Helen Polley (Tasmania, Australian Labor Party, Shadow Assistant Minister to the Leader (Tasmania)) Share this | Link to this | Hansard source

I rise to speak on the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 on behalf of the opposition. I would like to say at the outset that Labor supports this bill. We are determined that our national security arrangements stay ahead of our security circumstances to make sure Australians stay safe and the freedoms that make our society what it is are protected.

This bill represents part of the measures announced by the government last year to improve the support the ADF can provide for national counterterrorism efforts. Some of these measures have already been put in place by the Department of Defence, giving more practical support for the state and territory law enforcement agencies, including an enhanced counterterrorism liaison network, an enhanced program with training activities and streamlined police access to Defence facilities, such as rangers.

The administrative changes to call-out powers in this bill is another aspect that brings last year's announcement into full effect. There are two types of call-out orders under the current Defence Act 1903: an order for the ADF to be called out immediately; or a 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; simplify, expand 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 pre-authorisation for the ADF to respond to threats on land, at sea and in the air, typically used as part of measures during major events such as the G20 or Commonwealth Games. This change will not change the role of state and territory police forces as the first responders to terrorist incidents. Consideration of a call-out will still only occur once a state or territory has made a request. Call-out of the ADF for the protection of Commonwealth interests may be initiated by the Commonwealth or be requested by a state or territory.

The explanatory memorandum contains four principles behind the changes. The four principles are:

• The ADF should only be called out to assist civilian authorities.

• If the ADF is called out, civilian authorities remain paramount, but ADF members remain under military command.

• When called out, ADF members can only use force that is reasonable and necessary in all the circumstances.

• ADF personnel remain subject to the law and are accountable for their actions.

There are five amendments included in this bill, making it easier for states and territories to request ADF support. The Defence Act, as it stands, prevents the ADF from being called out until the states and territories are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence. This provision effectively means a state or territory will have had to exhaust its law enforcement resources before requesting the assistance of the ADF. This bill provides a more flexible threshold to response. Ministers of the Commonwealth will need to consider (1) the nature of the violence or threat and (2) whether calling out the ADF would be likely to enhance the state's or territory's ability to respond to the threat. These new provisions respect the states and territories role as first responders but gives flexibility for the most rapid, effective and appropriate specialist support in responding to terrorist incidents to be provided by the ADF, simplifying, expanding and clarifying the ADF's powers. The bill specifies, expands and clarifies the ADF's existing search and seizure powers when they're operating under a call-out order. Currently, the ADF search powers do not authorise them to search for and detain people as they focus on dangerous things. This amendment will permit ADF personnel to 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. These changes provide ADF personnel search and seizure powers that complement and assist state and territory law enforcement powers, crucial for working in collaboration with state and territory police officers under a call-out order.

It's important to note the explanatory memorandum makes clear the amendments ensure ADF personnel can only detain a person whom it is necessary, as a matter of urgency, to detain. For instance, it would not generally be necessary as a matter of urgency for the ADF to detain a person where police are also present.

The bill also contains an amendment to allow the ADF to be pre-authorised 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. Today, contingent call-out is limited to protecting Commonwealth interests from air threats. This type of call-out has been put in place regularly to protect major Commonwealth events—the G20, the ASEAN summit and the Commonwealth Games. The bill extends contingent call-out to be available for state and territory interests from threats in the land, air and maritime domains.

There is an understandable desire to limit potential delays if a threat is imminent or has just occurred. This amendment removes the potential for delay in seeking ministerial authorisation for ADF support and provides extra options in planning support for future major events. The bill makes important improvements to the ADF's ability to respond to multiple incidents occurring in more than one jurisdiction or which cross jurisdictional boundaries, including offshore. Finally, the bill also contains a number of provisions in support of the amendments I have outlined, including increased requirements for the ADF to consult with state and territory police where it is operating in their jurisdictions, and adding the Minister for Home Affairs as a named alternative authorising minister for expediting call-out.

The Senate Legal and Constitutional Affairs Legislation Committee conducted an inquiry into this bill. Its report was tabled on 3 September this year. The recommendation of that inquiry was that the bill be passed. The committee further recommended that the government consider including clear definitions of 'specified circumstances' in the legislation itself or in the explanatory memorandum. This demonstrates the value of the committee's process, in which a bill can be examined and recommendations made for improvement. I acknowledge that the government accepts the committee's recommendation. The government tabled an amended explanatory memorandum which provides explanation of the term in the context of contingent call-out powers. The opposition thanks the government for its positive consideration of the recommendations of the committee and for this action in response.

As I mentioned earlier, under a contingent call-out order the Commonwealth pre-authorises the ADF to be called out if 'specified circumstances' arise. The revised explanatory memorandum now states:

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—

to satisfy themselves that the domestic violence or a threat in the offshore area is likely and would be resolved by the call-out of the ADF. For example, the new explanatory memorandum states:

… 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.

The amendments to the explanatory memorandum also clarify the meaning of 'Commonwealth interests', which, it says:

… would include the protection of: Commonwealth property or facilities; Commonwealth public officials; visiting foreign dignitaries or heads of state; and, major national events, including the Commonwealth Games or G20.

The amendments to the explanatory memorandum also clarify 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. The amendments to the explanatory memorandum also make it clear that the amended criteria that ministers will be required to consider in making a call-out order recognise that calling out the ADF to respond to an incident is a significant and exceptional act and ensure that it is not to be done in relation to incidents that are within the ordinary capabilities of police.

