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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

 

 

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

General Outline

1.                   This Bill will amend Part IIIAAA of the Defence Act 1903 .

2.                   The amendments contained in the Bill will implement the recommendations from the Review of Defence Support to National Counter-Terrorism Arrangements , and complement efforts to enhance the Australian Defence Force’s (ADF) posture and capability to respond to incidents of domestic violence and terrorism. The amendments will also implement measures to enhance the ability of the ADF to support state and territory law enforcement agencies in responding to domestic violence.

3.                   In broad terms, the purpose of the amendments is 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.

4.                   The amendments to Part IIIAAA will:

·          make it easier for 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 the domestic violence’. However, authorising Ministers will need to take into account the nature of the violence and whether the ADF would be likely to enhance the state and territory response when deciding whether the ADF should be called out.

·          enhance the ability of the ADF to respond to cross-jurisdictional incidents by allowing for a Commonwealth interests order to authorise action in multiple jurisdictions, as well as the offshore area

·          authorise the ADF to respond to incidents that cross a border into a jurisdiction that has not been specified in an order, so long as it is for the purpose of protecting the interests specified in the order against the specified domestic violence

·          expand contingent call out to allow the ADF to be pre-authorised to respond to land and maritime threats, in addition to aviation threats

·          provide for contingent call out for the protection of states and territories

·          increase the requirements for the ADF to consult with state and territory police where it is operating in their jurisdictions

·          simplify, expand and clarify the powers of the ADF to search and seize, and to control movement during an incident

·          remove the distinction between general security areas and designated areas to reduce complexity and uncertainty

·          clarify that acting Ministers are to be treated as substantive Ministers for the purposes of expedited call out

·          add the Minister for Home Affairs as a named ‘alternative’ Authorising Minister for expedited call out, and

·          make technical amendments to improve the clarity of the legislation.

5.                   The Bill will restructure current Part IIIAAA to give effect to these amendments, remove repetition and ambiguity, and make the Part easier to use.

6.                   The underlying principles that inform the operation of Part IIIAAA are as follows:

·          the ADF should only be called out to assist the civilian authorities

·          if the ADF is called out, the civilian power remains paramount , but ADF members remain under military command

·          if the ADF is called out, ADF members can only use force that is reasonable and necessary in the circumstances, and

·          ADF personnel remain subject to the law and are accountable for their actions.

 

FINANCIAL IMPACT

7.                   The amendments in the Bill have no financial impact.

 



 

LIST OF ACRONYMS

ADF                            Australian Defence Force

Call out                        Call out of the Australian Defence Force (under Part IIIAAA)

CDF                            Chief of the Defence Force

 



STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Defence Amendment (Call out of the Australia Defence Force) Bill 2018

8.                   This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

9.                   The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Bill) will amend Part IIIAAA of the Defence Act 1903 . Part IIIAAA governs call out of the Australian Defence Force (ADF) to respond to incidents of domestic violence occurring in Australia. The amendments are intended to enhance the ability of the ADF to protect states, self-governing territories, and Commonwealth interests against domestic violence, including terrorism. The amendments will streamline the process for call out of the ADF, and also provide appropriate powers to allow the ADF to respond effectively to threats and incidents of domestic violence.

10.               The Bill will:

·          make it easier for 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 the domestic violence’. However, authorising Ministers will need to take into account the nature of the violence and whether the ADF would be likely to enhance the state and territory response when deciding whether the ADF should be called out.

·          enhance the ability of the ADF to respond to cross-jurisdictional incidents by allowing for Commonwealth initiated call out orders to authorise action in multiple jurisdictions, as well as the offshore area

·          authorise the ADF to respond to incidents that cross a border into a jurisdiction that has not been specified in an order, so long as it is for the purpose of protecting the interests specified in the order against the domestic violence specified in the order

·          expand contingent call out to allow the ADF to be pre-authorised to respond to land and maritime threats, in addition to aviation threats

·          provide for contingent call out for the protection of states and territories

·          increase the requirements for the ADF to consult with state and territory police

·          simplify, expand and clarify the powers of the ADF to search and seize, and to control movement during an incident

·          remove the distinction between general security area and designated area provisions to reduce complexity and uncertainty

·          clarify that acting Ministers are to be treated as substantive Ministers for the purposes of expedited call out

·          add the Minister for Home Affairs as a named ‘alternative’ Authorising Minister for expedited call out, and

·          make technical amendments to improve the clarity of the legislation.

11.               The act of calling out the ADF, and the powers that the ADF may be authorised to exercise under a call out, are significant. However, the circumstances in which a call out order might be made are extraordinary. Call out of the ADF under Part IIIAAA may only occur where domestic violence is occurring or likely to occur. Domestic violence refers to conduct that is marked by great physical force, and would include a terrorist attack or other mass casualty incident. It is a fundamental principle underlying call out of the ADF that it should only occur to assist the civilian authorities. Law enforcement agencies retain primary responsibility for responding to incidents of domestic violence, and it is not intended that the ADF be called out in response to incidents ordinarily and easily dealt with by police. Call out is intended to be used where, after assessing the particular nature of the domestic violence and whether ADF assistance would enhance a law enforcement response, it is determined that the ADF has relevant specialist equipment or capabilities that could be provided to most effectively respond to the incident, and ultimately, to save lives. Call out powers are significant, but when viewed in this context they allow for a necessary, reasonable and proportionate response to circumstances of significant violence.

12.               Recognising the significance of the powers that the ADF may be authorised to exercise under a call out, Part IIIAAA imposes a range of limitations and safeguards on their authorisation and use. These limitations and safeguards operate at various levels, including at the Ministerial level, at the ADF command level, and also at the level of individual ADF members. In the first instance, the Governor-General and authorising Ministers may only decide to issue a call out order under proposed sections 33, 34, 35 or 36 where they are satisfied of a range of matters, including that domestic violence is actually occurring or likely to occur, and after considering the nature of that violence and whether ADF assistance would enhance the law enforcement response. They must also determine which specific types of powers are appropriate to make available to the ADF to respond to the violence.

13.               Once an order has been made, authorising Ministers must also authorise the ADF’s exercise of certain powers. This is done through the specific authorisation of certain powers (see proposed Division 3), or through the process of making declarations in relation to specified areas (see proposed Division 4) or infrastructure (see proposed Division 5).

14.               Part IIIAAA also imposes limitations at the ADF command level. Proposed section 39 requires that the Chief of Defence Force (CDF) must only utilise the ADF under a call out order for the purposes specified in the order. CDF authorisation is also required for ADF members to exercise certain powers, such as the power to enter and search premises in a specified area (see proposed section 51A). Further, Part IIIAAA imposes safeguards that operate to limit the powers that may be exercised by individual ADF members. These safeguards operate in different ways, and may require that an ADF member only exercise a power for certain purposes, or only exercise a power when a specific threshold has been met.

15.               Finally, strict limitations are applied to the use of force. Proposed section 51N ensures that all force must be reasonable and necessary in the circumstances and that force that may cause grievous bodily harm or death is only ever exercised where reasonable and necessary to protect life. The safeguards at each of these levels operate both individually, and in conjunction with each other, to ensure that the eventual exercise of any power under a call out order is necessary, reasonable and proportionate in the circumstances.

Human rights implications

16.               The measures in this Bill engage the following human rights:

·          the right to life in Article 6 of the International Covenant on Civil and Political Rights (ICCPR)

·          the right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR, and

·          the right to freedom from arbitrary or unlawful interference with one’s privacy or home in Article 17 of the ICCPR.

Right to life in Article 6 of the ICCPR

17.               Article 6 of the ICCPR provides that every human being has the inherent right to life which should be protected by law, and that no-one shall be arbitrarily deprived of his or her life. The notion of arbitrariness includes elements of inappropriateness, injustice, lack of predictability and due process of law, as well as elements of reasonableness, necessity and proportionality. A provision that authorises the deprivation of life will not be arbitrary if it is reasonable, necessary and proportionate, clearly established by law, and accompanied by appropriate safeguards.

18.               Proposed subsection 51N(3) engages the right to life by authorising members of the ADF to use lethal force in very limited circumstances when exercising powers under proposed Divisions 3, 4 or 5. 

19.               In particular, proposed paragraph 51N(3)(a) provides that a member of the ADF who is being used under a call out order must not use force in such a way that is likely to cause the death of, or grievous bodily harm to, a person, except where the member believes on reasonable grounds that using such force is:

·          necessary to protect the life of, or prevent serious injury to another person (including the member in self-defence)

·          necessary to protect declared infrastructure against the domestic violence or threat specified in the order, or

·          when taking measures against an aircraft or vessel (up to and including destroying that aircraft or vessel) under proposed paragraph 46(5)(d) or (e), reasonable and necessary for the purposes of giving effect to the order under the authority of which the member is acting.

20.               Proposed paragraph 51N(3)(b) contains an additional requirement in relation to persons who are fleeing in an attempt to escape being detained. In these circumstances, a member of the ADF must not use lethal force against the fleeing person, unless:

·          one of the grounds in proposed paragraph 51N(3)(a) applies

·          the person has been called on to surrender, and

·          the member believes on reasonable grounds that the person cannot be apprehended in any other manner.

21.               Proposed subsection 51N(1) sets out an overriding requirement that ADF members may only use such force as is reasonable and necessary in the circumstances. Where using force against persons, ADF members must do so in accordance with proposed section 51N (see paragraph 51N(1)(b)). Accordingly, the use of force by ADF members is not arbitrary, and is done in accordance with procedures established by law.

Necessary

22.               This measure is necessary to achieve the legitimate objective of the protection of the Australian populace from acts of significant violence, such as terrorism incidents. It ensures that members of the ADF have the necessary powers to assist state and territory police responding to incidents of domestic violence in a manner that minimises risk to members of the public. Given the nature of incidents of domestic violence, such as a terrorist incident or other mass casualty attack, it is necessary to empower ADF members to use lethal force (or force that may cause grievous bodily harm) in appropriate circumstances.

Reasonable

23.               This measure is reasonable in all the circumstances. The power will allow members of the ADF to apply lethal force, or force that may cause grievous bodily harm, for the purpose of protecting themselves, other persons or infrastructure (damage or disruption to which would cause the loss of life) against domestic violence or threats. Each of the circumstances in which ADF members may use lethal force is connected with the protection of others’ lives. For proposed subparagraph 51N(3)(a)(i), this is explicit. For proposed subparagraph 51N(3)(a)(ii), this is implicit, as infrastructure may only be the subject of a declaration under proposed section 51H if damage to it or disruption of its operations would endanger life. For proposed subparagraph 51N(3)(a)(iii), this is implicit, as the taking of measures against an aircraft or vessel (that may involve the loss of life or grievous bodily harm) would only be reasonable and necessary if that aircraft or vessel posed a significant threat (eg. by causing mass casualties). In these circumstances, the measure is rationally connected to achieving the legitimate objective identified above.

Proportionate

24.               This measure is proportionate to the end sought to be achieved. Proposed section 51N contains a number of procedural safeguards to ensure that the use of force, including lethal force, is proportionate to achieving the legitimate objective of protecting the Australian populace from acts of significant violence, such as terrorism incidents.

25.               Proposed paragraph 51N(1)(a) outlines the overarching requirement that when an ADF member who is being utilised under a call out order uses force against a person or thing, the use of force must be ‘necessary and reasonable in all the circumstances’.

26.               Proposed subparagraphs 51N(3)(a)(i) and (ii) provide that an ADF member cannot use force (including lethal force) likely to cause the death of, or grievous bodily harm to, another person unless the ADF member believes on reasonable grounds that using such force is necessary to protect life, or declared infrastructure, damage or disruption to which would cause significant loss of life. These limitations ensure that an ADF member can only use lethal force in exceptional circumstances, such as where it is in self-defence or to protect the safety of others in response to a terrorist act. The use of lethal force in the exercise of powers under proposed Division 5 to protect declared infrastructure is also proportionate. Under proposed section 51H, it is a precondition of making a declaration in relation to infrastructure that damage to it or disruption to its operations would directly or indirectly endanger the lives of, or cause significant injury to, other persons. 

27.               Proposed subparagraph 51N(3)(a)(iii) relates specifically to the taking of measures against aircraft or vessels. The proposed subparagraph provides that an ADF member cannot use force likely to cause the death of, or grievous bodily harm to, another person in taking measures against an aircraft or vessel unless they believe on reasonable grounds that doing so is necessary and reasonable to give effect to the order under which they are acting. There will be some circumstances where the use of lethal force would require a decision to destroy an aircraft or vessel, which may be carrying large numbers of innocent people, in order to save the lives of other people. There may be other circumstances where only the person causing or threatening the domestic violence may be killed or injured.

28.               In recognition of the potentially significant loss of life that the use of force in such circumstances may occasion, there are multiple safeguards on the exercise of this power. Firstly, the Governor-General must have made a call out order in response to domestic violence that is occurring, or likely to occur. The authorising Ministers must also have specified that proposed Division 3 applies to the order.

29.               Secondly, proposed subsection 46(3) provides that the authorising Minister must not authorise the taking of measures against an aircraft or vessel, unless the Minister is satisfied that it is reasonable and necessary. In determining whether the taking of measures against an aircraft or vessel is reasonable and necessary, the authorising Minister will have regard to all the circumstances, including the threat of serious violence against the Australian populace. Proposed paragraph 46(1)(b) also contemplates that there may be circumstances that evolve quickly and in an unforeseen way. It therefore authorises an ADF member to take measures against an aircraft or vessel where they believe on reasonable grounds that there is insufficient time to obtain an authorisation because a sudden and extraordinary emergency exists.

30.               Thirdly, proposed subsection 46(6) provides that an ADF member can only take measures in relation to an aircraft or vessel if the member does so based on an order of the superior, the member was under a legal obligation to obey the superior’s orders, the superior’s orders were not manifestly unlawful, the member has no reason to believe the circumstances have changed in a material way since the superior’s order was given, the member has no reason to believe the superior’s order was based on a mistake as to a material fact, and taking the measure was reasonable and necessary to give effect to the superior’s orders.

31.               At each stage of the decision-making process, there is a requirement that the use of force in relation to an aircraft or vessel be reasonable and necessary. This ensures that the use of force in relation to an aircraft or vessel is proportionate to the potential loss of life it may entail. Where there is the prospect of significant loss of life, the requirements in proposed subsections 46(3) and 46(6), subsection 51N(1), and subparagraph 51N(3)(a)(iii) ensure that this power is only exercised in the most exceptional circumstances, such as when there is a serious threat of mass casualties if the aircraft or vessel is not destroyed.

32.               Proposed paragraph 51N(3)(b) provides that an ADF member cannot use force (including lethal force) likely to cause the death of, or grievous bodily harm to a person who is attempting to escape being detained by fleeing unless: one of the grounds in subparagraph 51N(3)(a) has been met; the person has, if practicable, been called on to surrender; and the ADF member believes on reasonable grounds that the person cannot be apprehended by any other means. The use of force, including lethal force, by a member of the ADF would only be as a last resort, after other alternatives such as calling on the person to surrender have been exhausted.  This ensures that the deprivation of life is reasonable and proportionate in the circumstances, and does not occur in an arbitrary manner. 

33.               Proposed subsection 51N(4) imposes additional safeguards on the use of force against persons. It provides that in using force against a person, the ADF member must not subject a person to greater indignity than is reasonable and necessary in the circumstances. This safeguard, and those identified above, reinforces that the use of force by an ADF member is proportionate in achieving the legitimate objective of protecting the Australian populace from acts of significant violence, such as terrorism incidents.

34.               Accordingly, the deliberate use of such force by members of the ADF in the circumstances identified above would not be arbitrary. Any limitations on the right to life are reasonable, necessary and proportionate to achieve the legitimate objective of the protection of the Australian populace from acts of significant violence, such as terrorism incidents.

Right to freedom from arbitrary detention and arrest, and the right to liberty and security of the person in Article 9 of the ICCPR

35.               Article 9(1) of the ICCPR provides that no-one shall be subjected to arbitrary arrest or detention, or deprived of their liberty except on such grounds and in accordance with such procedures as are established by law. Article 9 regulates, rather than prohibits, detention. It is only ‘arbitrary’ detention that is prohibited. The notion of arbitrariness includes elements of inappropriateness, injustice, lack of predictability, and due process of law. Detention will not be arbitrary where it is reasonable, necessary and proportionate to achieving a legitimate objective. 

36.               Proposed Divisions 3, 4 and 5 engage this right by allowing ADF members to detain a person in accordance with the provisions in proposed paragraphs 46(7)(f), 51A(2)(d), 51D(2)(h), 51D(3)(d), 51D(5)(c) and 51L(3)(e), and proposed subsection 51Q(4).

37.               Proposed paragraphs 46(7)(f), 51A(2)(d), 51D(2)(h), 51D(3)(d), 51D(5)(c) and 51L(3)(e), and proposed subsection 51Q(4) are similar in operation and effect. They generally authorise the detention of a person that a member of the ADF believes on reasonable grounds to be a person who may be detained in relation to the call out order. Proposed subsection 51Q(4) also allows an ADF member to detain a person where the member believes on reasonable grounds that a thing seized from the person has been used or otherwise involved in the commission of an offence. In all cases, de tention must be for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time. 

38.               The phrase ‘person who may be detained’ is defined in proposed section 31 as a person:

·          who is likely to pose a threat to any person’s life, health or safety, or to public health or safety, or

·          who has committed an offence related to the domestic violence or threat specified in the call out order, and whom it is necessary, as a matter of urgency, to detain.

39.               By allowing ADF members to detain a ‘ person who may be detained’, proposed paragraphs 46(7)(f), 51A(2)(d), 51D(2)(h), 51D(3)(d), 51D(5)(c) and 51L(3)(e), and proposed subsection 51Q(4), all engage the right in Article 9(1) of the ICCPR.

40.               The provisions authorising detention operate in accordance with procedures established by law, and their application is clear and predictable.

Necessary

41.               The amendments authorising members of the ADF to detain persons for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time, are necessary to achieve the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism.

Reasonable

42.               These amendments are reasonable in all the circumstances. They allow members of the ADF to detain a person who is likely to pose a threat to the life, health or safety of another person, or to public health or safety. They also allow the detention of a person who has committed an offence related to the domestic violence or threat specified in the call out order, but only where it is necessary, as a matter of urgency, to detain that person. 

43.               Where domestic violence is occurring, or is likely to occur, it is reasonable to detain persons on a preliminary basis to ensure the safety of the Australian public. In these circumstances, it is the ADF’s role to assist state and territory police in responding to the domestic violence. As the ADF and state and territory police may not always be operating in close proximity to one another, it is necessary for members of the ADF to have the power to detain a person who poses a threat to the safety of others. This ensures that the ADF is able to neutralise the threat a person poses, and detain them until they can be placed in the custody of state or territory police. Accordingly, any limitation these amendments place on the right to freedom from arbitrary detention and arrest, and the right to liberty and security, is rationally connected to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism.

Proportionate

44.               These amendments are proportionate to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism.

45.               Firstly, the power to detain persons under proposed Divisions 3, 4 and 5 may only be exercised in the extreme context of a call out order, where the Governor-General has authorised the ADF to respond to domestic violence that is actually occurring or likely to occur. This could include catastrophic terrorist incidents involving widespread or significant violence that was beyond the response capability of a state or territory police force, such as a chemical, biological, radiological or nuclear incident.

46.               Secondly, the Bill contains a number of procedural safeguards in the thresholds for detention. In particular, before detaining a person a member must believe on reasonable grounds that:

·          the person is likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or   

·          the person has committed an offence relevant to the domestic violence or threat specified in the call out order, and that it is necessary to detain that person as a matter of urgency.

47.               These limits ensure that the power to detain is targeted and can only be exercised for the purpose of achieving the legitimate objective of protecting the Australian populace from acts of significant violence, such as terrorism incidents. This also reflects the fact that the ADF is not called out for the purposes of exercising general law enforcement functions. 

48.               Thirdly, detaining a person under a call out order must be for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time. As such, detention is likely to be of relatively short duration and would not last longer than is necessary to achieve that purpose. Once the person is placed in the custody of state or territory police, it will be up to the police to question, charge or release the person. There are no powers in the Bill providing for extended detention without charge. 

49.               Proposed section 51P also requires a member of the ADF to inform detained persons of the reasons for their detention at the time they are detained. In particular, this means that the ADF member must inform the person (as applicable):

·          of the offence the person is reasonably believed to have committed

·          that the person is believed to be likely to pose a threat to any person’s life, health or safety, or to public health or safety, and the reasons for that belief, and/or

·          that the person is believed to be likely to pose a risk to the operation or integrity of declared infrastructure, and the reasons for that belief.

50.               The deprivation of liberty and detention of a person under proposed Part IIIAAA is not arbitrary, as it is necessary, reasonable and proportionate to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence.

Right to freedom from arbitrary or unlawful interference with one’s privacy or home in Article 17 of the ICCPR

51.               Article 17 of the ICCPR prohibits unlawful or arbitrary interference with a person’s privacy, home and correspondence, and prohibits unlawful attack on a person’s reputation. Lawful interference with the right to privacy will be permitted, provided it is reasonable in the particular circumstances. The UN Human Rights Committee has considered that ‘any interference with privacy must be proportional to the end sought and be necessary in the circumstances of any given case’. [1]

52.               Four measures in the Bill will engage the right to privacy:

·          the measures in proposed Division 3 which provide ADF members with special powers, including powers to search locations, things and people

·          the measures in proposed Division 4 which provide ADF members with powers exercisable in specified areas, including powers to search premises, means of transport and people

·          the measures in proposed Division 5 which provide ADF members with powers to protect declared infrastructure, including powers to search locations, things and people, and

·          the measures in proposed Divisions 3, 4 and 5 which provide ADF members with powers to direct a person to answer a question put by an ADF member or to produce to an ADF member a particular document that is reasonably accessible to the person (including identification).

Proposed Division 3 which provides ADF members with special powers, including search and seizure powers

53.               Proposed Division 3 engages the right to privacy by setting out a range of powers that an ADF member can exercise in response to threats or domestic violence. These powers are focused primarily on preventing, ending, and protecting people from, acts of violence and threats. They are substantial powers, and therefore an authorising Minister must generally authorise their use by an ADF member. These powers are located in proposed subsections 46(5), (7) and (9).

54.               Proposed subsection 46(5) sets out actions that an ADF member may take, if an authorising Minister has authorised the taking of that action in writing. The actions set out in subsection 46(5) are:

·          capture or recapture a location (including a facility) or thing

·          prevent, put an end to, or protect any persons from, acts of violence or threats to any person’s life, health or safety or to public health or public safety

·          take measures, or give orders relating to the taking of measures, against an aircraft or vessel.

55.               Once a Minister has authorised one or more of the actions in subsection (5), an ADF member may then exercise one or more of the powers in subsection (7). However, an ADF member may only exercise the powers in subsection (7) in connection with taking one or more of the authorised actions set out in subsection (5). The powers in subsection (7) do not themselves require specific authorisation by an authorising Minister. Proposed subsection 46(7) provides a range of additional powers, including the power to search persons, locations or things for things that may be seized, or persons who may be detained, in relation to the call out order.

56.               ADF members may only search for ‘things that may be seized’ or ‘persons who may be detained’. Proposed section 31 defines a ‘thing that may be seized’ as a thing that is:

·          likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or

·          likely to cause serious damage to property, or

·          related to the domestic violence or threat specified in the call out order, and that it is necessary, as a matter of urgency, to seize.

57.               Proposed section 31 defines ‘persons who may be detained’ as persons who:

·          are likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or

·          persons who have committed an offence related to the domestic violence or threat and whom it is necessary, as a matter of urgency, to detain.

58.               Proposed subsection 46(9) provides additional powers for an ADF member to do anything incidental to anything in subsection (5) or (7), including enter any place or premises or board an aircraft or vessel. The incidental powers in subsection (9) do not themselves require specified authorisation by an authorising Minister. However, they can only be exercised where an authorising Minister has authorised one or more of the actions in subsection (5).

59.               These powers contemplate the ADF searching locations or things, which may include a person’s private property or possessions, for things that may be seized or persons who may be detained. They also contemplate the ADF searching people for things that may be seized. The powers therefore engage the right to privacy in Article 17 of the ICCPR.

Necessary

60.               The powers to search and to exercise incidental powers are necessary to achieve the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism. These powers are available to be exercised in response to incidents of domestic violence and will allow ADF members to take action to prevent, end, and protect persons from, acts of violence and threats, where such action is authorised by an authorising Minister.

Reasonable

61.               When viewed in the context of a call out order, the exercise of these powers is reasonable.

62.               The power in proposed paragraph 46(7)(d) to search persons, locations or things for things that may be seized or persons who may be detained is reasonable in allowing the ADF to effectively respond to an incident of domestic violence. These powers would allow the ADF to enter and search private premises in order to locate and respond to threats. The contemporary threat environment is characterised by highly mobile attackers that move quickly between locations and premises across a large area. The recent events in Borough Market, London, and at the Bataclan Theatre in Paris are illustrative of this type of attack. At the same time, the Manchester bombing showed that bomb attacks continue to pose a threat. In these circumstances, the exact location of a threat may not be known, and it is important that the ADF has powers to search people (such as shooters), locations and things (such as bombs) for these threats.

