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



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ISSN 1328-8091

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BILLS DIGEST NO. 43, 2018-19 13 NOVEMBER 2018

Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 Owen Griffiths Law and Bills Digest Section

Contents

The Bills Digest at a glance .............................................. 4

Purpose of the Bill ........................................................... 5

Structure of the Bill ......................................................... 5

Background ..................................................................... 5

Constitutional context ................................................. 5

Legislative development ............................................. 6

Lindt café siege response ............................................ 6

Committee consideration ................................................ 7

Senate Legal and Constitutional Affairs Legislation Committee ................................................ 7

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 8

Trespass on personal rights and liberties ................. 8 Use of force ............................................................... 8

Immunity from liability .............................................. 9

Government response to reports ............................. 10

Policy position of non-government parties/independents.................................................... 10

Australian Labor Party (Labor) .................................. 10

Australian Greens ...................................................... 10

Position of major interest groups................................... 11

Financial implications .................................................... 13

Statement of Compatibility with Human Rights.............. 13

Parliamentary Joint Committee on Human Rights ... 13 Key issues and provisions .............................................. 13

Date introduced: 28 June 2018

House: House of Representatives

Portfolio: Attorney-General

Commencement: A single day to be fixed by Proclamation or, if the provisions do not commence within a six month period of Royal Assent, on the day after the end of that period.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at November 2018.

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Division 1—Introduction ........................................... 13

Division 2—Calling out the Defence Force ................ 15 Calling out the ADF to protect Commonwealth interests ................................................................... 15

The meaning of ‘Commonwealth interests’ and ‘domestic violence’ ................................................ 15

Threshold for call out ............................................ 16

Content of call out order ....................................... 17

Contingent call out of the ADF to protect Commonwealth interests ........................................ 18

Specified circumstances ........................................ 19

Calling out the ADF to protect States and Territories ................................................................ 19

Domestic violence ................................................. 20

Contingent call out of the Defence Force to protect States and Territories ................................. 20

Specified circumstances ........................................ 21

Making, varying and revoking call out orders ......... 21 Variation ................................................................ 21

Revocation ............................................................. 22

Advice to the Governor-General ........................... 22

Time limitations ..................................................... 22

Commonwealth interests orders or variations that were not requested by a state or territory ..... 22 Chief of Defence Force to utilise Defence Force as directed ............................................................... 23

Assisting and cooperating with police forces of affected states and territories ................................ 23

Division 3—Special powers generally authorised by Minister ................................................................ 24

Location of exercise of powers ............................... 24

Special powers generally authorised by Minister ... 24 Use of force against aircraft or vessels ................... 25 Division 4—Powers exercised in specified areas ...... 27 Specified area declarations ..................................... 27

Uniforms and identification .................................... 27

Powers to search premises in specified area .......... 28 Powers relating to means of transport and persons in specified area ......................................... 29

Division 5—Powers to protect declared infrastructure ............................................................ 30

Powers to protect declared infrastructure ............. 31 Division 6—Provisions common to Divisions 3 to 5 ................................................................................. 32

Use of reasonable and necessary force .................. 32

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Offence for failing to comply with a direction ........ 33 Exercise of powers when certain obligations not complied with .......................................................... 33

Division 7—Expedited orders and declarations ........ 34 Effect of expedited order or declaration ................ 35 Effect of expedited order on ministerial authorisation ........................................................... 35

Division 8 - Miscellaneous ........................................ 35

Applicable criminal law ........................................... 35

Defence of superior orders in certain circumstances .......................................................... 36

Publication of order and report .............................. 36

Independent review of Part IIIAAA ......................... 36

Other provisions ........................................................... 36

Concluding comments ................................................... 37

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The Bills Digest at a glance

Purpose of the Bill

The key purpose of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Bill) is to amend the Defence Act 1903 to clarify and streamline the processes under which the Australian Defence Force (ADF) may be called out to protect Commonwealth interests and states and self-governing territories from domestic violence. The Bill’s introduction follows a Defence review of the ADF’s support to domestic counter-terrorism arrangements undertaken after the Lindt café siege in Sydney.

What the Bill does

The amendments replace the existing provisions in the Defence Act under which call out orders may be made by the Governor-General if the authorising ministers (the Prime Minister, the Minister for Defence and the Attorney-General) are satisfied regarding certain matters.

There are two types of call out orders. Under a Commonwealth interests order, the ADF is called out to protect Commonwealth interests in Australia or the Australian offshore area. Under a state protection order, a state or self-governing territory can apply to the Commonwealth to protect it from domestic violence. The ADF can be called out immediately or, if under a contingent call out order, if specified circumstances arise.

The Bill changes the conditions where a call out order can be made. Authorising ministers must consider the nature of the domestic violence and whether the utilisation of the Defence Force would be likely to enhance the ability of each of those states and territories to protect the Commonwealth interests or themselves against the domestic violence.

As part of making a call out order the ADF may be authorised to exercise certain powers. This can be done through special powers authorised by an authorising minister, or through declarations in relation to a specified area or infrastructure. There are limitations and restrictions on the exercise of these powers by the ADF, particularly in relation to the use of force.

In sudden and extraordinary emergencies, expedited call out orders may be made by the Prime Minister, two authorising ministers, or an authorising minister and an alternative minister, instead of the Governor-General. The Minister for Home Affairs will be added to the list of alternative ministers.

Call out orders, specified area declarations and infrastructure declarations must be provided to the presiding officers for tabling in each House of the Parliament.

The amendments include a requirement that the Minister must ensure that an independent review of the call out order provisions is commenced every five years and tabled in each House of the Parliament.

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Purpose of the Bill The purpose of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Bill) is to amend the Defence Act 1903 (Defence Act) to streamline the processes for call out of the ADF and to extend the ability of the ADF to protect the states, self-governing territories and Commonwealth interests (onshore and offshore).

Structure of the Bill The amendments to the Defence Act, and a consequential amendment to the Defence Reserve Service (Protection) Act 2001, are contained in Part 1 of Schedule 1. Part 2 of Schedule 1 provides for the application of the amendments.

The key amendments of the Bill are contained in item 2 of Part 1 which will repeal Part IIIAAA of the Defence Act and substitute proposed Part IIIAAA. Proposed Part IIIAAA is titled ‘Calling out of the Defence Force to protect Commonwealth interests, States and self-governing territories’. The provisions of proposed Part IIIAAA are contained in eight divisions:

• Division 1 - Introduction

• Division 2 - Calling out the Defence Force

• Division 3 - Special powers generally authorised by Minister

• Division 4 - Powers exercised in specified areas

• Division 5 - Powers to protect declared infrastructure

• Division 6 - Provisions common to Divisions 3 to 5

• Division 7 - Expedited orders and declarations and

• Division 8 - Miscellaneous.

Background

Constitutional context Section 119 of the Constitution concerns the protection of the states from invasion and violence. It provides:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

This section is a counterpart to section 51(vi) (the Commonwealth’s ‘defence power’1) which provides that the Commonwealth has the power to legislate for ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’.2

Section 119 does not appear to authorise unilateral action by the Commonwealth Government within Australia in relation to protecting a state from ‘domestic violence’. It is dependent on an application from a state government. While the use of the word ‘shall’ in section 119 suggests that the Commonwealth is obliged to respond to requests by the states for assistance, the

1. Section 51(vi) of the Constitution provides that the Commonwealth has the power to legislate for ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’.

2. Further, section 114 of the Constitution prohibits the states (without the consent of the Parliament of the Commonwealth) from raising ‘naval or military forces’.

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Commonwealth may have a discretion based on its own assessment as to whether or not 'domestic violence' exists.

The Commonwealth Government is also recognised to have its own authority to call out or utilise the ADF where ‘Commonwealth interests’ are threatened. This largely arises from the general executive power granted by section 61 of the Constitution which 'extends to the execution and maintenance of this Constitution and of the laws of the Commonwealth’.3

Legislative development Part IIIAAA of the Defence Act (within which the call out provisions are currently located) was inserted by the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000. One of the motivations for these amendments was the possible need to call out the ADF to support security arrangements during the Sydney Olympics.4

Following a statutory review, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006 made further changes to Part IIIAAA to increase the flexibility and speed in which the ADF could be ‘called out’ to respond to security threats.5

Currently Part IIIAAA of the Defence Act provides for the utilisation of the ADF to protect Commonwealth interests, and states and self-governing territories against domestic violence. For example, section 51B sets out conditions for the making of the order to call out the ADF:

• the state government has applied to the Commonwealth Government to protect the state against domestic violence that is occurring or is likely to occur in the state

• the authorising ministers (Prime Minister, the Defence Minister and the Attorney-General) are satisfied that:

- the state is not, or is unlikely to be, able to protect itself against the domestic violence - the ADF should be called out and the Chief of the Defence Force (CDF) should be directed to utilise the ADF to protect the State against the domestic violence and - either Division 2 (Powers to recapture buildings and free hostages et cetera) or Division 3

(General security area powers), or both, and Division 4 (Use of reasonable and necessary force) should apply in relation to the order.

