Graham Perrett (Moreton, Australian Labor Party) Share this | Hansard source

I rise to speak on the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018. I will say up-front that Labor supports this bill. Labor knows how important it is to make sure that our national security arrangements are kept up to date and that we always keep Australians safe and protect the freedoms that make our society what it is.

This is a very significant piece of legislation, so I'm going to unpick some of the processes. For many people, the idea of the military being called out on our streets could be of concern. I just want to reassure people about the process. Obviously, in any legislative process there is the original idea, which can come from anywhere—from government, opposition or the public. Then in the Commonwealth parliament we need to look at the Constitution to make sure there is a head of power to support that idea being turned into legislation. Then there is drafting. We rely on parliamentary counsel for that. Then there is the crafting of that legislation through the political process of committees having a look at the proposed legislation. Then there is the debating process through the parliament after the committees have looked at it. Then it becomes law.

I mention that to take us back to section 114 of the Constitution. When the colonies came together, most of those colonies already had a military force. Section 114 of the Constitution, which they agreed to send off to the British parliament, said:

A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force …

The Constitution goes on to say in section 119:

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

Right from the word go, our founding fathers—I have to say that, as it was largely a male show at the time—understood that the colonies would be giving up some of their powers over the military. In fact, section 69 says under the heading 'Transfer of certain departments':

On a date or dates to be proclaimed by the Governor-General after the establishment of the Commonwealth the following departments of the public service in each State shall become transferred to the Commonwealth …

One of the departments is 'naval and military defence'—obviously there was no Air Force back in the late 1890s when they were drafting this. And who will be the commander? Section 68 of the Constitution says:

The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative.

So there is clearly a head of power and a contemplation. From that, we draft some legislation.

Just over 12 months ago the government announced a number of measures to enhance the support provided by the ADF for these national counterterrorism arrangements. The ADF are incredibly skilled personnel when it comes to looking after the Australian people. But obviously we need to take things in balance. If we are going to let the military come onto the streets—as a Queenslander, I know that the ADF often come out in times of trouble when natural disasters happen. This is a different use of the ADF. The Department of Defence has already implemented a number of initiatives to provide greater practical support for state and territory law enforcement agencies—not just cleaning up after a cyclone or flood, which the ADF have done so well so often. This is different. This is about an enhanced counterterrorism liaison network, an enhanced program of specialist training activities and streamlined police access to Defence facilities—for example, ranges.

This bill, while implementing relatively minor administrative changes to the existing call-out powers, is a key part of the measures announced in 2017. The Defence Act 1903, as it currently stands, outlines two types of call-out orders: an order for the ADF to be called out immediately—not something that happens very often, obviously; I think there might have been some coal strikes back in the forties during which that occurred—and a more common contingent call-out order whereby the ADF can be called out if specified circumstances arise. This bill amends the Defence Act to make it easier for states and territories to request ADF support; to simplify, expand and clarify the ADF's powers; and to enhance the ADF's ability to respond to incidents occurring in more than one jurisdiction or across jurisdictions. We saw how in the United States during 9/11 it was across different states that the terrorism incidents occurred. It will also allow for the pre-authorisation of the ADF to respond to threats on land, at sea and in the air—typically for a big event like the G20 or the Commonwealth Games, recently held on the Gold Coast, as we saw.

It is important to note that, following the implementation of these changes, the state police forces and the territory police forces will continue to be the first responders. I want to make sure people understand that. Even during a terrorist incident it would still be the state and territory police who were the first responders, and then, following a request by the state or territory, the ADF would be able to go in. Obviously, there is still a capacity for the ADF to be called out to protect Commonwealth interests or if requested by a state or territory.

The explanatory memorandum points out four underlying principles:

which is something for the lawyers to understand. Further:

and I'll come to that in a second. Lastly:

Remember that the ADF, in fact, have a higher system of accountability than normal citizens have because of the military justice system. If a politician falls asleep at work they might get an embarrassing photograph taken of them, whereas if a member of the ADF falls asleep while doing their job they can be in serious trouble. Obviously, if they fall asleep on their watch there is a different set of standards. There is a responsibility for them to act with honour and according to a military code that is above and beyond what most of us would experience.