Finally, I would like to note that Labor has approached this bill with an intention to work in a bipartisan way towards the national interest. That is the only proper way to work through issues like these. I recognise that there are senators who have concerns about this bill and who do not believe it should be enacted in its current form. I further recognise that those views are held in good faith. I will end where I began by stating that Labor supports this bill as a small but important change to an existing power as part of broader changes to improve the support the ADF can provide state and territory police forces under our national counter-terrorism arrangements. I commend the bill to the Senate.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 deals with a very serious matter: the potential use of the Australian Defence Force to deal with incidents of terrorism and violence on Australian territory. The use of armed forces in a domestic security context is something that must be problematic for any liberal democracy. It should never be undertaken lightly. It should only be considered in response to confirmed security threats of a particularly serious nature. It should never be done for political advantage.

Call-outs of the ADF in response to threats of domestic violence and terrorism have been very rare. The Australian Army was called out to deal with civil disturbances in the then Australian trust territory of Papua New Guinea in 1970 and 1971, and the Army was briefly deployed in response to an apparent terrorist threat to the Commonwealth heads of government retreat at Bowral in 1978. The ADF has been put in a state of readiness to provide security support for a range of events—for example, the Sydney Olympics in 2000, the 2007 APEC meetings and the Brisbane G20 meeting. Fortunately those events passed without incident. So far we've been lucky that in recent times no government has faced circumstances where ministers and governors-general have been required to authorise the deployment of the Army on Australian streets. The threat of terrorism is significant, but, as the tragic incident in Melbourne this month shows, thanks to the work of the Australian Security Intelligence Organisation and federal and state police the individuals that were involved in that particular event were isolated, and it was dealt with by those civilian and security authorities.

Contingencies in which the ADF might be required will hopefully remain less likely, though of course there are possibilities and we must address those possibilities. According to the explanatory memorandum, the bill will amend part IIIAAA of the Defence Act 1903 in order to streamline the legal procedures for call-out of the ADF and to enhance the ability of the ADF to protect states, self-governing territories and Commonwealth interests, onshore and offshore, against domestic violence, including terrorism. In effect, the bill lowers the threshold for calling out the ADF so that the ADF will no longer be an instrument of last resort in dealing with terrorism or domestic violence, but will instead be available if the ADF capabilities are considered valuable to supplement and support civilian police capabilities in dealing with an incident.

The need for streamlined call-out arrangements has been highlighted in a number of security reviews and inquiries. In particular, the state coroner of New South Wales, in its inquest into the Lindt Cafe siege, found that existing arrangements for the ADF call-out in relation to terrorist incidents were inadequate. The bill's amendments will make it easy for the 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 domestic violence. However, authorising ministers, when deciding whether the ADF should be called out, will need to consider the nature of the violence and whether the ADF would be likely to enhance the state and territory response.

Among other things, this bill will also expand contingent call-out arrangements to allow the ADF to pre-authorise to respond to land and maritime threats, in addition to existing provisions of contingent call-out in relation to aviation threats, and provide for contingent call-outs for the protection of states and territories. Call-out of the ADF for the protection of states and territories will only be able to be considered following a request by a 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.

The explanatory memorandum outlines four principles that underpin the proposed changes in the bill. Those four principles are: (1) the ADF should only be called out to assist civilian authorities; (2) if the ADF is called out, the civilian power remains paramount but ADF members remain under military command; (3) if the ADF is called out, ADF members can only use force that is reasonable and necessary in the circumstances; and (4) ADF personnel remain subject to law and are accountable for their actions. The state and territory police forces will continue to be the first responders to terrorist incidents. These forces are highly capable and best placed to respond at short notice to terrorist attacks or threats. Against this background, I want to focus on several aspects of the bill.

The first of these is the threshold for call-out. As I've mentioned, the current threshold for call-out requires the authorising minister to be satisfied that a state or territory is not, or is unlikely to be, able to protect itself or Commonwealth interests from domestic violence. This current threshold means that the Commonwealth could not call out the ADF where the Commonwealth assesses that a state or territory has both the capability and capacity to resolve the incident. The affected state or territory would need to exhaust all other options, including support from other jurisdictions, before making a request for assistance from the Commonwealth. So this threshold is not optimal for facilitating ADF involvement to complement or augment a civilian law enforcement response to a terrorist incident. Certainly, some specialist ADF capabilities, especially special operation forces and some surveillance capabilities as well as nuclear, biological and chemical defence assets, could be of value early in the development of a major terrorist incident. The threshold adopted in this bill does appear appropriate and balanced to ensure that these resources can be made available quickly if they are required.

The second issue I wish to discuss is the pre-authorisation of the ADF to respond to threats on land and at sea as well as in the air. Pre-authorised or contingent call-out will allow ministers to pre-authorise the ADF to respond if specific circumstances arise. At present, contingent call-out is currently limited to the protection of Commonwealth interests from air threats alone, as Senator Polley alluded to. The 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 the range of possible terrorist threats. 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.

These measures make sense, but they will still need to be exercised with caution and restraint. While a contingent call-out may be authorised in relation to a planned event, it's quite likely that this sort of incident or action may be triggered by an intelligence warning of a threat. Intelligence, as we know, can often be ambiguous, and false alarms are not unknown. Politics, rather than objective assessment of danger, can also play a part. We should not be naive about this and assume that these decisions will always be made objectively and with political disinterest. Ordering and indeed announcing a contingent call-out may prove a temptation for a government that might want to play up a security threat for political purposes. I note I saw Minister Dutton doing something very similar over the last few days in relation to encryption, calling on the incident in Victoria last week and using it to try and press a political outcome.

