Sue Lines (WA, Deputy-President) Share this | Link to this | Hansard source

I understand that no amendments have been circulated but that a committee stage is required.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister, I listened very clearly to your arguments last night and this morning in relation to the term 'domestic violence'. You are right that it is in the Constitution, as I pointed out in my second reading contribution. You were very clear last night that the term was defined in the Constitution. That's actually not right, Minister. I think it would be better for the record if you would get up and admit that you were wrong last night when you said that the term 'domestic violence' was defined in the Constitution. It is not defined anywhere in the Constitution; it is simply mentioned in the Constitution. I think accuracy on the public record is important. But your argument today, as I understand it, is that it is not possible in this legislation to define the term 'domestic violence', because the term is also in the Constitution. To me, that seems to be a circular argument, and one that I don't accept. Are you saying, Minister, that no legislation in this country can define any word that is in the Constitution? Because if that's what you're saying, I don't accept it.

I want to be very clear: this is legislation to make it easier to put the Army onto the streets in Australia and potentially use lethal force against Australian citizens. That's what we are debating here today, and it is not good enough. It's not good enough for the government to come in here and say, 'We're only going to do this in circumstances of domestic violence,' and then not define that term in the legislation. You can put all the fluffy words you like in the explanatory memoranda, but the absolute safety net that the Australian people need is to have the term 'domestic violence' defined in this legislation so that the Australian people can understand in what circumstances ministers, including Minister Peter Dutton, will be able to call out the Army onto the streets in this country and potentially use lethal force against Australian citizens.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

I'm not sure I heard a question in that from Senator McKim. However, I would just perhaps restate what I just said. I do acknowledge the term is not specifically defined in section 119—it is mentioned but not specifically defined. However, as I very clearly said earlier on, the term has a clearly understood meaning in this constitutional context and it is used in section 119 of the Constitution, as you have acknowledged, Senator McKim. This section very clearly deals with state requests for assistance in responding to domestic violence. In that context I will reiterate that it is clear we are not talking about any incidents of violence that the police have well in hand. The incident must be of such gravity and magnitude to warrant calling out the ADF. We might have a difference of opinion in terms of whether it should be—and, clearly, philosophically the Greens don't believe there is any circumstance in which the ADF can be called out in response to domestic violence, as stated in the Constitution and also as clearly defined through precedent.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Firstly, let me clarify the Greens' view on this legislation for you, Minister. I thought I had made it pretty clear. We do not support lowering the threshold, in the way that this legislation proposes to do, to make it easier to call out the Army onto the streets in this country and potentially use lethal force against Australian citizens. It's also worth my placing on the record exactly what I said last night, because it was either deliberately or otherwise misrepresented by some coalition senators in the debate last night. What our second reading amendments were proposing was not that parliament needed to be recalled in order for the call-out order to be made. That is clearly not the effect of our second reading amendments. Our second reading amendments were to make it very clear that the Greens believe that if a call-out order is made, parliament should be recalled within six days, if it's not sitting already, and that when parliament—within those six days—is recalled, an instrument, which is a disallowable instrument, should be laid on the table justifying the reasons for the call-out. That doesn't relate to Australia going to war, which was the deliberate inaccurate conflation that was made by Senator Macdonald and others last night. It relates to call-out of the ADF within Australia. That is different from us going to war.

The Greens' view on Australia going to war has been made abundantly clear for well over a decade now. We don't believe Australia should go to war without parliamentary approval—very simple, very basic, very easy. We do not believe that executive government, with no accountability whatsoever, ought to be able to make the decision to send our country to war and to send the men and women who serve in our Defence Force overseas to die and to kill other people without the parliament signing off on it. That's in relation to going to war. In relation to a call-out order, which is the matter covered in this legislation, we are not saying that parliament needs to endorse it before it's made but that, if one is made, parliament should be recalled within six days and should have the capacity to disallow that call-out order. That is the position of the Greens, and I want to place that clearly on the record.

