siege, as has been mentioned by many speakers already in this place this morning, or other incidents in tourist havens like Bali, where Australians have been impacted. This bill will ensure that local authorities will continue to be the first responders, but it also ensures that help is at hand if it's needed—and, importantly, that the help is at hand without delay.

It's important to point out that the wonderful workers and local authorities will remain as the first responders in the case of a local terrorism incident. Ostensibly, the police, the firies and the ambos—the first responders in their chain of command—will still have control of the situation, but they will be able to request the assistance of the Australian Defence Force more easily if it's required. Under the existing legislation, states and territories can only call on the military when they are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence. I might just add that the context of the words 'domestic violence' is very different in how we use it today in modern language. It isn't in terms of family violence on that scale but is 'domestic violence' in terms of our country.

In July 2017 the government announced a number of measures to enhance the support provided by the Australian Defence Force for national counterterrorism arrangements. The Department of Defence has already implemented a number of these initiatives to provide greater practical support for state and territory law enforcement agencies, and these include things like enhanced counterterrorism liaison networks, an enhanced program of specialist training activities and streamlining of police access to Defence facilities. I actually think this is a really important part of this bill. We know that we have within the ADF some of the world's best practice in terms of training. We know that technology is constantly changing and we know that the ADF have access to some of the cutting-edge technology the world over.

I think it is really imperative that we allow our local authorities to train with the ADF, to have access to some of the new technologies and to really have the best KPIs in the world in terms of training. It really does make a lot of sense to extend to police, ambos and our other local authorities the training that the Defence Force has to offer. Why not use that incredible capability and capacity for training people? We train people extraordinarily well within the Australian Defence Force. Why not extend that and assist our local authorities? I'm told that the program is working particularly well. So I do think that it is a good development and a good trend to think our local authorities will benefit from that training from the Australian Defence Force. Indeed, the cross-pollination of experience that local authorities have to share with the Australian Defence Force as well should not be underestimated.

This bill is part of those measures announced in 2017 and amends the Defence Act to make it easier for states and territories to request ADF support and simplifies, expands and clarifies the ADF's powers. I think that's a good thing for the ADF. It enhances the ADF's ability to respond to incidents occurring in more than one jurisdiction or across jurisdictions and allows for pre-authorisation for the ADF to respond to threats on land, at sea and in the air. This is typically used as a measure during major events as speakers have spoken about this morning: things like the Commonwealth Games, the G20 and ASEAN meetings. Amendments to the bill ensure that requests for assistance are implemented efficiently and quickly. As we know, for some of the threats posed a particularly imminent response is required. 'Time is of the essence' has never been more important, as my friend and colleague the member for Eden-Monaro pointed out—in an excellent contribution to this debate, I might add. Things have changed since the 1800s, when bugle calls were put out and how the Defence Force may have responded to a threat was very different. These days we see threats coming in all manner of ways and often without notice, so timeliness is really very important.

This amendment also makes it very clear that, domestically, the state and territory police forces will remain the first responders to terrorist incidents and call-out of the ADF will only be able to be considered following a request by a state or a territory. It is important to provide a more flexible and responsive threshold that requires the ministers to consider, firstly, the nature of the violence or the threat and, secondly, whether calling out the ADF would be likely to enhance the state or territory's ability to respond to that threat. I think that is really a useful thing to keep in mind in relation to this bill as well.

This amendment will allow greater flexibility for the ADF to provide the most rapid, effective and appropriate specialist support in responding to terrorist incidents, at the same time as respecting the states' and territories' positions and rights as the first responders. The ADF will have pre-authorisation to respond to threats on land, at sea and in the air, enabling the multijurisdictional call-out. As the law stands currently, that is only available to us in the air. Pre-authorised or contingent call-out will allow ministers to pre-authorise the ADF to respond if specific circumstances arise, and that speaks to timeliness as well.

The bill enhances the ability of the ADF to respond to multiple incidents occurring in jurisdictions. We've seen internationally where simultaneous acts of terrorism have happened. I think this is another really important part of this bill. We can be agile and responsive across multiple jurisdictions. If something were to happen in a number of states simultaneously, we could have the ADF come to assist in that situation. I think that really is an important part of the nimbleness required in today's modern world.