63.               The incidental power in proposed subsection 46(9) is reasonable as it guards against any unintended restrictions on the ability of an ADF member to exercise the powers to search. In particular, the incidental power clarifies that an ADF member may enter any place or premises, or board an aircraft or vessel, in exercising these powers. These powers may in fact be rendered redundant if they were, for example, interpreted as allowing an ADF member to only search publicly accessible locations.

Proportionate

64.               The powers to search and to exercise incidental powers both impose some limitations on the right to privacy. However, they do so in a way that is proportionate to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism . These powers may only be exercised in the extreme context of a call out order, where the Governor-General has authorised the ADF to respond to domestic violence that is actually occurring or likely to occur. The powers are focused on preventing, ending, and protecting people from, acts of violence and threats. However, recognising that the exercise of these powers may result in interference with the right to privacy, there are a number of safeguards on the authorisation and exercise of these powers to ensure that they are used for a proper purpose. All of these powers are to be exercised in accordance with the procedures established by law under proposed Division 3. 

65.               The power to search persons, locations or things for things that may be seized, or persons who may be detained, is contained in subsection 46(7). The exercise of this power does not require specific Ministerial authorisation. However, powers in subsection (7) may only be exercised in connection with taking an action in subsection (5) that has been specifically authorised by a Minister. The result is that the power to search persons, locations or things can only be exercised where the search is in connection with capturing or recapturing a location or thing, preventing, putting an end to, or protecting persons from, threats or acts of violence, or taking measures against an aircraft or vessel. The search powers contemplate a time-critical context in which is it is necessary to rapidly locate and respond to threats and violence. This process ensures that the search powers are only exercised in pursuit of authorised actions, and therefore that any limitation these powers place on the right to privacy is proportionate to achieving a legitimate objective.

66.               Further, the purposes of the ADF member’s search are also limited. An ADF member may only search for ‘things that may be seized’ or ‘persons who may be detained’. According to the definition in proposed section 31, ‘things that may be seized’ are things that are likely to pose a threat or cause damage, or things that are related to the domestic violence and which must be seized as a matter of urgency. ‘Persons who may be detained’ is defined to mean persons who are likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or persons who have committed an offence related to the domestic violence and whom it is necessary, as a matter of urgency, to detain. These definitions connect the things that may be seized and persons who may be detained with either things or people that pose a threat to life or are connected with the domestic violence specified in the call out order. This operates to ensure that the search powers are proportionate to achieving the legitimate objective of protecting the Australian populace from acts of significant violence.

67.               The incidental powers provided for in subsection 46(9), including the power to enter any place or premises or board an aircraft or vessel, do not require specific Ministerial authorisation. However, the powers provided for in subsection (9) may only be exercised where they are incidental to anything in subsection (5) or (7). The result is that the powers under subsection (9) can only be exercised where they are directly (or indirectly through subsection (7)) incidental to taking an action in subsection (5) that has been specifically authorised by a Minister. This ensures that the incidental power is only exercised in pursuit of authorised actions, and therefore that any limitation the power places on the right to privacy is proportionate to achieving a legitimate objective.

Division 4—Powers exercised in specified areas, including search and seizure powers

68.               Proposed Division 4 engages the right to privacy by setting out a range of powers that an ADF member can exercise within a specified area. These powers include the ability to search premises in the specified area, and to also search means of transport and persons in the specified area. These powers may only be exercised where the authorising Ministers have made a specified area declaration in accordance with proposed section 51.

69.               The search powers in proposed Division 4 are divided into two subdivisions relating to premises (proposed Subdivision C), and means of transport and people (proposed Subdivision D). The process for authorising the use of search powers differs between these subdivisions.

70.               Proposed section 51A of Subdivision C provides powers to search premises in a specified area, where the CDF or an authorised ADF officer has given a search authorisation. This includes powers for an ADF member to:

·          enter and search all premises within the specified area

·          enter and search only specified premises within the specified area

·          search a person at or near premises whom the member believes on reasonable grounds has in their possession a thing that may be seized in relation to the call out order.

71.               However, an ADF member may only be authorised to enter and search premises for the purposes of:

·          finding:

o  a person who is likely to pose a threat to any person’s life, health or safety or to public health or public safety, or

o a thing that is likely to pose a threat to any person’s life, health or safety or to public health or public safety, or cause serious damage to property, or

o a person or thing connected with the domestic violence or threat specified in the order, or

·          determining that such a person or thing is not on the premises.

72.                ADF members may only search persons for things that are ‘things that may be seized’. Proposed section 31 defines a ‘thing that may be seized’ as a thing that is:

·          likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or

·          likely to cause serious damage to property, or

·          related to the domestic violence or threat specified in the call out order, and that it is necessary, as a matter of urgency, to seize.

73.               These search powers contemplate the ADF entering and searching any kind of premises within a specified area, including private property and homes, so long as the CDF has issued a search authorisation and the threshold for an individual ADF member to exercise the search power has been met. They also contemplate the ADF searching persons. The powers therefore engage the right to privacy in Article 17 of the ICCPR.

74.               Proposed section 51D in Subdivision D provides powers to search means of transport and persons in specified areas. Proposed subsection 51D(1) provides that the powers in section 51D only apply if an ADF member believes on reasonable grounds that there is in a specified area:

·          a person who is likely to pose a threat to any person’s life, health or safety or to public health or public safety (a suspect)

·          a person who has in their possession a thing likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or to cause serious damage to property (a suspect)

·          a person connected with the domestic violence or threat specified in the order (a suspect)

·          a thing likely to pose a threat to any person’s life, health or safety, to public health or public safety, or to cause serious damage to property, or

·          a thing connected with the domestic violence or threat specified in the order.

75.               Where this condition is satisfied, an ADF member may then exercise the powers in proposed section 51D. Under proposed section 51D, an ADF member may search a means of transport or person in the following circumstances:

·          a means of transport or person is trying to enter or leave the specified area, or an area within the specified area, and consents to a search

·          if an ADF member believes on reasonable grounds that a person or thing mentioned in subsection 51D(1) is in or on a means of transport in the specified area, the member may search the means of transport, and any thing found in or on the means of transport

·          if an ADF member believes on reasonable grounds that there is in a specified area a person mentioned in subsection 51D(1) (a suspect), the member may search the person.

76.               These powers contemplate the ADF conducting both consensual and non-consensual searches of persons and means of transport. The powers therefore engage the right to privacy in article 17 of the ICCPR.

Necessary

77.               The powers to search in relation to premises, means of transport and persons in a specified area are necessary to achieve the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism.  These powers are available to be exercised in response to an incident of domestic violence and will allow ADF members to search for and locate threats within a specified area, where the authorising Ministers have made a specified area declaration.

Reasonable

78.               When viewed in the context of a call out order, the exercise of these powers is reasonable.

79.                The powers to search and seize in relation to premises, means of transport and persons in specified areas allow the ADF to locate and respond to threats where the exact location of the threat is unknown. As noted above, the contemporary threat environment is characterised by highly mobile attackers that move quickly between locations and premises across large areas. The recent events in Borough Market, London, and at the Bataclan Theatre in Paris are illustrative of this type of attack. At the same time, the Manchester bombing showed that bomb attacks continue to pose a threat. In these circumstances, the exact location of a threat may not be known, and it is important that the ADF has powers to search premises, means of transport and persons for these threats and respond quickly to them. 

80.               The power in proposed section 51A would allow the ADF to enter and search private premises in order to locate and respond to threats (which may be persons or things), as well as persons or things related to the domestic violence or threat specified in the call out order. This allows the ADF to search for people who do not pose a threat themselves, and who have not yet committed an offence, but who may be seeking to assist others in carrying out acts of violence. It also allows the ADF to search for things such as bomb parts, which do not on their own pose a threat but could be combined to pose a threat, provided that they are related to the domestic violence or threat specified in the call out order. The basis on which the ADF may search premises is slightly wider than the grounds on which it may detain a person or seize a thing. This is to ensure that the ADF has sufficiently broad powers to locate and identify potential threats.

81.               Proposed section 51A allows an ADF member to search premises both for the purposes of locating persons and things, and for the purposes of determining that persons and things are not on the premises. This latter purpose is a matter of operational necessity for ADF members carrying out a search. It allows the ADF to conduct systematic sweep operations to locate, corner, and surround threats. To do so effectively, it is important that the ADF has the power to definitively determine that persons or things are not on certain premises to ensure that their search is both effective and minimises the risk of surprise.

82.               The ability for an ADF member to search persons at or near premises is reasonable and necessary to ensure that the member is not prevented from searching a person who is in the process of leaving or entering premises that may be searched in accordance with the search authorisation. This power is essential when searching premises for persons who may move between premises.

83.               The powers to enter and search premises in a specified area, and any limitation the powers place on the right to privacy, are therefore rationally connected to the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, especially where the exact location of the violence or threat is not known.

84.               The powers to search means of transport and persons in a specified area are also rationally connected to the legitimate objective of locating and responding to threats and acts of violence. It is important that the ADF is empowered to search means of transport and persons in specified areas in order to locate possible threats. It is possible that an ADF member might be required to search for a particular means of transport, thing, or person that they believe on reasonable grounds poses a threat. In these circumstances, proposed section 51D provides search powers in relation to persons and means of transport. These coercive powers can only be exercised where the ADF member holds a belief on reasonable grounds that a person or thing mentioned in subsection 51D(1) is in or on a means of transport, or that a person is a person mentioned in subsection 51D(1) (a suspect). However, it is equally plausible that an ADF member might be attempting to locate a person who poses a threat (or a thing that poses a threat), but has little or no information about what that person looks like or whether the person is on or in a means of transport. In these circumstances, proposed section 51D provides powers to carry out searches with consent, where the means of transport or person is attempting to enter or leave the specified area or an area within the specified area. In both cases, the powers are reasonable and rationally connected to achieving the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, especially where the exact location of the violence or threat is not known.

Proportionate

85.               The powers to search in relation to premises, means of transport and persons in specified areas all impose some limitations on the right to privacy. However, they do so in a way that is proportionate to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism. These powers may only be exercised in the extreme context of a call out order, where the Governor-General has authorised the ADF to respond to domestic violence that is actually occurring or likely to occur. The exercise of these powers is also dependent upon the authorising Ministers having determined that proposed Division 4 powers should apply to the order, and having made a specified area declaration. However, recognising that the exercise of these powers may result in interference with the right to privacy, there are a number of safeguards on the authorisation and exercise of these powers to ensure that they are used for a proper purpose. All of these powers are to be exercised in accordance with the procedures established by law under proposed Division 4. 

86.               The power for an ADF member to enter and search premises can only be exercised where the CDF, or an authorised ADF officer, has issued a search authorisation. Under proposed subsection 51A(1) the CDF or authorised officer may only issue a search authorisation if they believe on reasonable grounds that there is on any premises in the specified area:

·          a person who is likely to pose a threat to any person’s life, health or safety or to public health or public safety

·          a thing that is likely to pose a threat to any person’s life, health or safety or to public health or public safety, or cause serious damage to property, or

·          a person or thing connected with the domestic violence or threat specified in the order.

87.               This limitation on the ability to issue an authorisation ensures that the authorisation to enter and search premises is targeted toward locating and responding to threats, which is a critical part of achieving the legitimate objective described above. The CDF may issue the authorisation in respect of all premises in the specified area, or only in respect of a more limited set of premises in the specified area. In either case, the authorisation must clearly define which premises within a specified area may be entered and searched.

88.               Further, under proposed subsection 51A(2), a search authorisation can only authorise an ADF member to enter and search premises for limited purposes. Premises may only be entered and searched either for the purpose of finding persons or things described above, or for the purposes of determining that the persons or things described above are not on the premises. The ADF may not enter or search premises for any other purpose.

89.               These limitations ensure that the powers for an ADF member to enter and search premises in a specified area are only exercised for the purposes of achieving the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, including terrorism.

90.               The power for an ADF member to search a person who is at or near premises is also limited. An ADF member can only conduct such a search where they believe on reasonable grounds that the person has in their possession a ‘thing that may be seized’ in relation to the call out order. According to the definition in proposed section 31, ‘things that may be seized’ are all things that are likely to pose a threat or cause damage, or are things that are related to the domestic violence and which must be seized as a matter of urgency. This definition connects the things that may be seized with the things that pose a threat to life or are connected with the domestic violence specified in the call out order. This operates to ensure that the search powers are proportionate to achieving the legitimate objective of protecting the Australian populace from acts of significant violence.

91.               The powers to search means of transport and persons in a specified area are also limited to ensure that their exercise is proportionate to achieving the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, including terrorism.

92.               Proposed subsection 51D(2) provides search powers in relation to persons and means of transport generally. These powers may only be exercised where an ADF member believes on reasonable grounds that there is a dangerous person or thing, described in subsection 51D(1), somewhere in the specified area. Further, an ADF member may only conduct a search of a person or means of transport under proposed subsection 51D(2) as a condition of entering or leaving a specified area, or an area within the specified area, where the person consents. The consent requirement operates as an important limitation on these search powers, as these powers do not require an ADF member to hold a belief on reasonable grounds that a means of transport has in or on it a person or thing described in subsection 51D(1). Nor do the powers require an ADF member to believe on reasonable grounds that a person to be searched is a person described in subsection 51D(1), or has in their possession a thing described in subsection 51D(1). The consent requirement allows an ADF member to exercise search powers to locate and respond to threats, but ensures that the powers are exercised in a proportionate manner.

93.               Proposed subsections 51D(3) and (5) provide search powers in relation to persons who are suspects and specific means of transport. These powers may only be exercised where an ADF member believes on reasonable grounds that there is a dangerous person or thing, described in proposed subsection 51D(1), somewhere in the specified area. Proposed section 51D also imposes additional limitations on the exercise of these powers. An ADF member may only exercise the power in proposed subsection 51D(3) in relation to means of transport where they believe on reasonable grounds that a person or thing described in subsection 51D(1) is in or on the means of transport. An ADF member may only exercise the search powers in proposed subsection 51D(5) in relation to persons where they believe on reasonable grounds the person is a person described in subsection 51(D)(1) (a suspect). While these search powers are coercive, the threshold for their exercise ensures that their use is targeted at locating and responding to threats and is proportionate to achieving the legitimate objective of protecting the Australian populace from acts of significant violence.

94.               In addition to the above safeguards, there are review mechanisms and reporting requirements to ensure that any interference with a person’s privacy or home is not arbitrary and is lawful. For example, proposed subsection 51A(9) requires each House of Parliament to sit within 6 days after its Presiding Officer receives a statement describing the specified area and its boundaries. Proposed paragraph 51ZD(1)(c) also requires the Minister to arrange for presentation to each House of Parliament a copy of a report on any use of the ADF that occurred under the order, including the number of premises searched under proposed Division 4.

Division 5 - Powers to protect declared infrastructure, including search and seizure powers

95.               Proposed Division 5 engages the right to privacy by setting out a range of powers that an ADF member can exercise for the purpose of protecting declared infrastructure. These powers are focused primarily on preventing and ending damage or disruption to the operation of declared infrastructure, and on preventing, ending, and protecting people from, threats and acts of violence. They are substantial powers, and therefore may only be exercised where authorising Ministers have made an infrastructure declaration. Under proposed section 51H, authorising Ministers may only declare infrastructure to be ‘declared infrastructure’ where there is a threat of damage or disruption to the operation of the infrastructure, and the damage or disruption would directly or indirectly endanger the life of, or cause serious injury to, other persons. As such, infrastructure declarations can only be made where damage or disruption to the infrastructure would involve a concomitant risk to human life.

96.               The powers to protect declared infrastructure are set out in proposed subsections 51L(2), (3) and (5). Proposed subsection 51L(2) sets out actions that an ADF member may take for the purpose of protecting declared infrastructure:

·          prevent, or put an end to, damage or disruption to the operation of the declared infrastructure

·          prevent, or put an end to acts of violence or threats to any person’s life, health or safety, or to public health or public safety

·          protect any persons from acts of violence or threats to any person’s life, health or safety, or to public health or public safety.

97.               Proposed subsection 51L(3) provides additional powers that an ADF member may only exercise in connection with taking one or more of the actions set out in subsection (2).  They include the power to search persons, locations or things for things that may be seized, or persons who may be detained, in relation to the call out order.

98.               ADF members may only search for ‘things that may be seized’ or ‘persons who may be detained’. Proposed section 31 defines a ‘thing that may be seized’ as a thing that is:

·          likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or

·          likely to cause serious damage to property, or

·          related to the domestic violence or threat specified in the call out order, and that it is necessary, as a matter of urgency, to seize.

99.               Proposed section 31 defines ‘persons who may be detained’ as persons who:

·          are likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or

·          persons who have committed an offence related to the domestic violence or threat and whom it is necessary, as a matter of urgency, to detain.

100.           Proposed subsection 51L(5) provides additional powers for an ADF member to do anything incidental to anything in proposed subsection (2) or (3).  These powers can only be exercised where they are incidental to taking an action in subsection (2) (either directly or indirectly via subsection (3)).

101.           These powers contemplate the ADF searching locations or things, which may include a person’s private property or possessions, for things that may be seized or persons who may be detained. They also contemplate the ADF searching people for things that may be seized. The powers therefore engage the right to privacy in Article 17 of the ICCPR.

Necessary

102.           The powers to search and to exercise incidental powers are necessary to achieve the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, including terrorism. These powers are available to be exercised to respond to incidents of domestic violence and will allow ADF members to take action to protect declared infrastructure from damage, which could result in widespread loss of life.

Reasonable

103.           When viewed in the context of a call out order, the exercise of these powers is reasonable.

104.           The power in proposed paragraph 51L(3)(c) to search persons, locations or things for things that may be seized or persons who may be detained is reasonable in allowing the ADF to effectively respond to an incident of domestic violence. These powers would allow the ADF to search premises, persons and things in order to locate and respond to threats. It is possible that threats to declared infrastructure may not be located on the grounds of that infrastructure itself, for example, where attackers are using nearby premises as a base from which to launch their attacks. Attackers might also use vehicle-borne explosive devices to carry out rapid attacks on declared infrastructure. In these circumstances, the exact location of a threat may not be known, and it is important that the ADF has powers to search people (such as a shooter), locations and things (such as bombs) for these threats.

105.           The incidental power in proposed subsection 51L(5) is reasonable as it guards against any unintended restrictions on the ability of an ADF member to exercise the powers to search.  The powers to search may in fact be rendered redundant if they were, for example, interpreted as allowing an ADF member to only search publicly accessible locations, rather than private premises. 

Proportionate

106.           The powers to search and to exercise incidental powers for the purposes of protecting declared infrastructure impose some limitations on the right to privacy. However, they do so in a way that is proportionate to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism. These powers may only be exercised in the extreme context of a call out order, where the Governor-General has authorised the ADF to respond to domestic violence that is actually occurring or likely to occur. Further, the powers may only be exercised where the authorising Ministers have made an infrastructure declaration. The powers are only used to protect declared infrastructure, damage to which could occasion widespread loss of life. However, recognising that the exercise of these powers may result in interference with the right to privacy, there are a number of safeguards on the authorisation and exercise of these powers to ensure that they are used for a proper purpose. All of these powers are to be exercised in accordance with the procedures established by law under proposed Division 5.

107.           The power to search persons, locations or things for things that may be seized, or persons who may be detained, is contained in subsection 51L(3). The powers in subsection (3) may only be exercised in connection with taking an action in subsection (2). The result is that the power to search persons, locations or things can only be exercised where the search is in connection with preventing and ending damage or disruption to the operation of declared infrastructure, or preventing, ending, and protecting people from, threats and acts of violence. The search powers contemplate a time-critical context in which is it is necessary to rapidly locate and respond to threats and violence. Any limits that the search powers place on the right to privacy are therefore proportionate to achieving the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, such as terrorism incidents.

108.           Further, the purposes of the ADF member’s search are also limited. An ADF member may only search for ‘things that may be seized’ or ‘persons who may be detained’. According to the definition in proposed section 31, ‘things that may be seized’ are things that are likely to pose a threat or cause damage, or things that are related to the domestic violence and which must be seized as a matter of urgency. ‘Persons who may be detained’ is defined to mean persons who are likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or persons who have committed an offence related to the domestic violence and whom it is necessary, as a matter of urgency, to detain. These definitions connect the things that may be seized and persons who may be detained with the things or people that pose a threat to life or are connected with the domestic violence specified in the call out order. This operates to ensure that the search powers are proportionate to achieving the legitimate objective of protecting the Australian populace from acts of significant violence.

109.           The incidental powers provided for in subsection 51L(5) may only be exercised where they are incidental to anything in subsection (2) or (3). The result is that the powers under subsection (5) can only be exercised where they are directly (or indirectly through subsection (3)) incidental to preventing and ending damage or disruption to the operation of declared infrastructure, or to preventing, ending and protecting people from, threats and acts of violence. This ensures that the incidental power is only exercised in a way that is proportionate to achieving the legitimate objective of protecting the Australian populace from acts of significant violence.

Divisions 3, 4 and 5 - Power to direct a person to answer a question or produce a document readily accessible to the person

110.           Proposed Divisions 3, 4 and 5 engage the right to privacy by allowing an ADF member to direct a person to answer a question put by the member, or to produce to the member a particular document that is readily accessible to the person. The circumstances in which this power can be exercised differ across each of proposed Divisions 3, 4 and 5. In all cases, this power can only be exercised under a call out, where the Governor-General has authorised the ADF to respond to domestic violence that is actually occurring or likely to occur.

111.           Under proposed Division 3, proposed paragraph 46(7)(h) provides that an ADF member may only direct a person to answer a question or to produce a document in connection with taking an action in proposed subsection 46(5) that has been specifically authorised by a Minister. The powers in proposed subsection 46(5) are focused on preventing, ending, and protecting people from, acts of violence and threats.

112.           Under proposed Division 4, proposed paragraph 51D(2)(i) provides that an ADF member may only direct a person to answer a question or to produce a document where the authorising Ministers have made a specified area declaration, and where the ADF member believes on reasonable grounds that there is in the specified area:

·          a person who is likely to pose a threat to any person’s life, health or safety or to public health or public safety (a suspect)

·          a person who has in their possession a thing likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or to cause serious damage to property (a suspect)

·          a person connected with the domestic violence or threat specified in the order (a suspect)

·          a thing likely to pose a threat to any person’s life, health or safety, to public health or public safety, or to cause serious damage to property, or

·          a thing connected with the domestic violence or threat specified in the order.

113.           Under proposed Division 5, proposed paragraph 51L(3)(g) provides that an ADF member may only direct a person to answer a question or to produce a document where the authorising Ministers have made an infrastructure declaration, and where the member exercises the power in connection with taking action to prevent or end damage or disruption to the operation of declared infrastructure, or to prevent, end, or protect people from, threats and acts of violence.

114.           Failure to comply with a direction to answer a question or to produce a document is an offence punishable by 60 penalty units under proposed section 51R.

115.           In all three Divisions, the power contemplates an ADF member directing a person to answer questions or produce documents, which may be of a personal or private nature. The power therefore engages the right to privacy in Article 17 of the ICCPR.

Necessary

116.           The power to direct a person to answer a question or to produce a document is necessary to achieve the legitimate objective of responding to and protecting the Australian populace from acts of significant violence, including terrorism. The power is available to be exercised in response to an incident of domestic violence and will allow ADF members to locate and identify threats, and obtain critical information necessary to respond effectively to threats and acts of violence.

Reasonable

117.           When viewed in the context of a call out order, the exercise of these powers is reasonable and rationally connected to achieving the legitimate objective identified above. Broadly speaking, the powers will provide members of the ADF with the ability to ask questions and compel the production of documents in connection with action: to prevent, end, or protect people from, threats and acts of violence; to prevent or end damage or disruption to the operation of declared infrastructure; or to search for threats in a specified area. The powers will allow an ADF member to obtain critical information related to the nature or location of threats or acts of violence. Where an ADF member is conducting a search for persons who may pose a threat, it is logical that they also have the power to require persons to answer questions or produce documents. In some circumstances, these powers may be a necessary first step in the execution of the search powers.  

Proportionate

118.           The powers to direct a person to answer questions or to produce documents impose some limitations on the right to privacy. However, they do so in a way that is proportionate to achieving the legitimate objective of responding to, and protecting the Australian populace from, acts of significant violence, including terrorism . These powers may only be exercised in the extreme context of a call out order, where the Governor-General has authorised the ADF to respond to domestic violence that is actually occurring or likely to occur. However, recognising that the exercise of these powers may result in interference with the right to privacy, there are a number of safeguards on their exercise to ensure that they are used for a proper purpose . All of these powers are to be exercised in accordance with the procedures established by law under proposed Divisions 3, 4 and 5. 