Lindt café siege response The Lindt café siege in Sydney’s Martin Place in 2014 prompted public discussion concerning the arrangements for how the resources of the ADF can be utilised in the response to terrorist and other security incidents. In particular, the State Coroner of New South Wales’s inquest report into that event found the Australian Army’s Tactical Assault Group East (based in Sydney) could have responded to the siege. However, the preconditions for the call out of the ADF were not met as the NSW police force considered it had the capacity to respond effectively to the situation and did not advise the NSW Government otherwise.6

The NSW coroner concluded that the ‘challenge global terrorism poses for state police forces calls into question the adequacy of existing arrangements for the transfer of responsibility for terrorist

3. E Ward, Call Out the troops: an examination of the legal basis for Australian Defence Force involvement in 'non-defence' matters, Research paper, 8, 1997-98, Department of the Parliamentary Library, Canberra, 24 November 1997, p. 7. 4. N Hancock, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000, Bills digest, 13, 2000-01, Department of the Parliamentary Library, Canberra, 16 August 2000, pp. 8-9. 5. A Martyn, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005, Bills digest, 92, 2005-06, Parliamentary

Library, Canberra, 7 February 2006. 6. Coroners Court of New South Wales, Inquest into the deaths arising from the Lindt Café siege: findings and recommendations, Coroners Court of New South Wales, Glebe, May 2017, p. 384.

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incidents to the ADF’.7 He noted that comprehensive review of the ADF’s role in domestic counter-terrorism arrangements had been foreshadowed and stated this was ‘an opportunity to review the call-out threshold’. He also recommended:

… the ADF Review confer with state and territory governments about the criteria governing applications for the ADF to be called out pursuant to the Defence Act 1903 (Cth) with a view to determining:

- whether further guidance is required on the criteria to be used by states and territories in determining whether to apply for Commonwealth assistance; and

- if so, what criteria ought to be stipulated. 8

On 17 July 2017, the Turnbull Government announced changes to Defence’s support to domestic counter-terrorism arrangements. These changes included:

- Defence will offer State and Territory Governments specialised training from Special Forces for select law enforcement teams.

- Defence will offer states and territories placement of officers within law enforcement agencies to assist with liaison and engagement.

- This strengthening of engagement will assist with pre-positioning of the ADF in response to a possible terrorist incident.

- The Government will strengthen Part IIIAAA of the Defence Act to remove some constraints in the provisions to ‘call out’ the ADF to assist states and territories.

- This will include the removal of the provision that currently limits states and territories from asking for ADF support and specialist military skills until their capability or capacity has been exceeded.

- The Government will also make changes to the Act to make it easier for Defence to support the police response, such as the ability to prevent suspected terrorists from leaving the scene of an incident. 9

Committee consideration

Senate Legal and Constitutional Affairs Legislation Committee On 28 June 2018, the provisions of the Bill were referred to the Senate Legal and Constitutional Affairs Legislation Committee (Senate Committee) for inquiry and report.10 On 3 September 2018 the Senate Committee tabled its report into the Bill.

The majority report was satisfied that the Bill included strong safeguards which would ensure the call out of the ADF would only occur in limited circumstances and that appropriate protections would apply to the exercise of the ADF’s powers under a call out order. However, it also recommended:

… Commonwealth Government give consideration to providing clear definitions of 'specified circumstances' in the legislation itself or in the Explanatory Memorandum for the purposes of making a call out of the Australian Defence Force. 11

7. Ibid., p. 385.

8. Ibid.

9. M Turnbull (Prime Minister) and M Payne (Minister for Defence), Defence support to domestic counter-terrorism arrangements, media release, 17 July 2017, pp. 1-2. 10. Australia, Senate, Journals, 105, 2016-18, 28 June 2018, p. 3358.

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The majority report recommended the Bill be passed but stated that it should ‘be passed subject to the Commonwealth government’s consideration’ of the Senate Committee’s recommendations.12

A dissenting report for the Australian Greens was made by Senator Nick McKim which recommended the Bill ‘should not proceed’. It highlighted concerns which had been raised in submissions by ‘legal and human rights stakeholders’ regarding the drafting and scrutiny of the Bill.13

Further details of the inquiry are available on the Senate Committee’s webpage.

Senate Standing Committee for the Scrutiny of Bills The Senate Scrutiny of Bills Committee (Scrutiny Committee) has raised concerns regarding three areas in its consideration of the Bill.

Trespass on personal rights and liberties The Scrutiny Committee considered that ‘a number of aspects of the bill raise scrutiny concerns as to whether the proposed call out powers are only capable of being exercised in such extreme circumstances’. In particular, ‘there is a lack of clear definitions in relation to two key terms— 'domestic violence' and 'Commonwealth interests'.14 Following advice from the Attorney-General, it requested that key information be included in the Explanatory Memorandum and reiterated its concern that:

[G]iven the extraordinary nature of the coercive powers the bill seeks to confer on ADF members who are utilised under a call out order, including the use of deadly force in certain circumstances, the bill may not adequately restrict the circumstances in which a call out order may be made. 15

The Scrutiny Committee drew the attention of senators to the appropriateness of:

• leaving significant terms, such as 'domestic violence' and 'Commonwealth interests', undefined

• lowering the threshold with respect to the matters an authorising minister must be satisfied of before determining that a call out order should be made and

• allowing a call out order to remain in effect for 20 days before requiring authorising ministers to make a positive decision as to whether it should remain in effect.16

Use of force The Scrutiny Committee had concerns regarding the use of force which may be authorised under the provisions of the Bill. It drew its scrutiny concerns to the attention of senators and left to the Senate ‘the appropriateness of allowing ADF members who are being utilised under a call out order to use force against persons and things, including deadly force in certain circumstances’.17

11. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 [Provisions], The Senate, Canberra, September 2018, p. 20. 12. Ibid.

13. Ibid., p. 21. 14. Senate Scrutiny of Bills Committee, Scrutiny Digest, 8, 2018, The Senate, 15 August 2018, p. 6. 15. Senate Scrutiny of Bills Committee, Scrutiny Digest, 10, 2018, The Senate, 12 September 2018, p. 20. 16. Ibid.

17. Ibid., p. 23.

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In particular, proposed section 51H allows authorising ministers to make infrastructure declarations in some circumstances which authorise the ADF members to use force for the purpose of protecting declared infrastructure. Proposed section 46 also allows special powers to be authorised by an authorising ministers. However, 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 measures, unless they are satisfied taking the measure is reasonable and necessary.

After receiving advice from the Attorney-General, the Scrutiny Committee request that key information provided be included in the Explanatory Memorandum. It also reiterated its scrutiny concerns in relation to:

• authorising the use of force, including deadly force in certain circumstances, to protect a broad range of infrastructure and

• the absence of an explicit limitation on the circumstances in which measures may be taken against aircraft or vessels to instances where this is necessary and reasonable to protect the lives or safety or others.18

Immunity from liability Proposed section 51S deals with the liability of ADF members who fail to comply with obligations or who exercise powers in relation to an invalid order. The Scrutiny Committee considered this section was intended ‘to exclude liability for ADF members who act in good faith but exceed their legal authority, either because they have not complied with a statutory obligation on the use of a power or because an order, declaration or authorisation is invalid’.

However, the Scrutiny Committee noted that the proposed exclusion of liability under proposed subsection 51S(1) ‘is not restricted to minor or technical instances of non-compliance’. It stated:

Given the extraordinary nature of the powers conferred on ADF members under the proposed call out regime, the committee is concerned that limiting liability to instances where bad faith can be shown could unduly trespass on personal rights and liberties. 19

The Scrutiny Committee noted the advice from the Attorney-General that ‘an ADF member who exceeds their legal authority with respect to more serious matters would be highly unlikely to have exercised their powers in good faith’. Nonetheless, it maintained its concerns regarding this provision:

[T]he committee reiterates that the provision seeks to exclude liability in relation to a failure to comply with any obligation imposed under Part IIIAAA on the use of a power, provided the ADF member acted in good faith. As such, it remains unclear to the committee why it would not be possible for an ADF member to exceed their legal authority in circumstances that cannot be characterised as minor or technical yet still have exercised their powers in good faith, and therefore enjoy immunity from legal liability.