Currently, contingent call-out is limited to the protection of Commonwealth interests from air threats, so including sea and land is indeed very important. This type of contingent call-out order has been made regularly as part of security measures. We want to participate in things like the ASEAN Summit, the Commonwealth Games and the G20—it is absolutely imperative and it is a point of pride that we, as a modern democracy, can bring world leaders to our country to help create the world order, in economic and other terms. We want people to know that they can come here and avail themselves of our excellent security and feel that business can be done in a safe way here in Australia and that we look out not only for our own community but for the world community at large.

This bill will extend contingent call-out to be available for the protection of Commonwealth interests—land, sea and air. 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. That is where so much effort goes in. I am pleased to see that those additional support options have been included in the bill, because we know that the planning of things like the G20 and the ASEAN Summit can take many months and require specialised personnel.

Defence Force capacity and expertise enhance the efforts of local emergency services. This is an important point when considering the context of the amendments in this bill. Under certain circumstances, Defence capabilities may be critical to contain an incident and protect lives.

One of my proudest moments since being elected was to spend a week living at RAAF Base Williamtown, in my electorate of Paterson. Aside from looking at all of the work that goes on at the base, which makes an enormous contribution to Australia's defence capability, it was incredible to meet the individuals who sign up to be part of our Australian Defence Force and to look at the impeccable training regimes they go through so that they are ready. To think that we will have those personnel at our disposal should the worst occur is something that gives me great comfort. I am very proud of them. I am pleased to know that, should they be required, our RAAF Base Williamtown personnel will be able to be involved and able to respond to the call of the states and territories.

The experience at RAAF Base Williamtown certainly gave me an insight into the lives of our service women and men and the great sacrifices they make to ensure our security. I want to thank all those who serve and work hard and put their lives at risk so that we can relax and enjoy this wonderful country that we call home. Thank you for making yourselves available not only to our country on a broader scale but also to our local authorities, should the need arise. I commend the bill to the House.

Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

I, too, rise to speak on the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. Let me say from the outset that Labor supports this bill. There has been some work done to adjust the explanatory memorandum and other elements of the bill, which we are satisfied with. We on this side of the House know—and I think there is a degree of bipartisanship on this—how important it is to make sure our defence and national security arrangements are kept up to date and streamlined in order to keep Australians safe and defend our national interests, as well as the very important freedoms that we have fought so long to protect and that make our society what it is today.

A fundamental principle of modern democratic states is that there should be civilian control over the military. Intimately linked to that is the principle that only in very limited circumstances should the defence forces of a state be called on to conduct domestic security operations. We've seen, throughout human history, what happens that when those principles—particularly the latter one—are breached. We saw, in the 20th century, the manner in which fascism, tyranny and totalitarianism, both from the far right and the far left, were able to march across most of Europe. We saw the manner in which defence forces were used to conduct domestic operations against a country's own population. That's something that we never want to see again anywhere, but particularly in our modern democratic states. That's why this principle of ensuring the call-out of defence forces to assist domestic security services is very well regulated and delineated, in a very important manner, to ensure that no abuse can occur.

On that basis, we've seen a lot of work done on this bill. The government in July last year announced a number of measures to enhance the support provided to the ADF for national counterterrorism arrangements. The Department of Defence has already implemented a number of initiatives to provide greater practical support for the state and territory law enforcement agencies. These include an enhanced counterterrorism liaison network, an enhanced program of specialist training activities and streamlined police access to Defence facilities such as ranges and so on. These are all important because, as I noted earlier, the threats that we face now in this transnational, globalised world cut across sovereignty and boundaries and the artificialness, in some senses, of boundaries. They don't respect those boundaries. There needs to be better streamlining between our defence forces in the way that they go about their business to defend the national interest externally. They also need to work much more closely with our law enforcement agencies, who do the vast bulk of our counterterrorism work, at least in the operational sense. There are also our intelligence and security agencies, which play a critically important role.

The bill is part of those measures that were first announced in 2017. The Defence Act is a pretty old act, but it has withstood the test of time. It outlines call-out powers in three separate sections—somewhat repetitively, it should be said. But essentially there are two types of call-out orders under the original act: an order for the ADF to be called out immediately and what is called a contingent call-out order, whereby the ADF can be called out if specified circumstances arise. Under the current provisions in the Defence Act, the Prime Minister, the Attorney-General and the Minister for Defence have key roles as authorising ministers. Where they are satisfied that the criteria for call-out have been met, they advise the Governor-General, who may make an order to call out the ADF on that basis. In a sudden or extraordinary emergency, where it is not practical to make a normal call-out order, the Prime Minister alone does have the power to call out the ADF through that process with the GG. Where the Prime Minister is unavailable, expedited call-out can be authorised by the Minister for Defence and the Attorney-General jointly.