With regard to domestic violence, Minister, thank you for agreeing that it is not defined in the Constitution. I understand that terms in the Constitution are from time to time effectively defined by High Court decisions. I suspect most senators understand that. As you said this morning, it is the government's position that domestic violence refers to conduct that is marked by great physical force. You've placed on the record that things like peaceful protests, industrial action or civil disobedience would not fall within the definition of domestic violence but then you put a caveat on that this morning, Minister, where you said 'except where there is a significant risk of death or injury to people or significant property damage'. I don't have those words in front of me, because they are not in the explanatory memorandum anywhere I can understand, so this is a new addition to what the government says it regards the term of domestic violence as meaning. In this context can I be clear: would the government consider a call-out of the ADF simply to prevent significant damage to property that occurred as a result of peaceful protest, industrial action or civil disobedience?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Because it was such a long preamble, can you clarify exactly what your question is? You have raised other issues that I will address, and I will explain why the government doesn't support your position, but what was your question exactly?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I'm very happy to do that and I appreciate the opportunity. My question is: is it the government's position that, in the absence of a legislated definition of domestic violence, a call-out order could be made in the circumstance where there was industrial action or civil disobedience that did or might result in significant damage to property? I think that's what you've just said this morning.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Thank you very much for that clarification. That was very helpful. I think what you're asking is: will the proposed amendments enable the ADF to be deployed to respond to protests? Is that at the heart of your question?

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Protests with significant damage to property.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The first thing I can clarify for you is that the bill does not impact on the right of people to engage in peaceful protest, industrial action or civil disobedience. It is a fundamental precondition of a call-out order that domestic violence is occurring or is likely to occur. The bill contains a range of limitations and safeguards where the ADF is called out in response to domestic violence. These ensure that the exercise of any power under a call-out order is necessary, reasonable and proportionate in the circumstances. These limitations and safeguards operate at multiple levels, including the ministerial level, the ADF command level and also the level of individual ADF members. At the ministerial level, authorising ministers may call out only after the ADF takes into account the nature of the violence and whether the ADF would be likely to enhance the state and territory response to that violence.

The bill also imposes limitations on the way in which the CDF may utilise the ADF. The CDF may utilise the ADF under a call-out order only for the purposes specified in that order. The bill is explicit that the CDF must not utilise the ADF to stop or restrict any protest, dissent, assembly or industrial action except if there is a reasonable likelihood of either the death of or serious injury to persons or serious damage to property. Therefore the ADF could not and would not be called out in response to non-violent protests, industrial action or civil disobedience.

There may be circumstances—for example, Senator McKim, where terrorists attack a peaceful protest or conduct an attack in the vicinity of a peaceful protest, which is again very consistent with the methodology of attacking crowded places—where ADF members may be exercising powers in the bill, such as establishing a cordon or directing people away from a location where there is violence, which could incidentally impact on the people engaged in peaceful protest; however, this would only be in a manner which is reasonable and necessary to protect the lives and safety of people from actors, such as terrorists, who are carrying out or likely to carry out attacks of violence. It's important to remember again that state and territory police would always be the first responders to such incidents.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister, thank you for that. What I am hearing here is that if there is a situation where there is civil disobedience in Australia and there is a reasonable likelihood of serious damage to property then a call-out order could be made under this legislation. Can you confirm that please?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator McKim, again that is bordering on a hypothetical because again it would depend on the circumstances. As I have said a number of times—and I'll reconfirm—the state and territory police will always be the first responders and they have to seek assistance. Then, as I've said, there are all the safeguards, the guidelines and the requirements that would have to be followed by the minister and by the CDF.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thanks, Minister. This is not hypothetical because paragraph 231A of the addendum to the explanatory memorandum accepts that the term 'domestic violence' is not defined in the bill and then goes on to attempt to define it by saying that the term 'refers to conduct that is marked by great physical force and would include a terrorist attack' and a few other things. Then it says:

Peaceful protests, industrial action or civil disobedience would not fall within the definition of 'domestic violence'.

That's what the addendum to the EM says, but then you're getting up in here today and saying that, if there is a reasonable likelihood of serious damage to property, actually civil disobedience can fall within the definition of 'domestic violence'.

This is about calling the Army out to potentially use lethal force against Australian citizens. I think you have to be very clear about the circumstances under which that can occur. You've now put in your speech an addition to what is in the explanatory memorandum. Quite frankly, I have no certainty in my mind about what 'domestic violence' means, because you have failed to define it in this legislation. I do not accept your argument that, just because a term is used in the Constitution, it can't be legislatively defined within the context of a particular piece of legislation. That is a circular Sir Humphrey argument that I don't accept.

The bigger point here is that you're asking the Senate to pass this legislation and you are adding to the addendum to the explanatory memorandum on the fly in this place and are completely changing the meaning of the explanatory memorandum, which says that civil disobedience would not fall within the definition of 'domestic violence'. You're now telling us that it could fall within the definition of 'domestic violence' as long as there is a reasonable likelihood of serious damage to property.