20

As with the previous matters, it requested key information provided by the Attorney-General be included in the Explanatory Memorandum. The Scrutiny Committee also drew its concerns to the attention of senators and left to the Senate ‘the appropriateness of limiting the legal liability of ADF members who exceed their legal authority to instances where bad faith can be demonstrated,

18. Ibid. 19. Ibid., p. 12. 20. Ibid., p. 24.

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noting the extraordinary nature of the powers conferred on ADF members under the proposed call out regime’.21

Government response to reports In response to the Senate Committee’s and the Scrutiny Committee’s consideration of the Bill, the Attorney-General circulated an Addendum to the Explanatory Memorandum to the Bill.22 The amendments to the Bill’s Explanatory Memorandum inserted additional paragraphs which are discussed in the Key issues and provisions section below.

Policy position of non-government parties/independents

Australian Labor Party (Labor) Following the Government’s announcement concerning streamlining the legislative process for the call out of the ADF under the Defence Act, the Shadow Defence Minister, Richard Marles was reported as stating that the Opposition would ‘be dealing with this in a bipartisan way’. He stated:

Our view has always been that at any moment in any crisis we should be bringing to bear the most potent capability that our country has, be that in a state police force, be that in the federal police or indeed be that in the ADF. 23

As discussed above, Labor senators supported the Senate Committee’s majority report into the provisions of the Bill. Prior to the passage of the Bill in the House of Representatives, the Shadow Attorney-General, Mark Dreyfus, noted that the Bill’s Explanatory Memorandum had been amended to clarify some matters including as the term ‘domestic violence’ and the threshold for a call out to be authorised.24 He stated:

With the additional clarifications provided by the government, Labor is satisfied this bill is a reasonable improvement on the existing arrangements governing the call-out of the defence forces to deal with extraordinary circumstances within Australia. We will be supporting this bill. 25

Australian Greens When the Bill was introduced, the Australian Greens Senator Nick McKim issued a media release describing legislative amendments to make it ‘easier’ to call out the ADF ‘a worrying and dangerous development’:

Yet again, the Government has introduced major national security legislation without demonstrating the need or making the case as to how it would make Australians safer. This is a serious and fundamental change to domestic policing arrangements, and to the way security forces interact with the public. Given Peter Dutton’s record of misusing the sweeping powers he already has, we have particular concerns about the way he would use the provisions in this legislation. This legislation continues the dangerous path towards Australian becoming an authoritarian police state …

26

21. Ibid., pp. 24-25. 22. Addendum to the Explanatory Memorandum, Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. 23. J Kelly, ‘Labor backs security overhaul to help in time of crisis’, The Australian, 18 June 2018, p. 4. 24. M Dreyfus, ‘Second reading speech: Defence Amendment (Call Out of the Australian Defence Force) Bill 2018’, House of

Representatives, Debates, (proof), 18 October 2018, p. 24. 25. Ibid. 26. Senator N McKim, Defence Force callout legislation, media release, 28 June 2018.

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As noted above, Senator McKim made a dissenting report for the Australian Greens to the Senate Committee inquiry which recommended that the Bill ‘should not proceed’.27

In the House of Representatives, Adam Bandt highlighted concerns regarding the Bill raised by the Law Council of Australia which stated the Bill should not pass in its current form. He argued:

…[L]isten to what people like the Law Council are saying when they say that this bill trades away many of the rights that it is supposed to defend, or it is there to allow our Defence Force defend us from attacks, and go back and have another look at getting the balance right, because there are a number of experts in the field who've looked at the drafting and said, ‘No. This goes much, much broader than what its stated purpose is. It goes much, much broader than terrorism’.

28

Position of major interest groups The positions of some major interest groups were outlined in their submissions to the Senate Committee inquiry. While some submitters welcomed amendments to clarify of the utilisation of the ADF under call out orders, several submissions also raised civil liberties as well as other concerns with the proposed amendments.

The Centre for Military and Security Law supported a number of aspects of the Bill. It noted that Part IIIAAA has been amended a number of times since 2000:

... most significantly in 2006 when amendments were made to deal with emerging terror threats that might affect the Melbourne Commonwealth Games. A few more minor amendments to Part IIIAAA occurred subsequently, and the consequent result has been legislation that has significant shortfalls in clarity due to the structure of the current Part IIIAAA, that this Bill now seeks to address. Accordingly, the changes to the Defence Act 1903 that are proposed in the Bill are welcomed and supported.

29

The Law Council of Australia (Law Council) submitted a range of recommendations regarding the Bill. In particular, in relation to the changed threshold conditions in which call out orders could be made, the Law Council was concerned that there was a ‘risk that ministers will feel it necessary to call out defence forces, on a routine basis, in order to enhance the State or Territory’s ability to protect itself or Commonwealth interests without exceptional circumstances existing prior to authorising call out of the ADF’. It recommended ‘the ADF should only be called out into the States and Territories in exceptional circumstances’.30

Similarly, Professor Greg Carne pointed out that the criterion of whether the utilisation of the Defence Force would be likely to ‘enhance’ the ability of the states and territories to protect Commonwealth interests or themselves from domestic violence was ‘affirmatively self-answering’. He stated:

The real and proper question should be whether the utilisation of the Defence Force given the nature of the domestic violence so identified (or hypothesised - anticipated) is appropriate, necessary,

27. Senate Legal and Constitutional Affairs Legislation Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 [Provisions], The Senate, Canberra, September 2018, p. 21. 28. A Bandt, ‘Second reading speech: Defence Amendment (Call Out of the Australian Defence Force) Bill 2018’, House of Representatives, Debates, (proof), 22 October 2018, p. 34. 29. Australian National University, Centre for Military and Security Law, Submission to Senate Legal and Constitutional Affairs

Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, [Submission no. 2], 26 July 2018, p. 2 [emphasis in original]. 30. Law Council of Australia, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, [Submission no. 11], 3 August 2018, p. 7.

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reasonable and proportionate - and in what form of configuration and in what deployment the utilisation of such capacity meets those criteria. 31

Australian Lawyers for Human Rights (ALHR) also made a number of recommendations in relation to the Bill. These included:

• the Government should give an indication, preferably within the text of the legislation, of the events/circumstances which would be considered ‘specified circumstances’

• the Bill should include a parliamentary review mechanism for retrospective analysis of a declaration of ‘specified circumstance’ to ensure the call out of the ADF was justified

• proposed section 51S (which contain a legal protection for ADF members exercising power in ‘good faith) should be limited to minor breaches of obligations by ADF members, such as failure to wear a name badge, and not extended to allow serious breaches’

• the power to direct a person to answer a question put by an ADF member should be made subject to the right to silence and the right to protection against self-incrimination, or at minimum excluded from being used as evidence in proving an offence against the person and

• in recognition that the Minister already has significant discretional power under Australian law, the Minister for Home Affairs should not be included as an authorising Minister for the purposes of the Bill.32

More broadly, the ALHR had the view that the transfer of responsibility for public safety from the police to the ADF should occur only in circumstances in which state and territory police ‘are not, or are unlikely to be, able to protect themselves or Commonwealth interests against the domestic violence’.33

The Australian Lawyers Alliance raised concern regarding the definitions of ‘person who may be detained’, ‘the thing that may be seized’ as well as the scope of search authorisations and powers relating to means of transport and persons in specified area in the Bill. It drew attention to the potential extension of the powers of the ADF to detain persons or seize items in circumstances that are not connected to the domestic violence or threat specified in the call out order. It recommended minor amendments to clarify these issues.34

The Inspector-General of Intelligence and Security, Margaret Stone, pointed out that the operation of the ADF inside Australia could raise issues with the valid use and the oversight of intelligence capabilities. She noted that the amendments would confer civil and criminal immunity on members of ADF if the call out was ‘validly made and the powers were exercised in good faith’. She stated:

Our understanding of how the ADF usually deploys overseas is that the ADF would normally make use of its own intelligence capability and, where appropriate, that of Australian intelligence agencies, such as ASD and AGO to support its operations. Inside Australia, there are a range of laws regulating the use of various intelligence capabilities.

The Bill does not empower or limit the ADF’s use of these capabilities, which are governed by other laws. The operation of various laws may mean that the ADF’s use of intelligence capabilities inside Australia are constrained - police warrants, for example, are often limited to evidence collection and

31. G Carne, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, [Submission no. 16], 17 August 2018, p. 3 [emphasis in original]. 32. Australian Lawyers for Human Rights, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, [Submission no. 5], 31 July 2018, pp. 5-6. 33. Ibid.

34. Australian Lawyers Alliance, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, [Submission no. 10], 26 July 2018, pp. 6-9.