119.           The circumstances in which these powers can be exercised differ across each of proposed Divisions 3, 4 and 5. Under proposed Division 3, proposed paragraph 46(7)(h) provides that an ADF member may only direct a person to answer a question or to produce a document in connection with taking an action in proposed subsection 46(5) that has been specifically authorised by a Minister. The powers in proposed subsection 46(5) are focused on preventing, ending and protecting people from, acts of violence and threats. This ensures that the power to compel documents is proportionate to achieving the legitimate objective of locating, responding to, and protecting people from, threats and acts of violence.

120.           Under proposed Division 4, proposed paragraph 51D(2)(i) provides that an ADF member may only direct a person to answer a question or to produce a document where the authorising Ministers have made a specified area declaration, and where the ADF member believes on reasonable grounds that there is in the specified area:

·          a person who is likely to pose a threat to any person’s life, health or safety or to public health or public safety (a suspect)

·          a person who has in their possession a thing likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or to cause serious damage to property (a suspect)

·          a person connected with the domestic violence or threat specified in the order (a suspect)

·          a thing likely to pose a threat to any person’s life, health or safety, to public health or public safety, or to cause serious damage to property, or

·          a thing connected with the domestic violence or threat specified in the order.

121.           This ensures that the power to direct persons to answer questions and produce documents is directly tied to locating and responding to threats. The power is therefore proportionate to achieving the legitimate objective of locating, responding to and protecting people from threats and acts of violence.

122.           Under proposed Division 5, proposed paragraph 51L(3)(g) provides that an ADF member may only direct a person to answer a question or to produce a document where the authorising Ministers have made an infrastructure declaration. Infrastructure declarations can only be made where damage or disruption to the infrastructure would involve a concomitant risk to human life. Further, an ADF member may only exercise the power in connection with taking action to prevent or end damage or disruption to the operation of declared infrastructure, or to prevent, end, or protect people from, threats and acts of violence. This ensures that the power to direct persons to answer questions and produce documents is proportionate to achieving the legitimate objective of locating, responding to and protecting people from threats and acts of violence.

Proposed Divisions 3, 4 and 5 all contemplate the exercise of the power to direct persons to answer questions and produce documents in time-critical contexts in which the ADF is working quickly to identify, locate and respond to threats and acts of violence. The power to direct persons to produce documents is also limited to documents that are readily accessible to the person. This focusses the power on documents typically carried by people, such as identification. It also ensures the power is focused on documents that are likely to be relevant in the context of a call out order where violence is occurring or likely to occur, and not on unrelated documents that would not be easily accessible.

Conclusion

123.           The measures in the Bill are compatible with human rights. To the extent that they may limit human rights, those limitations are necessary, reasonable and proportionate.

 



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

124.           This clause provides for the short title of the Act to be the Defence Amendment (Call Out of the Australian Defence Force) Act 2018 .

Clause 2 - Commencement

125.           This clause provides for the commencement of each provision in the Bill, as set out in the table.  Item 1 in the table provides that the whole of the Bill will commence six months after the day on which the Bill receives the Royal Assent. 

126.           This clause also provides that the Bill may commence at an earlier date through proclamation.

Clause 3 - Schedules

127.           Clause 3 provides that the Acts specified in each of the Schedules to the Bill are amended or repealed as provided for in the identified items in each of those Schedules, and that any other item in a schedule to the Bill has effect according to its terms.



 

Schedule 1 - Amendments

 

Defence Act 1903

Item 1

128.           This item repeals the definition of call out order in subsection 4(1) of the Defence Act 1903 and substitutes “ call out order : (a) in Division 3 of Part III - has the meaning given by subsection 28(1); and (b) in Part IIIAAA - has the meaning given by section 31”. This amendment is a consequence of the amendment outlined in proposed section 31 inserting a definition of call out order .

Item 2

129.           This item repeals current Part IIIAAA and substitutes ‘Part IIIAAA - Calling out the Defence Force to protect Commonwealth interests, States and self-governing Territories’.

Division 1 - Introduction

Simplified outline of Part

130.           Proposed section 30 sets out a simplified outline of Part IIIAAA and provides a broad overview of how the Part will operate. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Part.

Definitions

131.           Proposed section 31 sets out the defined terms in the Part. Currently, definitions are scattered throughout Part IIIAAA which can cause confusion and makes the Part difficult to navigate. Proposed section 31 reproduces many of the definitions contained in the current legislation without amendment. The key definitions that have been introduced or amended are set out in the following paragraphs.

132.           The definition of the Australian offshore area has been amended. Australian offshore area is defined under paragraph (a) to mean Australian waters. It also covers the exclusive economic zone adjacent to the coast of Australia under paragraph (b), and the sea over the continental shelf of Australia under paragraph (c). The Australian offshore area also includes the airspace over an area covered by paragraph (a), (b) or (c). The existing definition of Australian offshore area also includes ‘an area prescribed by the regulations’. This limb of the definition has been removed as it has never been used and is redundant. The note following the definition has been included to make clear that the exclusive economic zone adjacent to the coast of an external Territory, and the sea over the continental shelf of an external Territory, are part of the Australian offshore area. With the exception of the removal of the limb covering areas prescribed by the regulations, the definition is unchanged.

133.           Australian waters is defined in paragraph (a) to mean the territorial sea of Australia. Under paragraph (b) Australian waters is also defined to mean the waters of the sea on the landward side of the territorial sea of Australia. However, Australian waters does not include the internal waters of a State or self-governing Territory. The note following the definition makes clear that the territorial sea of an external Territory, and the waters of the sea on the landward side of the territorial sea of an external Territory, are part of Australian waters. All Australian waters form part of the Australian offshore area for the purposes of this Part.

134.           A definition of authorised Defence officer has been inserted. Authorised Defence officer is defined under paragraph (a) to mean an officer, or, under paragraph (b) to mean an officer in a class of officers, who is authorised by the CDF under proposed subsection 51A(6) to be an authorised Defence officer.

135.           A definition of call out order has been inserted, and is defined to mean an order that is made under proposed section 33, 34, 35 or 36.

136.           A definition of Commonwealth interests order has been inserted. Commonwealth interests order means a call out order made under proposed section 33 or 34. Commonwealth interests orders are a type of call out order made for the protection of Commonwealth interests.

137.           A definition of contingent call out order has been inserted. Contingent call out order is defined to mean a call out order made under proposed section 34 or 36. Contingent call out orders pre-authorise the ADF to respond to threats or incidents of domestic violence, should specified circumstances arise. This type of call out is ‘contingent’ upon the specified circumstances arising.

138.           A definition of declared infrastructure has been inserted and replaces the current definition of ‘designated critical infrastructure’. This amendment is necessary to avoid potential confusion with the work of the Critical Infrastructure Centre in the Department of Home Affairs, which uses the term ‘designated critical infrastructure’ in an unrelated context. Declared infrastructure is defined to mean infrastructure, or a part of infrastructure, that is declared under proposed section 51H.

139.           A definition of expedited order has been inserted. Expedited order is defined to mean an order made under proposed section 51U.

140.           A definition of expedited order or declaration has been inserted. Expedited order or declaration is defined to mean an order or declaration made under proposed section 51U.

141.           The definition of facility has been amended to make clear that it does not include a means of transport. Facility is defined toinclude a fixed or floating structure or installation of any kind (but does not include a means of transport). The exception for means of transport operates to exclude means of transport from the requirement in proposed section 51A for a search authorisation to search premises and facilities.

142.           A definition of infrastructure declaration has been inserted. Infrastructure declaration is defined to mean a declaration made under proposed section 51H.

143.           The definition of means of transport has been amended. Means of transport is defined to mean a vehicle, vessel, aircraft, train or other means of transporting persons or goods (whether or not manned). The current definition of means of transport is similar, but only includes aircraft that are not airborne. This amendment will make clear that the definition of means of transport includes aircraft that are airborne and aircraft on the ground. This will ensure that the powers in relation to means of transport also apply to airborne aircraft. The definition also clarifies that means of transport may be manned or unmanned. This is necessary to clarify that the definition includes automated vehicles, such as trains.

144.           A definition of Minister for Home Affairs has been inserted. Minister for Home Affairs is defined to mean the Minister who administers the Australian Federal Police Act 1979 .

145.           A definition of person who may be detained has been inserted. Person who may be detained , in relation to a call out order, is defined in paragraph (a) to mean a person who is likely to pose a threat to any person’s life, health or safety, or to public health or public safety. In accordance with paragraph (b) of the definition, a person who may be detained also includes a person who both has committed an offence, against a law of the Commonwealth or a State or a Territory, that is related to the domestic violence or threat specified in the call out order, and, whom it is necessary, as a matter of urgency, to detain. It would be a matter of urgency where, for example, there were no police in the vicinity and detaining the person was necessary to prevent them from escaping. The note following paragraph (b) of the definition makes clear that in order to detain a person under paragraph (b), an ADF member must believe on reasonable grounds that the conditions in that paragraph have been met.

146.           The definition of person who may be detained will also now allow an ADF member to detain a person who is likely to pose a threat to that person or any other person’s life, health, or safety, or to public health or public safety. This ensures that the ADF may detain persons who have not yet committed an offence, but who pose a future threat to life, health or safety. It allows the ADF to detain someone even where they only pose a threat to their own life, health or safety.

147.           Currently, an ADF member may only detain a person where the member believes on reasonable grounds that the person has committed an offence against a law of the Commonwealth, a state, or territory. The definition of person who may be detained will maintain the ability to detain a person who an ADF member believes on reasonable grounds is committing a Commonwealth, state, or territory offence. However, this power will be narrowed slightly to require that the offence be related to the threat or violence specified in the order. The requirement that the offence be related to the domestic violence or threat specified in the call out order ensures that the ADF is focused on the violence or threat specified in the order. The ADF will not be able to detain a person that it finds during a call out who has committed, for example, a drug related offence that is unconnected to the threat described in paragraph (a). This amendment reflects the fact that the ADF is not authorised to exercise general law enforcement functions. The definition will also ensure an ADF member can only detain a person whom it is necessary, as a matter of urgency, to detain. Where the police are also present, for example, it would not generally be necessary as a matter of urgency for the ADF to detain the person. The ADF would still be able to detain persons who are likely to pose a threat, in accordance with paragraph (a).

148.           The definition of premises has been expanded. It is defined in paragraph (a) to include a place that is private property. In accordance with paragraph (b) of the definition, premises also includes a facility in the Australian offshore area. Currently, premises is defined only as including a place that is private property. The expansion of the definition to also cover facilities is a consequence of combining the powers in relation to facilities in the offshore area with the powers in relation to premises in the onshore area.

149.           A definition of specified area has been inserted. Specified area is defined to mean an area that is declared to be a specified area in a declaration that is in force under proposed section 51. The amendments to Part IIIAAA will remove the current distinction between general security areas and designated areas, and replace them with a single specified area.

150.           A definition of specified area declaration has been inserted, and is defined to mean a declaration in force under proposed section 51.

151.           A definition of State has been inserted to make clear that State includes the internal waters of the State.

152.           A definition of State protection order has been inserted. State protection order is defined to mean a call out order made under proposed section 35 or 36.

153.           The definition of thing has been amended to make clear that it also includes aircraft that are airborne. Currently, thing is defined as including any means of transport, but not an aircraft that is airborne. The amendments will remove this limitation by defining thing to include any means of transport. This will ensure that the powers in relation to things also apply to airborne aircraft.

154.           A definition of thing that may be seized has been inserted. This replaces and amends the previous term ‘dangerous thing’, and is used to set out the kinds of things that an ADF member may seize during a search. Paragraph (a) of the definition is intended to cover things that are inherently dangerous, such as bombs, as well as things that may become dangerous when used in a particular manner, such as knives, cars or other means of transport. The words ‘public health or public safety’ are intended to cover generalised threats, in addition to specific threats to a person’s life, health or safety, provided that they are related to the domestic violence or threat specified in the call out order. Paragraph (b) of the definition covers things that are likely to cause serious damage to property. This is intended to make clear that things that are likely to pose a threat of serious damage to property may also be seized. Paragraph (c) of the definition includes things connected with the domestic violence or threat which are necessary to seize as a matter of urgency. This is intended to allow the ADF power to seize items such as bomb parts, which do not on their own pose a threat but could be combined to pose a threat, provided that they are related to the domestic violence or threat specified in the call out order.

155.           A definition of utilised under a call out order has been inserted. The ADF, or a member of the ADF, is utilised under a call out order if the member or the ADF is utilised under proposed section 39.

156.           The definition of vessel has been amended so that it no longer includes a floating structure or installation. Paragraph (a) of the definition covers a ship, boat, raft, pontoon or submersible craft. Paragraph (b) of the definition covers any other thing capable of carrying persons or goods through or on water, and includes a hovercraft (or other non-displacement craft). The amended definition removes the reference to floating structure or installation as it would overlap with the definition of a facility. The definition also makes clear that it includes vessels that are unmanned. This is necessary to ensure it includes automated vessels.

Division 2 - Calling out the ADF

157.           Part IIIAAA currently contains separate sections relating to:

·          call out for the protection of Commonwealth interests

·          call out for the protection of Commonwealth interests in the offshore area

·          contingent call out for the protection of Commonwealth interests

·          call out for the protection of states, and

·          call out for the protection of self-governing territories.

158.           These sections are repetitive, and common provisions for the making of call out orders are restated within each individual section.

159.           To make the Act easier to use and understand, proposed Division 2 will amend and restructure the provisions governing the different types of call out. There will be four types of call out orders:

·          call out to protect Commonwealth interests

·          contingent call out to protect Commonwealth interests

·          call out to protect states and territories, and

·          contingent call out to protect states and territories.

160.           Proposed Division 2 will contain three subdivisions relating to: the making of different types of call out order (Subdivision B); common provisions for making, varying and revoking call out orders (Subdivision C); and provisions relating to the effect of making call out orders (Subdivision D).

Proposed section 32 - Simplified outline of this Division

161.           Proposed section 32 sets out a simplified outline of proposed Division 2. The outline provides greater clarity as to how the different subdivisions relate to each other and how they operate in practice. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

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

162.           Proposed section 33 governs call out to protect Commonwealth interests in Australia or the Australian offshore area.

163.           Call out orders to protect Commonwealth interests are currently provided for in two separate sections - one relating to Commonwealth interests in the onshore area (current section 51A), and one relating to Commonwealth interests in the offshore area and in the internal waters of a state or self-governing territory (current section 51AA). Proposed section 33 will combine these into a single section. There is nothing to prevent a state or territory from requesting a Commonwealth interests order under proposed section 33. However, the states are not required to request that the Commonwealth make an order.

Conditions for making order

164.           Proposed subsection 33(1) sets out the circumstances in which the Governor-General may make a call out order to protect Commonwealth interests. The Governor-General may make a call out order under proposed subsection 33(3) if the authorising Ministers are satisfied that any of the circumstances in proposed subparagraphs 33(1)(a)(i) to (iii) apply.

165.           Proposed sub-paragraph 33(1)(a)(i) covers domestic violence that is occurring or is likely to occur in Australia that would, or would be likely to, affect Commonwealth interests.

166.           Proposed subparagraph 33(1)(a)(ii) covers threats in the Australian offshore area to Commonwealth interests which may be in either the offshore or onshore areas. This subparagraph covers threats to Commonwealth interests located in the offshore area. It is also intended to cover situations where there is a rapidly moving threat (such as an aircraft), and its speed necessitates taking action in the offshore area before it can approach Commonwealth interests located in the onshore area. The terminology of ‘threat’ is used because there cannot be ‘domestic’ violence occurring in the offshore area.

167.           Proposed subparagraph 33(1)(a)(iii) is intended to cover circumstances where there are multiple domestic violence incidents or threats throughout Australia and the Australian offshore area, in relation to either the same or separate Commonwealth interests, and it is necessary to call out the ADF to respond. This subparagraph ensures that a single order may cover both domestic violence in the onshore area and threats in the offshore area.

168.           Proposed subparagraphs 33(1)(a)(i) to (iii) serve to enhance the ADF’s ability to respond to domestic violence that is occurring across multiple jurisdictions, including threats in the Australian offshore area, as well as domestic violence that may cross jurisdictional boundaries. Currently, call out orders for the protection of Commonwealth interests in the onshore area (or for the protection of Commonwealth interests in the offshore area or internal waters of a state or territory) are only able to specify a single state or territory (or the internal waters of a single state or territory) in which domestic violence is occurring or likely to occur. Where domestic violence is occurring in multiple jurisdictions, or where a domestic violence incident crosses a border between jurisdictions, including a threat in the offshore area, the current structure of Part IIIAAA necessitates the making of two or more separate call out orders. This arrangement has the potential to cause significant delays in calling out the ADF in the new jurisdiction and authorising it to respond effectively.

169.           Proposed subparagraphs 33(1)(a)(i) to (iii) will overcome this limitation by allowing a single call out order for the protection of Commonwealth interests to be made in relation to separate incidents of domestic violence occurring in multiple jurisdictions, threats in the offshore area, incidents that cross jurisdictional boundaries including the offshore area, or, all of the above.

170.           Proposed paragraph 33(1)(b) requires that authorising Ministers must also be satisfied that the ADF should be called out and the CDF should be directed to utilise the ADF to protect the Commonwealth interests against the domestic violence or threat, or both. In so satisfying themselves, the authorising Ministers must consider the factors outlined in proposed subsection 33(2) .

171.           Proposed paragraph 33(1)(c) requires that authorising Ministers be satisfied that one or more of proposed Divisions 3, 4 and 5 should apply in relation to the order. Proposed Divisions 3, 4 and 5 set out different types of powers that the ADF may exercise in responding to or dealing with an incident or threat. Proposed paragraph 33(1)(c) requires authorising Minsters to consider which powers are appropriate to respond to the particular domestic violence or threat, or both, in question.

172.           Note 1 following proposed subsection 33(1)(c) indicates that proposed section 38 applies if the domestic violence is occurring or is likely to occur in a State or self-governing Territory that does not request a call out order. Proposed section 38 imposes certain requirements to consult a state or territory that does not request the making of an order.

173.           Note 2 indicates that an expedited call out order may be made in relation to proposed section 33 in sudden and extraordinary emergencies. Proposed Division 7 deals with the making of expedited call out orders.

174.           Proposed subsection 33(2) sets out factors that authorising Ministers must consider in satisfying themselves that the ADF should be called out, in accordance with proposed paragraph 33(1)(b). Proposed subsection 33(2) only applies in relation to domestic violence that is occurring or is likely to occur in one or more States or self-governing Territories. It does not apply in relation to threats in the offshore area, as the offshore area is beyond the jurisdiction of the states and territories.

175.           Proposed subsections 33(1) and (2) replace the current threshold for call out of the ADF. The current threshold for call out requires authorising Ministers 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 threshold means that the Commonwealth would not call out the ADF under Part IIIAAA where the Commonwealth assesses that a state or territory has both the capability and capacity to resolve the incident. The affected state or territory needs to exhaust all other options, including support from other jurisdictions, before making a request for assistance from the Commonwealth. This threshold is not optimal for facilitating ADF involvement to complement or augment a civilian law enforcement response to a terrorist incident.

176.           It is important that the legislative requirements for call out do not hinder the provision of unique ADF capabilities that may be best suited to resolving an incident. Proposed subsections 33(1) and (2) will replace the current threshold and allow the ADF to be called out where an incident is not beyond the capability and capacity of a state or territory, but where the ADF has relevant specialist capabilities that could be brought to bear. This threshold allows greater flexibility for the ADF to be used to provide the most rapid, effective or appropriate specialist support to the states and territories, while respecting the states’ and territories’ position as first responders by ensuring that there is some assessment of the potential benefit of ADF assistance.

177.           Proposed subparagraph 33(2)(a)(i) provides that the authorising Ministers must consider the ‘nature’ of the domestic violence that is occurring or likely to occur in determining whether they are satisfied the ADF should be called out. In accordance with proposed subparagraph 33(2)(a)(ii), the authorising Ministers must also consider whether the utilisation of the ADF would be likely to enhance the ability of each of those States and Territories to protect the Commonwealth interests against the domestic violence. Under proposed subparagraph 33(2)(b), the authorising Ministers may also consider any other matter that they consider is relevant. This ensures that authorising Ministers are not limited in the matters that they may consider in deciding whether the ADF should be called out.

178.           Proposed subsection 33(2) provides legislative guidance as to when ADF assistance should be requested, and when the Commonwealth will provide it. It also assists Commonwealth decision-makers in deciding whether it is appropriate to initiate a call out order themselves.

179.           The requirement to consider ‘nature’ and ‘enhancement’ makes clear that it is not intended that the ADF be called out in response to every incident of domestic violence. The states and territories have responsibility as primary responders to incidents of domestic violence, and the amended threshold in proposed subsection 33(2) will not change this. The amended threshold will, however, provide flexibility for the ADF be called out where an incident is not beyond the capability of a state or territory, but where, after assessing the nature of the violence and whether ADF assistance would enhance a response, it is determined that the ADF has relevant specialist equipment or capabilities that could be provided to most effectively resolve the incident.

180.           The inclusion of ‘nature’ in the proposed threshold is intended to allow authorising Ministers to consider the circumstances of the domestic violence in their entirety. The ‘nature’ of the violence could include matters such as the type of violence, the types of weapons used, the number of perpetrators involved, as well as the scale of domestic violence (or anticipated domestic violence), where such information is available.

181.           For example, the ADF could be called out in response to unique types of violence, such as a chemical, biological, radiological or nuclear (CBRN) attack. The ADF maintains specialist capabilities to respond to such attacks. The ADF could also be called out where the type of violence is not unique - for example an active shooter - but where the violence is so widespread, or there are so many shooters involved, that law enforcement resources are in danger of being exhausted and call out of the ADF is necessary to support the law enforcement response.

182.           In addition to considering the nature of the violence, proposed subparagraph 33(2)(a)(ii) requires that authorising Ministers also consider whether utilisation of the ADF would be likely to enhance the ability of each of the States and Territories concerned to protect the Commonwealth interests against the domestic violence. This respects the states’ and territories’ position as first responders by requiring that there is some assessment of the potential benefit of ADF assistance. It is also intended to provide flexibility in calling out the ADF by recognising that the states and territories have differing capabilities and capacities to respond to domestic violence. Domestic violence of a particular nature may be easily dealt with by one state or territory, but pose significant challenges for another state or territory. It is essential that the threshold for call out recognises the differing abilities of the states and territories to protect themselves or Commonwealth interests from threats and domestic violence, and does not unduly limit the ability of the jurisdictions to request assistance when required. ‘Enhancement’ is intended to do this by allowing the Commonwealth to consider the relative abilities of different states and territories in dealing with incidents of domestic violence and ensure that the ADF’s specialist capabilities can be utilised in appropriate circumstances.

Power of Governor-General to make order

183.           Where authorising Ministers are satisfied of the matters set out in proposed subsection 33(1), proposed subsection 33(3) provides that the Governor-General may, by written order, call out the ADF and direct the CDF to utilise the ADF to protect the Commonwealth interests against the domestic violence or threat, or both. The note following proposed subsection 33(3) makes clear that the power of the Governor-General to make a call out order is also subject to additional rules contained in proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

184.           Proposed subsection 33(4) prevents the Reserves being utilised under a call out order in connection with an industrial dispute. This subsection reproduces the limitation contained in current subsections 51A(2) and 51AA(3).

Content of order

185.           Proposed subsection 33(5) prescribes the content of a call out order. The content of an order is important as it serves to define the violence or threats in question, and the Commonwealth interests that are affected. It also defines the scope of the powers that are available to the ADF in responding to the violence or threats. The content of the order provides an important written record of why the ADF was called out and what it was authorised to do.

186.           In accordance with proposed subsection 33(5), the order must:

(a)     state that it is made under proposed section 33

(b)    specify the domestic violence or threat, or both, and the Commonwealth interests, and for domestic violence occurring or likely to occur in one or more States or self-governing Territories - each of those states and territories

(c)     state which of proposed Divisions 3, 4 and 5 apply in relation to the order (an order may specify one or more of these Divisions, as appropriate, but must specify at least one division ), and

(d)    state that the order comes into force when it is made, and ceases to be in force at the end of a specified period (of not more than 20 days after it is made) unless it is revoked.

187.           Proposed subparagraph 33(5)(b)(iii) facilitates a multi-jurisdictional authorisation by requiring that an order specify each of the states or self-governing territories in which domestic violence is occurring or likely to occur. This proposed subparagraph reflects that a single order could be made in respect of violence that is occurring or likely to occur in multiple jurisdictions, or that may cross jurisdictional boundaries, or both.

When order is in force

188.           Proposed subsection 33(6) provides that an order is in force for the period stated in the order itself, in accordance with proposed paragraph 33(5)(d). This period must not be longer than 20 days. The note following proposed subsection 33(6) clarifies that orders can be extended in accordance with proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

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

189.           Proposed section 34 replaces current section 51AB governing ‘specified circumstances’ call out orders for the protection of Commonwealth interests. This type of call out may be initiated by the Commonwealth or requested by a state or territory. It pre-authorises the ADF to respond to domestic violence that threatens Commonwealth interests in the event that specified circumstances arise. As the authorisation to respond is contingent upon the specified circumstances arising, this type of call out has commonly been referred to as a ‘contingent call out’. The change in the heading of the section reflects the common usage of this term.

