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


Peter Khalil: I, too, rise to speak on the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. Let me say from the outset that Labor supports this bill. There has been some work done to adjust the explanatory memorandum and other elements of the bill, which we are satisfied with. We on this side of the House know—and I think there is a degree of bipartisanship on this—how important it is to make sure our defence and national security arrangements are kept up to date and streamlined in order to keep Australians safe and defend our national interests, as well as the very important freedoms that we have fought so long to protect and that make our society what it is today.

A fundamental principle of modern democratic states is that there should be civilian control over the military. Intimately linked to that is the principle that only in very limited circumstances should the defence forces of a state be called on to conduct domestic security operations. We’ve seen, throughout human history, what happens that when those principles—particularly the latter one—are breached. We saw, in the 20th century, the manner in which fascism, tyranny and totalitarianism, both from the far right and the far left, were able to march across most of Europe. We saw the manner in which defence forces were used to conduct domestic operations against a country’s own population. That’s something that we never want to see again anywhere, but particularly in our modern democratic states. That’s why this principle of ensuring the call-out of defence forces to assist domestic security services is very well regulated and delineated, in a very important manner, to ensure that no abuse can occur.

On that basis, we’ve seen a lot of work done on this bill. The government in July last year announced a number of measures to enhance the support provided to the ADF for national counterterrorism arrangements. The Department of Defence has already implemented a number of initiatives to provide greater practical support for the state and territory law enforcement agencies. These include an enhanced counterterrorism liaison network, an enhanced program of specialist training activities and streamlined police access to Defence facilities such as ranges and so on. These are all important because, as I noted earlier, the threats that we face now in this transnational, globalised world cut across sovereignty and boundaries and the artificialness, in some senses, of boundaries. They don’t respect those boundaries. There needs to be better streamlining between our defence forces in the way that they go about their business to defend the national interest externally. They also need to work much more closely with our law enforcement agencies, who do the vast bulk of our counterterrorism work, at least in the operational sense. There are also our intelligence and security agencies, which play a critically important role.

The bill is part of those measures that were first announced in 2017. The Defence Act is a pretty old act, but it has withstood the test of time. It outlines call-out powers in three separate sections—somewhat repetitively, it should be said. But essentially there are two types of call-out orders under the original act: an order for the ADF to be called out immediately and what is called a contingent call-out order, whereby the ADF can be called out if specified circumstances arise. Under the current provisions in the Defence Act, the Prime Minister, the Attorney-General and the Minister for Defence have key roles as authorising ministers. Where they are satisfied that the criteria for call-out have been met, they advise the Governor-General, who may make an order to call out the ADF on that basis. In a sudden or extraordinary emergency, where it is not practical to make a normal call-out order, the Prime Minister alone does have the power to call out the ADF through that process with the GG. Where the Prime Minister is unavailable, expedited call-out can be authorised by the Minister for Defence and the Attorney-General jointly.

The Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 contains four amendments that adjust these provisions, making changes to them that are aimed at streamlining the legal procedures for the call-out of the ADF and enhancing the ability of the ADF to support state and territory police in responding to incidents of what is called ‘domestic violence’, including terrorism. The first amendment is designed to make it easier for states and territories to request that ADF support. Currently, as I said, the Defence Act prevents the ADF from being called out until such time as the states and territories ‘are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence’. The amendments that are before us provide a more flexible and responsive threshold that requires the ministers to consider (1) the nature of the violence or threat and (2) whether calling out the ADF would be likely to enhance the state or territory’s ability to respond to that threat—going from the negative filtering of the decision-making process to a more positive aspect. This amendment will, and is designed to, allow greater flexibility for the ADF to provide the most rapid, effective and appropriate specialist support in responding to terrorist incidents while at the same time respecting the state and territories’ position as first responders.

The second amendment in the bill simplifies, expands and clarifies some of the ADF’s powers under the act. This means ADF personnel will be authorised to search for and seize items and search for and detain people that are likely to pose a threat to a person’s life, health or safety or to public health or safety generally. Currently, the search powers of the ADF are in specified areas. They focus predominantly on what’s called in the act ‘dangerous things’ and do not authorise them to search and detain as part of their duties.

The third amendment in the bill will enable multijurisdictional call out. Basically, the ADF will be able to respond to multiple incidents occurring in more than one jurisdiction, as well as to incidents which cross jurisdictional boundaries, including offshore on the seas.

