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Thursday, 28 June 2018
Page: 6746


Mr PORTER (PearceAttorney-General) (10:14): I move:

That this bill be now read a second time.

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 will enhance the ability of the Australian Defence Force (ADF) to support state and territory police to respond to domestic security incidents, including and, most specifically, terrorism.

The bill implements the key recommendations of the review of Defence support to national counterterrorism arrangements, announced by the Prime Minister on 17 July last year.

In broad terms, the bill will amend part IIIAAA of the Defence Act 1903 by streamlining the legal procedures for the call-out of the ADF and enhancing its ability to protect states, territories, and Commonwealth interests, onshore and offshore, against terrorism.

These amendments complement practical measures already being rolled out by the government to enhance Defence's support to national counterterrorism arrangements.

The bill represents the most significant reform of the ADF call-out powers since part IIIAAA was enacted in 2000 in the lead-up to the Sydney Olympics.

The threat we face today is, unfortunately, greater and more complex than that which we faced when these laws were introduced almost 20 years ago.

The government continuously monitors changes in the security environment and reviews legislative, policy and operational arrangements to ensure we remain ahead of the challenges we face.

Nationally, we must have the best laws and capabilities to respond to terrorism, terrorist attacks, whether they are simple, complex, brief or protracted.

Despite the robust arrangements we already have in place, we must remain agile and flexible in the face of the evolving terrorist threat.

Today, it is most likely that domestic terrorist attacks will be carried out by individuals or small groups inspired by violent ideology using simple methodologies—knives, edge weapons, guns, cars—and could be over in minutes.

These types of attacks require immediate response to save lives and to neutralise the threat.

Australia's law enforcement, security agencies, and military, are among the best in the world.

Australia has a broad continuum of operational response to terrorist attacks spanning from general duties police to the specialist members of the ADF.

The police and other emergency services are, and will remain, our first responders to such terrible events.

It is the immediate actions of these first responders that can have the greatest impact in terms of saving lives, protecting people and neutralising any threat.

Each state and territory police force has specially trained personnel who have expert capabilities to respond to terrorist attacks, but they sometimes need additional support to respond in the most effective manner.

While the ADF's primary counterterrorism role is offshore, the ADF has personnel, resources, specialist skills and assets that can assist our emergency services to respond in the event of a terrorist attack.

This support includes specialist capabilities such as tactical assault forces, and chemical, biological, radiological and nuclear response and recovery.

For this reason, it is essential that the defence forces are able to contribute effectively to domestic counterterrorism efforts in every environment.

The legislation

The bill will re-enact part IIIAAA of the Defence Act, with modernised provisions that are better adapted to the current threat environment.

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 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.

I will now summarise the key changes in the bill.

Lowering the threshold for call - out

One of the key purposes of the bill is to make it simpler for states and territories to request ADF support.

The present legislative threshold prevents the ADF being called out until states and territories 'are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence'.

This is not optimal for facilitating ADF involvement to assist a police response to a terrorist incident.

For instance, it could limit the ADF's ability to provide relevant specialist or niche capabilities to support a state or territory in instances where the jurisdiction's capacity to respond has not been exhausted.

These amendments will 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 Commonwealth interests.

Importantly, these factors would not limit the range of matters that authorising ministers could take into account.

These amendments will permit states and territories to request that the Commonwealth call out the ADF in a broader range of circumstances.

The amendments will make the threshold more flexible and responsive to the needs of states and territories while recognising and respecting each state and territory's different requirements.

This threshold also respects the position of states and territories as first responders, by requiring an assessment of the potential benefit of ADF assistance.

The amendments to the threshold do not mean that the ADF will or should be called out to respond to every threat.

However, they will give greater flexibility to respond to the wide range of threats that may arise and the range of response capabilities of every jurisdiction.

Expanding contingent call-out

Recent terrorist attacks in cities such as Paris and London have prompted a reassessment of the scope of the ability to pre-authorise call-outs of the ADF. This is known traditionally as the contingent call-out.

Contingent call-out allows Commonwealth ministers to pre-authorise the ADF to respond if specified circumstances arise.

This removes any potential delay in seeking ministerial authorisation to act once an incident has taken place, and enables the ADF to already be on the scene, ready to assist the police response.

Contingent call-out is presently limited only to aviation and the protection of Commonwealth interests. These amendments will extend contingent call-out to be available to protect state and territory interests, whether in the land, 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 anticipated terrorist threats.

Multi jurisdictional call- out

It's the case that terrorist threats can be highly mobile and can occur in multiple locations simultaneously.

It's more than conceivable that a threat may arise in one jurisdiction and rapidly move to another. It is therefore 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 which cross 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.

Increased Consultation with State and Territory Police

The bill recognises the importance of the ADF working cooperatively alongside first responders, by increasing the requirements to consult with state and territory police.

As a matter of course, the ADF would work closely alongside state and territory 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 the circumstances.

The amendments also require that, as far as is reasonably practicable, the ADF be utilised only in accordance with the written requests of the police force of the jurisdiction in which the ADF is operating.

Simplify , Expand and Clarify ADF Powers

Under the current legislative framework presently in play the powers of the ADF are spread across multiple divisions, and differ depending on whether the powers are being exercised on or offshore.

This has the potential to create confusion about which powers apply at a given time.

Therefore, the bill clarifies the powers the ADF members may exercise by organising the ADF's powers into three distinct divisions.

These new divisions will apply to both the onshore and offshore areas to facilitate the ADF's ability to respond to multijurisdictional incidents and to streamline the legislation.

The bill expands the powers to prevent, put an end to, and protect people from acts of violence to also cover threats to a person's life or safety, or to public health or public safety.

This will make clear that the ADF can act in relation to generalised threats which may not be directed toward any specific person, but towards the community in general.

The amendments will also simplify, expand and clarify the powers of the ADF to search and seize, and to control movement during an incident.

For instance, the search powers currently available in specified areas focus predominantly on 'dangerous things'.

The amendments will allow the ADF to also search for people who pose a threat to a person's life, health or safety or public health or public safety.

These amendments have been carefully calibrated to ensure an appropriate balance between rights and powers in an emergency situation.

General Security Area and Designated Area Harmonisation

The existing legislation also sets out a complicated scheme relating to on and offshore general security areas and designated areas, with different powers available in each area.

Operationally, this requires ADF members to be continually aware of the respective area boundaries to ensure they exercise the powers available within that area only.

This may prove challenging in a time-compressed and dynamic environment with a rapidly changing threat.

To reduce complexity and uncertainty, the amendments will remove the distinction between the general security area and designated area provisions and allow for the complete suite of powers to be exercised within a single specified area, subject, of course, to appropriate safeguards.

Inclusion of the Minister for Home Affairs as a named ' alternative ' minister

It is the case that, under the existing legislation, in a sudden and extraordinary emergency an expedited call-out 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.

In recognition of the key role that the Minister for Home Affairs plays in counterterrorism coordination, and as a member of the National Security Committee of Cabinet, the amendments will add the Minister for Home Affairs as a named alternative minister for the purposes of expedited call out.

Conclusion

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.

Significantly, the amendments will enable the ADF to respond to a threat spanning jurisdictional borders and be pre-authorised to respond to threats on land, at sea or in the air.

This will ensure the most rapid response possible, which is critical given the current threat environment.

This bill represents a substantial improvement to the Commonwealth's ability to support national counterterrorism arrangements and to save Australian lives when a domestic terrorist threat arises. I commend the bill to the House.

Debate adjourned.