Conditions for making order

190.           Proposed subsection 34(1) sets out the circumstances in which the Governor-General may make a contingent call out order to protect Commonwealth interests. The Governor-General may make a contingent call out order under proposed subsection 34(3) if the authorising Ministers are satisfied that, if specified circumstances were to arise, any of the circumstances in proposed subparagraphs 34(1)(a)(i) to (iii) would apply.

191.           Proposed subparagraph 34(1)(a)(i) covers domestic violence that would, or would be likely to, affect Commonwealth interests that would, or would be likely to, occur in Australia.

192.           Proposed subparagraph 34(1)(a)(ii) covers threats that would occur, or would be likely to occur, in the Australian offshore area to Commonwealth interests which may be in either the offshore or onshore areas. This subparagraph covers threats to Commonwealth interests located in the offshore area. It is also intended to cover situations where there is a rapidly moving threat (such as an aircraft), and its speed necessitates taking action in the offshore area before it can approach Commonwealth interests located in the onshore area. The terminology of ‘threat’ is used because there cannot be ‘domestic’ violence occurring in the offshore area.

193.           Proposed subparagraph 34(1)(a)(iii) is intended to cover circumstances where there would be, or it is likely there would be, multiple domestic violence incidents or threats throughout Australia and the Australian offshore area, in relation to either the same or separate Commonwealth interests, and it would be necessary for the ADF to be called out to respond. This subparagraph ensures that a single order may cover both domestic violence in the onshore area and threats in the offshore area.

194.           Proposed subparagraphs 34(1)(a)(i) to (iii) serve to enhance the ADF’s ability to respond to domestic violence that would, or would be likely to, occur across multiple jurisdictions, including threats in the Australian offshore area, as well as domestic violence that would or would be likely to cross jurisdictional boundaries. Currently, contingent call out orders can only specify the state or territory in which the domestic violence would occur or would be likely to occur. Where domestic violence would, or would be likely to, occur in multiple jurisdictions, or where a domestic violence incident would, or would be likely to, cross a border between jurisdictions, including a threat in the offshore area, the current structure of Part IIIAAA necessitates the making of two or more separate contingent call out orders. This arrangement is unnecessarily complex and burdensome.

195.           Proposed subparagraphs 34(1)(a)(i) to (iii) will overcome this limitation by allowing a single contingent call out order for the protection of Commonwealth interests to be made in relation to separate incidents of domestic violence that would, or would be likely to, occur in multiple jurisdictions, threats that would, or would be likely to, affect Commonwealth interests in the offshore area, incidents that would, or would be likely to, cross jurisdictional boundaries including the offshore area, or, all of the above.

196.           Proposed paragraph 34(1)(b) requires that authorising Ministers must also be satisfied that, if the specified circumstances were to arise, for reasons of urgency, it would be impracticable for a Commonwealth interests order to be made under proposed section 33. This provision is intended to clarify that contingent call out is to be used in situations where the nature of an anticipated threat or incident of domestic violence would, should it arise, require an immediate ADF response without waiting for further Ministerial authorisation.

197.           Proposed paragraph 34(1)(c) requires that authorising Ministers also be satisfied that if the specified circumstances arise, the ADF should be called out and the CDF should be directed to utilise the ADF to protect the Commonwealth interests against the domestic violence or threat, or both. In so satisfying themselves, the authorising Ministers must consider the factors outlined in proposed subsection 34(2).

198.           Proposed paragraph 34(1)(d) requires that authorising Ministers be satisfied that, if the specified circumstances arise, one or more of proposed Divisions 3, 4 and 5 should apply in relation to the order. Proposed Divisions 3, 4 and 5 set out different types of powers that the ADF may exercise in responding to or dealing with an incident or threat. Proposed paragraph 34(1)(d) requires authorising Ministers to consider which powers are appropriate to respond to the particular domestic violence or threat, or both, in question.

199.           Currently, Part IIIAAA only allows the use of contingent call out for the protection of Commonwealth interests against aviation threats. This is because current Division 3B (which provides powers in relation to aircraft) is the only Division relating to powers which can be specified as applying to a contingent call out order. Proposed paragraph 34(1)(d) extends contingent call out to be available in relation to land and maritime threats, in addition to aviation threats, by requiring authorising Ministers to consider whether one or more of proposed Divisions 3, 4 and 5 (which contain powers exercisable in the land, maritime and air domains) should apply in relation to a contingent call out order.

200.           This extension of contingent call out powers provides additional options when planning for anticipated terrorist threats, and enables the ADF to be pre-authorised to respond to land, maritime and aviation threats to Commonwealth interests if specified circumstances were to arise. This removes any potential delay in seeking ministerial authorisation to act after an incident has taken place.

201.           Land-based contingent call out will allow the ADF to provide the states and territories with effective support in a range of scenarios. For example, where the ADF is providing security support for a major international event, land-based contingent call out could be used where anticipated domestic violence involves an incident for which the state or territory has limited, or no, response capability, or, where anticipated domestic violence is of a nature (eg mass casualty, multi-location, multi-mode attack) that would stretch the state or territory’s resources.

202.           Note 1 following proposed paragraph 34(1)(d) makes it clear that a state or territory does not need to request the contingent call out order. However, proposed section 38 imposes certain requirements to consult a state or territory that does not request the making of an order.

203.           Note 2 indicates that an expedited contingent call out order may be made in sudden and extraordinary emergencies. Proposed Division 7 deals with the making of expedited call out orders.

204.           Proposed subsection 34(2) sets out factors that authorising Ministers must consider when determining whether they are satisfied that the ADF should be called out, in accordance with proposed paragraph 34(1)(c). Proposed subsection 34(2) only applies in relation to domestic violence that would, or would be likely to, occur in one or more States or self-governing Territories. It does not apply in relation to threats in the offshore area, as the offshore area is beyond the jurisdiction of the states and territories.

205.           Proposed subparagraph 34(2)(a)(i) provides that the authorising Ministers must consider the ‘nature’ of the domestic violence that would, or would be likely to, occur in one or more States or self-governing Territories. In accordance with proposed subparagraph 34(2)(a)(ii), the authorising Ministers must also consider whether the utilisation of the ADF would be likely to enhance the ability of each of those states and territories to protect the Commonwealth interests against the domestic violence. Under proposed subparagraph 34(2)(b), the authorising Ministers may also consider any other matter that they consider is relevant. This ensures that authorising Ministers are not limited in the matters that they may consider in deciding whether the ADF should be called out. See paragraphs 52-59 for further detail on the operation of this proposed subsection.

Power of Governor-General to make order

206.           Where authorising Ministers are satisfied of the matters set out in proposed subsection 34(1), the Governor-General may make an order in accordance with proposed subsection 34(3). Proposed subsection 34(3) provides that the Governor-General may, by written order, specify that, if the specified circumstances arise, the ADF is called out and that the CDF is directed to utilise the ADF to protect the Commonwealth interests against the domestic violence or threat, or both. Current section 51AB does not explicitly state at what point the ADF is actually called out. Proposed paragraph 34(3)(a) makes clear that under a contingent call out order the ADF is not called out until the specified circumstances actually arise. The note following proposed subsection 34(3) makes clear that the power of the Governor-General to make a contingent call out order is also subject to additional rules contained in proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

207.           Proposed subsection 34(4) prevents the Reserves being utilised under a contingent call out order in connection with an industrial dispute. T he restriction on using the Reserves in connection with an industrial dispute is not currently applied as a matter of law to contingent call out. Proposed subsection 34(4) will apply this restriction to contingent call out for the protection of Commonwealth interests. This will ensure that the restriction is applied consistently across all types of call out in Part IIIAAA.

Content of order

208.           Proposed subsection 34(5) prescribes the content of a call out order. The content of an order is important as it serves to define the violence or threats in question, and the Commonwealth interests that are affected. It also defines the scope of the powers that are available to the ADF in responding to the violence or threats. The content of the order provides an important written record of why the ADF was called out and what it was authorised to do.

209.           In accordance with proposed subsection 34(5), the order must:

(a)     state that it is made under proposed section 34

(b)    specify the circumstances to which the order relates, and the domestic violence or threat, or both, and the Commonwealth interests, and for domestic violence that would, or would be likely to, occur in one or more States or self-governing Territories - each of those states and territories

(c)     state which of proposed Divisions 3, 4 and 5 apply in relation to the order (an order may specify one or more of these Divisions, as appropriate, but must specify at least one division ), and

(d)    state that the order comes into force when it is made, and ceases to be in force at the end of a specified period, unless it is revoked.

210.           Proposed subparagraph 34(5)(b)(iv) facilitates a multi-jurisdictional authorisation by requiring an order to specify each of the states or self-governing territories in which domestic violence would or would be likely to occur. This proposed subparagraph reflects that a single contingent call out order could be made in respect of violence that would, or would be likely to, occur in multiple jurisdictions, or that would, or would be likely to, cross jurisdictional boundaries, or both.

211.           Proposed paragraph 34(5)(c) also operates to extend contingent call out to land and maritime domains by requiring that an order state which of proposed Divisions 3, 4 and 5 apply in relation to the order. An order may specify multiple divisions as appropriate, but must specify at least one division.

212.           Proposed subparagraph 34(5)(d)(ii) requires a contingent call out order to state that it ceases to be in force after a specified period. However, it does not include the 20 day time limit that will apply to non-contingent call out orders. This is because contingent call out orders are typically made in relation to major events, where security planning is done months in advance. Further, the specified circumstances set out in a contingent call out order are usually time-bound, as they relate to anticipated violence in relation to a particular scenario or during a particular period.

When order is in force

213.           Proposed subsection 34(6) provides that an order is in force for the period stated in the order itself, in accordance with proposed paragraph 34(5)(d). The note following proposed subsection 34(6) clarifies that orders can be extended in accordance with proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

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

214.           Proposed section 35 governs call out of the ADF to protect states and territories. A state or territory must request this type of call out.

215.           Call out orders to protect states and self-governing territories are currently provided for in two separate sections (current sections 51B and 51C). Proposed section 35 will combine these into a single section that provides for call out for the protection of either states or self-governing territories, at their request.

Conditions for making order

216.           Proposed subsection 35(1) sets out the circumstances in which the Governor-General may make a call out order to protect a state or self-governing territory.

217.           Proposed paragraph 35(1)(a) requires that the government of a state or self-governing territory must have applied to the Commonwealth Government to protect the state or territory against domestic violence that is occurring, or is likely to occur, in the state or territory. This provision makes clear that a state or territory may only make an application in respect of violence that is occurring, or is likely to occur, within its own jurisdiction. A state or territory may not make an application on behalf of another state or territory, or make an application for protection against domestic violence that is occurring in another jurisdiction.

218.           Before the Governor-General may make a call out order under proposed subsection 35(3), proposed subparagraph 35(1)(b)(i) requires that the authorising Ministers must be satisfied that the ADF should be called out and the CDF should be directed to utilise the ADF to protect the state or territory against the domestic violence. In so satisfying themselves, the authorising Ministers must consider the factors outlined in proposed subsection 35(2).

219.           Proposed subparagraph 35(2)(a)(i) provides that the authorising Ministers must consider the ‘nature’ of the domestic violence in determining whether they are satisfied the ADF should be called out. In accordance with proposed subparagraph 35(2)(a)(ii), the authorising Ministers must also consider whether the utilisation of the ADF would be likely to enhance the ability of the state or territory to protect itself against the domestic violence. Under proposed subparagraph 35(2)(b), the authorising Ministers may also consider any other matter that they consider is relevant. This ensures that authorising Ministers are not limited in the matters that they may consider in deciding whether the ADF should be called out. See paragraphs 52-59 for further detail on the operation of this proposed subsection.

220.           Proposed subparagraph 35(1)(b)(ii) requires that authorising Ministers also be satisfied that one or more of proposed Divisions 3, 4 and 5 should apply in relation to the order. Proposed Divisions 3, 4 and 5 set out different types of powers that the ADF may exercise in responding to or dealing with an incident. Proposed subparagraph 35(1)(b)(ii) requires authorising Ministers to consider which powers are appropriate to respond to the particular domestic violence in question.

221.           The note following proposed subsection 35(1) indicates that an expedited call out order may be made in relation to proposed section 35 in sudden and extraordinary emergencies. Proposed Division 7 deals with the making of expedited call out orders.

Power of Governor-General to make order

222.           Where the conditions in proposed section 35(1) have been met, proposed subsection 35(3) provides that the Governor-General may, by written order, call out the ADF and direct the CDF to utilise the ADF to protect the state or territory against the domestic violence. The note following proposed subsection 35(3) makes clear that the power of the Governor-General to make a call out order is also subject to additional rules contained in proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

223.           Proposed subsection 35(4) prevents the Reserves being utilised under a call out order in connection with an industrial dispute. This subsection reproduces the limitations contained in current subsections 51B(2) and 51C(2).

Content of order

224.           Proposed subsection 35(5) prescribes the content of a call out order. The content of an order is important as it serves to define the violence in question, and the state or territory that is affected. It also defines the scope of the powers that are available to the ADF in responding to the violence. The content of the order provides an important written record of why the ADF was called out and what it was authorised to do.

225.           In accordance with proposed subsection 35(5), the order must:

(a)     state that it is made under proposed section 35

(b)    specify the domestic violence and the state or territory

(c)     state which of proposed Divisions 3, 4 and 5 apply in relation to the order (an order may specify one or more of these Divisions, as appropriate, but must specify at least one division ), and

(d)    state that the order comes into force when it is made, and ceases to be in force at the end of a specified period (of not more than 20 days after it is made) unless it is revoked.

226.           While call out orders for the protection of Commonwealth interests under proposed sections 33 and 34 will be able to specify more than one state or territory in which domestic violence is occurring or likely to occur, call out orders under proposed section 35 may only specify the state or territory which is itself requesting the call out. States and territories may not request call out under section 35 in relation to another jurisdiction. As such, in accordance with proposed subparagraph 35(5)(b)(ii), an order made must specify only the state or territory requesting the call out. However, there are other amendments that will ensure the ADF can respond flexibly to domestic violence incidents that cross jurisdictional boundaries (see proposed sections 39, 44, and 51K).

When order is in force

227.           Proposed subsection 35(6) provides that an order is in force for the period stated in the order itself, in accordance with proposed paragraph 35(5)(d). This period must not be longer than 20 days. The note following proposed subsection 35(6) clarifies that orders can be extended in accordance with proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

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

228.           Proposed section 36 provides a new form of contingent call out to protect states and territories against domestic violence if specified circumstances occur. A state or territory must request this type of contingent call out order.

229.           Contingent call out has to date been limited to the protection of Commonwealth interests. It is incongruous that normal call out is available both for the protection of Commonwealth interests and for the protection of states and territories from domestic violence, but contingent call out is available only for the protection of Commonwealth interests. Proposed section 36 will introduce contingent call out orders for the protection of states and territories themselves, in the absence of a threat to Commonwealth interests.

Conditions for making order

230.           Proposed subsection 36(1) sets out the circumstances in which the Governor-General may make a contingent call out order to protect a state or self-governing territory.

231.           Proposed paragraph 36(1)(a) requires that the government of a state or self-governing territory must have applied to the Commonwealth Government to protect the state or territory against domestic violence that would occur, or would be likely to occur, in the state or territory, if specified circumstances were to arise. This provision makes clear that a state or territory may only make an application in respect of violence that would occur, or would be likely to occur, within its own jurisdiction. A state or territory may not make an application on behalf of another state or territory, or make an application for protection against domestic violence that would occur, or would be likely to occur, in another jurisdiction.

232.           Before the Governor-General may make a call out order under proposed subsection 36(3), proposed paragraph 36(1)(b) requires that the authorising Ministers must be satisfied that, if the specified circumstances were to arise, for reasons of urgency, it would be impracticable for a call out order to be made under proposed section 35. This provision clarifies that contingent call out is to be used in situations where the nature of an anticipated incident of domestic violence would, should it arise, require an immediate ADF response without waiting for further Ministerial authorisation.

233.           Proposed paragraph 36(1)(c) requires that the authorising Ministers also be satisfied that if the specified circumstances arise, the ADF should be called out and the CDF should be directed to utilise the ADF to protect the state or territory against the domestic violence. In determining whether they are satisfied the authorising Ministers must consider the factors outlined in proposed subsection 36(2).

234.           Proposed subparagraph 36(1)(c)(ii) requires that authorising Ministers also be satisfied that, if the specified circumstances arise, one or more of proposed Divisions 3, 4 and 5 should apply in relation to the order. Proposed Divisions 3, 4 and 5 set out different types of powers that the ADF may exercise in responding to or dealing with an incident. Proposed subparagraph 36(1)(c)(ii) requires authorising Ministers to consider which powers are appropriate to respond to the particular domestic violence in question.

235.           In line with the expansion of contingent call out for the protection of Commonwealth interests in proposed section 34 to cover land, maritime and aviation threats, contingent call out for the protection of states and territories will also be available in relation to threats in the air, land and maritime domains. Proposed subparagraph 36(1)(c)(ii) will make contingent call out for the protection of states and territories available in relation to land, maritime and aviation threats by allowing proposed Divisions 3, 4 and 5 to be specified as applying to the order.

236.           The note following proposed subsection 36(1) indicates that an expedited call out order may be made in sudden and extraordinary emergencies. Proposed Division 7 deals with the making of expedited call out orders.

237.           Proposed subsection 36(2) sets out factors that authorising Ministers must consider when determining whether they are satisfied the ADF should be called out, in accordance with proposed subparagraph 36(1)(c)(i).

238.           Proposed subparagraph 36(2)(a)(i) provides that the authorising Ministers must consider the ‘nature’ of the domestic violence that would occur, or would be likely to occur, if the specified circumstances were to arise in the state or territory. In accordance with proposed subparagraph 36(2)(a)(ii), the authorising Ministers must also consider whether the utilisation of the ADF would be likely to enhance the ability of the state or territory to protect itself against the domestic violence. Under proposed subparagraph 36(2)(b), the authorising Ministers may also consider any other matter that they consider is relevant. This ensures that authorising Ministers are not limited in the matters that they may consider in deciding whether the ADF should be called out. See paragraphs 52-59 for further detail on the operation of this proposed subsection.

Power of Governor-General to make order

239.           Where the conditions in proposed subsection 36(1) have been met, the Governor-General may make an order in accordance with proposed subsection 36(3). Proposed subsection 36(3) provides that the Governor-General may, by written order, specify that, if the specified circumstances arise, the ADF is called out and that the CDF is directed to utilise the ADF to protect the state or territory against the domestic violence. Proposed paragraph 36(3)(a) makes clear that under a contingent call out order the ADF is not called out until the specified circumstances actually arise. The note following proposed subsection 36(3) makes clear that the power of the Governor-General to make a contingent call out order is also subject to additional rules contained in proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

240.           Proposed subsection 36(4) prevents the Reserves being utilised under a contingent call out order in connection with an industrial dispute. T he restriction on using the Reserves in connection with an industrial dispute is not currently applied as a matter of law to contingent call out. Proposed subsection 36(4) will apply this restriction to contingent call out for the protection of states and territories. This will ensure that the restriction is applied consistently across all types of call out in Part IIIAAA.

Content of order

241.           Proposed subsection 36(5) prescribes the content of a call out order. The content of an order is important as it serves to define the violence in question, and the state or territory that is affected. It also defines the scope of the powers that are available to the ADF in responding to the violence. The content of the order provides an important written record of why the ADF was called out and what it was authorised to do.

242.           In accordance with proposed subsection 36(5), the order must:

(a)     state that it is made under proposed section 36

(b)    specify the circumstances to which the order relates, and the domestic violence, and the state or territory

(c)     state which of proposed Divisions 3, 4 and 5 apply in relation to the order (an order may specify one or more of these Divisions, as appropriate, but must specify at least one division ), and

(d)    state that the order comes into force when it is made, and ceases to be in force at the end of a specified period, unless it is revoked.

243.           As with call out to protect states and territories under proposed section 35, states and territories will not be able to request call out under proposed section 36 in relation to another jurisdiction. As such, in accordance with proposed subparagraph 36(5)(b)(iii), an order must specify only the state or territory requesting the call out. However, there are other amendments that will ensure the ADF can respond flexibly to domestic violence incidents that cross jurisdictional boundaries (see proposed sections 39, 44, and 51K).

244.           Proposed paragraph 36(5)(c) also operates to apply contingent call out to land, maritime and air domains by requiring that an order state which of proposed Divisions 3, 4 and 5 apply in relation to the order. An order may specify multiple divisions as appropriate, but must specify at least one division.

245.           Proposed subparagraph 36(5)(d)(ii) requires a contingent call out order to state that it ceases to be in force after a specified period. However, it does not include the 20 day time limit that will apply to non-contingent call out orders. This is because contingent call out orders are typically made in relation to major events, where security planning is done months in advance. Further, the specified circumstances set out in a contingent call out order are usually time-bound, as they relate to anticipated violence in relation to a particular scenario or during a particular period.

When order is in force

246.           Proposed subsection 36(6) provides that an order is in force for the period stated in the order itself, in accordance with proposed paragraph 36(5)(d). The note following proposed subsection 36(6) clarifies that orders can be extended in accordance with proposed section 37, which sets out common matters for making, varying and revoking call out orders of all kinds.

Proposed Subdivision C - Common provisions for making, varying and revoking call out orders

247.           Proposed Subdivision C sets out common provisions for making, varying, and revoking call out orders. In the current legislation, these provisions are repeated in each of the sections relating to the different types of call out order (see current sections 51A, 51AA, 51AB, 51B and 51C). Proposed Subdivision C locates these provisions in a single subdivision to remove repetition and make Part IIIAAA easier to use.

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

248.           Proposed section 37 prescribes rules for making, varying, and revoking call out orders. The section is intended to override the operation of subsection 33(3) of the Acts Interpretation Act 1901 and provide a comprehensive statement of the conditions under which a call out order may be varied or revoked. It also sets out common provisions for the making of a call out order.

Variation of order

249.           Proposed subsection 37(1) sets out the conditions according to which the Governor-General may, in writing, vary a call out order.

250.           Proposed paragraph 37(1)(a) makes clear that, before the Governor-General may vary a call out order, the authorising Ministers must still be satisfied of the matters set out in proposed subsections 33(1), 34(1), 35(1) or 36(1). As such, the same conditions that apply to the making of a call out order also apply to the subsequent varying of the order.

251.           Proposed paragraph 37(1)(b) requires that the order, as varied, must comply with proposed subsections 33(3) to (5), 34(3) to (5), 35(3) to (5), or 36(3) to (5), as the case requires. These subsections deal with the power of the Governor-General to make an order, restrictions on the use of the Reserves, and the content of a call out order. The requirement to comply with the above proposed subsections, however, is subject to proposed subsection 37(2), which limits the time for which the Governor-General may extend a call out order.

252.           Proposed paragraph 37(1)(c) makes clear that the Commonwealth can only vary a call out order for the protection of a state or territory at the request of the relevant state or territory government (that is, the state or territory that applied for the original order).

253.           The note following proposed subsection 37(1) also makes clear that proposed section 38 applies to the variation of a Commonwealth interests call out order. Proposed section 38 ensures that where a state or territory did not request the variation of a Commonwealth interests order, the Commonwealth is required to consult with that government prior to varying the order.

254.           Proposed subsection 37(2) provides that the Governor-General may vary a call out order to extend the period during which it is in force. However, the Governor-General may only extend an order under proposed sections 33 and 35 for no more than another 20 days from the date the variation takes effect. Orders under proposed sections 33 and 35 are subject to a 20 day limit, and proposed subsection 37(2) ensures that this limitation also applies to the variation of these orders. Proposed subsection 37(2) does not limit the number of times a call out order may be varied, provided that the authorising Ministers continue to be satisfied that the conditions for making the order are met.

Revocation of order

255.           Proposed subsection 37(3) sets out the circumstances in which the Governor-General must revoke a call out order. In accordance with proposed subsection 37(3), the Governor-General must revoke a call out order if: one or more authorising Ministers cease to be satisfied of the matters in proposed subsections 33(1), 34(1), 35(1) or 36(1) (as the case requires), or if, in the case of a State protection order, the government of the State or self-governing Territory withdraws its application to the Commonwealth Government for the call out order. The revocation must be in writing. This proposed subsection is intended to require that the authorising Ministers continually monitor the domestic violence or threat in question as it evolves, and advise the Governor-General as soon as they are no longer satisfied that the criteria for the call out order are met.

When variation or revocation takes effect

256.           Proposed subsection 37(4) makes clear that a variation or revocation of a call out order takes effect at the point when the order is varied or revoked, in writing, by the Governor-General.

Advice to Governor-General

257.           Proposed subsection 37(5) provides that the Governor-General, in making, varying or revoking a call out order, is to act with the advice of the Executive Council. However, if an authorising Minister is satisfied that, for reasons of urgency, the Governor-General should instead act with the advice of the authorising Minister, the Governor-General may act on the advice of the authorising Minister. This ensures that the Governor-General does not have to wait to convene the Executive Council where it is urgent that he or she make, vary, or revoke an order.