Lastly, the fourth amendment in the bill will allow pre-authorisation for the ADF to respond to threats on land, at sea and in the air. Pre-authorised, or contingent, call-out will allow ministers to pre-authorise the ADF to respond if specific circumstances arise. Currently, that contingent call-out is limited to the protection only of Commonwealth interests from air threats. This type of contingent call out has been used in the past quite regularly with respect to security measures to protect major Commonwealth events such as the G20, the ASEAN summit, the Commonwealth Games and so on, specifically from air threats. This is being expanded and will extend the contingent call-out to be available for the protection of both Commonwealth interests and state and territory interests from threats from the land, air and sea, not just from the air. The purpose of this amendment is to remove potential delays in seeking ministerial authorisation for ADF support once a threat is considered imminent or immediately after the event occurs. It will also provide additional support options in planning for major events such as the ASEAN Special Summit or the G20.

It should be noted that despite these proposed changes the state and territory police forces will remain the first responders to terrorist incidents, and call-out of the ADF will only be able to be considered following a request by the state or territory. That’s an important and fundamental element that remains and, I think, is an important point, in consideration of what I said earlier with respect to the limitations that must be placed on the defence forces when they are asked to assist a state or territory. The request has to come from the state or territory, whether it’s immediate or pre-authorised.

The proposed changes are underpinned by four principles, which are in the explanatory memorandum. It’s worthwhile going over them very quickly. They are:

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

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

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

in all the circumstances before them and, lastly—

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

They are all fundamentally important principles. These principles emanate from right at the top, in section 119 of our Constitution, which says that the Commonwealth must protect the country from invasion and, if asked by a state, ‘against domestic violence’. We touched on that term a little earlier. The fundamental and primary responsibility of our defence forces is to protect our sovereignty, protect our national interest and defend us from external threats. As I said earlier, given the world we live in now and the almost opaque merging, if you like, of the manner in which external threats emanate and how they can become internal threats, this means that we have to adjust our legislative frameworks to ensure that the defence forces are able to work more effectively with our law enforcement and intelligence agencies. The domestic violence that the Constitution talks about is something that, way back then, it was considered appropriate that the states, as they were at that time, would ask for assistance with when they were in trouble. That’s what has continued to this day.

It is important to emphasise that the state and territory police forces will always remain the first responders and any call-out of the defence forces will only be able to be considered following a request by that state or territory. Again, it is that principle of ensuring that the relevant state ministers and the Premier are the ones who make that request.

I note that the member for Pearce, the Attorney-General, when announcing these proposed changes, said that the Lindt Cafe siege showed that the current threshold for the use of the military internally or domestically was too inflexible and he believed that it was ‘inconceivable’ that a future government of Australia would misuse the call-out powers to send troops out onto Australia’s streets. This is the image that we’re all worried about: seeing our defence forces walking down the major streets of our cities and not being subject to our laws—being called out by government to perform various operational activities without any limitation.

I would agree with the Attorney-General. I actually hope that his belief is correct—that it would be inconceivable to see a future Australian government use the defence forces in any way other than the proper way of assistance to the state or territory that needs them. I’m hopeful that his belief in that is a correct one and will be accurate. But belief is not enough. Frankly, good drafting and good laws are what are critical, and that’s what is more important.

It’s worth remembering, when we talk about this, that the government has a track record of telling us that there is a difference between the wording of its laws and how they will be implemented. Let’s not forget the My Health Record debacle earlier this year, when it was put forward by the government that the police would not be able to access our My Health Record data without a search warrant, yet the legislation as originally drafted explicitly gave them that that power. It has since been taken away.

I should also say, in the context of all of this: it’s about putting limitations on the politicians—on the government. I have the utmost confidence in our ADF personnel and that they will carry out the work that they do in the most professional manner. In fact, I experienced and saw, firsthand, when I was working in Iraq, our ADF personnel using skills and professionalism in the work that they did. In fact, I and my colleague Mike Kelly, the member for Eden-Monaro, who is not here, worked on a defence aid to the civil authority for the new government of Iraq—largely on the same principles that we’re debating here today. They were very, very important elements, particularly for a country which did not have a tradition of civilian control of the military, let alone limitations around the use of their military in domestic actions. In fact, they were abused mightily, to the detriment of the Iraqi people, for many, many decades.

I note, too, that the Senate Legal and Constitutional Affairs Legislation Committee reported its inquiry on this bill on 3 September and recommended that the bill be passed and that the government give consideration to providing clear definitions of ‘specified circumstances’ in the legislation itself or in the explanatory memorandum. That has been done, and we acknowledge that the government has made those changes. On that basis, we provide our support, satisfied that the changes that needed to be made to improve this legislation have been made. I acknowledge the work that has been done by all on this, including those at Defence. On that basis, I provide my and Labor’s support for the bill.