So again I ask the question you didn't answer when you were last on your feet: is it the situation that, should this legislation pass, the Australian Defence Force will be able to be called out onto the streets in response to an event of civil disobedience if there is a reasonable likelihood of serious damage to property? It is a yes or no question.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

It's not actually a yes or no answer, but, in relation to the issue of civil disobedience, it is very clear. The definition of domestic violence has not changed in this legislation and it certainly hasn't changed in terms of our understanding under the constitutional definition. It requires violence. It requires extreme violence. You might be shaking your head, Senate McKim; however, as I have said a couple of times already, in this context, it is clear we are not talking about incidents of violence which the police have well in hand. The incident must be of such gravity and magnitude to warrant calling out the ADF. Again, the definition of domestic violence hasn't changed. But in this legislation we are saying there has to be a request from the state or territory police force.

It might be of assistance to Senator McKim, in light of his questions, if I just remind those in this chamber of what the actual threshold for call-out of the ADF is. The current threshold for call-out requires the authorising ministers to be satisfied that a state and territory is not, or is unlikely to be, able to protect itself or the Commonwealth interests from domestic violence. This threshold means that the Commonwealth would not call out the ADF, under part IIIAAA, where the Commonwealth assesses that a state or territory has both the capability and capacity to resolve the incident. But this threshold limits the ADF's ability to complement or augment a civil law enforcement response to a terrorism incident. So these amendments will replace the threshold requirement that the states and territories are not, or are unlikely to be, able to protect themselves or the Commonwealth's interests against domestic violence. Instead, under this legislation, when deciding whether the ADF should be called out, authorising ministers will need to take into account the nature of the violence and whether the ADF will be likely to enhance the state and territory response. The amendment will allow greater flexibility for the ADF to provide the most rapid, effective and appropriate specialist support to the states and territories upon their request for such an incident.

Again, I think if you ask any Australian on the streets, 'If these incidents occur, should the ADF be called out where they have specialist capabilities to assist state and territory police?' the overwhelming answer would be, 'Of course we want them to be able to help if there was a domestic terrorist incident.' In finishing the answer to this question, I will just say: the call-out of the ADF will continue to be an exceptional event.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Minister, expanding on Senator McKim's line of questioning, and maybe to assist in clarifying things, I note you were talking about hypotheticals; all laws in this chamber affect matters into the future. I have checked the standing orders. There is nothing in them to fetter—like there would be at estimates—the answering of a question that's hypothetical; in some sense, they all have to be. The question is about the future operation of the law. To go to the matter that was raised, I think you sort of walked back from the idea that the ADF would be called out to a protest, even in circumstances where there was a risk of damage to property or there was a risk of damage even to life. Based on our past experience of seeing protests play out, some of them violent, in most instances—in fact, in all instances I can think of—the police were able to handle those sorts of affairs. Is that fair? You've talked about the fact that there is a threshold requirement. I can't imagine a civil event that would meet that threshold requirement that you've just talked about.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Thank you very much, Senator Patrick, for that question of clarification. First of all, thank you very much for that extremely patronising introduction to your comments on my reply to Senate McKim. I thank you for that—somewhat unnecessary. But, anyway, in relation to your actual question—

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

It was a point of order, actually. You raised the hypothetical aspect and you're wrong about it. Anyway, carry on.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Do you want me to answer your question, Senator Patrick? I'd be delighted to, if you'd like to hear the answer. I agree with you wholeheartedly, and I think the government agrees with you wholeheartedly, that for civil protests or civil disobedience that are peaceful and that are within the remit and capabilities of state and territory police to deal with, well, of course they wouldn't even seek the ADF assistance for that. But, again, as I've reinforced several times here this morning, we are talking about domestic violence as it is mentioned in section 119 of the Constitution, and that, as I've reiterated several times here already, is for extreme violence which goes beyond, or is likely to go beyond, the remit of state and territory police to deal with—in particular, in relation to terrorist acts.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister, the issue I have here is that you've just, in an attempt to assist the Senate to understand the term 'domestic violence', talked about extreme violence. That's not what the explanatory memorandum says. That says 'great physical force'. You might think those terms are interchangeable. I actually don't. I think one sets a different threshold to the other. This goes back to the problem that I articulated in my speech on the second reading yesterday: you haven't defined the term 'domestic violence'. Every time we ask you about it, the words you use to attempt to define domestic violence change. If I were a High Court judge looking through this debate to try to find out what the government's intentions were around this legislation, I think you would have already provided me with three or four different forms of words in an attempt to indicate to the Senate what you mean by domestic violence. This is the danger when you refuse to define these terms in the legislation.