258.           Currently, the Governor-General must act on the advice of the Executive Council in making a contingent call out order in all situations. This is inconsistent with the fact that all other types of call out order may be made on the advice of the Executive Council, or for reasons of urgency, on the advice of the authorising Minister. To remedy this inconsistency, proposed paragraph 37(5)(b) will also apply in relation to contingent call out orders so that an order can be made on the advice of the authorising Minister in urgent circumstances. Proposed paragraph 37(5)(b) makes clear that it does not limit paragraphs 16A(a) and (b) of the Acts Interpretation Act 1901 . These paragraphs state that where the Governor-General is referred to in an Act, the reference shall be deemed to include the person for the time being administering the Government of the Commonwealth, or a person acting as deputy for the Governor-General or the person administering the Government of the Commonwealth. It also states that the reference to the Governor-General shall be read as referring to the Governor-General acting with the advice of the Executive Council.

Effect of revocation of call out order

259.           Proposed subsection 37(6) makes clear the effect of revoking a call out order. It provides that if a call out order is revoked or ceases to be in force, the call out of the ADF under the order ends, and the CDF must cease utilising the ADF under proposed section 39.

Notice to State or self-governing Territory

260.           Proposed subsection 37(7) imposes certain obligations on authorising Ministers to notify states and territories of the making, varying or revoking of a call out order. In particular, it requires that as soon as reasonably practicable after making, varying or revoking a Commonwealth interests order that specifies a State or self-governing Territory, an authorising Minister must arrange for the Government of the State or Territory to be notified of the making, variation or revocation of the order. However, the subsection also makes clear that a failure to do so does not affect the validity of the making, variation or revocation of the order. Proposed subsection 37(7) is not intended to limit the operation of proposed section 38, which sets out consultation requirements with states and territories prior to the making or varying of a Commonwealth interests call out order. Rather, proposed subsection 37(7) imposes an additional obligation on the Commonwealth to advise states and territories once an order has actually been made, varied or revoked.

Further orders

261.           Proposed subsection 37(8) is intended to make clear that the fact that a call out order has been made does not prevent further call out orders being made in relation to the same matter. Domestic violence incidents and threats may evolve in unforeseen ways, and it may, in certain circumstances, be more appropriate to make further call out orders in respect of the same incident or threat rather than to amend an existing order.

Proposed section 38 - Commonwealth interests orders or variations that were not requested by a State or Territory

262.           Proposed section 38 replicates the provisions in current subsections 51A(3) to 3(A), 51AA(6) to (7), and 51AB(3) relating to the making or varying of Commonwealth interests orders that were not requested by a state or territory, and locates them in a single section.

263.           Proposed subsection 38(1) makes clear that the Governor-General may make or vary a Commonwealth interests order in relation to domestic violence whether or not any State or self-governing Territory in which the domestic violence is occurring, is likely to occur, would occur, or would be likely to occur, requests the order or variation (as the case requires). It is the Commonwealth’s prerogative to make orders for the protection of its own interests, and it does not need a request from a state or territory to make or vary such an order.

264.           Proposed subsection 38(2) qualifies proposed subsection (1) by requiring that the Commonwealth consult with the Government of the States or Territories specified in the order, if they have not requested its making or variation (subject to subsection (3)). This consultation must occur before the Governor-General makes or varies the order. The note following subsection 38(2) clarifies that the requirement to consult does not apply in relation to an expedited call out order (see subsection 51V(6)).

265.           In line with the amendments that require a Commonwealth interests order to specify each of the states or self-governing territories in which domestic violence would or would be likely to occur, proposed subsection 38(2) requires an authorising Minister to consult with the governments of all the states and territories specified in the order which have not requested the making or variation of the order. Where one state or territory requests the making or variation of an order, the authorising Minister must still consult with each of the other states and territories specified in the order in which domestic violence is occurring or likely to occur.

266.           Proposed subsection 38(3) makes clear that the requirement to consult does not apply to a Commonwealth interests order made under section 33 if the authorising Ministers are satisfied that, for reasons of urgency, it is impracticable to comply with that subsection. The exemption in proposed subsection 38(3) applies to normal call out under proposed section 33. There is a separate exemption to consult for expedited call out contained in proposed subsection 51V(6).

Proposed Subdivision D - Effect of making call out order

267.           Proposed subdivision D imposes certain obligations on the CDF relating to the manner in which the ADF must be utilised under a call out order.

‘Purposive’ authorisation to utilise the ADF

268.           Proposed section 39 replaces current section 51D, and sets out certain conditions governing how the CDF is to utilise the ADF under a call out order.

269.           Proposed subsection 39(1) is intended to make clear that the CDF must comply with the obligations contained in proposed section 39 whenever the ADF is called out, whether that be under a call out order made by the Governor-General, an expedited call out order (which is deemed to be an order made by the Governor-General under proposed section 51V(1)), or because the specified circumstances have arisen under a contingent call out order.

270.           Once the ADF has been called out, proposed subsections 39(2) and (3) impose conditions governing how the CDF may utilise the ADF.

271.           Proposed subsection 39(2) provides for a ‘purposive’ authorisation, which requires that the CDF utilise the ADF for the purpose specified in the call out order itself. This ‘purposive’ authorisation applies to all types of call out order, and is intended to overcome some of the limitations in current section 51D.

272.           Section 51D currently provides for a mix of ‘purposive’ and ‘geographic’ authorisations governing the use of the ADF in relation to each type of call out. The geographic authorisations pose significant problems for responding to cross-jurisdictional and multi-jurisdictional incidents. The ‘geographic’ authorisations only allow the ADF to be utilised in the state or territory specified in the order. This limits a multi-jurisdictional response because Commonwealth interests call out orders can currently only authorise the ADF to take action in a single state or territory. As discussed above in relation to subparagraph 33(5)(b)(iii), the amendments will allow call out orders for the protection of Commonwealth interests to specify more than one jurisdiction in which violence is occurring or likely to occur. This will go some way in overcoming the current limitation on multi-jurisdictional responses. However, even where multiple jurisdictions have been specified in an order, there remains a risk that a terrorist event could evolve in an unforeseen manner and cross into a state or territory not specified in an order. In that situation, a ‘geographic’ authorisation would prevent the ADF from following an incident into the next jurisdiction (absent an additional call out order), and effectively stop the ADF at the border.

273.           To guard against this situation, proposed subsection 39(2) will remove the geographic limitations contained in current subsection 51D(1), and provide for a ‘purposive’ authorisation for all types of call out order. This ‘purposive’ authorisation provides that the CDF must utilise the ADF for the purpose of protecting the interests specified in the order against the domestic violence specified in the order. This will authorise the ADF to respond to incidents that cross a border into a jurisdiction that has not been specified in the order, so long as it is for the purpose of protecting the interests specified in the order against the domestic violence specified in the order. There must be a nexus between the ADF response and the domestic violence specified in the order. Proposed subsection 39(2) also operates as a limitation, and ensures that the ADF is not utilised for any purposes other than the purpose specified in the call out order and in a manner that is reasonable and necessary for achieving that purpose.

274.           The proposed subsection also requires that the CDF, in utilising the ADF for the purposes specified in the order, only utilises the ADF in such a manner as is reasonable and necessary for achieving that purpose.

275.           Proposed subsection 39(3) imposes certain limitations on the CDF’s ability to utilise the ADF. Firstly, proposed paragraph 39(3)(a) requires the CDF to comply with any direction that the Minister gives regarding the way that the ADF is to be utilised.

276.           Secondly, proposed paragraph 39(3)(b) prevents the CDF from utilising the ADF to stop or restrict any protest, dissent, assembly or industrial action. This prohibition is a safeguard against infringement on rights, including the right to peaceful protest and freedom of assembly. Proposed subparagraphs 39(3)(b)(i) and (ii) contain exceptions to this general prohibition where there is a reasonable likelihood of either the death of, or serious injury to, persons, or serious damage to property.

Requirement to assist and cooperate with police forces of all affected states and territories

277.           The states and territories have responsibility as primary responders to incidents of domestic violence, including terrorism. It is a fundamental principle of call out that the civilian power remains paramount, and that the ADF is used only to support state and territory law enforcement. Proposed section 40 will help give effect to this principle by imposing certain requirements regarding cooperation with state and territory police.

278.           Proposed section 40 expands the requirement that the ADF assist and cooperate with the police forces of the states and territories specified in the order or in which ADF powers are exercised. Currently, this requirement only applies in respect of the police forces of the state or territory specified in an order.

279.           Proposed subsection 40(1) makes clear that the obligations to assist and cooperate do not apply in the Australian offshore area. This is because there is no state or territory authority in the offshore area for the purposes of Part IIIAAA, and therefore no state or territory police force to assist or cooperate with.

280.           Proposed subparagraph 40(1)(a)(i) requires that the CDF ensure, as far as is reasonably practicable, that the ADF is utilised to assist any state or territory specified in the order. This reflects the requirement in current paragraph 51F(1)(a). However, proposed subparagraph 40(1)(a)(i) extends this requirement to ensure that the ADF be utilised to assist not only the jurisdictions specified in the order, but also all of the jurisdictions in which the ADF is operating. This extension reflects the fact that the ADF may be authorised to operate in a jurisdiction other than those jurisdictions specified in an order by virtue of proposed sections 44 or 51K, or proposed subsection 51A(5). Proposed subparagraph 40(1)(a)(ii) also requires that the CDF ensure, as far as reasonably practicable, that the ADF cooperates with  police forces of the states and territories specified in the call out order or in which the ADF is operating.

281.           Proposed paragraph 40(1)(b) imposes further conditions on the CDF’s utilisation of the ADF under a call out order. It requires that, as far as is reasonably practicable, the ADF is not utilised for any particular task unless a member of the police force of the jurisdiction in which the ADF is operating requests that the ADF be so utilised. Proposed subsection 40(2) requires that such a request must, if reasonably practicable, be in writing.

282.           Proposed paragraph 40(1)(b) contains an exemption from this police request requirement when dealing with airborne aircraft. This proposed exemption reflects the fact that the states and territories do not have their own capabilities in the air domain, and that aviation incidents evolve rapidly, making it impractical to attempt to seek a written police request in this context. While operating in the air domain, the ADF would still be required to assist the relevant state or territory and cooperate with its police force.

283.           Proposed subsection 40(1) operates to give states and territories a degree of control where the ADF follows an incident into a jurisdiction that has not been specified in an order. It is intended to help strike a balance between the need to ensure that the ADF can respond quickly and flexibly to a cross-jurisdictional incident, while respecting the states’ and territories’ position as first responders and providing them with a degree of control over ADF action.

284.           Proposed subsection 40(3) makes clear that in complying with the obligations in proposed subsection 40(1), the CDF is neither required nor permitted to transfer to any extent command of the ADF to a state or territory, or to a police force or member of the police force of that state or territory. ADF members remain under military command at all times under a call out order.

285.           Proposed subsection 40(4) clarifies that proposed subsection 40(1) is subject to proposed subsection 39(3), which requires that the CDF comply with Ministerial directions and generally must not stop or restrict any protest, dissent, assembly or industrial action. This makes clear that the obligations in proposed subsection 39(3) take precedence over the obligations in proposed subsection 40(1).

Proposed Divisions 3, 4 and 5 - Powers available to the ADF during a call out

286.           As part of efforts to harmonise the structure of Part IIIAAA and clarify the powers that are applicable during a call out, the Bill will consolidate and reorganise the provisions that set out the powers available to the ADF into three distinct divisions:

·          special powers generally authorised by an authorising Minister (proposed Division 3)

·          powers exercised in specified areas (proposed Division 4), and

·          powers to protect declared infrastructure (proposed Division 5)

287.           These new divisions will each apply to both the onshore and offshore areas to facilitate the ADF’s ability to respond to multi-jurisdictional incidents, including in the offshore area. Currently, Part IIIAAA distinguishes between powers available in the onshore and offshore areas. Combining the onshore and offshore area powers also streamlines the structure of Part IIIAAA and clarifies its operation in practice.

Proposed Division 3 - Special powers generally authorised by Minister

288.           Proposed Division 3 sets out a range of powers to allow the ADF to respond to threats and acts of violence. These powers can only be exercised where a call out order specifies proposed Division 3 as applying to the order. Generally, an authorising Minister must also specifically authorise the use of these powers by an ADF member. However, where an ADF member believes on reasonable grounds that there is insufficient time to obtain such an authorisation because a sudden and extraordinary emergency exists, the member may use these powers without specific Ministerial authorisation. The ADF must still be called out and the order must specify Division 3 as applying before an ADF member can use these emergency powers.

289.           Proposed Division 3 combines in a single division the powers currently contained in Division 2, the powers currently contained in Division 3A relating to general powers in the offshore area, and powers currently contained in Division 3B relating to aircraft.

Simplified outline

290.           Proposed section 41 sets out a simplified outline of proposed Division 3. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

Application of Division

291.           Proposed section 42 provides that proposed Division 3 applies if a call out order states that the Division applies in relation to the order. It is not intended to be comprehensive. It is intended that the reader will rely on the substantive clauses of the Bill.

Interaction with other powers

292.           Proposed section 43 makes clear that, where powers may be exercised under proposed Division 3 or Division 4, powers will be taken to be exercised under proposed Division 3. This is because some powers in proposed Division 3 (search, seizure and control of movement) also appear in proposed Division 4, but with more onerous conditions. This overlap may create uncertainty about the authority for exercising a power for an ADF member on the ground. For example, the power under proposed Division 4 to search a location in a specified area requires an authorisation from the CDF, whereas the corresponding power under proposed Division 3 to search premises does not. Proposed section 43 is intended to clarify any potential confusion in this regard.

Violence that unexpectedly crosses jurisdictional boundaries

293.           Proposed section 44 is intended to facilitate the ADF’s ability to respond to domestic violence that crosses jurisdictional boundaries, including the offshore area. Proposed sections 33 and 34 allow a call out order for the protection of Commonwealth interests to specify each of the states or territories in which domestic violence is occurring or likely to occur. However, as previously noted, a terrorist event could evolve in an unforeseen manner, and cross into a state or territory not specified in an order. Where this occurs, proposed section 44, in conjunction with proposed section 39, provides a purposive authorisation that will allow the ADF to exercise powers in a state or territory not specified in an order, so long as it is for the purposes of protecting the interests specified in the order against the domestic violence specified in the order. There must be a nexus between the ADF response and the domestic violence specified in the order. This arrangement ensures that the ADF is not arbitrarily stopped at the border when responding to an ongoing terrorist incident.

294.           Proposed section 44 also applies to state or territory requested call out orders under proposed sections 35 and 36. While these orders may only specify the requesting state or territory, proposed section 44 allows the ADF to exercise powers in another jurisdiction not specified in the call out order, or in the offshore area, provided the powers are exercised for the purpose of protecting the state or territory specified in the order against the domestic violence specified in the order. This could occur where a domestic violence incident crosses jurisdictional boundaries.

295.           Proposed subsection 44(2) is intended to make clear that a power may be exercised under proposed Division 3 in accordance with subsection (1) in the Australian offshore area, but not beyond it. This ensures that the ADF may continue to respond to incidents that cross jurisdictional boundaries, including into the offshore area, so long as it is for the purposes of protecting the interests specified in the order against the domestic violence specified in the order.

International obligations

296.           Proposed section 45 extends the requirement that authorising Ministers have regard to Australia’s international legal obligations to apply to all types of call out, when authorising the exercise of powers in proposed Division 3 in relation to the offshore area. The effect of this proposed section is that authorising Ministers must take into account Australia’s international obligations in deciding which Division 3 powers to authorise. Australia is subject to a range of international legal obligations in the offshore area. Currently, Part IIIAAA only requires that authorising Ministers have regard to these obligations during a call out for the protection of Commonwealth interests (or when authorising powers in relation to aircraft and vessels). However, the ADF has always been able to operate in the offshore area during a call out for the protection of a state or territory, so long as it is for the purposes of protecting that state or territory from the violence specified in the order. In these circumstances, the authorising Ministers have not been required to take account of Australia’s international obligations. To remedy this gap, proposed section 45 will extend the requirement to take account of international obligations to also apply during call out for the protection of states and territories, when the order contemplates the exercise of powers in the offshore area.

Authorisation of powers under proposed Division 3

297.           The powers contained in proposed Division 3 are focused primarily on preventing, ending, and protecting people from, acts of violence and threats. They are substantial powers, and therefore their use is generally required to be authorised by an authorising Minister.

298.           Proposed section 46 sets out the powers of the ADF and the circumstances in which they may be used. These powers are located in proposed subsections 46(5), (7) and (9). Proposed subsection 46(1) governs the circumstances in which proposed Division 3 powers may be exercised. Proposed paragraph 46(1)(a) provides that an ADF member may only take an action under subsection (5), or exercise a power under subsection (7) or (9) in relation to taking such an action, if an authorising Minister (typically the Minister for Defence) has authorised the taking of that action in writing.

299.           While the powers in proposed Division 3 generally require ministerial authorisation, they may also be used without Ministerial authorisation in very limited circumstances. Under proposed paragraph 46(1)(b), an ADF member may take an action under subsection (5), or exercise a power under subsection (7) or (9) in relation to taking such an action if the member believes on reasonable grounds that there is insufficient time to obtain the authorisation because a sudden and extraordinary emergency exists. The purpose of this subsection is to ensure that ADF members are authorised to take action in sudden and extraordinary emergencies to protect persons from, and end, acts of violence. An ADF member can only exercise these powers where the ADF is already called out and where the call out order specifies Division 3 as applying. These emergency powers might be used where the ADF has been called out to respond to a siege, but while they are preparing to take action to end the siege a separate armed attack breaks out nearby. The ADF would be authorised under proposed paragraph 46(1)(b) to respond to that attack in order to save lives. It would not be necessary to wait for specific Ministerial authorisation. However, proposed section 51N imposes limitations on the ability of an ADF member to use force.

300.           Proposed subsection 46(2) clarifies the authorisation of proposed Division 3 powers in the context of contingent call out. The purpose of contingent call out is to pre-authorise the ADF to respond to anticipated or foreseeable threats, should specified circumstances arise. Contingent call out authorises the ADF to respond immediately once the specified circumstances have arisen. Consistent with the operation and purpose of contingent call out, proposed subsection 46(2) makes clear that an authorising Minister may authorise taking an action under proposed paragraph 46(1)(a) in relation to a contingent call out order even if the circumstances specified in the order have not yet arisen.

301.           Proposed subsection 46(3) provides additional safeguards in relation to the authorisation of powers to take action against vessels and aircraft. These additional safeguards reflect the fact that the use of aircraft and vessels in terrorism and other domestic violence incidents raises unique considerations. Vessels and aircraft may be used to inflict great damage and loss of life. However, vessels and aircraft used in terrorist incidents may also be carrying large numbers of people on board. Any decision to take action against vessels and aircraft therefore involves a unique assessment of the potential impact of action versus inaction.

302.           Proposed subsection 46(3) provides that an authorising Minister must not authorise the taking of measures against an aircraft or vessel, or the giving of an order in relation to the taking of such a measure, under proposed paragraph 46(1)(a), unless the authorising Minister is satisfied that taking the measure is reasonable and necessary (or for a contingent call out order—would be reasonable and necessary if the circumstances specified in the order were to arise).

303.           Proposed subsection 46(4) provides flexibility for authorising Ministers to provide authorisations under proposed paragraph 46(1)(a) either in relation to particular domestic violence or a particular threat specified in the call out order, or, any domestic violence and threat specified in the call out order. The amendments to Part IIIAAA allow for a single call out order to be made in respect of separate incidents of domestic violence or threats occurring across different jurisdictions, including the offshore area, or incidents of domestic violence or threats that cross jurisdictional boundaries, including the offshore area. Proposed subsection 46(4) therefore allows an authorising Minister to tailor an authorisation under proposed Division 3 to a particular incident of domestic violence or threat, if required. Alternatively, an authorising Minister may authorise the ADF to use these powers in relation to any and all incidents of domestic violence or threats specified in an order.

Taking authorised actions under proposed Division 3

304.           Under proposed paragraph 46(1)(a) an authorising Minister is only required to authorise one or more of the actions set out in proposed subsection (5). The actions in proposed subsection (5) broadly relate to preventing, putting an end to, and protecting persons from, threats and acts of violence, and taking measures against aircraft and vessels. Once an authorising Minister has authorised one or more of these actions, an ADF member may then exercise one or more of the powers in subsection (7). However, an ADF member may only exercise additional powers in subsection (7) in connection with taking one or more of the authorised actions set out in subsection (5). In accordance with subsection (9), an ADF member may also do anything incidental to anything in subsection (5) or (7), including enter any place or premises or board an aircraft or vessel. The additional powers in subsections (7) and (9) do not themselves require specific authorisation by an authorising Minister.

305.           Proposed subsection 46(5) sets out actions that an ADF member may take. Currently, Part IIIAAA allows the ADF to recapture a location or thing. Proposed paragraph 46(5)(a) expands this power to allow an ADF member to capture or recapture a location (including a facility) or thing. The power to capture locations or things reflects the fact that the location or thing may not have been captured by the perpetrators of domestic violence. For example, terrorists may be using a location or vehicle of which they are in lawful possession to launch an attack. The amendment would clarify that the ADF is empowered to capture that location or thing, despite the fact that the terrorists had not previously captured it.

306.            Part IIIAAA currently provides powers to prevent, put an end to, and protect persons from, acts of violence. Proposed paragraphs 46(5)(b) and 46(5)(c) expand these powers to also authorise the ADF to take action to prevent, put an end to, or protect persons from, threats to a person’s life or safety, or to public health or public safety. These additional limbs are intended to allow the ADF to put an end to threats which have not yet materialised into acts of violence. They are also intended to 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.

307.           Proposed paragraphs 46(5)(d) and (e) allow for the use of extraordinary measures against aircraft and vessels, including their destruction. They will incorporate into proposed Division 3 powers relating to aircraft contained in current Division 3B, and powers relating to vessels and aircraft contained in current Division 3. In light of the potentially devastating consequences of taking measures against aircraft and vessels, particularly if they are carrying a large number of people, taking these actions is subject to a number of safeguards. Proposed subsection 46(3), discussed above, imposes additional authorisation requirements for the exercise of these powers. Proposed subsection 46(6) places limits on the circumstances in which an ADF member can take a measure, or give an order in relation to taking a measure, against an aircraft or vessel. Proposed section 51N also imposes limitations on the use of force against aircraft and vessels.

308.           Proposed subsection 46(6) provides that proposed paragraphs 46(5)(d) and (e) do not authorise taking a measure against an aircraft or vessel, or the giving of an order in relation to taking such a measure, unless the conditions in proposed paragraphs 46(6)(a) to (f) have been met. These conditions place significant emphasis upon maintaining strict control over the engagement of any vessel or aircraft due to the significance of such an action. Broadly speaking, these conditions ensure that an ADF member does not take action against an aircraft or vessel on the basis of a manifestly unlawful order, or where circumstances have changed in a way that is material to taking an action or giving an order. These conditions are particularly important in the context of aviation threats, where circumstances may change quickly.

309.           Proposed paragraph 46(6)(a) requires that an ADF member taking a measure or giving an order in relation to aircraft and vessels must do so under the authority of an order of a superior. As with all call out orders, ultimately, the primary responsibility for ensuring the legality of the chain of orders will rest with the authorising Ministers who advise the Governor-General on the content of the relevant call out order, and the CDF who then issues the order to the ADF.

310.           Proposed paragraph 46(6)(b) requires that the member taking a measure or giving an order be under a legal obligation to obey the superior’s order.

311.           Proposed paragraph 46(6)(c) also requires that the superior’s order not be manifestly unlawful.

312.           Proposed paragraphs 46(6)(d) and (e) remove the authority of an ADF member to take a measure or give an order in relation to a vessel or aircraft, if the member has reason to believe that the circumstances have changed in a material way since the superior’s order was given, or that the superior’s order was based on a mistake as to a material fact. These subparagraphs ensure that ADF members do not take measures or give orders where it is apparent to them that the circumstances have changed in a way that is material to taking the measure or giving the order.

313.           Proposed paragraph 46(6)(f) requires that taking the measure or giving the order be reasonable and necessary to give effect to the superior’s order.

314.           Proposed subsection 46(7) lists additional powers that the ADF may use in connection with the taking of actions mentioned in proposed subsection 46(5). These powers may only be used in connection with authorised actions. As such, ministerial authorisation is not required in relation to these specific powers.

315.           Proposed paragraph 46(7)(a) provides the power for an ADF member to free any hostage from a location (including a facility) or thing.

316.           Proposed paragraph 46(7)(b) enables an ADF member to control the movement of persons or of means of transport, subject to proposed subsection 46(8). Proposed subsection 46(8) imposes limitations on the powers in proposed paragraph 46(7)(b) to control the movement of person or of means of transport. It requires that an ADF member exercising these powers must not do so for longer than is reasonable and necessary in the circumstances.

317.           Proposed paragraph 46(7)(c) provides the power for an ADF member to evacuate persons to a place of safety.