Although the Defence Act requires that the government report to parliament following a call-out of the ADF, it is far from clear how scrutiny would be subsequently applied to the responsible minister. With the parliament's intelligence oversight committee, the PJCIS, explicitly excluded from reviewing intelligence operations assessments or performance, it may be difficult, if not impossible, for any member of parliament outside the executive to examine the information and decision-making leading to a decision to put troops on the street. At this point I advise that I will perhaps seek some answers to that in the committee stage.

This consideration leads to another issue: the role of the Governor-General. Under the Defence Act it is the Governor-General who issues the order to call out the ADF. By convention, the Governor-General will act on the advice of the Prime Minister or other authorising ministers designated in the Defence Act. Although the Governor-General must follow the advice of ministers, the Governor-General is free—and indeed duty bound—to satisfy him- or herself that the advice is well founded. Although the circumstances may require urgent action, the Governor-General must be able to ask questions and seek information or clarification. In the case of a contingent call-out, there would presumably be time for a full and comprehensive briefing for the Governor-General before orders were issued.

It is a matter of record that, in the years following the 11 September 2001 terrorist attacks in the United States, national counterterrorism exercises in this country—the Mercury exercise series—from time to time included the participation of Governor-Generals, or the official secretaries to Governor-Generals as a substitute, to rehearse procedures relating to the call-out of the ADF. This was a desirable practice, as it afforded the Governor-General and his or her staff the opportunity to familiar themselves with issues and procedures that might have to be dealt with unexpectedly and in great haste.

In response to questions during Senate estimates earlier this year, the Department of the Prime Minister and Cabinet and the official secretary to the Governor-General advised that the current Governor-General, Sir Peter Cosgrove, or his office have not participated in national counterterrorism exercises. Indeed, there appears to be very little engagement with Government House on these matters at all. The official secretary acknowledged that he had some relevant papers tucked away in his office safe, but that was about it. Of course, Sir Peter, as the former Chief of the Army and Chief of the Defence Force, is well versed in the provisions of the Defence Act. However, Sir Peter's successor as Governor-General may not be so familiar with these issues. The same goes for any state governor who, in the absence of the Governor-General, is serving as administrator of the Commonwealth. Once again, I will ask some questions about this in the committee stage.

Consequently, there would be some merit in ensuring that future Governor-Generals and their official secretaries are fully briefed on the legislation and procedures relating to the call-out of the ADF and are able to participate in exercises as appropriate. A Governor-General who is familiar with these matters will be better able to ask the right questions and require the appropriate level of information and briefing before endorsing a request from the Prime Minister or other ministers for him or her to order a call-out of the ADF. On this very important matter, no-one should think that the Governor-General is a rubber stamp.

Finally, I note that the bill also introduces the Minister for Home Affairs as a named alternative minister for the purpose of call-out. Under the existing legislation, in a sudden and extraordinary emergency, an expedited call-out is 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 alternate minister, which could include the Deputy Prime Minister, the Minister for Foreign Affairs or the Treasurer.

In recognition of the role that the Minister for Home Affairs plays in counterterrorism coordination and as a member of the National Security Committee of cabinet, the bill adds the Minister for Home Affairs as a named alternative minister for the purpose of expedited call-out. This change appropriately reflects the importance of the new Home Affairs portfolio. I would also observe, however, that it is appropriate that, while the Minister for Home Affairs will be the alternative minister, there is no change to the requirement that at least one of the Prime Minister, the defence minister and the Attorney-General must be involved in the authorisation of a call-out order.

The bill has the support of the coalition government and, of course, the Labor opposition, as Senator Polley has outlined. It has been considered by the Legal and Constitutional Affairs Legislation Committee, which in September recommended that the bill be passed, albeit with a recommendation that the government provide clear definitions of the so-called specified circumstances for the purposes of making a call-out of the ADF. That clarification was provided through the explanatory memorandum during the course of debate in the House of Representatives and appears satisfactory.

In the debate in the House of Representatives, a number of members were quite effusive in their praise for this legislation. They were, one would have to say, almost enthusiastic at the prospect that elements of the ADF might, at some future time, be deployed against a terrorist threat in Australia. More than a few members of this parliament are very eager to present themselves as being tough on terrorism and critically back any and all measures they think are supportive of that. As a former member of the Australian Defence Force, I have no doubt about the impressive capabilities and professionalism that our Defence Force can bring to bear, but no-one should be particularly enthusiastic about that prospect. If the provisions contained in the bill are ever evoked and the ADF is called out into Australian streets in response to a terrorist threat or other domestic violence, it will most likely mark an intelligence, security and policy failure. It will mean that a situation has developed that is so serious that the ADF is needed to bring it to its successful resolution. It will always be preferable that circumstances never reach that point. This bill is necessary, but it shouldn't detract from a very clear focus on civilian, security and policing measures to ensure that the deployment of the ADF is not required. We should all hope and work for that. Thank you.