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ASIO warrants to security. ADF technical capabilities are in some cases highly classified and have not necessarily been developed to operate in the ways envisaged by, for example, the Telecommunications (Interception and Access) Act 1979. 35

Financial implications The Explanatory Memorandum states that the amendments of the Bill will have no financial impact.36 However, if additional ADF call outs were authorised under the amendments this could potentially have financial implications for the Commonwealth.37

Statement of Compatibility with Human Rights As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.38

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights (PJCHR) analysed the Bill in its human rights scrutiny report, Report 8 of 2018. The PJCHR considered the proposed ADF call out orders created by the amendments of the Bill would engage and ‘may limit’ multiple human rights including:

• the right to life

• the right to liberty

• the right to freedom of movement

• the right to privacy

• the rights to freedom of expression, association and assembly and

• the right to an effective remedy.39

The PJCHR noted that its analysis raised questions about the compatibility of the measures in the Bill with these rights. It sought the Attorney-General’s advice concerning issues with a number of measures.40

Key issues and provisions

Division 1—Introduction Division 1 contains proposed section 30 which provides a simplified outline and proposed section 31 which contains definitions of terms used in proposed Part IIIAAA.

Many of the definitions in proposed section 31 duplicate (or largely duplicate) the existing definitions provided in section 51 (which will be repealed by the Bill) or merely refer to the sections which further define terms for clarity. For example, the definition of domestic violence continues to have ‘the same meaning as in section 119 of the Constitution’. Similarly, the term

35. Inspector-General of Intelligence and Security, Submission to Senate Legal and Constitutional Affairs Committee, Inquiry into the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, [Submission no. 4], 27 July 2018, p. 4. 36. Explanatory Memorandum, Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, p. 3. 37. For example, the contingent call out orders to protect Commonwealth interests in the Bill appear to extend the situations

where the ADF could be called on to provide assistance. 38. The Statement of Compatibility with Human Rights can be found at page 5 of the Explanatory Memorandum to the Bill. 39. Parliamentary Joint Committee on Human Rights, Report, 8, 21 August 2018, p. 6. 40. Ibid., pp. 2-16.

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authorising Ministers continues to mean ‘the Prime Minister, the Minister [for Defence] and the Attorney-General’.

Key definitions which reflect the amendments in proposed Part IIIAAA include:

• call out order means an order made under section 33, 34, 35 or 36

• Commonwealth interests order means a call out order made under section 33 or 34

• contingent call out order means a call out order made under section 34 or 36

• expedited order means an order made under section 51U

• infrastructure declaration means a declaration made under section 51H

• Minister for Home Affairs means the Minister who administers the Australian Federal Police Act 1979

• Presiding Officer means the President of the Senate or the Speaker of the House of Representatives

• State protection order means a call out order made under section 35 or 36.

The insertion of a definition of person who may be detained is a substantial change. In relation to a call out order, this term means a person:

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

(b) both:

(i) who has committed an offence, against a law of the Commonwealth, a State or a Territory, that is related to the domestic violence or threat specified in the call out order; and

(ii) whom it is necessary, as a matter of urgency, to detain. 41

The Explanatory Memorandum states that 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 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.

42

A broad definition of a thing that may be seized has also been inserted in proposed Part IIIAAA which replaces the earlier definition of ‘dangerous thing’ which set out the kinds of things an ADF member could seize in a search.43 In relation to a call out order, a thing that may be seized means a thing:

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

(b) is likely to cause serious damage to property; or

41. The note to this definition clarifies ‘For paragraph (b), in order to detain a person, a member of the Defence Force must believe on reasonable grounds that the conditions in that paragraph have been met’. 42. Explanatory Memorandum, op. cit., p. 30. 43. Ibid., p. 32.

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(c) is connected with the domestic violence or threat specified in the call out order, and that it is necessary, as a matter of urgency, to seize.

Division 2—Calling out the Defence Force Division 2 consists of four subdivisions:

• Subdivision A contains proposed section 32 which provides a simplified outline the division

• Subdivision B contains the provisions dealing with making call out orders

• Subdivision C deals with common provisions for making, varying and revoking call out orders

• Subdivision D covers the effect of making a call out order.

Calling out the ADF to protect Commonwealth interests In particular, proposed section 33 deals with calling out the Defence Force to protect Commonwealth interests. This section empowers the Governor-General to, by written order, call out the ADF and direct the CDF to use the ADF to protect Commonwealth interests against domestic violence or threats (or both) (proposed subsection 33(3)).

The meaning of ‘Commonwealth interests’ and ‘domestic violence’ The Addendum to the Explanatory Memorandum has inserted a clarification about the terms ‘Commonwealth interests’ and ‘domestic violence’:

The term ‘Commonwealth interests’ is not defined in the Bill. For the purposes of Part IIIAAA, ‘Commonwealth interests’ would include the protection of: Commonwealth property or facilities; Commonwealth public officials; visiting foreign dignitaries or heads of state; and, major national events, including the Commonwealth Games or G20 …

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

44

These additions respond to concerns raised by the Scrutiny Committee regarding the unclear meaning of these terms. In Report 10 of 2018 it reiterated its ‘concern that these two key terms lack a clear definition in legislation and that, as a result, it is not clear whether they would function to appropriately limit the circumstances in which the ADF may be called out and associated coercive powers may be used’.45 It stated:

[A]lthough the Attorney-General's response provides a list of matters that would be considered 'Commonwealth interests' for the purposes of proposed Part IIIAAA, this list is not exhaustive and is not set out in the bill. Finally the committee notes that while peaceful industrial action, political protest or civil disobedience would not appear to meet the threshold for making a call out order, it is possible that persons participating in such actions may have their activities curtailed and be subjected to coercive powers where other actors engage in activities that could be characterised as 'domestic violence'.

46

44. Addendum to the Explanatory Memorandum, op. cit., p. 2. 45. Senate Scrutiny of Bills Committee, Scrutiny Digest, 10, 2018, The Senate, 12 September 2018, p. 18. 46. Ibid., p. 18-19.

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Threshold for call out The Governor-General can make an order under proposed subsection 33(3) only if the conditions for making an order are met. This includes that the authorising ministers are satisfied any of the following applies:

• domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia

• there is a threat in the Australian offshore area to Commonwealth interests (whether those interests are in that area or elsewhere)47

• domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia, and there is a threat in the Australian offshore area to those or any other Commonwealth interests.

The authorising ministers must also be satisfied:

• that 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 (proposed paragraphs 33(1)(b)) and

• one or more of Divisions 3, 4 and 5 should apply in relation to the order (proposed paragraph 33(1)(c)).48

Proposed subsection 33(2) provides that in determining paragraph 33(1)(b), in relation to domestic violence that is occurring or is likely to occur in one or more States or self-governing Territories, the authorising ministers must consider:

• the nature of the domestic violence and

• whether the utilisation of the Defence Force would be likely to enhance the ability of each of those States and Territories to protect the Commonwealth interests against the domestic violence.

The authorising ministers may also consider any other matter they consider is relevant.

Proposed subsection 33(4) provides that the Reserves must not be called out or utilised in connection with an industrial dispute.

A key change made by the amendments is lowering the threshold for call out orders to be made. Currently, authorising ministers must be satisfied before making a call out order that the relevant State or Territory is not, or is unlikely to be, able to protect Commonwealth interests against the domestic violence.49 The Explanatory Memorandum states:

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.

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47. The Explanatory Memorandum notes that the term ‘threat’ was used as there cannot be ‘domestic violence’ in an offshore area. 48. As noted above, Division 3 relates to special powers generally authorised by Ministers, Division 4 relates to powers exercised in specified areas and Division 5 relates to powers to protect declared infrastructure. 49. Paragraph 51A(1)(b) of the Defence Act. 50. Explanatory Memorandum, op. cit., p. 35.

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In his second reading speech, the Attorney-General identified that ‘[o]ne of the key purposes of the bill is to make it simpler for states and territories to request ADF support’:

The present legislative threshold prevents the ADF being called out until states and territories 'are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence'… These amendments will require that, in deciding whether to call out the ADF, Commonwealth authorising ministers consider the nature of the violence and whether specifically ADF support would be likely to enhance the state or territory's ability to protect itself or Commonwealth interests. Importantly, these factors would not limit the range of matters that authorising ministers could take into account.

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However, the Scrutiny Committee was concerned that the ‘new threshold appears to significantly expand the range of circumstances in which a call out order may be made, including in response to domestic violence incidents which state and territory authorities may be capable of resolving’. It stated:

In making this decision the authorising ministers must 'consider' the nature of the domestic violence and whether the utilisation of the ADF would 'enhance' the state or territory response. By contrast, the existing threshold requires an authorising minister to be satisfied on the objective matter of whether the state or territory is not, or is unlikely to be, able to protect itself or Commonwealth interests. The proposed threshold would therefore grant authorising ministers a far broader discretion than is currently the case with respect to determining whether the ADF should be called out. In addition, the committee notes that calling out the ADF is likely to enhance the ability of the states and territories to respond to domestic violence in many cases and as such this does not appear to effectively limit the use of call out orders to the exceptional circumstances …

52

In response to these concerns, the Addendum has inserted the following paragraph relating to threshold in the Explanatory Memorandum:

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

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Content of call out order Proposed subsection 33(5) sets out the required contents of the call out order. In particular, proposed paragraph 33(5)(d) requires the order must state that the order comes into force when it is made and cease to be in force at the end of a specified period (which must not end more than 20 days after it is made) unless revoked earlier. However, the note under proposed section 33

51. C Porter, ‘Second reading speech: Defence Amendment (Call Out of the Australian Defence Force) Bill 2018’, House of Representatives, Debates, 28 June 2018, p. 6746. 52. Scrutiny Digest, 10, 2018, op. cit., pp. 19-20. 53. Addendum to the Explanatory Memorandum, op. cit., pp. 2-3.

