Tuesday, 27 November 2018
Defence Amendment (Call Out of the Australian Defence Force) Bill 2018; Second Reading
I will continue my summation of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. However, I would like to address a couple of the issues that were raised last night by Senator McKim—in particular, in relation to the responsibilities for state and territory police. My first point is to reinforce that the state and territory police are the first responders always, and they will remain the first responders, to any violence. Civilian law enforcement agencies remain paramount during any call-out. That has not changed.
The amendments in the bill are also aimed at making it easier for the ADF to assist the states and territories in responding to terrorist incidents, as we think it should. They will also ensure that the ADF has the powers it needs to assist police in quickly responding to such incidents. The states and territories will retain responsibility as first responders for domestic security incidents in their respective jurisdictions. In particular, I point out to colleagues that the amendments make it clear that, when operating under a call-out, the ADF must assist and cooperate with state and territory police forces. No ifs or buts: it must cooperate with the state and territory police forces. As far as reasonably practicable, and even after it has been called out, the ADF will not act unless formally requested to by the relevant state or territory police force.
I'd like to make a second point in relation to some of the issues that Senator McKim raised last night. The bill does contain a range of limitations and safeguards where the ADF is called out in response to domestic violence. These ensure that the exercise of any power under a call-out order is necessary, reasonable and proportionate in the circumstances. These limitations and safeguards operate at various levels, including at the ministerial level, the ADF command level and the level of individual ADF members. Again, I remind colleagues in this place that, at the ministerial level, authorising ministers may only call out the ADF after taking into account the nature of the violence and whether the ADF would be likely to enhance the state and territory response to that domestic violence.
The bill also imposes limitations on the way in which the CDF may utilise the ADF. The CDF must only utilise the ADF under a call-out order for the purposes specified in the order itself. The bill is explicit that the CDF must not utilise the ADF to stop or restrict any protest, dissent, assembly or industrial action except if there is a reasonable likelihood of either the death of, or serious injury to, persons or serious damage to property. Therefore, the ADF could not and would not, for example, be called out in response to nonviolent protests, industrial action or civil disobedience.
In relation to the discussions that we had on the meaning of 'domestic violence' in this chamber last night, I would make a number of points. The bill defines the term 'domestic violence' in accordance with section 119 of the Constitution, and this has not changed from the current legislation. In fact, it's not possible to formally define in part IIIAAA what 'domestic violence' means under the Constitution because, as I'm sure Senator McKim would know, the terms in the Constitution cannot be defined or determined by ordinary legislation, such as that that is before us today.
Senator McKim interjecting—
Only the courts can determine the meaning of the Constitution, and the High Court ultimately decides the meaning of the Constitution. And I will take that interjection from Senator McKim, because he might not like the fact that it is part of our Constitution and it is in accordance with our Constitution. As I said last night, Senator McKim, it is not simply about the 'vibe' of the definition; it is about what is in the Constitution and how the Constitution can and cannot be defined—in this case, within this piece of legislation. Further, it is critical that these terms be sufficiently flexible that they cover the range of significant violent incidents that may justify the call-out of the ADF to assist state and territory police. It is used in section 119 of our Constitution, and as—
Senator McKim interjecting—
I'll just remind Senator McKim that this section deals with state requests for assistance in responding to domestic violence. In that context, it is clear we are not talking about incidents of violence which the police have well in hand. The incident must be of such gravity and magnitude that it warrants calling out the ADF.
In relation to the support that the ADF can provide, that includes specialist capabilities that are inherent in the ADF, such as tactical assault forces and chemical, biological, radiological and nuclear response and recovery—again, all capabilities that are resident within the ADF and should be utilised in the event that a domestic situation warrants their use. The amendments will ensure that the ADF is able to utilise these specialist skills and capabilities to contribute effectively to domestic counterterrorism efforts, as it should be and as we and the Labor Party agree it should be. I'm sure the vast majority of Australians would also agree that, in such an event, these ADF capabilities should be utilised to protect them.
The government does recognise the need to reappraise legislative settings to ensure that the Commonwealth is best positioned to be agile and effective in the way it supports states' and territories' response to terrorism incidents. And, again, if you ask any Australian out in the street, they would say, 'Of course, if we are subject to a terrorist incident, we should have all available assets in Australia in response.'
In conclusion, I would like to thank the Senate Legal and Constitutional Affairs Legislation Committee and also the Senate Standing Committee for the Scrutiny of Bills for their detailed consideration of this bill. This bill reflects the government's ongoing commitment to ensuring that Australia's counterterrorism legislation framework remains robust and that the ADF can most readily enhance our law enforcement agencies' response to the evolving threat of terrorism.
Again, I thank all of my parliamentary colleagues for recognising the need for these important measures, and I commend this bill to the Senate.