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Monday, 26 November 2018
Page: 8610


Senator McKIM (Tasmania) (21:15): 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."