This is a dog's breakfast of a debate, and it's now a dog's breakfast of a piece of legislation. I am astounded that the Senate is about to vote this through on the third reading. I'm so concerned about this that we are going to divide against this on the third reading so that the Australian people can absolutely know that the Greens had nothing to do with this dog's breakfast of a piece of legislation that fails to define the terms under which the Army can be called out to kill Australians. This is an extraordinary morning in the Senate.

This is what I'd like to ask you, Minister. This question isn't about the government's intent. This is about what would be possible should this legislation pass. I want to ask you this: would it be possible for a call-out order to be made to address civil disobedience with a reasonable likelihood of serious damage to property? Would it be possible, if this legislation passes, that a call-out order could be made to address a circumstance of civil disobedience where there is a reasonable likelihood of serious damage to property? Is that possible or not?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

The answer is in two parts. First of all, the answer is, no, if the damage is within the capability of the state or territory police to deal with. However, if it has escalated or is very likely to escalate far beyond what the state or territory police can deal with, in that case—similar to Senator Patrick's point—it would be a magnitude of civil disobedience or violent protest that we probably haven't seen here in Australia, certainly in my lifetime. If it got to that threshold point, then the answer would be, yes, states or territories could ask the ADF for assistance. But, again, that doesn't mean that the ADF would—through the safeguards that we've mentioned—actually agree to do it. It would depend on the circumstances.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Minister, I want to address your argument that, in that circumstance, a situation would need to be beyond the capacity of a state or territory police force to deal with. Isn't that the current standard? Doesn't this bill lower the threshold significantly? The current standard is: where state or territory police forces are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence. That's the current standard. The new standard that you're inserting with this legislation is: whether ADF support will be likely to enhance the state or territory's capacity to protect itself or Commonwealth interests. Could you just clarify that, please?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

I'll seek some further clarification on that from the officials, but my understanding is that it makes it easier and streamlines the process for the Commonwealth to act more quickly in relation to the ADF's response if requested by the state and territory governments and if they believe it is beyond their capability to deal with.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

Thanks, Minister, and I look forward to any further advice you're able to provide. Given your response, I'll reframe my fundamental question slightly, because I think it's just so important that people understand under what circumstances it is possible for the Army to be called out onto our streets. So my question is this: if this legislation passes, could a call-out order be made to address a situation of civil disobedience where there is a reasonable likelihood of serious damage to property if that call-out would enhance the capacity of the state or territory police force to deal with the situation?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator McKim, that's a very similar question to your previous question. Again, the answer is no, it wouldn't, if it were still within the capability of state and territory police to deal with. But if it were beyond the capability of state and territory police to deal with and they sought assistance, then the answer is yes, it could be. It is not necessarily the case that it would be triggered because, again, it would be subject to the same safeguards that I've already gone through.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I do appreciate, Minister, that you are doing your best to inform the Senate. I say that genuinely, and I do appreciate that. I'll set out where I think we've got to, and I'll just put it in the terms that I think you've just used. I know that, if I've got it wrong, you'll stand up and tell me, and I'll give you the opportunity to do that. My understanding is that, if this legislation passes, we'll have a situation in this country where a call-out order can be made to put, for example, the Army on the streets within Australia in a situation where there is civil disobedience and a reasonable likelihood of serious damage to property, if it is beyond the capacity of a state and territory police force to deal with and if they request such a call-out. Is my understanding correct?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Yes, it is, because, again, we are talking about extreme violence. So, if there is violence—for example, death, serious injury or serious damage to property—and it is extreme violence that is beyond the capability of state and territory police law enforcement to deal with, then the answer would be yes, they could make that request to the federal government. But it doesn't mean it would be authorised and it certainly doesn't mean that the safeguards that I've already gone through would be nullified, because they are still valid.

