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Defence Amendment (Call Out of the Australian Defence Force) Bill 2018

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

DEFENCE AMENDMENT (CALL OUT OF THE AUSTRALIAN DEFENCE FORCE) BILL 2018

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

                                                                                                        

 



 

DEFENCE AMENDMENT (CALL OUT OF THE AUSTRALIAN DEFENCE FORCE) Bill 2018

 

This addendum responds to a recommendation of the Senate Legal and Constitutional Affairs Legislation Committee in its report of 3 September 2018 regarding the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. It also responds to concerns raised by the Senate Standing Committee for the Scrutiny of Bill in Scrutiny Digest 10 of 2018, dated 12 September 2018.  

NOTES ON CLAUSES

Schedule 1 - Amendments

Defence Act 1903

Item 2

Proposed section 33 - Calling out the ADF to protect Commonwealth interests

On page 33, after paragraph 163, insert the following new paragraph:

163A.     The term ‘Commonwealth interests’ is not defined in the Bill. For the purposes of Part IIIAAA, ‘Commonwealth interests’ 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.

On page 34, after paragraph 165, insert the following new paragraph:

165A.     The term ‘domestic violence’ is not defined in the Bill but refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful protests, industrial action or civil disobedience would not fall within the definition of ‘domestic violence’.

On page 36, after paragraph 182, insert the following new paragraph:

182A.  This proposed threshold is not intended to impermissibly expand the circumstances in which the ADF might be called out, or result in the ADF being called out in response to minor incidents that police routinely and appropriately deal with. This is because the authorising Ministers will need to be satisfied that the ADF should be called out in response to a terrorist incident or other incident of significant violence. This can only occur after a state or territory request for assistance, or the Commonwealth assessing that the violence affects, or would be likely to affect, a Commonwealth interest. In making this assessment, Commonwealth authorising Ministers will be required to consider the nature of the violence, and whether the ADF would be likely to enhance the state or territory response, as well as any other relevant matters. These would be the same factors that authorising Ministers would consider in making a decision under the existing threshold. The threshold in proposed sections 33 to 36 recognises that calling out the ADF to respond to an incident is a significant and exceptional act, and ensures that it is not to be done in relation to incidents that are within the ordinary capability of police. By requiring authorising Ministers to consider these mandatory factors, the amended threshold will provide flexibility for the ADF to be called out in appropriate circumstances.

On page 37, after paragraph 188, insert the following new paragraph:

188A.     The 20 day limitation on call out orders ensures that there is adequate time during which the ADF may be utilised to respond to the domestic violence or threat specified in the order, without a new order having to be made. However, proposed paragraph 37(3)(a) is intended to ensure that call out powers cannot be exercised for longer than is strictly necessary. That paragraph provides that the Governor-General must revoke a call out order if one or more of the authorising Ministers cease to be satisfied that any of the conditions for making the order continue to be met. This means, for example, that the Governor-General must revoke a call out order if an authorising Minister ceases to be satisfied that there is, or is the threat of, domestic violence occurring.

Proposed section 34 - Contingent call out of the ADF to protect Commonwealth interests

On page 38, after paragraph 189, insert the following new paragraph:

189A.     The term ‘Commonwealth interests’ is not defined in the Bill. For the purposes of Part IIIAAA, ‘Commonwealth interests’ 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.

On page 38, after paragraph 191, insert the following new paragraph:

191A.     The term ‘domestic violence’ is not defined in the Bill but refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful protests, industrial action or civil disobedience would not fall within the definition of ‘domestic violence’.