Kimberley Kitching (Victoria, 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. As the shadow minister for defence, Mr Marles indicated in his speech in the second reading debate that Labor will be supporting this bill. In doing so, we are following the recommendation of the Senate Legal and Constitutional Affairs Committee, which conducted an inquiry into the bill and tabled its report on 3 September. It's a sobering experience to debate a bill of this kind following the terrorist incident which occurred in Melbourne in the last few weeks. We've now had a number of such incidents on Australian soil in which six Australians, not counting the perpetrators, have been killed. Although this number is very low compared to those experienced in Britain, France or Germany, every such incident comes as a profound shock.

Australia is one of the world's most successful multicultural and multifaith societies. I have great faith in pluralistic societies. I think they are the best types of societies. Over the last 70 years, we have welcomed more than seven million immigrants to this country. Close to a million people have come as refugees fleeing poverty, war and persecution in their home countries. The overwhelming majority of these immigrants and refugees, wherever they came from and whatever religion they profess, have successfully integrated into Australian society and have become useful and productive citizens. Australia would not be the wonderful place it is today without their contribution to our society. But that is why we find it so shocking and distressing that even a very small number of people who come here as refugees should fall under the sway of radical religious ideology and make such murderous attacks on their fellow Australians, such as we saw at the Martin Place siege in 2014, the shooting at Parramatta Police Station in 2015 and the recent incident in the Bourke Street Mall.

I take this opportunity to express my gratitude to and support for the men and women of our federal, state and territory police forces and of our security and intelligence services. Between them, as we know, they have detected and prevented a number of potentially serious terrorist plans before those plans have come to fruition. As we saw in Melbourne recently, they are frequently called on to put their lives at risk to protect the safety of the public, and they do so unflinchingly. We should remember to always be grateful to the men and women of those services.

I also acknowledge that, in most of these cases, terrorist plans are detected early and terrorist attacks are prevented because of the willingness of the leaders of our communities and the great majority of people from those communities to cooperate with the police and the intelligence services. No-one suffers more when one of those attacks takes place than the community from which the perpetrators come.

Thanks to the vigilance of our police and security service and the co-operation of our communities, Australia has so far been spared the kind of large-scale terrorist attack that we have seen with tragic frequency in Europe, the Middle East and other parts of the world. But we cannot be complacent. We need to recognise that the danger of such an attack is always with us. We cannot know where or when such an attack might occur or how serious such an attack might be, nor can we be certain that our police services will be able to cope with such an attack, even though all states and territories have increased their expenditure on hardening their police services so that they can respond quickly and appropriately to any kind of terrorist incident.

The ultimate guarantor of the security of Australia and the safety of the Australian people is the Australian Defence Force. This has always been recognised. Section 199 of the Constitution says:

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

The Defence Act, first passed by the parliament in 1903, has always contained provisions for the ADF to be called out in support of the civil authorities in an emergency. Section 51 of the act allows the ADF to be called out by the Governor-General acting on the advice of the Minister for Defence. One of the grounds on which the ADF may be called out is:

(a) domestic violence is occurring or is likely to occur in Australia; and

(aa) the domestic violence would, or would be likely to, affect Commonwealth interests; and

(b) if the domestic violence is occurring or is likely to occur in a State or self governing Territory—the State or Territory is not, or is unlikely to be, able to protect Commonwealth interests against the domestic violence …

This bill seeks to clarify the circumstances in which the ADF can be called out to assist a state or territory to cope with an incident of domestic violence on its territory. Although the term 'domestic violence' in the Constitution and the Defence Act was originally intended to refer to events such as riots and civil conflict, it is obvious that a terrorist attack on Australian soil, whether launched from inside or outside Australia, would fall under this heading. If this is a matter that needs clarification, the addendum to the explanatory memorandum to this bill states:

The term 'domestic violence' … refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence.

But the act was not written with terrorist attacks in mind, and some of its provisions need to be clarified and strengthened so that the ADF can react promptly and, most importantly, within the law when it is called on to do so.

Section 51A of the Defence Act specifies the circumstances in which the ADF can be called out to assist a state or territory if:

… Ministers are satisfied that … if the domestic violence is occurring or is likely to occur in a State or self-governing Territory—the State or Territory is not, or is unlikely to be, able to protect Commonwealth interests against the domestic violence …

In other words, the act stipulates that the ADF can only be called if the Minister for Defence believes that the state or territory authorities are unable to cope with the situation that has arisen. Clearly, in the current circumstances, that is an unrealistically restrictive provision. Its effect is to say that a state or territory must have exhausted its law enforcement resources before the Minister for Defence can agree to a request from the state or territory for the assistance of the ADF.

The amendments in this bill provide a more flexible provision. It requires the Minister for Defence to consider, firstly, the nature of the violence or threat; and, secondly, whether the calling out of the ADF would be likely to enhance the ability of the state or territory to respond to that threat. The effect of this provision would be to allow greater flexibility for the ADF to provide at the request of a state or territory 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.

The Defence Act, as it currently stands, outlines two basic 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 specified circumstances arise. This bill amends the Defence Act for four purposes: first, to make it easier for states and territories to request ADF support; secondly, to simplify, expand and clarify the ADF's powers; thirdly, to enhance the ADF's ability to respond to incidents occurring in more than one jurisdiction or across jurisdictions; and, fourthly, to allow for pre-authorisation for the ADF to respond to threats on land and sea as well as in the air typically used as part of the measures during major events such as the G20 or the Commonwealth Games.