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clarifies that an order can be extended under proposed section 37 which deals with making, varying and revoking call out orders (discussed below).

In relation to this time limitation on call out orders, the Scrutiny Committee noted that ‘the bill does not require an authorising minister to make a positive decision that a call out order should remain in effect until the 20-day time limit expires’.54 It considered that ‘it may be appropriate for the bill to be amended to require authorising ministers to make a positive decision that a call out order should remain in place at more regular intervals than the current 20 days’.55

The Addendum to the Explanatory Memorandum has inserted:

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

56

Contingent call out of the ADF to protect Commonwealth interests Proposed section 34 provides for the Governor-General to make, by written order, call out orders for the ADF where the ‘specified circumstances arise’.

The conditions for making a contingent call out order are essentially the same as those listed above for proposed section 33, but require authorising ministers to be satisfied of matters ‘if specified circumstances were to arise’. Additionally, the authorising ministers must be satisfied that ‘if the specified circumstances were to arise, for reasons of urgency, it would be impractical for a Commonwealth interests order to be made… ’(proposed paragraph 34(1)(b)).

The Explanatory Memorandum notes that currently ‘Part IIIAAA only allows the use of contingent call out for the protection of Commonwealth interests against aviation threats’. The amendments extend contingent call out ‘to be available in relation to land and maritime threats, in addition to aviation threats …’. It states:

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.

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.

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54. Scrutiny Digest, 10, 2018, op. cit., p. 20. 55. Ibid. 56. Addendum to the Explanatory Memorandum, op. cit., p. 3. 57. Ibid., p. 39.

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Specified circumstances As noted above, the Senate Committee recommended that consideration be given to providing clear definitions of ‘specified circumstances’ for the purposes of a making a call out of the ADF.58

On this issue the Addendum to the Explanatory Memorandum has inserted three paragraphs:

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

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

For example, a contingent call out order could be made to protect Commonwealth interests during a major international summit. Commonwealth interests requiring protection in these circumstances could include Commonwealth property, and visiting dignitaries or heads of state. A foreseeable risk may be a chemical, biological, radiological or nuclear (CBRN) attack at the summit venue. Accordingly, it would be appropriate for a contingent call out order to be in place to deal with this foreseeable risk, empowering the ADF to use its specialist capabilities should the specified circumstances of an imminent or actual CBRN attack at the summit arise.

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Calling out the ADF to protect States and Territories Proposed section 35 provides for the call out of the ADF to protect the states and territories against domestic violence. In particular, proposed subsection 35(3) empowers the Governor-General, by written order, to call out the ADF and direct the CDF to protect a state or territory against domestic violence.

The conditions for making an order under proposed subsection 35(3) are:

• a state government or government of a self-governing territory applies 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 and

• the authorising Ministers are satisfied that:

58. Senate Committee, op. cit., p. 20. 59. Addendum to the Explanatory Memorandum, op. cit., pp. 3-4.

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- 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 and - one or more of Divisions 3, 4 and 5 should apply in relation to the order. In determining whether 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, the authorising ministers must consider:

• the nature of the domestic violence and

• whether the utilisation of the ADF would be likely to enhance the ability of the State or Territory to protect the State or Territory against the domestic violence.

However, the authorising ministers may consider ‘any other matter that the authorising Ministers consider is relevant’.

Domestic violence As with the above sections, the Addendum to the Explanatory Memorandum has inserted a paragraph concerning the meaning of ‘domestic violence’. This is repeated for the contingent orders in proposed section 36 below. It states:

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

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Contingent call out of the Defence Force to protect States and Territories Proposed section 36 provides for the Governor-General to make, by written order, call out orders for the ADF where ‘specified circumstances arise’ to protect a state or territory against domestic violence.

The conditions for making an order are:

• a state government or government of a self-governing territory applies to the Commonwealth government to protect the state or territory against domestic violence that would occur, or would be likely to occur ‘if specified circumstances arise’

• the authorising ministers are satisfied that ‘if the specified circumstances were to arise, for reasons of urgency, it would be impractical for a State protection order to be made’

• the authorising Ministers are 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 and - one or more of Divisions 3, 4 and 5 should apply in relation to the order. As in the above section, in determining whether 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 ‘if specified circumstances were to arise’, the authorising ministers must consider:

• the nature of the domestic violence and

• whether the utilisation of the ADF would be likely to enhance the ability of the State or Territory to protect the State or Territory against the domestic violence.

60. Addendum to the Explanatory Memorandum, op. cit., p. 5.

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However, the authorising ministers may consider ‘any other matter that the authorising Ministers consider is relevant’.

Specified circumstances The Addendum to the Explanatory Memorandum has added paragraphs dealing with ‘specified circumstances’ in proposed section 36.

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

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

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

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Making, varying and revoking call out orders Proposed section 37 deals with varying and revoking call out orders.62

Variation The Governor-General may, in writing, vary an order if:

• the authorising Ministers are still satisfied regarding the conditions for making the order

• the order, as varied, complies with the other requirements and

• if a State protection order—the state or territory that applied the order request the variation.

61. Addendum to the Explanatory Memorandum, op. cit., pp. 5-6. 62. The Explanatory Memorandum notes that proposed section 37 will override subsection 33(3) of the Acts Interpretation Act 1901 which provides that a legislative power to make instrument includes power to vary or revoke the instrument.

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Revocation The Governor-General must revoke a call out order if:

• one or more of the authorising Ministers ceases to satisfied regarding the conditions for making the order and

• if a State protection order—the state or self-governing territory government withdraws its application of a call out order.

Advice to the Governor-General Proposed subsection 37(5) largely reflects the existing provisions in the Defence Act for making call out orders. It provides that in making or revoking an order, the Governor-General is to act with the advice of:

• the Executive Council or

• an authorising Minister (if the authorising Minister is satisfied that, for reasons of urgency, the Governor-General should, for the purposes of this subsection, act with the advice of the authorising Minister).

The existing provisions of the Defence Act provide that the Governor-General must act on the advice of the Executive Council to make a ‘specified circumstances’ orders.63 This will be changed in the Bill to provide that the Governor-General, in making or varying orders, is to act with the advice of the Executive Council or an authorising Minister ‘for reasons of urgency’.

Time limitations Proposed subsection 37(2) provides that the Governor-General may vary a call out order to extend the period during which the order is in force. However, a Commonwealth interests order or state protection order ‘must not end more than 20 days after the variation takes place’.

In response to the Scrutiny Committee’s concerns regarding time limitations on call out orders, the Attorney-General advice highlighted the operation of proposed section 37.64 The Addendum to the Explanatory Memorandum has added two paragraphs on this matter:

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

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

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Commonwealth interests orders or variations that were not requested by a state or territory The Explanatory Memorandum characterised proposed section 38 as consolidating a number of subsections in the Defence Act relating to the making or varying of Commonwealth interests orders that were not requested by a state or territory.66

63. See subsection 51AB(7) of the Defence Act. 64. Scrutiny Digest, 10, 2018, op. cit., p. 17. 65. Addendum to the Explanatory Memorandum, op. cit., p. 6. 66. Explanatory Memorandum, op. cit., p. 49.

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Proposed subsection 38(1) clarifies that the Governor-General can make or vary a Commonwealth interests order in relation to domestic violence regardless of whether a relevant state or self-government territory has requested the order be made or varied.

Proposed subsection 38(2) qualifies the above by requiring that the authorising Minister must consult the relevant state or self-government territory before the Governor-General makes or varies the order.

However, this consultation requirement does not apply in relation to an expedited call out order. Furthermore, proposed subsection 38(3) provides that it does not apply to a Commonwealth interests order (made under proposed section 33) ‘if the authorising Ministers are satisfied that, for reasons of urgency, it is impracticable to comply’ with the consultation requirement.

Chief of Defence Force to utilise Defence Force as directed Proposed section 39 deals with the how the CDF can utilise the ADF under a call out order or contingent call out order (when the specified circumstances arise).

In particular, proposed subsection 39(2) provides that the CDF must utilise the ADF ‘in such manner as is reasonable and necessary, for the purpose specified in the order…’. This is subject to proposed section 40 which requires the CDF to assist and cooperate with the police forces of the affected states and territories (see below) and proposed subsection 39(3).