On page 40, after paragraph 205, insert the following new paragraphs:

Specified circumstances

205A.          There are a range of specified circumstances that could give rise to a contingent call out order. What constitutes specified circumstances will depend on the situation in question. However, similar to a call out order to protect Commonwealth interests under proposed section 33, before making a contingent call out order under proposed section 34, the authorising Ministers must be satisfied that domestic violence or a threat in the offshore area would, or would be likely to, threaten Commonwealth interests if the specified circumstances were to arise. Similarly the authorising Ministers must also be satisfied that, if the specified circumstances were to arise, the ADF should be called out, having regard to the nature of the potential domestic violence and whether the ADF would be likely to enhance the relevant state or territory’s ability to protect the Commonwealth interests. These are important limitations on the potential use of contingent call out orders. They underscore the need for a nexus between the specified circumstances, the risk of domestic violence, or threat in the offshore area, and the nature of that violence or threat.

205B.           Contingent call out orders under proposed section 34 will typically be used as part of a request for ADF security support for major international events hosted within Australia, where there is a foreseeable or anticipated threat against Commonwealth interests. Such orders have been regularly made as part of security measures to protect major Commonwealth events including the 2014 G20 Leaders’ Summit in Brisbane, the 2018 Gold Coast Commonwealth Games and the 2018 ASEAN-Australia Summit, from circumstances involving air threats.  The amendments will also now allow the ADF to be pre-authorised to respond to land and maritime based threats, when operating under a contingent call out order. It is not intended that contingent call out orders under proposed section 34 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 in proposed paragraphs 34(1)(a) to (d).

205C.     For example, 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.

Proposed section 35 - Calling out the ADF to protect States and Territories

On page 42, after paragraph 217, insert the following new paragraph:

217A.     The term ‘domestic violence’ is not defined in the Bill but refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful protests, industrial action or civil disobedience would not fall within the definition of ‘domestic violence’.

On page 43, after paragraph 227, insert the following new paragraph:

227A.     The 20 day limitation on call out orders ensures that there is adequate time during which the ADF may be utilised to respond to the domestic violence or threat specified in the order, without a new order having to be made. However, proposed paragraph 37(3)(a) is intended to ensure that call out powers cannot be exercised for longer than is strictly necessary. That paragraph provides that the Governor-General must revoke a call out order if one or more of the authorising Ministers cease to be satisfied that any of the conditions for making the order continue to be met. This means, for example, that the Governor-General must revoke a call out order if an authorising Minister ceases to be satisfied that there is, or is the threat of, domestic violence occurring. Similarly, under proposed paragraph 37(3)(b), if the relevant state or territory government withdraws its application for assistance, the Governor-General must revoke the call out order.

Proposed section 36 - Contingent call out of the ADF to protect States and Territories

On page 44, after paragraph 231, insert the following new paragraph:

231A.     The term ‘domestic violence’ is not defined in the Bill but refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful protests, industrial action or civil disobedience would not fall within the definition of ‘domestic violence’.

On page 45, after paragraph 238, insert the following new paragraphs:

Specified circumstances

238A.          There are a range of specified circumstances that could give rise to a contingent call out order. What constitutes specified circumstances will depend on the situation in question.  However, similar to a call out order to protect states and territories under proposed section 35, before making a contingent call out order under proposed section 36, the authorising Ministers must be satisfied that domestic violence would occur, or would be likely to occur, in the state or territory if the specified circumstances were to arise. The authorising Ministers must also be satisfied that, if the specified circumstances were to arise, the ADF should be called out, having regard to the nature of the potential domestic violence and whether the ADF would be likely to enhance the relevant state or territory’s ability to protect itself. These are important limitations on the potential use of contingent call out orders. They underscore the need for a nexus between the specified circumstances, the risk of domestic violence in that jurisdiction, and the nature of that violence.