It's 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: firstly, the ADF should only be called out to assist civilian authorities; secondly, if the ADF is called out the civilian power remains paramount, but ADF members remain under military command; thirdly, if the ADF is called out, ADF members can only use force that is reasonable and necessary in the circumstances; and, fourthly, ADF personnel remain subject to the law and are accountable for their actions.

Concern may be felt that the provision for a contingent call-out order may be abused—that is, an order whereby the ADF can be called out for specified circumstances where they arise but before these circumstances have arisen. Senator Patrick alluded to a concern that such a provision could be abused for perhaps political purposes. In response to these concerns, the 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 assessments required—

in order to satisfy themselves that the domestic violence or threat is likely and that the call-out of the ADF would resolve the incident. Further:

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 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.

The explanatory memorandum also makes it clear that the amended criteria that the Minister for Defence will be required to consider in making a call-out order stipulate that:

… calling out the ADF to respond to an incident is a significant and exceptional act and ensures that it is not done in relation to incidents that are within the ordinary capability of the police.

The act, as amended, thus precludes any possibility, no matter how remote, that a state or territory government could call on a Minister for Defence to call out the ADF without good cause or for any cause other than a serious emergency. Taken together, these are important safeguards against the unlikely circumstance that a Minister for Defence would seek to use these powers in an improper way. I'm pleased that the government has listened to some of the concerns initially expressed about some provisions of this bill and has clarified them in such a way as to satisfy any reasonable concerns. It is on this basis that the opposition has decided to support this bill as a necessary, carefully calibrated response to the heightened level of threat that we sadly find ourselves facing. I commend this bill to the Senate.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 deals with an incredibly serious circumstance, where Australian Defence Force personnel may be called out on Australian soil, potentially deployed against Australian citizens, with the capacity to use lethal force against Australian people. It significantly lowers the threshold for such a call-out to be made. Any time you're talking about setting the Army, Navy or Air Force loose on Australian citizens, you had better have a pretty watertight piece of legislation to govern it. Unfortunately, that is not what the Senate is being provided with this evening. This legislation has loopholes you could drive a proverbial tank through. The Australian Greens will not be supporting it in its current form.

In 2000 and again in 2006 legislation was introduced that did give the Commonwealth government peacetime powers to call out Defence personnel if 'domestic violence is occurring or likely to occur that will be likely to affect the Commonwealth interests or require the protection of a state or territory.' The Sydney Olympic Games were the initial rationale for the 2000 legislation, and the 2006 amendments changed the legislative requirements under which the ADF could be called out in anticipation of the Commonwealth Games in Melbourne.

We acknowledge that this bill is a result of a review of Defence support to national counterterrorism arrangements, and we are well aware that the New South Wales coroner, in his report of the inquest into the deaths arriving from the Lindt Cafe siege, wrote:

… the Commonwealth informed the inquest that it had begun a "comprehensive review" of the support at the ADF provides to domestic counter-terrorism operations. The review was said to touch on the legislative and policy framework for call out, as well as ADF capabilities in the current threat environment.

It's worth noting that that report and its recommendations have not been made available publicly, as far as we are aware.

The bill before us today amends part IIIAAA of the Defence Act 1903 to streamline the legal procedures for call-out of the ADF. As I said a moment ago, it significantly lowers the threshold for such a call-out to be made. Currently there are a number of preconditions to the Australian Defence Force being called out in response to domestic violence in Australia. I'm going to come back to domestic violence in more detail later in my speech, but I will note that it is not defined anywhere in this legislation. Nowhere is domestic violence defined. At the moment the preconditions include this: that the state or territory is not or is unlikely to be able to protect Commonwealth interests against the domestic violence. That is section 51A of the Defence Act 1903. This bill proposes to amend part IIIAAA of the Defence Act to expand the circumstances in which the ADF may be called out in response to domestic violence—whatever that might mean—in Australia under two types of orders. I'm going to go first to the state or territory call-out order here. Remember, currently, before a call-out order is made the minister must be satisfied that the state or territory is not, or is unlikely to be, able to protect Commonwealth interests against the domestic violence.

Under this bill, the Governor-General may make a state or territory call-out order if a state or territory government applies to the Commonwealth government to protect the state or territory against domestic violence—whatever that means—that is occurring, or is likely to occur, in the state or territory. The powers of the ADF, set out in one or more of divisions 3, 4 and/or 5 of the bill, should apply—and that is gone into in more detail—and the authorising ministers must be satisfied that the ADF should be called out to protect the state or territory against domestic violence.

It's worth pointing out that it's actually the job of our police forces to maintain law and order in this country. That is why we have them. That's why we have Tasmania Police and all of the other state and territory police force. It's why we have the Federal Police, the AFP. It's their job to maintain law and order and address violent situations that, all too tragically, do arise from time to time in our country. It's not the job we constituted our Army for—or our Navy or our Air Force. Neil James of the Australian Defence Association said: 'The whole concept of this goes back centuries. Back in the days when they didn't have police forces, governments used to call on the military to do things that the police do now.' Well, we do have police forces now—state and federal police forces—that are very well resourced and very well trained.