318.           Proposed paragraph 46(7)(d) provides an ADF member with the power to search persons, locations or things for things that may be seized in relation to the call out order or persons who may be detained in relation to the call out order.

319.            Proposed paragraph 46(7)(e) provides a further power to seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order. Proposed section 31 sets out the definition of ‘thing that may be seized’.

320.           Proposed paragraph 46(7)(f) enables an ADF member to detain a person found in the search, whom the member believes on reasonable grounds to be a ‘person who may be detained’, for the purposes of placing the person in police custody at the earliest practicable time. It allows an ADF member to require the person to provide identification to the member. Proposed section 31 sets out the definition of ‘person who may be detained’. Proposed section 51P imposes additional obligations where a person is detained.

321.           Proposed paragraph 46(7)(g) inserts a new power that makes clear that the ADF, in connection with taking any action in proposed subsection 46(5), may provide security, including by patrolling or securing an area or conducting cordon operations. These powers can be exercised by the ADF whether they are armed or unarmed and whether or not they are with a police force. These powers clarify that the ADF is authorised to undertake appropriate security activities where, for example, an attack is expected but the exact location of the attack is unknown (provided a call out has occurred).

322.           Proposed paragraph 46(7)(h) provides a new power to question persons and to compel production of documents. These powers are currently only available in the offshore area, and their extension to the onshore area will ensure consistency in the authorities provided to the ADF. For example, given that ADF members operating in the onshore area will have powers to search premises and means of transport for people who may pose a threat to life and safety, it is logical to also provide them with powers to require a person to answer questions or produce documents. In some circumstances, these powers may be a necessary first step in the execution of the search powers. While Part IIIAAA currently expressly abrogates the privilege against self-incrimination in responding to questions or producing documents in the Australian offshore area, these new powers will restore the privilege against self-incrimination. Abrogation of the privilege is unnecessary.

323.           Proposed paragraph 46(7)(i) provides a new power to operate, or direct a person to operate, a facility, or machinery or equipment on a facility or means of transport, in a particular manner. These powers are currently available only in the offshore area. These powers will now apply to both the onshore and offshore areas to fill the existing gap in the onshore area powers and ensure the ADF has the tools it needs to respond to the full spectrum of potential domestic violence incidents. This power will complement existing onshore powers, such as the ability to control the movement of means of transport. The power explicitly covers electronic equipment so that the ADF can, for example, exercise the power in respect of a person who is using an electronic device to operate a drone.

324.           In addition to the powers in proposed subsections 46(5) and 46(7), proposed subsection 46(9) allows an ADF member to do anything incidental to anything in subsection (5) or (7). This would include entering any place or premises or boarding an aircraft or vessel. This subsection is intended to guard against any unintended restrictions on the ability of an ADF member to exercise the powers in proposed subsections (5) and (7). As with the powers in proposed subsection (7), the incidental powers in proposed subsection (9) do not require specific ministerial authorisation. The incidental powers in proposed subsection 46(9) may only be used where the ADF has been called out, where the order specifies Division 3 as applying, and where one or more of the actions in subsection 46(5) has been authorised.

325.           Proposed subsection 46(10) makes clear that the specific powers provided for in each of the paragraphs in proposed subsections (5) and (7) do not operate to limit each other in any way.

Proposed Division 4 - Powers exercised in specified area

326.           Proposed Division 4 sets out a range of powers that may be utilised only within a specified area, which may be in Australia or the offshore area. These powers are focused on search and seizure in relation to dangerous things and persons who are believed to have committed offences related to the domestic violence or who pose a threat. The focus of these powers differs from that of the powers in proposed Division 3, which are focused primarily on preventing, ending, and protecting people from, acts of violence and threats.

327.           Part IIIAAA currently sets out a complicated scheme relating to onshore 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 that they exercise the correct powers. This may prove challenging in a time-compressed, dynamic environment with a rapidly changing threat. Proposed Division 4 incorporates current Division 3 as well as relevant parts of current Division 3A (relating to offshore specified area powers), to create a single Division governing powers exercisable in a specified area. It removes the distinction between General Security Areas and Designated Areas, and allows for the full suite of powers to be exercised within a single specified area.

Simplified outline

328.           Proposed section 47 provides a simplified outline of proposed Division 4. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

Application of Division

329.           Proposed section 48 provides that proposed Division 4 applies if a call out order states that the Division applies in relation to the order.

International obligations

330.           Proposed section 49 extends the requirement that authorising Ministers have regard to Australia’s international legal obligations when making a specified area declaration in relation to the offshore area under all types of call out. The effect of this proposed section is that authorising Ministers must take into account Australia’s international obligations when making, and determining the parameters of, a specified area declaration in relation to the offshore area. Australia is subject to a range of international legal obligations in the offshore area. Currently, Part IIIAAA only requires that authorising Ministers have regard to these obligations during a call out for the protection of Commonwealth interests, or when authorising powers in relation to vessels and aircraft. However, the amendments to Part IIIAAA will clarify that the ADF can exercise specified area powers in the offshore area during a call out for the protection of a state or territory. To ensure that these amendments do not create a gap in the requirement to consider Australia’s international obligations, proposed section 48 will require that authorising Ministers have regard to Australia’s international obligations when making a specified area declaration in relation to the offshore area, whether during call out for the protection of Commonwealth interests or for the protection of states and territories.

Members to wear uniforms and identification when exercising powers

331.           Proposed subsection 50(1) replicates the requirement in the current legislation that ADF members must wear uniforms and identification when exercising powers under proposed Division 4, or Division 6 in its operation in relation to Division 4. Proposed subsection 50(1) makes it an offence, punishable by a penalty of 30 penalty units, for an ADF member exercising powers under proposed Division 4 (or proposed Division 6 in its operation in relation to proposed Division 4) not to wear their uniform and identification.

332.           The requirement to wear uniforms and identification applies to proposed Division 4, but not to proposed Division 3. This is because the tasks that the ADF will be required to perform under Division 3 are higher end military actions and may involve the Special Forces. These tasks may require the ADF to operate in a covert manner where uniforms would be detrimental. ADF Special Forces soldiers have protected identity status because they are associated with sensitive capabilities. Protected identity status is required to maintain operational security and the safety of the individual and their family. By virtue of their protected identity status, ADF Special Forces soldiers are able to exercise powers under proposed Division 3 without being required to produce identification or wear uniforms. Tasks under Division 4 are more likely to be related to securing an area with, or in assistance to, the police. When carrying out Division 4 tasks, the ADF is more likely to need to display a visible presence and therefore uniforms will assist the conduct of these tasks.

333.           Proposed subsection 50(2) provides two exceptions to the requirement to wear a uniform and display identification. First, there is an exception to the offence if an act of another person (not being a member of the ADF) done without the consent of the member causes the contravention. This exception ensures that an ADF member is not held liable where, for example, a suspect forcibly removes an ADF member’s identification from their uniform. Second, there is an exception where the power is taken not to be exercised under proposed Division 4 because of proposed section 43. Proposed section 43 provides that powers under Division 3 may be exercised in an area specified in Division 4. If a power is exercised in this manner, by force of subsection 43(2), the power is taken, for the purposes of Part IIIAAA, to be taken under Division 3. This is an offence-specific defence that places the burden of proof on the ADF member as the defendant. This is justifiable because knowledge of the elements of the defence is peculiarly within the knowledge of the ADF member. Further, the offence carries a relatively low penalty of 30 penalty units.

334.           Proposed subsection 50(3) also imposes an obligation on the CDF to take reasonable and necessary steps to ensure that ADF members do not contravene subsection (1).

335.           Proposed subsection 50(4) provides that extended geographical jurisdiction (category B), as set out in section 15.2 of the Criminal Code Act 1995 , applies to the offence in proposed subsection 50(1) to the extent that proposed section 50 applies in relation to the Australian offshore area.

Declaring a specified area

336.           Proposed section 51 reflects the current process for making a specified area declaration. Under proposed subsection 51(1), the authorising Minister may, in writing, declare an area to be a specified area, if the area is either or both of the following: a part of a State or Territory that is specified in the call out order, or a part of the Australian offshore area (if the call out order specifies a threat in the Australian offshore area). Specified areas are three-dimensional, and may include the airspace above the area, as well as underground areas, such as subways.

337.           A specified area may only be declared in a state or territory that is specified in the call out order. As such, and in contrast to the powers in proposed Divisions 3 and 5 (see proposed sections 44 and 51K), specified area powers may not be exercised in a state or territory other than the state or territory specified in the order. Nor may specified area powers be exercised outside of the specified area itself.

338.           Proposed subsection 51(2) clarifies the declaration of specified areas in the context of contingent call out. The purpose of contingent call out is to pre-authorise the ADF to respond to anticipated or foreseeable threats, should specified circumstances arise. Contingent call out authorises the ADF to respond immediately once the specified circumstances have arisen, removing the need to seek further ministerial authorisation before taking action. Consistent with the operation and purpose of contingent call out, proposed subsection 51(2) makes clear that an authorising Minister may declare a specified area in relation to a contingent call out order even if the circumstances specified in the order have not yet arisen.

339.           Proposed subsection 51(3) provides that specified area declarations come into force when they are made. Proposed subsection 51(3) also provides that a specified area declaration will cease to be in force if it is revoked, or if the call out order to which it relates ceases to be in force or is revoked.

Declaring a specified area in the Australian offshore area and internal waters

340.           Proposed subsection 51(4) allows a specified area in the Australian offshore area or internal waters of a state or territory to be defined by reference to a moving vessel. This reflects the provisions in the existing legislation. Whereas specified areas in the onshore area must be static, the boundaries of a specified area in the Australian offshore area or in the internal waters of a state or territory may move. Proposed subsection 51(4) allows a specified area in the Australian offshore area or the internal waters of a State or self-governing Territory to be specified by referring to an area that surrounds one or more vessels or classes of vessels, and whose boundaries change as the location of the vessels change. The ability for specified areas to move by reference to a moving vessel reflects the particular nature of threats and violence in the maritime domain. Whereas onshore specified areas might be defined by reference to streets and other landmarks, the limits of maritime specified areas are not always so readily capable of definition. Allowing for maritime specified areas to move also enables the ADF to continue to exercise powers under proposed Division 4 as vessels move. Specified areas are best understood as a ‘bubble’, rather than a circle, and may cover areas below the surface of the water as well as the airspace above a vessel.

341.           Proposed paragraph 51(5)(a) clarifies that a specified area declared under proposed subsection 51(1) in relation to a vessel may move with the vessel from the internal waters of a State or self-governing Territory that is specified in the call out order to the internal waters of another State or self-governing Territory.

342.           Further, proposed paragraph 51(5)(b) clarifies that a specified area declared under proposed subsection (4) in relation to a vessel may also move with the vessel from the internal waters of a State or Territory to the Australian offshore area. Proposed paragraph 51(5)(c) clarifies that the specified area may also move with the vessel from the Australian offshore area to the internal waters of a State or Territory. However, if the vessel moves beyond the Australian offshore area, the specified area will not follow it.

Publishing and notifying the public of the location of a specified area

343.           The declaration of a specified area activates the capacity to exercise the specified area powers in proposed Division 4. These include powers to search persons, means of transport and premises. It is therefore important that people are made aware of the declaration of a specified area, and of its boundaries. It is also essential that ADF members are able to ascertain the limits of a specified area, so that they know the limits within which they may validly exercise powers under proposed Division 4. Proposed subsections 51(6)to (9) set out a number of requirements to document, publish, and notify people of, the location of a specified area.

344.           Under proposed subsection 51(6), authorising Ministers must, once a specified area declaration has been made, arrange for the preparation of a statement that summarises the content of the call out order to which the declaration relates, states that the declaration has been made, and describes the specified area and its boundaries. The boundaries could, for example, be defined by reference to landmarks or street names (as opposed to, for instance, geographic coordinates, which may be difficult for members of the public to ascertain).

345.           Proposed subsection 51(7) sets out the requirements to notify persons in the specified area. Proposed subsection 51(7) sets out obligations to broadcast the statement prepared under subsection 51(6) in both the onshore and offshore area. The obligations that apply to the Australian offshore area in proposed paragraph 51(7)(b) reflect the more limited ability to notify persons in that area. Proposed paragraph 51(7)(c) also requires that the statement must be forwarded, within 24 hours after the declaration is made, to the Presiding Officer of each House of Parliament for tabling in that House. The current legislation also requires the statement to be published in the Gazette . This requirement has been removed as it is unnecessary.

346.           Proposed paragraph 51(6)(a) and proposed subsection 51(8) set out certain exceptions in relation to publishing and notifying persons of specified areas. Proposed subsection 51(6)(a) requires that the statement made under subsection 51(6) not include any reference to whether proposed Division 3 applies in relation to the order. The prohibition on making reference to whether Division 3 powers apply ensures that the exercise of those powers is not prejudiced by their public announcement. For example, if it were publicly announced that Division 3 powers were available in relation to a call out, people against whom those powers were intended to be used may be put on notice of an impending ADF operation.

347.           Proposed subsection 51(8) sets out an exception to the requirement to prepare and notify persons of the statement governing the specified area. This exception operates where Division 3 applies to a call out order, and where the authorising Ministers declare, in writing, that they are satisfied that the application of proposed subsections 51(6) and 51(7) would prejudice the exercise of powers under Division 3 by members of the ADF who are being utilised under the call out order. While statements under proposed paragraph 51(6)(a) must not make reference to Division 3 powers at all, this exception provides an additional protection where even the announcement of a specified area might put suspects on notice that certain ADF powers might be used against them, and thereby prejudice the effective use of powers under proposed Division 3. Putting perpetrators of domestic violence on notice of an ADF operation would prejudice the ADF’s exercise of Division 3 powers and potentially expose ADF members to an increased risk of harm.

348.           In accordance with proposed subsection 51(9), each House of Parliament must sit within 6 days after its Presiding Officer receives the statement forwarded in accordance with proposed paragraph 51(7)(c).

349.           Proposed subsection 51(10) makes clear that any failure to comply with the obligations in proposed subsections 51(6), (7) or (9) does not affect the validity of a specified area declaration. This is to ensure that procedural defects or irregularities do not invalidate the declaration of a specified area, nor of the exercise of any powers in reliance on that declaration.

Specified area powers

350.           The powers in Division 4 are divided into two distinct subdivisions relating to powers available to search premises, and powers in relation to means of transport and persons in a specified area. These subdivisions combine the powers previously available in both general security areas and designated areas, with appropriate protections. These powers are also applicable to specified areas in both the onshore and offshore areas.

351.           There are similar thresholds for the exercise of the powers set out in proposed Subdivisions C and D. The amendments aim to ensure consistency between the powers in these proposed subdivisions, and to provide a coherent set of powers exercisable in a specified area.

352.           The powers that an ADF member may exercise in a specified area are significant. However, call out of the ADF under Part IIIAAA should only occur in extreme circumstances, where authorising Ministers are satisfied that domestic violence is occurring or likely to occur. The use of the specified area powers by an ADF member is both necessary and proportionate in these circumstances. These powers are important to allow ADF members to act to keep people safe from harm and to save lives. In particular, the powers in proposed Subdivision C give the ADF the power to search premises, means of transport, and people for dangerous things and people.

Powers to search premises in specified area

353.           Proposed section 51A sets out the process for authorising the search of premises within a specified area. Proposed subsection 51A(1) provides that the CDF, or an authorised ADF officer, may give a search authorisation. The CDF or authorised officer may give this authorisation if the ADF is being utilised under a call out order and the CDF or officer believes on reasonable grounds that, on any premises in the specified area, there is a person or thing as described in proposed paragraphs 51A(1)(a) to(c).

354.           The search powers available under the current legislation in specified areas focus predominantly on ‘dangerous things’. The CDF can currently only issue an authorisation to search premises in a specified area where he or she believes on reasonable grounds that there is a dangerous thing on the premises and that it is necessary as a matter of urgency to make the dangerous thing safe. Proposed subsection 51A(1) expands the grounds on which the CDF may issue a search authorisation to allow the ADF to also search for a person who is likely to pose a threat (see proposed paragraphs 51A(1)(a) and (c)). The CDF will now be able to issue an authorisation to search premises for both things and people that are likely to pose a threat to a person’s life, health or safety or public health or public safety, as well as things and people that are connected with the domestic violence or threat specified in the call out order. The ability to search for persons connected with the domestic violence allows the ADF to search for people who do not pose a threat themselves, and who have not yet committed an offence, but who may be seeking to assist others in carrying out acts of violence. The basis on which the ADF may search premises is slightly wider than the grounds on which it may detain a person or seize a thing. This is necessary to ensure that the ADF has sufficiently broad powers to locate and identify potential threats. The ability to actually detain a person or seize a thing, however, remains subject to a higher threshold.

355.           Proposed subsection 51A(2) sets out certain requirements for the content of a search authorisation issued under proposed subsection 51A(1). Proposed paragraph 51A(2)(a) requires that the search authorisation authorise any member of the ADF who is being utilised by the CDF under the call out order to enter and search all premises in the specified area, or specified premises within the specified area. The specified premises may be specified individually, or by class (eg by reference to a particular type of premise in the specified area).

356.           Currently, a search authorisation must be specific to the individual premises. Proposed paragraph 51A(2)(a) will instead allow for a generic written authorisation to be provided. The generic authorisation will allow all premises in the specified area to be searched, or for premises to be described by reference to premises of a specified kind or in a particular area, or for individual premises.

357.           The flexibility to authorise the search of all premises in a specified area is necessary where, for example, there are suspects in a specified area who are mobile, and whose location is not known. It is essential that the premises that may be searched can be described broadly, so that ADF members have the power to pursue and locate the terrorists within the specified area quickly and flexibly. Equally, a search authorisation may authorise search of all premises in a particular area if there is not sufficient information available to the CDF at the time of making the authorisation. However, if reliable intelligence is gathered that suggests a smaller subset of premises, the CDF may then give another authorisation to narrow the scope of the search to that subsect of premises.

358.           Despite the fact that the search authorisation itself may be broad, an ADF member may enter and search premises for the purposes of finding a person or thing described in proposed subsection 51A(1), or to determine that the person or thing mentioned in proposed subsection 51A(1) is not on the premises. These purposive powers will permit the ADF to undertake a coordinated, thorough, and systematic search of a specified area, or part of a specified area, to either find the threat, or to clear the area of a threat. The power to enter premises to determine that a person or thing is not there is critical in ensuring the safety of ADF members and the efficacy of the search.

359.           While these powers may be exercised for the purposes specified at proposed paragraphs 51A(2)(a)(iii) and(iv), under proposed paragraphs 51A(2)(b) to(d), ADF members will only be able to detain a person or seize a thing if they believe on reasonable grounds that that person is a person who may be detained (as defined at proposed section 31) or thing that may be seized (as defined at proposed section 31).

360.           As noted above, an ADF member may only seize things under proposed paragraph 51A(2)(b) that the member believes on reasonable grounds to be a thing that may be seized. This is an important power that allows an ADF member to seize things which are likely to pose a threat to life, health or safety. The definition of thing that may be seized is set out at proposed section 31.

361.           Proposed paragraph 51A(2)(c) will allow an ADF member to search a person who is at or near premises, where the ADF member believes on reasonable grounds that the person has any thing that may be seized in relation to the call out order in his or her possession. This power to search people at or near premises is necessary where, for example, a person is in the process of leaving or entering premises that may be searched. It ensures that an ADF member is not prevented from searching the person where they believe on reasonable grounds that the person has a thing that may be seized.

362.           Proposed paragraph 51A(2)(d) provides similar powers in relation to persons at or near premises whom the ADF member believes on reasonable grounds to be a person who may be detained in relation to the call out order. Again, this power to detain people at or near premises is necessary where, for example, a person is in the process of leaving or entering premises that may be searched. It ensures that an ADF member is not prevented from detaining the person where they believe on reasonable grounds that the person is a person who may be detained. The definition of a person who may be detained is set out at proposed section 31. Proposed section 51P also imposes additional obligations where a person is detained.

363.           The current legislation requires that a search authorisation also state the name, rank and service number of the member in charge of the search. This requirement has been removed as it is impractical. However, additional obligations in relation to things seized are set out at proposed section 51Q, including the requirement that an ADF member give the person a receipt for any thing seized.

364.            Proposed paragraph 51A(2)(e) requires that a search authorisation state the time during which the authorisation remains in force, which must not be more than 24 hours. However, proposed subsection 51A(4) makes clear that this does not prevent the issue of further authorisations in relation to the same premises. The making of further authorisations is subject to the same conditions as set out in proposed subsection 51A(1).

365.           Proposed subsection 51A(3) provides that a search authorisation has effect according to the terms of the authorisation itself. That is, if a search authorisation authorises an action, an ADF member may take it.

366.           Proposed subsection 51A(5) makes clear that a member of the ADF may also exercise powers under proposed Subdivision D (which relates to means of transport and persons in specified areas) in premises that are being searched in accordance with proposed section 51A.

367.           Proposed subsection 51A(6) clarifies that the CDF may, in writing, authorise a specified officer, or an officer in a specified class of officers, to be an authorised Defence officer for the purposes of proposed subsection 51A(1). This effectively allows for the delegation of responsibility for issuing a search authorisation to ensure operational flexibility, and to ensure that responsibility may be delegated to an ADF member who has ready access to accurate information as the situation develops.

Rights of occupiers of premises

368.           Proposed sections 51B and 51C set out the rights of occupiers of premises that may be searched under a search authorisation.

369.           Proposed subsection 51B(1) requires that if the occupier of premises described in a search authorisation, or another person who apparently represents the occupier, is present at the premises when a search is being carried out, a member of the ADF must identify themselves as a member of the ADF and provide that person with a document that sets out the information in proposed subparagraphs 51B(1)(b)(i) to (iv). That document must be given to the occupier or their representative before the premises is searched (see proposed subsection 51B(2)).

370.           Proposed subsection 51C(1) also provides that the occupier of a premises or their representative is entitled to observe a search being carried out. However, this entitlement ceases if the occupier or their representative impedes the search (see proposed subsection 51C(2 )). Proposed subsection 51C(3) makes clear that nothing in proposed section 51C prevents two or more areas of a premises from being searched at the same time. These subsections clarify that, while an occupier or their representative may observe a search, this entitlement in no way limits the ADF’s power to search.

Powers relating to means of transport and persons in specified areas

371.           Proposed section 51D sets out the powers that ADF members being utilised under a call out order may exercise in relation to means of transport and persons in a specified area. The Act currently deals with the powers in relation to means of transport and powers in relation to persons separately. Likewise, powers available in relation to both means of transport and persons differ in the Act depending on whether the powers are being exercised onshore or offshore. The Act currently also does not permit the ADF to search for people who may pose a threat. Given the similarities in powers provided between these two provisions, and the similar circumstances in which they are likely to be exercised, this Bill will provide powers in relation to both means of transport and persons in the same section. This will simplify the provisions and enhance the ADF’s operational flexibility.

372.           The powers in proposed section 51D will provide ADF members with powers to establish cordons, check identities, direct people, search people, and other general security powers that may be necessary in the event of a specified area being declared. Proposed section 51D also combines into a single section the current powers in onshore and offshore general security areas and designated areas, and makes all the powers exercisable within a specified area. The basis on which an ADF member may exercise powers under proposed subsection 51D(1) is slightly wider than the grounds on which they may detain a person or seize a thing. This is necessary to ensure that the ADF has sufficiently broad powers to locate and identify potential threats. These powers are essential to ensure that, if a specified area is declared, the ADF can take reasonable steps to lock down an area, secure it, and make it safe.

373.           The powers available in relation to persons in specified areas under the current legislation focus predominantly on people in possession of ‘dangerous things’. The powers can only be exercised if an ADF member believes on reasonable grounds that a person has in their possession a dangerous thing. Proposed subsection 51D(1) expands the grounds on which the powers in proposed section 51D may be used to ensure that a member of the ADF who is being utilised under a call out order may exercise the powers under the section if they believe on reasonable grounds that there is, in the specified area, a person or thing mentioned in paragraphs 51D(1)(a) to (e). The ability to take actions in relation to persons connected with the domestic violence allows the ADF to search for people who do not pose a threat themselves, and who have not yet committed an offence, but who may be seeking to assist others in carrying out acts of violence.

374.           Proposed paragraphs 51D(2)(a) to (j) set out the powers that may be exercised in relation to means of transport or persons in a specified area. The exercise of these powers requires a belief on reasonable grounds that a person or thing in proposed subsection 51D(1) is in the specified area. These paragraphs will fill gaps in the powers provided under the existing legislation in relation to controlling the movement of means of transport and people. For example, under the current legislation, an ADF member may search (with consent) a car or person when they enter a designated area, but not when they leave that area. The amendments will ensure the ADF can utilise the full set of stop, search (with consent), and seizure powers in relation to means of transport and people either seeking to enter or exit a specified area.

