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Monday, 26 November 2018
Page: 8600


Senator POLLEY (Tasmania) (20:34): 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.