It's worth pointing out that the terrorism threat level in this country has not increased for years. Yet we get this series of pieces of legislation that seek to do everything from eroding the fundamental rights and liberties that we use to send Australians overseas to fight and die to protect to now having a bill that significantly lowers the threshold to put the Army onto the streets and potentially deploy lethal force against Australian citizens. This is a most serious piece of legislation, and it's not good enough that the term 'domestic violence' is nowhere defined in either this bill or in the substantive act. This takes us from the situation we currently have where a state or territory is not able to protect Commonwealth interests against domestic violence, or is unlikely to be able to protect Commonwealth interests against domestic violence, to what's in this bill, where there is no requirement that a state or territory be unable to protect Commonwealth interests against domestic violence; there simply needs to be domestic violence that is likely to affect Commonwealth interests. This will make it much, much easier for the ADF to be called out in this country and potentially deploy lethal force against Australian citizens on the basis of a completely undefined term, 'domestic violence'.

Minister, you are referring me to the Constitution. I know that term is used in section 119 of the Constitution, but it's worth pointing out that it is not defined there either. You have also had a crack at defining it in your explanatory memorandum. If it's good enough for the EM, it's good enough to be included in the legislation—because time after time we see powers created and then, a little bit down the track, a government will come along and abuse those powers unless the legislation prevents them from doing so.

I'll give you one example that I'm aware of in recent times. This is the metadata retention laws, where—disgracefully and shamefully—police can, without a warrant, access someone's metadata. When the Australian people were sold this absolute pup by the Liberal Party and the Labor Party, who both, shamefully, supported it, it was all about counterterrorism, but—you know what?—we've seen examples of local governments using metadata to track down someone who's got an unregistered dog! That's what the metadata laws are being used for now. They were brought in under the guise of counterterrorism; now they're being used to figure out whether people have got registered dogs or not. That's what I call bracket creep—and, mark my words, bracket creep is what we will see if this bill is passed unamended.

Basically, in effect, the bill changes the legislative threshold from one where the state or territory has to be unable or unlikely to be able to protect itself or Commonwealth interests against domestic violence to one where ADF support would be likely to enhance the state or territory's ability to protect itself or Commonwealth interests against domestic violence—again, a term undefined in this legislation. That is a significant lowering of the threshold and one that the Greens are extremely concerned about.

We do acknowledge that some improvement has been made to this bill through the recommendations of the Legal and Constitutional Affairs Legislation Committee, which will result in a clearer definition of some of the terms used in this legislation. But the Australian Greens are going to propose a second reading amendment to this legislation that would do two things. Firstly, it would make it very clear that the Senate is of the opinion that call-out orders should be disallowable instruments—that is, the parliament would have the capacity to override the call-out. This goes back to a fundamental of the Australian Greens: we should not be able to be sent to war with another country without parliamentary approval first, because parliament, not the executive, is sovereign in this country. The executive flows from the parliament, not the other way around. As ministers are about to find out in six months when the Australian people unceremoniously boot this rabble out of government, if you've got the numbers on the floor of the House of Representatives, you can make a government and you can be the executive. The executive flows from the parliament in this country, not the other way around.

Secondly, our second reading amendment would require that parliament would have to sit within six days of any call-out order being made—in other words, parliament would have to be recalled if it wasn't already going to be sitting within those six days from the call-out order being made—and an instrument would have to be tabled in both houses of this parliament so that either house could, on its own decision, override the call-out order. I'll be moving that second reading amendment at the conclusion of my contribution today.

I want to place on the record comments that were made during the debate on the 2006 bill in this place by the then Leader of the Australian Greens, a good friend of mine, Senator Bob Brown. He put forward very similar amendments to the two that I have just outlined. Former Senator Brown's argument in support of his very similar amendments is exactly the argument I want to put to the Senate today, so I'm going to quote from Senator Brown's speech in 2006. He said this:

This is a democratic safeguard being built in against some future abuse of this power by a Prime Minister, a Treasurer or a Minister for Defence. It is an absolutely important safeguard being brought in here. You can only vote against this safeguard if you do not think the parliament has primacy, and if you think the executive and indeed the Prime Minister, who is not even mentioned in the Constitution, should have primacy in our federation, a century after the Constitution was written. It is a very, very important Greens amendment. It is a safeguard against the abuse of power. I cannot see that there could be any reasonable argument that the parliament should not be brought in in such an extraordinary circumstance as a call-out of the troops by a national executive to prevent some domestic threat arising in Australia.

I'll make that same argument to colleagues today. If you're going to vote against our second reading amendment, you'll be voting against the primacy of the parliament and you'll be failing to stand up against the potential future abuse of these powers by a government minister.

That brings me very neatly to the fact that this bill before us today seeks to include the Minister for Home Affairs as an authorised minister. I mean, this is Mr Peter Dutton we're talking about here—a man who has consistently demonstrated that he cannot be trusted with the significant powers he already has. If you don't believe me, go and have a look at how many times the courts have overruled this minister. It is a regular occurrence in this country that Mr Dutton is overruled, either by the AAT or by another court in this country, because he makes decisions based on a desire to punish innocent people, not on the basis of what is right and proper under law. He has a contempt for the rule of law, and anyone who has a contempt for the rule of law, quite frankly, does not understand the political role it plays as a foundation of our democracy and as a foundation of the freedoms and liberties that so many Australian people enjoy. I cannot comprehend how anybody could think Mr Dutton is an appropriate person to be an authorised minister. He's not the defence minister; he's the Minister for Home Affairs. And they want to step him up so he becomes an authorised minister under this act. Well, I'd love an explanation of why the minister thinks it is necessary to, in effect, give the Minister for Home Affairs a significant boost in the level of authority he is able to exercise in sending the Australian Army out onto the streets to potentially use lethal force against Australian citizens.