238B.           Contingent call out orders under proposed section 36 will typically be used as part of a request for ADF security support for major events, where there is a foreseeable or anticipated threat against a state or territory itself.  Such orders have been regularly made as part of security measures to protect major Commonwealth events including the 2014 G20 Leaders’ Summit in Brisbane, the 2018 Gold Coast Commonwealth Games and the 2018 ASEAN-Australia Summit, from circumstances involving air threats against Commonwealth interests.  The amendments will also now allow contingent call out to be available for the protection of states and territories against domestic violence in the air, land and maritime domains. It is not intended that contingent call out orders under proposed section 36 will be made on the basis of vague or indefinite specified circumstances. The specified circumstances must be sufficiently particular to allow the state or territory government to make an assessment required in proposed paragraph 36(1)(a), and the authorising Ministers to make the assessments required in proposed paragraphs 36(1)(b) and (c).

238C.           For example, a contingent call out order could be made to protect a state or territory hosting a major event where the state or territory foresees or anticipates a risk that the event may attract an attack by a hijacked aircraft. The relevant state or territory may have limited, or no, capability to respond to such an attack and therefore could apply to the Commonwealth Government for a contingent call out order under proposed section 36. The ADF would only be empowered to act where the specified circumstances arise, in this case an imminent or actual attack from a hijacked aircraft on the event, and the ADF was called out to assist law enforcement in the affected jurisdiction.

Proposed section 37 - Making, varying and revoking call out orders

On page 47, after paragraph 248, insert the following new paragraphs:

248A.     Proposed section 37 imposes strict limitations governing when a call out order must be revoked, and when an order may be extended. The time limitation on call out orders in proposed subsection 37(2) ensures that there is adequate time during which the ADF may be utilised to respond to the domestic violence or threat specified in the order, without a new order having to be made.

248B.     However, the Bill does not allow call out powers to be exercised for longer than is strictly necessary, and in any event only for so long as the conditions for call out continue to be met. The same conditions that apply to the making of a call out order also apply to the subsequent varying and extension of the order. The authorising Ministers must continue to be satisfied that the conditions for making the order are met.

Proposed Division 3 - Special powers generally authorised by Minister

On page 56, after paragraph 307, insert the following new paragraph:

307A.     The powers in relation to aircraft and vessels in section 46 are connected with the protection of life. In addition to the specific limitations on the use of force that is likely to cause the death of, or grievous bodily harm to, a person as set out in proposed subsection 51N(3), Part IIIAAA sets out an overriding requirement that in exercising their powers ADF members may only use such force as is reasonable and necessary in the circumstances (proposed subsection 51N(1)). The taking of measures against an aircraft or vessel would only be reasonable and necessary where that aircraft or vessel posed a significant threat to life.

Proposed Division 5 - Powers to protect declared infrastructure

On page 71, after paragraph 398, insert the following new paragraph:

398A.     It would not be appropriate to limit infrastructure declarations to circumstances where damage or disruption would directly endanger life or cause serious injury. To do so would unduly limit the ADF’s ability to respond to damage or disruption to infrastructure which, though indirect, would nevertheless present a grave risk to life and safety. For example, an attack on a nuclear reactor could result in the release of radioactive material that causes direct and immediate harm to people. It could also result in radioactive material being released into a water source. In that case, a person may only be harmed by actually drinking the contaminated water, and therefore suffer indirect harm. In both cases, the cause of the harm and the gravity of the harm are the same and distinguishing between direct and indirect causes would be arbitrary. It is therefore important that infrastructure declarations can be made where the damage or disruption would directly or indirectly endanger life.

Proposed Division 6 - Provisions common to Divisions 3 to 5

On page 79, after paragraph 446, insert the following new paragraph:

446A.     Proposed subsection 51S(1) is not intended to remove legal liability in instances where an ADF member has exceeded their legal authority in circumstances that cannot be characterised as minor or technical. An ADF member who exceeds their legal authority in circumstances which could not be characterised as a minor or technical breach would be highly unlikely to have exercised their powers in good faith. For example, an ADF member who uses force against a person in doing anything that is likely to cause the death of, or grievous bodily harm to, the person without believing on reasonable grounds that doing that thing satisfies one of the matters specified in subparagraphs 51N(3)(a)(i) to (iii), would be highly unlikely to have exercised their powers in ‘good faith’.