375.           Proposed paragraph 51D(2)(a) allows an ADF member to erect barriers or other structures. This may be done at the border of, or in any part of, the specified area. This recognises that it may be necessary to establish zones within the specified area to manage the flow of people or transport. Proposed paragraph 51D(2)(b) allows an ADF member to stop any person or means of transport, whether or not barriers were erected, in a specified area. These powers allow the ADF to take action to stop, for example, a vehicle-borne improvised explosive device (VBIED). They also allow the ADF to protect people by setting up road blocks to stop people entering specified areas where they may be exposed to risk of harm.

376.           Proposed paragraphs 51D(2)(c) and (d) allow an ADF member to direct the movement of means of transport or people within the specified area. Where there is no person in charge of a means of transport, proposed paragraph 51D(2)(e) provides a power for an ADF member to take any action that is reasonable and necessary to take the means of transport out of the specified area, or to another place within the specified area. This power might be used, for example, in order to remove a vehicle that might be used by suspects as a getaway vehicle, or to remove a vehicle that is obstructing the exercise of other powers by the ADF. It may also be necessary to ensure that, for example, abandoned cars, do not disrupt the flow of people out of a specified area, subject to safety checks.

377.           Under proposed subsections 51D(2)(f) to (g), an ADF member may make movement of a person or a means of transport into or out of the specified area conditional on a search (under proposed paragraph 51D(2)(h)) of the person or the means of transport and any thing in or on the means of transport. Consistent with the power to erect barriers at proposed paragraph 51D(2)(a), these powers can be exercised at the border of, or within, the specified area. This ensures that a cordon is effective in ensuring the safety of people within the specified area. It does not unduly hamper people from entering or leaving the specified area and is particularly useful in ensuring the safe and orderly flow of people.

378.           If, while conducting a search under proposed paragraph 51D(2)(h), an ADF member finds something that they believe on reasonable grounds is a thing that may be seized, they may seize that thing. This is an important power that allows an ADF member to seize things which are likely to pose a threat to life, health or safety. Where, for example, the ADF is searching for a suspect in possession of an explosive device or other weapon, this power would allow an ADF member to quarantine an area and search all persons before they leave that area in order to locate the suspect and seize the explosive device or weapon. The definition of thing that may be seized is set out at proposed section 31. Likewise, an ADF member may detain the person, or any person found during a search of a means of transport, if the member believes on reasonable grounds that they are a person who may be detained. Detention must be for the purpose of placing the detainee in the custody of a member of a police force at the earliest practicable time.

379.           Nothing in this provision permits the search of a person without consent, or search of a means of transport without consent. Powers to search without consent are set out in proposed subsections 51D(3) and (5). However, if a person refuses consent, an ADF member may deny that person or means of transport permission to enter or leave the specified area. Additional obligations where a person has been detained are set out at proposed section 51P.

380.           The powers in proposed paragraphs 51D(2)(c) to (h) are natural corollaries of the power to establish and manage cordons, and may be necessary to ensure that the other powers in this proposed section can be effectively executed. This ensures that the ADF has the power to control the movement of bystanders and other persons, including to keep them away from danger. These proposed paragraphs build upon the powers in relation to means of transport and persons provided for in Designated Areas under the current legislation to ensure that there are no lacunas in the powers available to ADF members in the event of a call out.

381.           Proposed paragraph 51D(2)(i) provides for questioning powers and powers to compel production of documents. These powers are currently only available in the offshore area, and their extension to the onshore area will ensure consistency in the authorities provided to the ADF. For example, given that ADF members operating in the onshore area will have powers to search for people who may pose a threat to life and safety, it is logical to also provide them with powers to require a person to answer questions or produce documents. In some circumstances, these powers may be a necessary first step in the execution of the search powers. While Part IIIAAA currently expressly abrogates the privilege against self-incrimination in responding to questions or producing documents in the Australian offshore area, these new powers will restore the privilege against self-incrimination. Abrogation of the privilege is unnecessary. An ADF member may also direct a person to answer a question put by the member, or to produce to the member a particular document that is readily accessible to the person, (including by requiring the person to provide identification to the member). This power may be used in a number of scenarios, most relevantly, in ensuring that all people that are found in, enter, or leave a specified area can be accounted for.

382.           Proposed paragraph 51D(2)(j) provides powers for an ADF member to operate, or direct a person to operate a facility, or machinery, or equipment (including electronic equipment) in a particular manner. The ADF member may only exercise this power if they believe on reasonable grounds that doing so is necessary for the purpose of preserving the life or safety of other persons, or protecting against the threat of the person or thing mentioned in subsection 51D(1). Similar powers are currently available only in the offshore area. This provides the ADF the ability to operate equipment that poses a threat in a manner that defuses that threat. For example, if an electronic device that is being used to send constant location data to a person carrying out the domestic violence is located, an ADF member may utilise this power to incapacitate the device to protect people in the specified area.

383.           Proposed paragraph 51D(3) provides powers to detain and search a means of transport if the ADF member believes on reasonable grounds that the means of transport has in or on it a person or thing mentioned in proposed subsection 51D(1). It also permits an ADF member to seize any thing (including the means of transport) found in or on that means of transport if the member believes on reasonable grounds it is a thing that may be seized (as defined in proposed section 31). It also permits an ADF member to detain a person found if the member believes on reasonable grounds they are a person who may be detained (as defined in proposed subsection 31). The power to detain a person is subject to the requirement that it is for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time. These powers ensure that the ADF is not diverted from its fundamentally protective role under a call out order, and does not intrude on the domain of the police forces of the jurisdiction in which it is operating.

384.           Under proposed subsection 51D(4), any member who detains a means of transport under proposed paragraph 51D(3)(a) must not detain the means of transport for longer than is reasonable and necessary to search it and any thing found in or on it, unless the means of transport is seized in accordance with proposed paragraph 51D(3)(c) (i.e., because the means of transport itself poses a threat). Proposed section 51Q sets out additional actions to be taken if things, including means of transport, are seized.

385.           Proposed subsection 51D(5) provides an ADF member powers in relation to a person where they have reasonable grounds to believe that the person is the person mentioned in subsection 51D(1). Proposed subsection 51D(5) gives an ADF member the power to search a person, seize anything found that the member believes on reasonable grounds is a thing that may be seized, and detain the person if the member believes on reasonable grounds that they are a person who may be detained in relation to the call out order. As with proposed subsection 51D(3), the detention must be for the purpose of placing the suspect in the custody of a member of a police force at the earliest practicable time. Where an ADF member detains a person, proposed section 51P imposes additional requirements on the ADF member who detains a person.

386.           Proposed section 51E clarifies the operation of some of the powers in proposed section 51D. Proposed subsection 51E(1) clarifies that a member of the ADF may enter a means of transport for the purpose of giving a direction under subsection 51D(2). This ensures that an ADF member can effectively exercise the power to give directions, and ensure that persons being directed can hear and understand the direction.

387.           Proposed subsection 51E(2) entitles the master of a vessel, or the captain of an aircraft, in the Australian offshore area to observe a search carried out under proposed subsections 51D(2), (3), or (5). However, proposed subsections 51E(3) and (4) clarify respectively that the entitlement to observe a search ceases if the master or captain impedes the search, and that nothing in proposed subsection 51E(2) prevents two or more areas of the aircraft or vessel from being searched at the same time. The intent of these subsections is to clarify that while a master or captain may observe a search, this entitlement in no way limits the power to search.

388.           Proposed subsection 51E(5) clarifies that no paragraph of proposed subsections 51D(2), (3), or (5) limits the operation of any other paragraph of those subsections.

Proposed Division 5 - Powers to protect declared infrastructure

389.           Proposed Division 5 sets out a range of powers that allow the ADF to protect declared infrastructure. Authorising Ministers may declare infrastructure to be ‘declared infrastructure’ where damage or disruption to the infrastructure would directly or indirectly endanger the life of, or cause serious injury to, other persons.

390.           In accordance with the recommendations of the Defence Review, the term ‘designated critical infrastructure’ used in current Part IIIAAA will be replaced with ‘declared infrastructure’. This is necessary to avoid potential confusion with the work of the Critical Infrastructure Centre in the Department of Home Affairs, which uses the term ‘designated critical infrastructure’ in an unrelated context.

391.           The provisions governing the declaration of declared infrastructure and the powers exercisable to protect it are currently located in separate Divisions of Part IIIAAA. Proposed Division 5 will relocate all provisions related to declared infrastructure in the same Division. The proposed provisions relating to the declaration of declared infrastructure are largely the same as the provisions in the current legislation.

Simplified outline

392.           Proposed section 51F sets out a simplified outline of proposed Division 5. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

International obligations

393.           Proposed section 51G will introduce a requirement that authorising Ministers have regard to Australia’s international legal obligations in making an infrastructure declaration authorising the exercise of powers in the offshore area. The effect of this proposed section is that authorising Ministers must take into account Australia’s international obligations in making an infrastructure declaration authorising powers that are to be, or may be, exercised in the Australian offshore area. Australia is subject to a range of international legal obligations in the offshore area, and infrastructure in the offshore area is currently capable of being the subject of a declared infrastructure declaration. However, Part IIIAAA does not currently impose any requirement to take account of these obligations in relation to powers to protect declared infrastructure. To remedy this gap, proposed section 51G will apply the requirement that authorising Ministers have regard to Australia’s international obligations to the making of infrastructure declarations that authorise powers that may be exercised in the offshore area.

Declared infrastructure declarations

394.           Proposed section 51H sets out matters in relation to making, varying and revoking infrastructure declarations. It also sets out requirements to consult with states and territories that have not requested the making or variation of an infrastructure declaration.

395.           Proposed subsection 51H(1) provides that the authorising Ministers may, in writing, declare that particular infrastructure, or part thereof, is declared infrastructure. An infrastructure declaration may be made in respect of infrastructure that is in the onshore or offshore area. The criteria for making an infrastructure declaration are set out in proposed subsection 51H(2). A state or territory may request the making of an infrastructure declaration in relation to infrastructure within its jurisdiction (see proposed subsection 51H(6)).

396.           Consistent with the current position under Part IIIAAA, proposed subsection 51H(1) will allow authorising Ministers to make infrastructure declarations whether or not a call out order is in force. This will allow the authorising Ministers to make an infrastructure declaration without having to wait for the Governor-General to issue a call out order and thus avoid any unnecessary delays. An infrastructure declaration has no effect unless and until a call out order authorising the use of Division 5 powers has been made and the ADF has been called out.

397.           Proposed subsection 51H(2) sets out the criteria governing the making of infrastructure declarations. There are two circumstances in which authorising Ministers may make an infrastructure declaration. First, under proposed subparagraph 51H(2)(a)(i) authorising Ministers may make an infrastructure declaration where they believe on reasonable grounds that there is a threat of damage or disruption to the operation of the infrastructure or the part of the infrastructure. Second, under proposed subparagraph 51H(2)(a)(ii) the authorising Ministers may make an infrastructure declaration where they believe on reasonable grounds that, if a contingent call out order is in force, if the circumstances specified in the order were to arise there would be a threat of damage or disruption to the operation of the infrastructure or the part of the infrastructure. In both circumstances, the authorising Ministers can only make an infrastructure declaration where the damage or disruption would directly or indirectly endanger the life of, or cause serious injury to, any person (see paragraph 51H(2)(b)).

398.           As such, infrastructure declarations can only be made where damage or disruption to the infrastructure would involve a concomitant risk to human life. Infrastructure declarations are not intended to be used, for example, to protect nationally significant buildings such as the Opera House in the absence of any concomitant risk to life. The type of infrastructure intended to be declared as declared infrastructure includes, for example, power stations, water treatment plants, nuclear power stations, and hospitals. Damage or disruption to the operation of such infrastructure could directly or indirectly cause widespread loss of life. Proposed Division 5 provides significant powers, potentially including the use of lethal force, to protect declared infrastructure. The use of force to protect declared infrastructure is justified because damage or disruption to it would directly or indirectly endanger the life of, or cause serious injury to, other persons.

399.           Proposed subsection 51H(3) clarifies the circumstances in which the authorising Ministers must revoke an infrastructure declaration. It provides that the authorising Ministers must, in writing, revoke the declaration if any one or more of them cease to believe the matters in proposed subsection 51H(2). For declarations that have been made at the request of a state or territory (see proposed subsection 51H(6)), the authorising Ministers must also revoke that declaration if the state or territory requests it. In accordance with proposed subsection 51H(4), the authorising Ministers may also, in writing, vary or revoke the declaration in any other circumstances.

400.           Proposed subsection 51H(5) provides that an infrastructure declaration comes into force when it is made, and ceases to be in force either at the end of any period that is specified in the declaration or if the declaration does not include a cessation date, it ceases when the declaration is revoked.

401.           Proposed subsection 51H(6) makes clear that the authorising Ministers may make an infrastructure declaration that relates to infrastructure in a State or self-governing Territory whether or not the government of that state or territory requested the making of the declaration. However, where that government has not requested the making of the declaration, proposed subsection 51H(7) requires an authorising Minister to consult that government before making the declaration. An exception to this requirement to consult is provided for in proposed subsection 51H(8). Proposed subsection 51H(8) provides that the authorising Ministers do not have to consult the state or territory if they are satisfied that, for reasons of urgency, it is impracticable to comply with that requirement.

Application of subdivision relating to powers to protect declared infrastructure

402.           Proposed section 51J states that the powers to protect declared infrastructure apply if a call out order states that proposed Division 5 applies in relation to the order, and an infrastructure declaration is in force in relation to infrastructure or part of infrastructure. This provision makes clear that the existence of an infrastructure declaration is a precondition to the exercise of the powers to protect declared infrastructure.

Violence that unexpectedly crosses jurisdictional boundaries

403.           Proposed section 51K is intended to facilitate the ADF’s ability to respond to domestic violence that crosses jurisdictional boundaries, including the offshore area. Proposed sections 33 and 34 allow a call out order for the protection of Commonwealth interests to specify each of the states or territories in which domestic violence is occurring or likely to occur. However, as previously noted, a terrorist event could evolve in an unforeseen manner, and cross into a state or territory not specified in an order. Where this occurs, proposed section 51K, in conjunction with proposed section 39, provides a purposive authorisation that will allow the ADF to exercise powers to protect critical infrastructure in a state or territory not specified in an order, so long as it is for the purposes of protecting the interests specified in the order against the domestic violence specified in the order. There must be a nexus between the ADF response and the domestic violence specified in the order. This arrangement ensures that the ADF is not arbitrarily stopped at the border when responding to an ongoing terrorist incident that threatens declared infrastructure.

404.           Proposed section 51K also applies to state or territory requested call out orders under proposed sections 35 and 36. While these orders may only specify the requesting state or territory, proposed section 51K allows the ADF to exercise powers to protect declared infrastructure in another jurisdiction not specified in the call out order, or the offshore area, provided the powers are exercised for the purpose of protecting the state or territory specified in the order against the domestic violence specified in the order. This could occur where a domestic violence incident crosses jurisdictional boundaries.

405.           Proposed subsection 51K(2) makes clear that a power may be exercised under proposed Division 5 in accordance with subsection (1) in the Australian offshore area, but not beyond it.

Powers to protect declared infrastructure

406.           The powers contained in proposed Division 5 are focused primarily on preventing and ending damage or disruption to the operation of declared infrastructure, and on preventing, ending, and protecting people from, acts of violence and threats. Specific ministerial authorisation is not required for the exercise of proposed Division 5 powers, as the powers are conditional upon the call out order stating that proposed Division 5 applies, and on the authorising Ministers having made a declared infrastructure declaration (see proposed section 51J).

407.            Proposed section 51L sets out the powers of the ADF and the circumstances in which they may be used. The powers that an ADF member may exercise in respect of declared infrastructure are significant. However, call out of the ADF under Part IIIAAA only occurs in extreme circumstances, where domestic violence is occurring or likely to occur. The declared infrastructure powers are both necessary and proportionate in these circumstances. They are important to allow the ADF to act to keep people safe from harm and save lives.

408.           The powers in relation to declared infrastructure are located in proposed subsections 51L(2), (3) and (5). Proposed subsection 51L(1) makes clear that an ADF member may only take an action under subsection (2), or exercise a power under subsection (3) or (5) in relation to taking such an action, for the purpose of protecting declared infrastructure.

409.           Proposed subsection 51L(2) sets out actions that an ADF member may take in relation to declared infrastructure. The actions in proposed subsection (2) broadly relate to preventing, or putting an end to, damage or disruption to the operation of the declared infrastructure, and preventing, putting an end to, and protecting persons from, threats and acts of violence.

410.           Proposed paragraph 51L(2)(a) provides the power for an ADF member to prevent, or put an end to, damage or disruption to the operation of the declared infrastructure. Infrastructure may only be declared infrastructure where damage or disruption to it would directly or indirectly endanger the life of, or cause serious injury to, other persons. As such, the power to take action to protect declared infrastructure also serves to protect people from death or injury.

411.           Currently, the declared infrastructure powers in Part IIIAAA allow an ADF member to prevent, or put an end to, acts of violence. Proposed paragraph 51L(2)(b) will expand these powers to also authorise the ADF to take action to prevent or put an end to threats to a person’s life, health or safety, or to public health or public safety. This additional limb is intended to allow the ADF to put an end to threats which have not yet materialised into acts of violence. It is also intended to 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.

412.           Proposed paragraph 51L(2)(c) will also provide powers to protect any persons from acts of violence, or threats to any person’s life, health or safety, or to public health or public safety. The power to protect people from acts of violence in relation to declared infrastructure is currently contained in subparagraph 51IB(b)(ii) of Part IIIAAA and is only exercisable in connection with other actions to prevent or put an end to acts of violence, or damage or disruption to the operation of declared infrastructure. However, it is foreseeable that terrorists may deliberately target persons who are essential to the operation of declared infrastructure in order to damage that infrastructure. It is therefore important that ADF members have specific authority to protect persons from threats and acts of violence under proposed Division 5. The addition of this power to proposed subsection 51L(2) will also ensure that proposed Division 5 powers are consistent with those provided for in proposed Division 3.

413.           Proposed subsection 51L(3) lists additional powers that the ADF may use in connection with the taking of actions mentioned in proposed subsection 51L(2). These powers may only be used in connection with taking any of the actions in proposed subsection 51L(2).

414.           Proposed paragraph 51L(3)(a) enables an ADF member to control the movement of persons or of means of transport, subject to proposed subsection 51L(4). Proposed subsection 51L(4) imposes limitations on the powers in proposed paragraph 51L(3)(a) to control the movement of person or of means of transport. It requires that an ADF member exercising these powers must not do so for longer than is reasonable and necessary in the circumstances.

415.           Proposed paragraph 51L(3)(b) provides the power for an ADF member to evacuate persons to a place of safety.

416.           Proposed paragraph 51L(3)(c) provides an ADF member with the power to search persons, locations or things for any thing that may be seized or person who may be detained in relation to a call out order. These terms are defined at proposed section 31. Proposed paragraph 51L(3)(d) provides a further power to seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order. The definition of ‘thing that may be seized’ in set out in proposed section 31. Proposed paragraph 51L(3)(e) also permits an ADF member to detain a person found in the search that the member believes on reasonable grounds is a person who may be detained (as defined at proposed section 31), or who is likely to pose a risk to the operation or integrity of declared infrastructure. However, these powers may only be exercised for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time. Proposed section 51P imposes additional obligations where a person is detained.

417.           Consistent with amendments contained in proposed Division 3, set out above, proposed paragraph 51L(3)(f) permits ADF members to provide security, whether or not armed, and whether or not with a police force. These powers clarify that the ADF is authorised to undertake appropriate security activities where, for example, an attack is expected but the exact location of the attack is unknown (provided a call out has occurred). The actions may include patrolling or securing an area, conducting cordon operations, or other means.

418.           Proposed paragraph 51L(3)(g) also enables an ADF member to require a person to answer a question, or to provide a document readily accessible to the person (including identification) to the member. These powers are currently only available in the offshore area, and their extension to the onshore area will ensure consistency in the authorities provided to the ADF. For example, given that ADF members operating in the onshore area will have powers to search premises and means of transport for people who may pose a threat to life and safety, it is logical to also provide them with powers to require a person to answer questions or produce documents. In some circumstances, these powers may be a necessary first step in the execution of the search powers. While Part IIIAAA currently expressly abrogates the privilege against self-incrimination in responding to questions or producing documents in the Australian offshore area, these new powers will restore the privilege against self-incrimination. Abrogation of the privilege is unnecessary.

419.           Proposed paragraph 51L(3)(h) provides an ADF member the power to operate, or direct a person to operate, a facility, or machinery or equipment (including electronic equipment) in a particular manner, whether or not the facility, machinery, or equipment is on a facility or means of transport. These powers are currently available only in the offshore area. These powers will now apply to both the onshore and offshore areas to fill the existing gap in the onshore area powers and ensure the ADF has the tools it needs to respond to the full spectrum of potential domestic violence incidents. This power will complement existing onshore powers, such as the ability to control the movement of means of transport.

420.           Proposed subsection 51L(4) imposes limitations on the power to control the movement of persons and means of transport under proposed paragraph 51L(3)(a). It requires that an ADF member exercising these powers must not do so for longer than is reasonable and necessary in the circumstances.

421.           In addition to the powers in proposed subsections 51L(2) and (3), proposed subsection 51L(5) allows an ADF member to do anything incidental to anything in subsection (2) or (3). This subsection is intended to guard against any unintended restrictions on the ability of an ADF member to exercise the powers in proposed subsections (2) and (3). The incidental powers in proposed subsection 51L(5) may only be used where the ADF has been called out, the order specifies proposed Division 5 as applying, and where the authorising Ministers have made an infrastructure declaration.

422.           Proposed subsection 51L(6) is intended to make clear that the specific powers provided for in each of the paragraphs in proposed subsections (2) and (3) do not operate to limit each other in any way.

Proposed Division 6 - Provisions common to Divisions 3 to 5

423.           Proposed Division 6 sets out a range of matters common to Divisions 3, 4 and 5. Proposed Division 6 replaces current Division 4 of Part IIIAAA. Part IIIAAA currently requires that Division 4 be specified as applying to all call out orders. Proposed Division 6 will apply to all call out orders but it will no longer be necessary for call out orders to explicitly state this.

Simplified outline

424.           Proposed section 51M sets out a simplified outline of proposed Division 6. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

Use of reasonable and necessary force

425.           Proposed section 51N sets out conditions governing the use of force by ADF members under a call out. These provisions are largely the same as the provisions in the current legislation. Proposed subsection 51N(1) authorises a member of the ADF who is being utilised under a call out order to use such force against persons and things as is reasonable and necessary in the circumstances. This power to use force is subject to proposed subsections (2) to (5). In addition, proposed paragraph 51N(1)(b) provides that if the ADF member is using force against persons, they must do so in accordance with all the provisions in proposed section 51N.

426.           Proposed subsection 51N(1) makes clear that a member of the ADF who is being utilised under a call out order may use reasonable and necessary force whether or not the member is exercising any other power under the Part. This is intended to provide consistent guidance and limits on the ability of an ADF member to use force. It is intended to clarify, for example, that an ADF member who is called out would be authorised to act in self-defence even if they were not exercising another power under the call out order.

427.           Proposed subsection 51N(2) limits the ability of ADF members to use force against persons and things. Proposed subsection 51N(2) provides that an ADF member must not use force against persons or things in exercising a power to direct a person to answer a question put by an ADF member, or to produce to an ADF member a particular document that is readily accessible to the person. To use force in exercising one of these powers would be disproportionate and unnecessary. Proposed section 51R sets out an offence for failing to comply with a direction to answer a question or produce a document.

428.           Proposed subsection 51N(3) imposes specific limitations on the ability of an ADF member to use force against a person where it is likely to cause death or grievous bodily harm. It sets out three circumstances in which an ADF member may use such force, all of which relate to the protection of life. First, a member may use such force where the member believes on reasonable grounds that using such force is necessary to protect the life of, or to prevent serious injury to, a person (including the member). Second, in relation to powers exercised under proposed Division 5, a member may use such force where the member believes on reasonable grounds that using such force is necessary to protect the declared infrastructure in respect of which the powers are being exercised. Infrastructure may only be declared infrastructure where damage or disruption to it would directly or indirectly endanger the life of, or cause serious injury to, other persons. As such, the use of force to protect declared infrastructure serves to protect life. Third, a member may use such force in taking action against an aircraft or vessel in accordance with proposed paragraph 46(5)(d) or (e), if the member believes on reasonable grounds that it is reasonable and necessary to give effect to the order or authority under which the member is acting. The use of aircraft and vessels to conduct attacks may cause devastating loss of life. Extreme force may therefore be necessary in taking action against aircraft and vessels.

429.           Proposed paragraph 51N(3)(b) applies an additional limitation on the use of force where a person is attempting to escape being detained by fleeing. In addition to the criteria in one of subparagraphs 51N(3)(a)(i) to (iii) being met, proposed paragraph 51N(3)(b) requires that where a person is attempting to escape being detained by fleeing, an ADF member must not do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the person has, if practicable, been called on to surrender and the member believes on reasonable grounds that the person cannot be apprehended in any other manner.