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 contains four amendments that adjust these provisions, making changes to them that are aimed at streamlining the legal procedures for the call-out of the ADF and enhancing the ability of the ADF to support state and territory police in responding to incidents of what is called 'domestic violence', including terrorism. The first amendment is designed to make it easier for states and territories to request that ADF support. Currently, as I said, the Defence Act prevents the ADF from being called out until such time as the states and territories 'are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence'. The amendments that are before us provide a more flexible and responsive threshold that requires the ministers to consider (1) the nature of the violence or threat and (2) whether calling out the ADF would be likely to enhance the state or territory's ability to respond to that threat—going from the negative filtering of the decision-making process to a more positive aspect. This amendment will, and is designed 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 state and territories' position as first responders.

The second amendment in the bill simplifies, expands and clarifies some of the ADF's powers under the act. This means 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. Currently, the search powers of the ADF are in specified areas. They focus predominantly on what's called in the act 'dangerous things' and do not authorise them to search and detain as part of their duties.

The third amendment in the bill will enable multijurisdictional call out. Basically, the ADF will be able to respond to multiple incidents occurring in more than one jurisdiction, as well as to incidents which cross jurisdictional boundaries, including offshore on the seas.

Lastly, the fourth amendment in the bill will allow pre-authorisation for the ADF to respond to threats on land, at sea and in the air. Pre-authorised, or contingent, call-out will allow ministers to pre-authorise the ADF to respond if specific circumstances arise. Currently, that contingent call-out is limited to the protection only of Commonwealth interests from air threats. This type of contingent call out has been used in the past quite regularly with respect to security measures to protect major Commonwealth events such as the G20, the ASEAN summit, the Commonwealth Games and so on, specifically from air threats. This is being expanded and will extend the contingent call-out to be available for the protection of both Commonwealth interests and state and territory interests from threats from the land, air and sea, not just from the air. 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.

It should be noted that despite these proposed changes the state and territory police forces will remain the first responders to terrorist incidents, and call-out of the ADF will only be able to be considered following a request by the state or territory. That's an important and fundamental element that remains and, I think, is an important point, in consideration of what I said earlier with respect to the limitations that must be placed on the defence forces when they are asked to assist a state or territory. The request has to come from the state or territory, whether it's immediate or pre-authorised.

The proposed changes are underpinned by four principles, which are in the explanatory memorandum. It's worthwhile going over them very quickly. They are:

in all the circumstances before them and, lastly—

They are all fundamentally important principles. These principles emanate from right at the top, in section 119 of our Constitution, which says that the Commonwealth must protect the country from invasion and, if asked by a state, 'against domestic violence'. We touched on that term a little earlier. The fundamental and primary responsibility of our defence forces is to protect our sovereignty, protect our national interest and defend us from external threats. As I said earlier, given the world we live in now and the almost opaque merging, if you like, of the manner in which external threats emanate and how they can become internal threats, this means that we have to adjust our legislative frameworks to ensure that the defence forces are able to work more effectively with our law enforcement and intelligence agencies. The domestic violence that the Constitution talks about is something that, way back then, it was considered appropriate that the states, as they were at that time, would ask for assistance with when they were in trouble. That's what has continued to this day.

It is important to emphasise that the state and territory police forces will always remain the first responders and any call-out of the defence forces will only be able to be considered following a request by that state or territory. Again, it is that principle of ensuring that the relevant state ministers and the Premier are the ones who make that request.

I note that the member for Pearce, the Attorney-General, when announcing these proposed changes, said that the Lindt Cafe siege showed that the current threshold for the use of the military internally or domestically was too inflexible and he believed that it was 'inconceivable' that a future government of Australia would misuse the call-out powers to send troops out onto Australia's streets. This is the image that we're all worried about: seeing our defence forces walking down the major streets of our cities and not being subject to our laws—being called out by government to perform various operational activities without any limitation.

I would agree with the Attorney-General. I actually hope that his belief is correct—that it would be inconceivable to see a future Australian government use the defence forces in any way other than the proper way of assistance to the state or territory that needs them. I'm hopeful that his belief in that is a correct one and will be accurate. But belief is not enough. Frankly, good drafting and good laws are what are critical, and that's what is more important.

It's worth remembering, when we talk about this, that the government has a track record of telling us that there is a difference between the wording of its laws and how they will be implemented. Let's not forget the My Health Record debacle earlier this year, when it was put forward by the government that the police would not be able to access our My Health Record data without a search warrant, yet the legislation as originally drafted explicitly gave them that that power. It has since been taken away.