I want to go to the term 'domestic violence', in the couple of minutes left to me tonight. It's not defined in this legislation. It's defined in the explanatory memorandum as referring to conduct marked by great physical force. What on earth does 'great physical force' mean? That's not defined either, in the legislation or in the explanatory memorandum. What does 'great physical force' mean, Minister, in this context? And how are any of the relevant ministers, including Mr Dutton, going to interpret 'great physical force'? Or does he or she even have to interpret it—because of course the term 'domestic violence' is not defined in this legislation? The government's excuse in its explanatory memorandum is, 'Oh, that's all fine, because domestic violence is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence.' Again, the term 'domestic violence' is not defined in the Constitution.

The government is at pains to make it clear in the explanatory memorandum that peaceful protests, industrial action or civil disobedience would not fall within the definition of 'domestic violence'. Well, if you're so sure about it, put it in the legislation: define 'domestic violence' and make it clear that it doesn't include peaceful protests, industrial action or civil disobedience. But you haven't. You haven't put it in the legislation, which means that these words are not worth the paper they're printed on.

This is an extraordinarily serious day for this country, where this parliament is being asked to countenance a significant reduction in the threshold which would need to exist before the troops are sent out onto the streets, potentially to deploy lethal force against Australian citizens. The Greens will not be supporting the bill in its current form. I now move:

At the end of the motion, add:

", but the Senate is of the opinion that:

(a) call out orders should be disallowable instruments so that they are subject to scrutiny by the parliament; and

(b) the Parliament should sit within six days of any call out order being made."

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

I chair the Legal and Constitutional Affairs Legislation Committee, which conducted an inquiry into this bill, and I am pleased to say that the broad support of the Australian public was demonstrated in the submissions to the bill. The majority of submitters broadly supported the bill's objectives of streamlining call-out orders to the ADF in order to better protect the Australian population from acts of domestic violence, including terrorism.

Responding to the previous speaker, the definition that he was concerned about, which I might say he wasn't so concerned about in the dissenting report that the Greens made to this report—

Senator McKim interjecting—

No, you didn't mention it at all, Senator. But it includes domestic violence as 'conduct that is marked by great physical force and would include a terrorist attack or other mass-casualty incident'. That demonstrates how this would be interpreted.

Most of the submitters suggested, amongst other things, that the bill would better enable the ADF to apply its specialist skills and capabilities in responding to incidents of domestic violence, including terrorism. Submitters welcomed the clarity the bill would provide in relation to the use of lethal force; argued in support of the bill's provisions for expansion of the contingent call-out; and noted that the bill would enhance the ADF's ability to respond to incidents across multiple jurisdictions.

The bill makes it easier for states and territories to request the ADF's support by removing the threshold requirement that the states and territories are not, or are unlikely to be, able to protect themselves or the Commonwealth interest against domestic violence. 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 or territory response when deciding whether the ADF should be called out. The bill also provides certain other more technical provisions that do, in fact, make the whole powers given to the ADF more understandable. They clarify them and were welcomed by all responsible and relevant parties.

There was one concern the committee had, which was mentioned in the committee's report to parliament, and that was that the definition of 'specified circumstances' referred to in the bill was not clear. The committee recommended that the government give consideration to providing clear definitions of 'specified circumstances' in the legislation itself or in the explanatory memorandum for the purposes of making a call-out of the Australian Defence Force.

I'm pleased to say that this is a government which understands and appreciates the work Senate committees do. It understands the submissions made to Senate committees, which are fully assessed by Senate committees, and it responds accordingly. I'm delighted to see that the government has amended its bill to give a better definition of 'specified circumstances', as the majority of the committee requested and as, I think, Senator Polley referred to. I do note in passing that the Greens issued a half-page dissenting report, so I was quite interested to hear Senator McKim's 20-minute dissertation on why the Greens oppose this bill when all they could manage was three-quarters of a page in their dissenting report on the bill.

The Greens, I can't help but say, want parliamentary approval. Of course you don't call out the Army when there is an immediate crisis where Australian lives are at stake! What the Greens want is for us to say: 'Well, hang on. Could you hold the violence a little bit while we recall parliament. We'll get parliament in here. We'll sit down. We'll then have a lengthy debate, like this, and—'

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

On a point of order: Senator Macdonald is misleading the chamber. That is not what the Greens are suggesting.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

That's a debating point. Senator Macdonald.

Ian Macdonald (Queensland, Liberal Party) Share this | Link to this | Hansard source

From what I heard of Senator McKim's speech, it's: 'Hang on, terrorist, stop your terrorist attack for five or six days while we recall parliament. Then we'll have a lengthy debate. Now, don't you do anything, terrorists. You just hold your machine guns and your bombs ready until we get parliament to address this and determine whether we should call out the Army, because the police can't deal with it. Let's get the Greens to filibuster in the debate for three or four days before you go ahead and throw your bombs.' I mean, how ridiculous but typical of the Greens, who take no interest whatsoever in the welfare and safety of Australian citizens.

I am pleased that the committee determined, with the one condition I mentioned about a better definition of 'specified circumstances', that the bill be passed. I thank the members of the committee, which included the deputy chairman, Senator Louise Pratt, Senator Jim Molan, Senator McKim, Senator Jane Hume and Senator Murray Watt. I appreciate the contribution these senators made to the recommendations of the committee. I also want to place on record my thanks to the committee secretariat for their work in supporting the committee.