Proposed subsection 39(3) limits the power of the CDF and replicates existing sections 51E and 51G of the Defence Act. The CDF must comply with any direction that the Minister gives from time to time as to the way in which the Defence Force is to be utilised. However this is subject to proposed paragraph 39(3)(b) which provides that the utilisation of the ADF by the CDF ‘must not stop or restrict any protest, dissent, assembly or industrial action’, except if there is a reasonable likelihood of:

• the death of, or serious injury to, persons or

• serious damage to property.

Assisting and cooperating with police forces of affected states and territories As noted above, proposed section 40 requires that the CDF in utilising the ADF under a call out order ‘must as far as is reasonably practicable’ ensure that the ADF:

• cooperates with the police forces of the states and territories and

• is not utilised for any particular task (except in relation to airborne aircraft) unless a member of the police force of that state or territory requests that the Defence Force be so utilised.

The Explanatory Memorandum characterises proposed section 40 as giving effect to the principle that civilian power remains paramount in relation to the call out of the ADF.67 The key change made in proposed section 40 compared to section 51F of the Defence Act is that proposed subparagraph 40(1)(a)(i) extends this requirement to ‘all of the jurisdictions in which the ADF is operating’. This 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).68

67. Explanatory Memorandum, op. cit., p. 51. 68. Ibid.

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Division 3—Special powers generally authorised by Minister The Bill reorganises the powers available to the ADF during a call out into three divisions. Division 3 confers a range of powers on the ADF when the ADF is being utilised under a call out order that specifies that this division applies.

Location of exercise of powers Proposed section 44 provides that a power under this division may be exercised in a state or self-governing territory in relation to a call out order if:

• the exercise of the power in that state or territory is authorised by the order or

• the power is exercised for the purpose specified in the order.69

A note under the section clarifies that powers might be exercised in a state for a number of reasons which may extend beyond the state specified in the order. These include:

• the powers are exercised in a state that is not specified in the order for the purpose of protecting a state that is specified in the order against domestic violence that is occurring in that state or

• the powers are exercised in a state that is not specified in the order for the purpose of protecting Commonwealth interests in the Australian offshore area, as specified in the order.

The Explanatory Memorandum indicates this is intended to ‘facilitate the ADF’s ability to respond to domestic violence that crosses jurisdictional boundaries, including the offshore area’:

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.

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.

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Special powers generally authorised by Minister In particular, proposed section 46 provides that a member of the ADF may take an action or exercise a power in relation to taking such an action if:

• an authorising Minister has authorised in writing taking the action or

• the member believes on reasonable grounds that there is insufficient time to obtain the authorisation because a sudden and extraordinary emergency exists.

In relation to a contingent call out order, an authorising Minister may authorise taking an action even if the circumstances specified in the order have not yet arisen.

Proposed subsection 46(5) lists the authorised actions which an ADF member may take. These include:

69. This refers to proposed subsections 33(3), 34(3), 35(3) or 36(3). 70. Explanatory Memorandum, op. cit., pp. 53-54.

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

• prevent, or put an end to:

- acts of violence - threats to any person’s life, health or safety, or to public health or public safety • protect any persons from:

- acts of violence - threats to any person’s life, health or safety, or to public health or public safety • take measures against an aircraft or vessel in some circumstances (discussed below).

Proposed subsection 46(7) deals with additional actions which an ADF member may do in connection to the above powers. These include:

• free any hostage from a location (including a facility) or thing

• control the movement of persons or of means of transport

• evacuate persons to a place of safety

• search persons, locations or things for things that may be seized, or persons who may be detained, in relation to the call out order

• 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

• detain any person found in the search that the member believes on reasonable grounds is a person who may be detained in relation to the call out order for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time

• provide security (whether or not armed, and whether or not with a police force) including by patrolling or securing an area or conducting cordon operations

• 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)

• operate, or direct a person to operate, a facility, 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).

Further, proposed subsection 46(9) provides that an ADF member may do ‘anything incidental’ in relation to the above actions ‘including enter any place or premises or board an aircraft or vessel’.

Use of force against aircraft or vessels In 2014, the Independent National Security Legislation Monitor, Bret Walker, considered the compliance of the provisions of Part IIIAAA of the Defence Act with the International Covenant on Civil and Political Rights. In particular, he focused on the ‘right to life’ and the prospect of measures being taken against aircraft containing civilians.71 He recommended that:

The provisions of Division 3B of Part IIIAAA of the Defence Act should be amended so as to exclude from the range of permissible measures against aircraft any action calculated to kill innocent passengers and crew. 72

The Bill includes specific provisions concerning the taking of measures against aircraft or vessels. Proposed subsection 46(3) provides that an authorising Minister must not authorise the taking of

71. Independent National Security Legislation Monitor, Annual report, 28 March 2014, pp. 4-7. 72. Ibid., p. 7.

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measures against an aircraft or vessel (under the specific proposed provisions) unless the 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.

Proposed paragraphs 46(5)(d) and (e) provides that an ADF member may take measures, or give an order relating to taking measures (including the use of force) against an aircraft (whether or not the aircraft is airborne) or vessel, up to and including destroying the aircraft or vessel. However, this is subject to subsection 46(6). This provides that these actions are not authorised unless:

• the ADF member takes the measure, or gives the member order, under, or under the authority of, an order (the superior’s order) of a superior

• the member was under a legal obligation to obey the superior’s order

• the superior’s order was not manifestly unlawful

• the member has no reason to believe that circumstances have changed in a material way since the superior’s order was given

• the member has no reason to believe that the superior’s order was based on a mistake as to a material fact and

• taking the measure, or giving the member’s order, was reasonable and necessary to give effect to the superior’s order.

The Explanatory Memorandum notes that 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’. It notes:

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. 73

However, as noted above, the Scrutiny Committee expressed concern regarding the lack of an ‘explicit limitation on the circumstances in which measures may be taken against aircraft or vessels to instances where this is necessary and reasonable to protect the lives or safety or others’.74 The Attorney-General’s advice to the Scrutiny Committee on this issue highlighted the operation of other restrictions on the use of force in the Bill (particularly proposed section 51N discussed below).75

In response to this concern, the Addendum to the Explanatory Memorandum inserts the following paragraph:

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

73. Explanatory Memorandum, op. cit., pp. 56-57. 74. Scrutiny Digest, 10, 2018, op. cit., p. 23. 75. Ibid., p. 22.

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or vessel would only be reasonable and necessary where that aircraft or vessel posed a significant threat to life. 76

Division 4—Powers exercised in specified areas As with the above division, Division 4 confers powers on ADF member if being utilised under a call out order that specifies this division applies.

Specified area declarations The powers in Division 4 are to be exercised in a specified area in Australia or the Australia offshore area. They replace and update the existing provisions in the Defence Act relating to declarations of a general security area and offshore general security area.77

Proposed section 51 provides that the authorising Ministers may declare that an area is a specified area in relation to a call out order if it is either:

• a part of a State or Territory that is specified in the call out order or

• if the call out order specifies a threat in the Australian offshore area—a part of the Australian offshore area.

If a specified area declaration is made, the authorising Ministers must arrange for the preparation of a statement which includes a summary of the content of the call out order, a statement that the declaration has been made and a description of the specified area and its boundaries.

This statement must be made publicly available. It must be broadcast or otherwise made public by television, radio or electronic means so as to be capable of being received within the specified area. If in the offshore area, it must be notified to persons in the Australian offshore area to the extent practicable.

The statement of the specified area declaration must also be forwarded within 24 hours after being made to the each of the presiding officers of each House of the Parliament for tabling. Each House of Parliament must sit within six days after its presiding officer receives the statement.

However, these obligation do not apply if the call out order states that Division 3 applies in relation to the order and the authorising Ministers declare in writing that they are satisfied that the application of the above conditions would ‘prejudice the exercise of powers under Division 3 by members of the Defence Force who are being utilised under the call out order’. Furthermore, if the obligations regarding the making the statement regarding the specified area declaration are not complied with, this does not affect the validity of the declaration.

Uniforms and identification The Bill replicates sections 51S and 51SN of the Defence Act which provide that ADF members must wear uniforms and identification when exercising powers under certain divisions.

Proposed section 50 provides that an ADF member exercising powers under Division 4 (or Division 6 in relation to Division 4) commits an offence if they do not wear their uniform and identification. The penalty for this offence is 30 penalty units ($6,300).78

76. Addendum to the Explanatory Memorandum, op. cit., p. 6. 77. See sections 51K and 51SF of the Defence Act. 78. The value on one penalty unit is $210 under section 4AA of the Crimes Act 1914 (subject to indexation commencing on 1 July 2020).

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The Explanatory Memorandum outlines the rationale for restricting the operation of this offence to ADF members exercising powers under Division 4:

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.

