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Monday, 26 November 2018
Page: 8603


Senator PATRICK (South Australia) (20:45): 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.