Nick McKim (Tasmania, Australian Greens) Share this | Link to this | Hansard source

I'm just going to change one of the parameters in my question because I want to test this as well, Minister. In the same scenario, if this legislation passes, could a call-out order be made to put the Army onto the streets in, say, my home state of Tasmania if there were a situation of civil disobedience and a reasonable likelihood of serious damage to property, if Tasmania Police requested it and if it would enhance the capacity of Tasmania Police to deal with that situation? What I've done there is lowered the bar compared with my first question, where the parameter was 'if that situation were beyond the capacity of Tasmania Police to deal with'. Instead I'm asking: if the deployment of the ADF would simply enhance Tasmania Police's capacity to deal with the situation—and if all of those other circumstances pertained—could a call-out order be made?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

I think I understand the nature of your question, so if I haven't quite got it right, please clarify further. In that scenario where a peaceful demonstration or civil disobedience has turned violent—for example, people could be rampaging through the streets of Hobart—and violent damage is likely to be done and the crowd is out of the control of the ability of, in that case, the state police to deal with, then, of course under that circumstance, the state police can make a request to the Commonwealth. However, at the Commonwealth level, there would still need to be consideration of whether it should be called, and that, again, will depend on the circumstances.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

In my speech on the second reading I talked about the contingent call-outs and the fact that, if there's a planned event, there may be some intelligence that says a problem is likely. I say this not as a criticism of the intelligence services, but sometimes they do get it wrong; sometimes their intelligence is flawed. I also raised the prospect that a call-out could be, in some sense, motivated or biased by political considerations for political advantage. That's not directed necessarily at your government, but perhaps at a future government. Could you explain to me the oversight mechanisms that are in place: once a call-out has occurred, what ability does the parliament have to scrutinise that call-out at a future date?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

That is actually a very important and a very salient question in today's threat environment here in Australia where, as you'd be aware, our threat level is still 'probable', given the activities that are occurring. Contingent call-out orders may be made as part of ADF security assistance for major events—for example, recently, at the Commonwealth Games or the G20. You can make contingent orders where there is a prospect of terrorism or serious violence. Contingent call-out orders pre-authorise the ADF to respond, should specified circumstances arise. That's why it's called a contingent order. They are routinely made to protect major events from air threats in particular. These 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.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

If a contingent call-out is authorised, is there then a requirement to advise the parliament of that, for example?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

That raises another very good question—and one of great interest, I think, to all in this chamber—and that relates to parliamentary scrutiny. I know that that's something that you're particularly interested in. I can advise you that the government acknowledges that calling out the ADF to assist state and territory police in responding to domestic incidents is an extremely significant act, and it is important that the parliament is given an opportunity to review the operation and conduct of the ADF under a call-out order. Consistent with the existing legislation, this bill preserves the parliament's oversight role in relation to call-outs under part IIIAAA. The bill does require the minister to present the following to parliament: any call-out order that has ceased to be in force; and any specified area declarations that relate to the order; and also, the minister must report any utilisation of the ADF that occurred under that order, including the number of premises searched in specified areas.

I can also advise you that, where a specified area declaration has been made, the bill also requires the authorising ministers to table in the parliament a statement that says these three things. First of all, the statement must summarise the content of the call-out order to which the declaration relates. It also must state that a specified area declaration has been made, and it must describe the specified area and its boundaries. These provisions ensure that the parliament is informed of an operation and the scope of orders and declarations that are made under part IIIAAA and, to the extent possible, the ADF's role in resolving the incident as well. The documents must be presented to parliament within seven days of the cessation of a call-out order. Given the urgency of any circumstances that justify the call-out of the ADF, the government believes it is appropriate that the parliament be given the details of the ADF's conduct after the incident has been resolved. To do otherwise would risk diverting critical resources away from operations.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