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There are two exceptions to the uniform and identification requirement. Proposed subsection 50(2) provides the offence does not apply if:

• the contravention by the person occurs because of an act of another person and

• the power is taken not to be exercised under this Division because of proposed section 43 (which provides for where powers under Division 3 may be exercised in an area specified in Division 4).

Powers to search premises in specified area Under proposed section 51A, the CDF or another authorised officer may give a search authorisation if they believe on reasonable grounds that, on any premise in the specified area there is:

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

• a thing that is likely to pose a threat to any person’s life, health or safety, pose a threat 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.

Proposed subsection 51A(2) outlines what must be contained in the search authorisation. This will allow ADF members to undertake a broad range of actions where the member believes on reasonable grounds that a person or thing is related to the call out order. These include:

• entering and searching ‘all premises within the specified area’ or specified premises within the specified area

• seizing things on searched premises

• searching persons ‘at or near’ the searched premises and seizing things found and

• requiring persons ‘at or near’ the searched premises to provide identification and detaining persons for the purpose of placing them in the custody of the police ‘at the earliest practicable time’.

The search authorisation must also state the time during which it remains in force which ‘must not be more than 24 hours’.

79. Explanatory Memorandum, op. cit., p. 60.

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The Explanatory Memorandum notes that the amendments of the Bill will expand the available search powers and remove some restrictions on search authorisations (such as requiring the name, rank and service of the ADF member in charge of the search):80

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 …

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.

81

Proposed sections 51B and 51C largely remake the existing provisions of the Defence Act which require that the occupier of the premises be given a copy of the search authorisation (if present) and provide that the occupier of the premises is entitled to observe the search (if they do not impede the search).82

Powers relating to means of transport and persons in specified area The Explanatory Memorandum notes that currently the powers in relation to means of transport and the powers in relation to persons are dealt with separately:

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.

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. 83

Proposed section 51D applies where an ADF member being utilised under a call out order believes on reasonable grounds that there is in a specified area:

• a person who is likely to pose a threat

• a person possessing a thing likely to pose a threat or cause serious damage to property

• a person connected with the domestic violence or threat specified in the order

• a thing like to pose a threat or cause serious damage to property or

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

Proposed subsection 51D(2) lists a broad range of powers relating to means of transport or persons (as well as other general powers) which ADF members may exercise in relation to the specified area.

80. Section 51L of the Defence Act. 81. Explanatory Memorandum, op. cit., p. 64. 82. Sections 51M and 51N of the Defence Act. 83. Explanatory Memorandum, op. cit., p. 66.

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While proposed subsection 51D(2) includes a general search power in relation to means of transport and persons in relation to the specified area, these are search powers exercised with the agreement of the person or the person in charge of the means of transport. In contrast, proposed subsection 51D(3) contains search, seizure and detention powers relating to specific means of transport. The Explanatory Memorandum states:

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.

84

Similarly, proposed subsection 51D(5) provides search, seizure and detention powers in relation to a person the ADF member believes on reasonable grounds is a ‘suspect’. A suspect is a person in the specified area:

• who is likely to pose a threat

• who possesses a thing likely to pose a threat or cause serious damage to property or

• who is connected with the domestic violence or threat specified in the order.

Division 5—Powers to protect declared infrastructure Proposed section 51H provides that the authorising ministers may, in writing, declare that particular infrastructure, or a part of particular infrastructure, in Australia or in the Australian offshore area is declared infrastructure (whether or not a call out order is in force).

Authorising ministers may only make an infrastructure declaration if 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 (or if a contingent call order is in force, there would be if the circumstances specified in the order were to arise) and

• the damage or disruption would directly or indirectly endanger the life of, or cause serious injury to, any person.

The infrastructure declaration must be revoked if one or more of the authorising ministers cease to believe the reasonable grounds for making the declaration or if the state or territory which requested the declaration requests it be revoked. The authorising ministers may also vary or revoke an infrastructure declaration in any other circumstances.

The authorising ministers can make an infrastructure declaration regardless of whether the state or territory which the infrastructure is in requests the making of the declaration. However, the authorising ministers must consult with them before making the infrastructure declaration (unless for reasons of urgency, it is impracticable).

84. Explanatory Memorandum, op. cit., p. 69.

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As noted above, the Scrutiny Committee expressed ‘scrutiny concern that the bill may allow infrastructure declarations to be made in relation to a broad range of infrastructure, and therefore authorises the ADF to use force, including deadly force in certain circumstances, to protect such infrastructure’.85

In response to this the Addendum to the Explanatory Memorandum has inserted the following paragraph:

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

86

Powers to protect declared infrastructure Proposed section 51L provides that an ADF member utilised under a call out order may take a range of actions. These include:

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

• prevent, or 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.

In connection with taking these actions, the ADF may exercise a range of powers including:

• control the movement of persons or of means of transport

• evacuate persons to a place of safety

• search persons, locations or things for any thing that may be seized, or any persons who may be detained, in relation to the call out order

• seize any thing found in the search that the ADF member believes on reasonable grounds is a thing that may be seized in relation to the call out order

• detain any person found in the search that the ADF member believes on reasonable grounds

- is a person who may be detained in relation to the call out order - is a person who is likely to pose a risk to the operation or integrity of declared infrastructure • provide security (whether or not armed, and whether or not with a police force) including by patrolling or securing an area or conducting cordon operations

• direct a person to answer a question put by the ADF 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) and

• operate, or direct a person to operate, a facility, 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).

85. Scrutiny Digest, 10, 2018, p. 22. 86. Addendum to the Explanatory Memorandum, op. cit., p. 7.

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Division 6—Provisions common to Divisions 3 to 5

Use of reasonable and necessary force Proposed section 51N provides that ADF members utilised under a call out order may use reasonable and necessary force, whether the member is exercising a power under Part IIIAA of the Defence Act or not. This section would replace and clarify the obligations on ADF members under section 51T of the Defence Act.

Proposed subsection 51N(1) provides that an ADF member being utilised under a call out order:

• may use such force against persons and things as is reasonable and necessary in the circumstances (subject to other subsections) and

• if using force against persons—must do so in accordance with this section.

Proposed subsections 51N(2), (3) and (4) deal with specific restrictions on the use of force by ADF members.

Proposed subsection 51N(2) provides that an ADF member must not use force against persons or things in exercising a relevant power to direct a person to answer a question put by an ADF member, or to produce to a member a particular document that is readily accessible to the person.

Proposed subsection 51N(3) provides that in using force against a person an ADF member must not do anything that is likely to cause the death of, or grievous bodily harm to, the person unless:

• the member believes on reasonable grounds that doing that thing:

- is necessary to protect the life of, or to prevent serious injury to, a person (including the member) - in relation to powers exercised under Division 5 (in relation to declared infrastructure)—is necessary to protect the declared infrastructure in respect of which the powers are being

exercised against the domestic violence or threat specified in the call out order or - in relation to powers exercised under paragraph 46(5)(d) or (e) (which relates to measures or orders taken against an aircraft or vessel)—is reasonable and necessary to give effect to

the order under which, or under the authority of which, the member is acting and • if a person against whom force is to be used is attempting to escape being detained by fleeing—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.

Further, proposed subsection 51N(4) provides that in using force against a person (except when exercising a power under paragraph 46(5)(d) or (e) in relation to aircraft and vessels), an ADF member ‘must not subject a person to greater indignity than is reasonable and necessary in the circumstances’.

Proposed subsection 51N(5) clarifies that reference in the section to ‘using force against a person is taken to include a reference to using force against a thing if the use of force against the thing is likely to cause the death of, or grievous bodily harm to, a person’.

Persons to be informed of certain matters if detained

Proposed section 51P will extend section 51U of the Defence Act which deals with informing detained persons about the offences under which they are being detained. The Explanatory Memorandum notes:

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

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likely to pose a threat to their own or any other person’s life, health or safety, or to public health or public safety. [The amendments] 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.

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Under proposed section 51P an ADF member who detains a person under Part IIIAAA must inform the person (as the case requires) of the following:

• the offence against the law of the Commonwealth, the state or the territory that the person is reasonably believed to have committed (the substance of the offence is sufficient)

• 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 and the reasons for that belief or

• that the person is believed to be likely to pose a risk to the operation or integrity of declared infrastructure.

Offence for failing to comply with a direction The power granted to ADF members under call out orders in Divisions 3, 4 and 5 include several which allow them to give directions. Proposed section 51R makes it an offence if a person is given a direction under Division 3, 4 or 5 and the person fails to comply with the direction. The penalty for the offence is 60 penalty units ($12,600).88

Exercise of powers when certain obligations not complied with Proposed section 51S will provide a legal protection to ‘ADF members exercising powers in good faith under a call out order or purported call out order’.89

Proposed subsection 51S(1) provides that an ADF member who fails to comply with an obligation under Part IIIAAA is not entitled to exercise the power ‘unless the member exercised the power in good faith’.