It's legitimate, important and responsible for any government to make sure it's looking after the populace and protecting them from any acts of significant violence, and that's obviously a legitimate purpose for this piece of legislation. But I'm going to take you, Deputy Speaker, to the balancing act we need to do. If we're going to ask the ADF to have these powers, it's important that we make sure the powers are not so broad. We have existing powers for the ADF to step up, and we needed the Attorney-General to explain why the existing powers are insufficient to protect Australians.

This bill was seen through the prism of the Parliamentary Joint Committee on Human Rights and also the Senate Legal and Constitutional Affairs Legislation Committee, which had an inquiry into this piece of legislation. I'm thinking of those freedoms that we're all so keen to protect. We have the right to life, the right to liberty, the right to be free from arbitrary detention, the right to privacy, the right to have freedom of movement around the nation, the rights of freedom of expression, association and assembly. All of those things were looked at by the Parliamentary Joint Committee on Human Rights, of which I'm the deputy chair. We looked at this legislation in report 8 of 2018, and we asked the Attorney-General to provide a statement of compatibility to show why these rights are being influenced by this piece of legislation. It is serious, because if there was a terrorist incident or something, if we had ADF personnel out on the street, the ADF don't have the same expertise as the police force when it comes to arresting somebody. A military engagement is completely different to the engagement of the police service in dealing with crime.

The powers in the legislation would permit lethal force to be used, even if a person was attempting to escape or flee, if the ADF believed on reasonable grounds that a person could not be apprehended in any other way. We need to ask the Attorney-General to make sure that such a power will be used properly.

Let's have a look at what the legislation provides for. Currently 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 the domestic violence'. So, basically, when the resources of the state or territory have been exhausted, the ADF resources could then be called in.

This amendment provides a more flexible and responsive threshold that requires the ministers of the Commonwealth to consider the nature of the violence or threat. The example given by the previous speaker was that a person with a knife would not necessarily require the ADF to be called out, but a group of people acting in a concerted way might be enough to bring the ADF out.

The second thing the ministers need to consider is whether calling out the ADF would be likely to enhance the state or territory's ability to respond to the threat, keeping in mind—for the sake of those listening—that it will always be the states and territories who will be the first responders. There are also some amendments to ensure that ADF personnel can only detain a person when it is necessary as a matter of urgency. The explanatory memorandum makes clear that where the police are also present, it would not generally be necessary, as a matter of urgency, for the ADF to detain a person.

The sensible part of this legislation is, particularly, the idea of a pre-authorised or contingent call-out. As I said, examples would be the G20, the ASEAN summit or the Commonwealth Games where there is already a process to ensure that the ADF is ready just in case anything happens. The other point to make is that the bill also contains a number of provisions that increase the requirements for the ADF to consult with state and territory police, where it is operating in their jurisdictions. I note particularly that the Minister for Home Affairs is named as an alternative authorising minister for an expedited call-out. One would hope that, before calling out the ADF, the Minister for Home Affairs would use good, calm, sensible judgement.

As I said, this legislation was considered by the Human Rights Committee and also by the Senate Legal and Constitutional Affairs Legislation Committee. The Human Rights Committee looked at it through the prism of the human rights that I went through, but the Senate Legal and Constitutional Affairs Legislation Committee made a couple of recommendations in terms of the need to provide clear definitions of what the specified circumstances might be—and the minister tabled an amended explanatory memorandum detailing some of those specified circumstances. The EM now outlines:

It is not intended that contingent call out orders … 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 …

We need to keep that separation clear for most normal circumstances. However, an obvious example would be if there were to be a major international summit and we had to protect some visiting dignitaries or heads of state. We would have to consider the possibility—or there would be a foreseeable risk—of a chemical, biological, radiological or nuclear attack at the summit venue. That would be an appropriate circumstance for a contingent call-out order to be in place to deal with something that would be a foreseeable risk and empower the ADF to use its specialist capabilities, should the specified circumstances of an imminent or actual chemical, biological, radiological or nuclear attack at the summit arise.

The minister has also amended the explanatory memorandum to provide greater clarity on the meaning of Commonwealth interest and also the meaning of domestic violence as in:

… conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence.

This is why the Labor Party is supporting this legislation, and so will I.

See this speech in context