I do want to thank the people who made submissions to the committee and who gave evidence to the committee. There were 16 submitters, including, amongst others, the Centre for Military and Security Law, the Northern Territory Police, the Australian Lawyers Alliance, and the Law Council of Australia. As I say, there were a number of other submitters too. I want to thank them and place on record the committee's appreciation to them for the assistance that they gave the committee. The committee recommended, subject to that specification, which has been met by the government—and I thank the government for that—that the bill be passed, so I therefore support the bill.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Before I provide the government's comments and summing-up speech, I would like to address a number of the issues raised by Senator McKim in the debate this evening. First of all, in relation to his questions about the Constitution, I can assure Senator McKim that the Constitution is relevant and that it's not just about the vibe of the Constitution. The definition of 'domestic violence' is real, and it is very clear. While you might dismiss the fact that it is in section 119 of the Constitution, it does define domestic violence and it is very clear. Your recommendation would be unworkable at the very least.

I also agree with Senator Macdonald. I've heard a number of ludicrous things coming from some of the Greens senators, but saying to the parliament, 'There's been a terrorist incident. A state or territory government has requested urgent assistance,' and having us say, 'We'll recall parliament, Mr or Mrs Terrorist. Please hold on, and we'll wait for a number of days'—it is unworkable.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

On a point of order: I'll save the minister embarrassment. That's not what the Australian Greens are suggesting. As I explained to Senator Macdonald, you're just making stuff up.

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

Senator McKim, I've already ruled on that point of order. That's a debating point. Minister.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Thank you. For the benefit of Senator McKim and anybody else who may have been listening to this debate tonight, thinking that domestic violence does not have a good definition, I will explain again that it is in section 119 of the Australian Constitution and it is quite clear about what it means. The term 'domestic violence' refers to violence occurring within Australia. The term is not defined in the legislation but refers to conduct that is marked by great physical force and will include a terrorist attack or a hostage situation. Part IIIAAA uses the term 'domestic violence' as this is a term used in the Constitution. Again, as I said, it's not about the vibe or anything else; it is about the black and white of Australia's Constitution. This section explicitly deals with state requests for assistance in responding to domestic violence in a very clear definition.

I would like to thank all of my parliamentary colleagues for their contributions to the debate on the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. I also thank the opposition for its support for these important amendments to the legislation. I would reflect that, for all of us here in the parliament and also for the executive government, there is actually no greater responsibility than the security of Australians. The review of Defence support for national counterterrorism arrangements, which was announced by the government in July last year, was initiated directly in response to the changing nature of the terrorist threat, as demonstrated in terrorist attacks in Paris, Brussels and London. The amendments are the most significant changes to the Australian Defence Force call-out powers under part IIIAAA of the Defence Act—the biggest changes since 2000, in the lead-up to the Sydney Olympics.

I can assure Senator McKim that, despite the denial—I think it's a somewhat dangerous denial of the Greens—the threat is significantly more complex than the threat Australia faced 20 years ago. Now the threats include explosive devices and highly mobile and coordinated attackers who can move across large areas.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

The threat level is the same as it was five years ago. It hasn't changed.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The amendments will ensure, despite the interjections of Senator McKim—

Barry O'Sullivan (Queensland, National Party) Share this | Link to this | Hansard source

Minister, would you resume your seat. Senator McKim, to the extent that I was in the chamber when you were making your contribution, you were heard completely in silence. I would appreciate if you would allow the minister to speak without interjection.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Thank you, Mr Acting Deputy President. I can assure Senator McKim that, despite all of his interjections and his denial, the threats here in Australia are very real indeed. Since 2014, our national terrorism threat level has been at 'probable' for very good reason. In that time, we have had 40 major counterterrorism operations which have resulted in the prevention of 15 probable attacks on Australians. Sadly, seven still occurred. We have had 230 passports cancelled and we have hundreds of people on the national watchlist. Senator McKim, the threat is real and all of us have a duty to protect Australians from that. The amendments in this legislation will ensure that the ADF is better able to respond quickly to those terrorist threats. The bill will enhance the ability of the ADF to support state and territory police in responding to incidents of significant violence occurring in Australia, including terrorism.

Under the amendments, states and territories will continue to have primary responsibility for protecting life and properties in their jurisdictions—again contrary to what the Greens have said will be the case. State and territory police forces are well equipped to respond to modern domestic terrorism incidents and also play a primary role as first responders within minutes of an attack. However, the amendments will ensure that the Commonwealth can more easily respond to requests from states and territories for ADF assistance where the states and territories are not able, or believe that they're unlikely to be able, to protect themselves against incidents of significant violence. In deciding whether to call out the ADF, the Commonwealth will need to consider the nature of the incident and whether the call-out of the ADF would enhance the state or territory response.

I will highlight three things the amendments will do in particular. Firstly, they will allow the government to pre-authorise the ADF to respond to specified threats on land, at sea or in the air. Secondly, they will simplify, expand and clarify the ADF's power to search, seize and control movement during a violent or terrorist incident. Thirdly, they will enhance the ability of the ADF to respond to incidents occurring in more than one jurisdiction. While the ADF's primary role for counterterrorism is offshore, the ADF has personnel, resources and specialist skills that can assist our emergency services to respond in the event of a terrorist attack.

Debate interrupted.