The Explanatory Memorandum characterised this as necessary to avoid the 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’.90 However, as noted above, the Scrutiny Committee noted proposed subsection 51S(1) ‘is not restricted to minor or technical instances of non-compliance’.91

In response to the concerns raised by the Scrutiny Committee, the Addendum to the Explanatory Memorandum has inserted the following paragraph:

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

87. Explanatory Memorandum, op. cit., p. 77. 88. As noted above, the value on one penalty unit is $210 under section 4AA of the Crimes Act 1914 (subject to indexation commencing on 1 July 2020). 89. Explanatory Memorandum, op. cit., p. 79. 90. Ibid.

91. Scrutiny Digest, 10, 2018, op. cit., p. 12.

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that thing satisfies one of the matters specified in subparagraphs 51N(3)(a)(i) to (iii), would be highly unlikely to have exercised their powers in ‘good faith’. 92

Similarly, proposed subsection 51S(2) provides a legal protection to ADF members in the event the call out order under which they were acting is later found to be invalid. An ADF member is not liable to an action, suit or proceeding, whether civil or criminal, in relation to exercising a power under a call out order, declaration or authorisation if the order was not validly made and, if the ADF member made the authorisation, ‘the powers were exercised or purportedly exercised in good faith’.

Division 7—Expedited orders and declarations Currently, an expedited call out order can be made:

• by the Prime Minister if ‘a sudden and extraordinary emergency exists’

• by the other two authorising ministers where ‘a sudden and extraordinary emergency exists’ and the Prime Minister is unable to be contacted

• by an authorising minister and another minister (either the Deputy Prime Minister, the Foreign Affairs Minister or the Treasurer) where ‘a sudden and extraordinary emergency exists’ and the Prime Minister and the other authorising minister are unable to be contacted.93

Proposed section 51U will allow expedited call out orders, specified area declarations and infrastructure declarations to be made.

Proposed subsection 51U(1) provides that certain persons may make a call out order, specified area declaration or an infrastructure declaration if satisfied that:

• ‘because a sudden and extraordinary emergency exists, it is not practicable for an order or declaration to be made under the section under which the order or declaration would otherwise be made’ and

• for a call out order or infrastructure declaration the relevant circumstances for making the order or declaration exist.94

Proposed subsection 51U(2) sets out the who may make an expedited order or declaration. These are:

• the Prime Minister

• the other two authorising ministers jointly (only if satisfied the Prime Minister is unable to be contacted for the purposes of considering the order or declaration)

• an authorising minister jointly with any one of listed alternative ministers (the Deputy Prime Minister, the Foreign Affairs Minister, the Treasurer and the Minister for Home Affairs) but only if both are satisfied that the other authorising ministers are unable to be contacted for the purposes of considering the order or declaration.

An expedited order or declaration does not need to be in writing. However, if the order or declaration is not written, the maker or makers and the CDF must each make a signed written record of the order or declaration. The authorising minister, as soon as practicable, must distribute this record to the CDF and the Governor-General (and for a specified area declaration each of the presiding officers). Similarly, the CDF must, as soon as possible, distribute the record to the Prime

92. Addendum to the Explanatory Memorandum, op. cit., p. 7. 93. Section 51CA of the Defence Act. 94. These are the circumstances referred to in proposed subsections 33(1), 34(1), 35(1), 36(1) or 51H(2).

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Minister or the other ministers as the case requires. However, a failure to comply with these requirements does not affect the validity of the order.

Effect of expedited order or declaration Proposed section 51V provides that an expedited order or declaration has effect for all purposes as if it were made by the Governor-General or an infrastructure declaration or a specified area declaration made by the authorising ministers. In particular, the content of the order requirements apply.

While an expedited order or declaration may be varied and revoked as if it were made normally, proposed subsection 51V(2) includes that ‘variation of an expedited order or declaration must not extend the period during which the order or declaration is in force’. A note clarifies that a new order or declaration would need to be made after the expedited order or declaration had ceased to be in force.

Proposed subsection 51V(3) provides further requirement for the content of expedited orders or declarations. An expedited call out order, infrastructure declaration or specified area declaration must include it was made under this section and (despite the other content requirements) it 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.

An expedited order or declaration comes into force when it is made, or if not in writing, when the authorising ministers and the CDF comply with proposed paragraph 51U(3)(b) which requires them to sign their written record (proposed subsection 51V(5)).

Proposed subsection 51V(6) clarifies that the requirements in relation to consultation with state or territory do not apply to an expedited order or declaration that would have effect as if it were a Commonwealth interests order or infrastructure declaration.

Effect of expedited order on ministerial authorisation Proposed section 51W provides a similar process for the ministerial authorisation of special powers to ADF members under proposed paragraph 46(1)(a) under an expedited order.

The authorisation need not be in writing, but if it is not in writing, the authorising minister and the CDF must each make a signed written record. The authorising minister must cause the record to be given to the CDF as soon as practicable. Similarly, the CDF must, as soon as possible, cause the record to be given to the Prime Minister, the other authorising minister or other minister as the case requires. However, a failure to comply with these requirements does not affect the validity of the authorisation.

As with making an expedited order, if the authorisation is not in writing it comes into force when both the authorising minister and the CDF have signed their records.

Division 8 - Miscellaneous

Applicable criminal law Proposed section 51Y replicates section 51WA of the Defence Act. Proposed subsection 51Y(1) provides that the criminal law of the Jervis Bay Territory will be the applicable law in relation to criminal acts done, or purported to be done, under Part IIIAAA. It clarifies that the criminal law of state and territories does not apply. Proposed subsection 51Y(2) further clarifies that Chapter 2 of the Criminal Code, which deals with general principles of criminal responsibility does not apply to criminal acts done or purported to be done under Part IIIAAA.

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Proposed subsection 51Y(3) provides that the Commonwealth Director of Public Prosecutions is ‘solely responsible’ for prosecutions of criminal acts done, or purported to be done under Part IIIAAA. A note under this subsection clarifies that this is not intended to ‘restrict or limit the power of the State or Territory police force to investigate any criminal acts done’ by ADF members when operating under Part IIIAAA.

A note under the section clarifies that is not intended that the section or the Act ‘restrict or limit the power of State or Territory police force to investigate any criminal acts done, or purported to be done, by Defence Force members when operating under this Part’.

Defence of superior orders in certain circumstances Proposed section 51Z provides for a defence of ADF members who do, or purport to do, a criminal act under Part IIIAAA in some circumstances. This replicates the current section 51WB of the Defence Act. The circumstances, listed in proposed subsection 51Z(2), include that the ADF member was under a legal obligation to obey the order, the order was not manifestly unlawful and the action taken was reasonable and necessary to give effect the order.

Publication of order and report Proposed section 51ZA sets out the requirements to provide call orders, specified declarations and reports to the Parliament. This repeats most of the current reporting requirements in the Defence Act (contained in section 51X) but reflects the other amendments to be made by the Bill.

In particular, 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.

Independent review of Part IIIAAA Proposed section 51ZB provides that the Minister must ensure that an independent review of Part IIIAAA is commenced every five years. The report must be tabled in Parliament by the Minister within 15 sitting days of receiving it.

This section replaces section 51XA of the Defence Act. Section 51XA placed a number of conditions on the conduct of an independent review into this Part of the legislation. For example, under section 51XA an independent review is not required if a parliamentary committee had already represented a report about the operation of this Part. Section 51XA requires the independent review include ‘at least one person’ who is not employed by the Commonwealth and, since the commencement of the Part, has not ‘provided services to the Commonwealth or a Commonwealth authority under or in connection with a contract’. These conditions have not been replicated in proposed section 51ZB.

Other provisions Item 1 amends subsection 4(1) of the Defence Act to repeal and replace the definition of call out order to add a clarification that in Part IIIAAA this term has the meaning in proposed section 31.

Item 5 amends section 7 (definition of call out) in the Defence Reserve Service Protection Act 2001 to update references to relevant sections reflecting the other amendments in Part IIIAAA of the Defence Act.

Part 2 of Schedule 1 deals with the application of the amendments. In particular, the amended Part IIIAAA of the Defence Act will apply immediately to call out orders made after

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commencement, while the repealed Part IIIAAA of the Defence Act will continue to apply to call out order made prior to commencement.

Concluding comments The amendments of Bill have been made in the context of the recommendations of a Review of Defence Support to National Counter-Terrorism Arrangements. However, it does not appear that the report and recommendations of this review have been made publicly available.

The Bill will repeal and replace the provisions in Part IIIAAA of the Defence Act for calling out the ADF to protect Commonwealth interests and the states and territories from domestic violence. Some of these the amendments respond to the comments of the NSW coroner following the Lindt café siege regarding the need to reconsider the threshold to call out the ADF. In particular, the amendments will lower the threshold conditions for authorising ministers to be satisfied that a call out order should be made where a state or territory makes an application.

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