430.           Proposed subsection 51N(4) imposes an additional safeguard on the use of force against persons. It provides that in using force against a person, an ADF member must not subject a person to greater indignity than is reasonable and necessary in the circumstances. This limitation does not apply to proposed paragraphs 46(5)(d) or (e) as these powers relate to the taking of measures, or the giving of orders relating to the taking of measures, against aircraft or vessels.

431.           The ability for an ADF member to use force under a call out order is a significant power. However, call out of the ADF under Part IIIAAA only occurs in extreme circumstances, where domestic violence is occurring or likely to occur. Authorising ADF members to use force during a call out (in certain circumstances), is both necessary and proportionate in these circumstances. It is important to ensure that the ADF can act to keep people safe from harm and save lives.

Persons to be informed of certain matters if detained

432.           Proposed section 51P requires that persons be informed of certain matters if they are detained. Proposed paragraph 51P(1)(a) requires that, where an ADF member detains a person whom they believe on reasonable grounds has committed an offence, the ADF member must inform the person, at the time the person is detained, of the offence against the law of the Commonwealth, the State or the Territory that the person is reasonably believed to have committed. Proposed subsection 51P(3) clarifies that it is sufficient that the person is informed of the substance of the offence. It is not necessary that the ADF member inform the person of the offence in language of a precise or technical nature. This is because ADF members are not trained law enforcement officers, and should not be expected to inform persons of the offence in precise or technical language.

433.           Currently, Part IIIAAA only allows for persons to be detained where an ADF member believes on reasonable grounds that they have committed an offence. The amendments to Part IIIAAA will also allow a person to be detained where a member of the ADF believes on reasonable grounds that they are likely to pose a threat to their own or any other person’s life, health or safety, or to public health or public safety. Proposed subparagraph 51L(3)(e)(ii) will also allow an ADF member to detain a person whom the member believes on reasonable grounds is likely to pose a risk to the operation or integrity of declared infrastructure. As such, proposed section 51P also imposes new requirements to inform persons of the basis of their detention where they are detained on one of these grounds.

434.           Proposed paragraph 51P(1)(b) applies where an ADF member detains a person whom they believe on reasonable grounds is likely to pose a threat. It requires that the ADF member inform the person, at the time the person is detained, that the person is believed to be likely to pose a threat to any person’s life, health or safety, or to public health or public safety. It also requires that the ADF member inform the person of the reasons for that belief.

435.           Proposed paragraph 51P(1)(c) applies where an ADF member detains a person whom they believe on reasonable grounds is likely to pose a risk to the operation or integrity of declared infrastructure. It requires that the ADF member inform the person, at the time the person is detained, that the person is believed to be likely to pose a risk to the operation or integrity of declared infrastructure. The ADF member must also inform the person of the reasons for that belief.

436.           Proposed subsection 51P(2) provides an exception to the requirements in proposed subsection 51P(1). It states that subsection (1) does not apply to the detention in question if either the person should, in the circumstances, know the substance of the offence, threat or risk, or the person’s actions make it impracticable for the member to inform the person of the offence, threat or risk. This is necessary to ensure that an ADF member does not contravene proposed subsection (1) where the person being detained makes it impossible for the ADF member to inform the person of the offence, threat or risk. It is also necessary to ensure that an ADF member does not contravene proposed subsection (1) where, for example, they detain an active shooter but forget to inform the person of the substance of the offence. In that scenario, it can be assumed that the person should know the substance of the offence.

437.           The power for an ADF member to detain a person under proposed Divisions 3, 4 and 5 is only temporary. In all cases, an ADF member may only detain a person for the purposes of placing the person in police custody at the earliest practicable time.

Action to be taken if things are seized

438.           Proposed section 51Q governs actions that an ADF member either can or must take where things are seized.

439.           Where a thing is seized under proposed Divisions 3, 4 or 5, proposed subsection 51Q(1) allows an ADF member to take any action that is reasonable and necessary to make the thing safe or prevent it being used. This is intended to include destruction of the thing, subject to proposed subsection (2).

440.           Proposed subsection 51Q(2) introduces a new power to allow an ADF member to destroy a thing that has been seized, in limited circumstances. An ADF member may only destroy a thing that has been seized where he or she believes on reasonable grounds that doing so is reasonable and necessary to make the thing safe. Alternatively, an ADF member may destroy a thing seized if the member believes on reasonable grounds that using the thing would be likely to pose a threat to any person’s life, health or safety, or to public health or public safety, or cause serious damage to property, and that it is reasonable and necessary to destroy the thing to prevent it from being used. These powers would allow an ADF member to destroy a bomb in order to make it safe. They are also intended to allow an ADF member to destroy a bomb part, which is not necessary to make the bomb part safe, but to prevent the bomb part from being used to kill or injure a person.

441.           Proposed paragraph 51Q(3)(a) makes clear that to the extent practicable, a member of the ADF must issue a receipt for things that are seized, including where the thing has been destroyed. The ADF member who issues the receipt does not have to be the same person who seized the thing.

442.           If an ADF member believes on reasonable grounds that a thing seized has been used or otherwise involved in the commission of an offence against a law of the Commonwealth, a State or a Territory, proposed paragraph 51Q(3)(b) requires an ADF member to give the thing to a member of a police force at the earliest practicable time. Proposed paragraph (c) requires that an ADF member who does not believe the thing was used in the commission of an offence to either return the thing to the person, if it is practicable to do so, or give it to a member of a police force at the earliest practicable time.

443.           Proposed subsection 51Q(4) provides an additional limited power of detention in certain circumstances. It replicates current paragraph 51V(e) and provides that if a member of the ADF believes on reasonable grounds that a thing seized from a person has been used or otherwise involved in the commission of an offence, the member may require the person to provide identification and detain the person for the purposes of placing him or her in police custody at the earliest practicable time. This is unlike any of the other detention powers in Part IIIAAA, which require a link to the domestic violence. It only applies where an ADF member has already seized a thing that may be seized, and does not provide an additional law enforcement function to detain.

Offence for failing to comply with a direction

444.           Proposed section 51R creates an offence where a person fails to comply with a direction. Current sections 51SO and 51SP impose penalties for failing to comply with directions under those sections. Current section 51SO also expressly abrogates the privilege against self-incrimination. Proposed subsection 51R(1) will expand these penalty provisions so that they apply to failing to comply with any direction under proposed Divisions 3, 4 or 5. Proposed subsection 51R(1) provides that a person commits an offence if the person is given a direction under Division 3, 4 or 5, and the person fails to comply with the direction. It will also restore the privilege against self-incrimination, which current section 51SO overrides. Overriding the privilege is unnecessary.

445.           Proposed subsection 51R(2) provides that extended geographical jurisdiction (category D), as set out in section 15.4 of the Criminal Code Act 1995 , applies to the offence in proposed subsection 51R(1). This is the same jurisdiction that applies to the existing section 51SO and 51SP offences.

Clarifying protections for ADF members acting in good faith

446.           Proposed section 51S will clarify the legal protections and obligations that apply to ADF members exercising powers in good faith under a call out order or purported call out order. Current section 51W states that ADF members who are exercising powers under Part IIIAAA and fail to comply with any of their obligations relating to the exercise of those powers will be taken not to have been entitled to exercise those powers. The wording of the current provision poses a risk that ADF members who breach a minor technical obligation, such as failing to wear their name badge, may be found to have exercised powers unlawfully and be subjected to criminal prosecution. To remedy this situation, proposed subsection 51S(1) will clarify that ADF members who are not exercising powers in good faith may be taken as not being entitled to exercise that power. This will be important in ensuring that ADF members who improperly use their powers will be criminally and civilly liable for their actions, but that those who act in good faith are not made liable for minor or technical deficiencies in their compliance with the provisions of Part IIIAAA.

447.           Proposed subsection 51S(2) will clarify that ADF members are not to be held liable for the use or purported use of their powers in the event that the authority under which they were acting is later found to be invalid. This proposed provision is necessary to ensure that individual ADF members have operational certainty that they will not be held responsible for procedural or other defects in the making of a call out order, declaration or authorisation. This provision is not intended to otherwise affect the liability of the Commonwealth, or ADF members who are not exercising powers under a call out.

Proposed Division 7 - Expedited orders and declarations

Simplified outline

448.           Proposed section 51T sets out a simplified outline of proposed Division 7. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

Making expedited orders and declarations

449.           Proposed section 51U provides for the making of expedited call out orders and expedited specified area and infrastructure declarations in sudden and extraordinary emergencies. Expedited orders and declarations can only be made where it is not practicable to make the order or declaration in accordance with normal procedures. All types of call out orders, including contingent call out orders, may be made in an expedited fashion. An expedited call out is most likely to be utilised in response to a rapidly evolving, dynamic terrorist situation where an immediate response is critical to prevent loss of life.

450.           Proposed subsection 51U(1) sets out the conditions under which expedited orders and declarations may be made. It allows a person or persons (the maker or makers) to make an expedited order or declaration where they are satisfied of two conditions. First, they must be satisfied that because a sudden and extraordinary emergency exists, it is not practicable for an order or declaration to be made under the section the order or declaration would otherwise be made. Second, in relation to a call out order or infrastructure declaration, they must be satisfied that the circumstances referred to in proposed subsections 33(1), 34(1), 35(1), 36(1) or 51H(2) (as the case requires) exist. This makes clear that the usual preconditions for making call out orders and infrastructure declarations apply when these orders and declarations are made in an expedited manner.

451.           Proposed subsection 51U(1) will allow for the expedited declaration of declared infrastructure. Part IIIAAA does not currently allow for the expedited declaration of declared infrastructure. This is inconsistent with the fact that it allows for an expedited call out order to be made that specifies the powers to protect declared infrastructure. Proposed section 51U(1) will remedy this inconsistency and allow for the expedited declaration of declared infrastructure. Expedited declarations will be made using the same process as for expedited call out orders.

Who may make an expedited order or declaration

452.           Proposed subsection 51U(2) governs who may make an expedited order or declaration under proposed subsection 51U(1). There are three different methods through which an expedited order or declaration may be made. Only where the first method is unable to be used, can the second method be relied on. The third method can only be used where the second method is also unable to be used.

453.           Proposed paragraph 51U(2) provides that in the first instance, an expedited order or declaration may be made by the Prime Minister alone. However, where the Prime Minister is unavailable, the other two authorising Ministers (the Attorney-General and Minister for Defence) may jointly make an expedited order or declaration. They may only make an order or declaration if they are satisfied that the Prime Minister is unable to be contacted for the purposes of considering whether to make, and making, an order or declaration. Where an order or declaration may not be made under either of these methods because both the Prime Minister and one of the other authorising Ministers are unable to be contacted, proposed paragraph 51U(2)(c) provides a third option for making expedited orders and declarations.

454.           Proposed paragraph 51U(2)(c) provides a process for an alternative Minister and a single authorising Minister (Attorney-General or Minister for Defence) to make an expedited order or declaration where both the Prime Minister and the other authorising Minister are unavailable. Proposed paragraph 51U(2)(c) provides that an authorising Minister (the available authorising Minister) may make an expedited order or declaration jointly with any one of the alternative Ministers, if they are satisfied that the other authorising Minister (Attorney-General or Minister for Defence, and Prime Minister) are unable to be contacted for the purposes of considering whether to make, and making, an expedited order or declaration. Proposed paragraph 51U(2)(c) provides that the alternative Ministers are the Deputy Prime Minister, the Foreign Affairs Minister, the Treasurer, and the Minister for Home Affairs. Proposed subparagraph 51U(2)(c)(iv) introduces the Minister for Home Affairs as a named alternative minister for the purposes of expedited call out. This amendment recognises the key role that the Minister for Home Affairs plays in national security. There is no hierarchy amongst the alternative Ministers. This is important as one or more alternative Ministers may be unavailable at any given time. Not having a hierarchy avoids the need to spend time attempting to contact alternative Ministers who it is known are not available, in high-pressure, time-critical situations.

455.           Note 1 following proposed paragraph 51U(2)(c) makes clear that acting authorising Ministers are to be treated as substantive authorising Ministers for the purposes of making expedited orders and declarations under proposed section 51U(1). This amendment seeks to avoid any confusion that may result from ministerial acting arrangements.

Expedited orders and declarations not in writing

456.           Proposed subsection 51U(3) allows for, and imposes written record keeping requirements in relation to, verbal expedited orders and declarations.

457.           Proposed subsection 51U(3) provides that expedited orders and declarations need not be in writing. They may be made verbally to ensure that they can be made as quickly as possible. However, where an order or declaration is not in writing, proposed subsection 51U(3) imposes a number of written record keeping requirements. Proposed subsection 51U(3) provides that where an order or declaration is not in writing, the maker or makers of the order, and the CDF, must each comply with the conditions in paragraphs 51U(3)(a) to (d), as the case requires.

458.           Where an order or declaration is not in writing, Part IIIAAA currently imposes specific written record requirements which must be met before a verbal order or declaration can come into force, including that the written record must be signed and witnessed. These requirements may cause delay in an expedited call out order or declaration taking effect. To address this issue, proposed subsection 51U(3) simplifies the requirements for making a record in relation to verbal expedited call out orders or declarations.

459.           Proposed paragraphs 51U(3)(a) and (b) make clear that the requirements to make and sign a written record of the order or declaration may be satisfied by electronic means (eg email), and by the use of electronic signature. Proposed subsection 51U(3) also removes the requirement that the signing of the record be witnessed. The witnessing requirement is largely made redundant by allowing for the use of an electronic record and electronic signature, as there is less risk, for example, that an email sent from the CDF’s account would not have been sent by the CDF himself or herself. The witnessing requirement is also impractical in this context.

460.           Proposed paragraphs 51U(3)(c) and (d) impose requirements on Ministers and the CDF to provide their written records to certain people. However, proposed 51U(3) also makes clear that a failure to comply with proposed paragraph (c) or (d) does not affect the validity of the order or declaration. This is to ensure that any delay in providing a written record to the required person does not cause any delay in the expedited order or declaration taking effect.

Reference to certain circumstances

461.           Proposed subsection 51U(4) is intended to clarify the conditions that apply to the making of expedited call out orders and declarations. Proposed paragraph 51U(4)(a) makes clear that the making of expedited orders or declarations does not require the authorising Ministers to be satisfied of the matters in proposed subsections 33(1), 34(1), 35(1), 36(1) or 51H(2) (except to the extent that an authorising Minister is acting as a maker of the expedited order or declaration under proposed section 51U(1)).

462.           Proposed paragraph 51U(4)(b) clarifies that when making an expedited order for the protection of a state or territory (proposed sections 35 and 36), the government of the state or territory must still request the making of that expedited order.

Effect of expedited order or declaration

463.           Proposed section 51V sets out the effect of expedited orders or declarations. Proposed subsection 51V(1) makes clear that an expedited order or declaration has effect for all purposes as if it were a call out order made by the Governor-General, or an infrastructure declaration or specified area declaration made by the authorising Ministers. This clarifies that the same substantive conditions and requirements apply to expedited orders and declarations as to normal orders and declarations.

464.           Proposed paragraph 51V(2)(a) clarifies that expedited call out orders must comply with the requirements regarding the content of orders as provided for in proposed subsections 33(5), 34(5), 35(5) and 36(5). Proposed paragraph 51V(2)(b) clarifies that expedited call out orders and infrastructure declarations may be varied or revoked in the same way, and in the same circumstances, as the order or declaration may be varied or revoked under proposed section 37 or proposed subsection 51H(3) or (4). However, proposed subsection 51V(2) makes clear that a variation of an expedited order or declaration must not extend the period during which the order or declaration is in force. This is because expedited orders are intended to only be temporary orders that are made because a sudden and extraordinary emergency exists and it is not practicable to make a normal order. If a call out order or declaration is needed for a longer period, the normal procedures should be followed.

465.           Proposed paragraph 51V(3)(a) clarifies the circumstances in which expedited call out orders can be varied. It provides that for the purposes of proposed paragraph 51V(2)(b), the reference in paragraph 37(1)(a) to the authorising Ministers still being satisfied is taken to be a reference to those Ministers being satisfied.

466.           Proposed paragraph 51V(3)(b) clarifies the circumstances in which expedited call out orders or infrastructure declarations must be revoked. It provides that for the purposes of proposed paragraph 51V(2)(b), the reference in proposed paragraph 37(3)(a) or proposed subsection 51H(3) to the authorising Ministers ceasing to be satisfied or to believe is taken to be a reference to those Ministers not being satisfied or believing.

467.           Proposed subsection 51V(4) sets out requirements for the content of an expedited order or declaration. Proposed paragraph 51V(4)(a) requires that an expedited order or declaration must state that it is made under this section, and that it has effect as if it were a call out order, infrastructure declaration or specified area declaration (as the case requires). Proposed paragraph 51V(4)(b) also requires that the order or declaration must state that it ceases to be in force at the end of a specified period (which must not end more than five days after it comes into force), unless it is revoked earlier. This requirement operates despite the requirements in proposed paragraphs 33(5)(d), 34(5)(d), 35(5)(d), 36(5)(d), 51(3)(b) or 51H(5)(b). This clarifies that expedited orders and declarations can never be in place for longer than five days.

468.           Proposed subsection 51V(5) sets out when expedited call out orders and declarations are in force. It provides that where expedited orders and declarations are in writing, they come into force when they are made. Proposed paragraph 51V(5)(a) states that expedited orders and declarations that are not in writing come into force when the Prime Minister, or the other two Ministers, and the CDF, have complied with proposed paragraph 51U(3)(b). This is intended to make clear that orders and declarations that are not in writing come into force when the Prime Minister, or the other two Ministers, and the CDF, have made a written record of the order or declaration and signed it.

469.           Proposed paragraph 51V(5)(b) states that expedited orders or declarations cease to be in force as stated in accordance with proposed paragraph 51V(4)(b).

470.           Proposed subsection 51V(6) clarifies that expedited orders and declarations do not have to comply with the requirement in proposed subsections 38(2) and 51H(7) to consult states and territories which have not requested the making of the order or declaration. This is because expedited orders and declarations are made in sudden and extraordinary emergencies, and it would not be practicable to consult with state and territory governments prior to making these orders.

Effect of expedited order on Ministerial authorisation

471.           Proposed section 51W sets out the effect of expedited orders on Ministerial authorisation s. Proposed subsection 51W(1) provides that an authorisation made for the purposes of proposed paragraph 46(1)(a) (special powers generally authorised by Minister) as a result of an expedited call out order need not be in writing. Where an authorisation is not in writing, proposed subsection 51W(2) imposes written record keeping requirements on the authorising Minister and the CDF. It requires both the CDF and the authorising Minister to make and sign a written record of the authorisation. As with expedited orders and declarations, the making and signing of the written record may be done by electronic means. Proposed paragraphs 51W(2)(c) and (d) also require the CDF and authorising Minister to provide the signed written record to certain people. However, a failure to comply with these requirements does not affect the validity of the authorisation.

472.           Proposed subsection 51W(3) makes clear that authorisations not in writing come into force when the authorising Minister and the CDF have both signed the written records.

Proposed Division 8 - Miscellaneous

Simplified outline

473.           Proposed section 51X sets out a simplified outline of proposed Division 8. The simplified outline is intended to assist the reader to understand the substantive provisions in the proposed Division.

Applicable criminal law

474.           Proposed subsection 51Y(1) provides that the substantive criminal law of the Jervis Bay Territory applies in relation to a criminal act of a member of the ADF that is done, or purported to be done, under Part IIIAAA. The substantive criminal law of the states and territories does not apply.

475.           Proposed subsection 51Y(2) clarifies that Chapter 2 of the Criminal Code Act 1995 does not apply to an act done, or purported to be done, under this Part that is a criminal act (except to the extent that it constitutes an offence against the law of the Commonwealth).

476.           Proposed subsection 51Y(3) states that the Commonwealth Director of Public Prosecutions is solely responsible for prosecutions in relation to criminal acts of members of the ADF done, or purported to be done, under Part IIIAAA.

Defence of superior orders in certain circumstances

477.           Proposed section 51Z sets out when the defence of superior orders applies to a criminal act done, or purported to be done, by an ADF member under Part IIIAAA.

478.           Proposed subsection 51Z(1) states that the fact that a criminal act was done, or purported to be done, by an ADF member under this Part under an order of a superior does not relieve the member of criminal responsibility. This is subject to proposed subsection 51Z(2), which sets out when the defence of superior orders applies.

479.           Proposed subsection 51Z(2) provides that the defence of superior orders will apply to a criminal act done, or purported to be done, by an ADF member under this Part where the conditions in paragraphs 51Z(2)(a) to (f) have been met.

480.           Proposed subsection 51Z(3) is intended to make clear that proposed subsection 51Z(2) does not limit the defence that may be available to the ADF member.

Publication of order and report

481.           Proposed section 51ZA sets out requirements to provide call out orders, specified area declarations and reports to each House of Parliament.

482.           Proposed subsection 51ZA(1) requires that the Minister must arrange for a copy of any call out order that has ceased to be in force, any specified area declarations that relate to the order, and a report on any utilisation of the ADF that occurred under the order (including the number of premises searched) to be presented to each House of Parliament.

483.           Proposed subsection 51ZA(2) sets out the timeline for presenting the documents mentioned in subsection (1) to Parliament, and requirements for tabling and distribution to parliamentarians.

484.            Proposed subsection 51ZA(3) clarifies how multiple orders (relating to the same or related circumstances) are to be dealt with under this proposed section.

485.           Proposed subsection 51ZA(4) makes clear that a reference to an order ceasing to be in force includes a reference to an order ceasing to be in force because it is revoked.

Independent review of Part IIIAAA

486.           Proposed section 51ZB sets out a requirement to conduct an independent review of Part IIIAAA. It replaces the independent review provisions contained in current section 51XA, which are now spent. The simplified outline at the start of proposed Division 8 also makes clear that the operation, effectiveness and implications of Part IIIAAA can also be reviewed on the initiative of the Independent National Security Legislation Monitor under the Independent National Security Legislation Monitor Act 2010 .

487.           Proposed subsection 51ZB(1) provides that the Minister may, at any time, order that an independent review of Part IIIAAA be conducted by someone with appropriate qualifications. Proposed section 51B removes the current definition of ‘independent review’ and leaves the term undefined. However, it does require that the independent review be conducted by someone who possesses appropriate qualifications to carry out the review.

488.           Proposed subsection 51ZB(2) requires that the Minister must ensure that an independent review be commenced at least every five years.

489.           Proposed subsection 51ZB(3) provides that the review may be completed after the end of the five-year period.

490.           Proposed subsection 51ZB(4) requires that the persons who undertake a review under this section give the Minister a written report of the review.

491.           Proposed subsection 51ZB(5) provides that the Minister must table a copy of the independent review report within 15 sitting days.

Instruments that are not legislative instruments

492.           Proposed section 51ZC provides that an order, authorisation or declaration made under Part IIIAAA is not a legislative instrument.

Effect on other ADF utilisation and powers

493.           Proposed section 51ZD provides that Part IIIAAA does not affect any utilisation of the ADF that would be permitted or required, or any powers that the ADF would have, if Part IIIAAA were disregarded.

Item 3 - other amendments to Defence Act - definition of search

494.           Item 3 omits “51” from the definition of search in paragraph 71A(1)(a) of the Defence Act and substitutes “31”. This amendment is a consequence of the amendments to the definitions section in proposed section 31.

Item 4 - other amendments to Defence Act - definition of vessel

495.           Item 4 omits “51SD” from the definition of vessel in subsection 71A(1) of the Defence Act and substitutes “31”. This amendment is a consequence of the amendments to the definitions section in proposed section 31.

Item 5 -amendments to Defence Reserve Service (Protection) Act 2001 - definition of call out

496.           Item 5 omits “51A, 51AA, 51AB, 51B, 51C or 51CA” from the definition of call out in section 7 of the Defence Reserve Service (Protection) Act 2001 and substitutes “33, 34, 35 or 36”. This amendment is a consequence of the amendments to the call out provisions in proposed section 33, 34, 35 and 36.

Item 6 - Application of amendments

497.            Item 6 clarifies the application of these amendments to Part IIIAAA of the Defence Act 1903 and the Defence Reserve Service (Protection) Act 2001 .

498.           Item 6(1) provides that Part IIIAAA of the Defence Act 1903 , and the definition of call out in the Defence Reserve Service (Protection) Act 2001 , as in force immediately after the commencement of this item, applies in relation to: any call out order made after the commencement of this item; and any authorisation, declaration or other instrument relating to any such order made after that commencement.

499.           Item 6(2) clarifies that despite the repeal of Part IIIAAA of the Defence Act 1903 by this Schedule, that Part, and the definition of call out in the Defence Reserve Service (Protection) Act 2001 , as in force immediately before the commencement of this item, continues in force in relation to: any call out order that is in force immediately before the commencement of this item; and any authorisation, declaration or other instrument relating to any such order that is in force immediately before that commencement.

500.           Item 6(3) clarifies that proposed subsection 51ZB(2) (independent review of Part IIIAAA) of the Defence Act 1903 , as in force immediately after the commencement of this item, applies in relation to the period of 5 years that begins at that commencement and each later 5 year period.




[1] Toonen v Australia , CCPR/C/50/D/488/1992, UN Human Rights Committee, 4 April 1994.