I should also say, in the context of all of this: it's about putting limitations on the politicians—on the government. I have the utmost confidence in our ADF personnel and that they will carry out the work that they do in the most professional manner. In fact, I experienced and saw, firsthand, when I was working in Iraq, our ADF personnel using skills and professionalism in the work that they did. In fact, I and my colleague Mike Kelly, the member for Eden-Monaro, who is not here, worked on a defence aid to the civil authority for the new government of Iraq—largely on the same principles that we're debating here today. They were very, very important elements, particularly for a country which did not have a tradition of civilian control of the military, let alone limitations around the use of their military in domestic actions. In fact, they were abused mightily, to the detriment of the Iraqi people, for many, many decades.

I note, too, that the Senate Legal and Constitutional Affairs Legislation Committee reported its inquiry on this bill on 3 September and recommended that the bill be passed and that the government give consideration to providing clear definitions of 'specified circumstances' in the legislation itself or in the explanatory memorandum. That has been done, and we acknowledge that the government has made those changes. On that basis, we provide our support, satisfied that the changes that needed to be made to improve this legislation have been made. I acknowledge the work that has been done by all on this, including those at Defence. On that basis, I provide my and Labor's support for the bill.

Luke Gosling (Solomon, Australian Labor Party) Share this | Link to this | Hansard source

Labor supports the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. As the House has heard from previous speakers, it's important that our national security arrangements are kept up to date, to be ready to respond to possible threats—terrorism being one of those threats. We have seen, unfortunately, the terrible consequences of terrorism, both here and around the world. As the Attorney-General said when he gave his second reading speech on this bill, as a nation 'we must remain agile and flexible in the face of the evolving terrorist threat'.

The current call-out powers for the Australian Defence Force were enacted in 2000 in the lead-up to the Sydney Olympics. In the time I've got remaining before this debate adjourns, I just want to acknowledge some of those members of our Defence Force who were involved in the joint task forces during the Sydney Olympics, before I go on, at a later stage, to make some commentary on the bill.

I remember well those laws that were enacted around the 2000 Olympics and the implications of those laws. I was working at that time in Sydney as a special forces liaison officer with the joint task force. That involved working in the police operations centre. It was at the interface between the civilian authorities and first responders. Intelligence was being analysed and actions and strategies were being managed from that police operations centre. Importantly, the special forces element were busy keeping eyes and ears on the situation as it evolved around those very successful Olympic Games. There were a number of joint task forces working concurrently.

The support that was given to the civil security apparatus around the Sydney Olympics was an absolute credit to the Australian Defence Force. It was known as Operation Gold and it employed, all up, 5,622 ADF personnel, including a lot of reservists. There were two joint task forces. Joint Task Force 112 provided a wide range of support, including transport and general security roles. There was uniformed service personnel providing those services. They were important. They may not have been doing the preparedness, or kicking in doors and taking out terrorists, but they were doing the important work on the street, where things can be picked up that can lead to the tracking of threats and the neutralisation of threats. Everyone who participated in Operation Gold played an essential role in keeping those Olympics safe.

At the same time—not as public as the members of JTF 112—were those soldiers, primarily of the special forces, but others as well, commanded by Brigadier Phil McNamara, now retired, who I was working for at the time. I was with the 1st Commando Regiment, but I had the absolute privilege of watching the preparations and operations conducted by the 2nd SAS Squadron and the Black Hawk helicopter forces from 5th Aviation Regiment. Of course, 4RAR Commando were also in readiness as the response company. Together, the tactical assault group, TAG, was collectively known as JTF 643. It's difficult to explain how important the roles of that JTF played, because we saw it in the fact that it was a safe and secure Olympics. I just want to commend all the members of that JTF. When you see operators like that working together, they're highly trained, they've made lots of sacrifices—time away from family, blood, sweat and tears—preparing themselves for that moment when they're called on to enact that power in support of the civilian security agencies. It was a real privilege to be part of that joint task force and to see those consummate professionals at work.

Can I just say that, to my mind, from the police special operations centre, the military and the civilian agencies such as the police and other intelligence services worked together incredibly well. I thought there was a deep level of respect from the ADF to the job that the civilian agencies were doing, and vice versa.

Kevin Hogan (Page, National Party) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43. The debate may be resumed at a later hour, when the member for Solomon can seek continuation.