That's very helpful, Minister. So, in actual fact, the parliament will be made aware of a great deal of detail about the call-out. But in terms of the decision-making process—we're talking about what deliberations took place and what input was provided to those deliberations—clearly, the parliament can ask questions of ministers about that, or perhaps call an inquiry, for example. In relation to things like intelligence information, where that may have been fundamental to the decision to call-out, or mixed in with other aspects, such as political aspects, it could have been a failure of intelligence. Once again, no disrespect to the intelligence services. Sometimes those mistakes are made and are unavoidable. Noting there are understandable restrictions on conducting inquiry about those sorts of matters in a public forum like this chamber, is there any provision for the PJCIS to examine a call-out in detail? Does the current legislation, namely the Intelligence Services Act, which prevents the reviewing of operational oversight or perhaps intelligence related matters, prevent that?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator Patrick, on behalf of the government, I can assure you that this bill doesn't change or take away any of the existing parliamentary processes and procedures in relation to scrutiny of the government and its decisions. But I would also point out that the Inspector-General of the ADF can investigate any matter in relation to the ADF. The Senate Standing Committee on Foreign Affairs, Defence and Trade could also look into the matter, as could the Parliamentary Joint Committee on Intelligence and Security.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Specifically related to the parliament, it has itself carved out its oversight of operational matters and some intelligence matters, but the PJCIS has of recent times been given powers to look at operations. I'm wondering whether or not the PJCIS has scope to examine the decision and the inputs to the decision? If that needs to be taken on notice, I'd be comfortable with that as well, Minister.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator Patrick, in relation to that, I have gone through the parliamentary scrutiny in some detail, in terms of those arrangements, and I don't think there's anything more I can add on behalf of the government.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

I'd only add, for example, that the Inspector-General of Intelligence and Security is not an agent of the parliament. It's an arm of the executive, residing within PM&C. Obviously, the inspector-general has great powers—standing royal commission powers—to examine the intelligence services, but her jurisdiction may not cover some aspects of these sorts of operations. So, once again, if it's possible, maybe on notice, to look at the interaction between the IGIS and this act in respect of her jurisdiction?

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

As I've said, I don't have anything further to add, because this bill doesn't change any of the parliament's abilities to scrutinise these matters in its many forums. As I've pointed out, there is the Inspector-General of the ADF and also the Inspector-General of Intelligence and Security, if that was warranted. So this bill does not change that.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Just changing tack slightly: I'll refer you to a question that was asked by Mr Melham of the Prime Minister on 18 November 2004. I don't expect you to be able to recall that from your memory. What he asked was this:

(1) What was the nature of the Governor-General's participation in the national counter-terrorism exercise known as Mercury 04?

(2) Did the Governor-General's participation in the Mercury 04 exercise relate to procedures for calling out of the Australian Defence Force?

In an answer to that, the Prime Minister, Mr Howard, said:

The Governor-General participated in exercise Mercury 04 through simulated Executive Council meetings. The purpose of these meetings was for the Governor-General, acting on the advice of senior ministers, to consider applications for call out of the Australian Defence Force in support of state and territory civilian authorities, in accordance with arrangements set out under the National Counter-Terrorism Plan.

So it's very clear that back in 2004 we exercised or practised the command structures and the decision-making process of the Governor-General.

I would note, as I indicated in my second reading speech, that I think the Governor-General is not simply a rubber stamp in this: he has to be satisfied as to advice. In response to a question I asked at a recent estimates, the Official Secretary to the Governor-General indicated that General Cosgrove has not been involved in any exercises of call-out. I of course note that General Cosgrove is a former Chief of Defence Force and a former Chief of Army. Now that you are in some sense lowering the threshold and so increasing the possibility of call-out, what measures is the government putting in place to make sure that command structure is practised, not just with the Governor-General but in circumstances where the Governor-General is not available—it might be a case of a state governor. I'm wondering what your contingencies and plans are to make sure that the exercise of call-out decision-making will be conducted into the future.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Thank you very much, Senator Patrick. I'll take most of what you said there as commentary, not so much as a question. But I can confirm that this legislation makes no changes at all to the Governor-General's responsibilities. Yes, you are right—you're testing my knowledge, going back to exercise Mercury 04. However, what I can say is that the bill has been delayed in commencement for six months to allow for a series of exercises to occur between federal and state agencies to make sure that they are trained and that they understand the operation of these new provisions. In relation to the Governor-General, while I can't tell you the outcomes of the 2004 exercise, I can tell you that the Governor-General is fully briefed on the arrangements for authorising call-out of the ADF under section IIIAAA of the Defence Act, including the Governor-General's role, which, as I confirm, has not changed under this legislation.

Rex Patrick (SA, Centre Alliance) Share this | Link to this | Hansard source

Reading from an answer to a question on notice from this May, the Official Secretary to the Governor-General, Mr Mark Fraser LVO, OAM, has advised that the Governor-General has not participated in any counterterrorism exercises but goes on to note that, of course, there is a procedure. The burden of my question goes to the government's plans to make sure not so much that the states are exercised or that the federal-state interaction is exercised but more so that alternative arrangements are practised out into the future.

Linda Reynolds (WA, Liberal Party, Assistant Minister for Home Affairs) Share this | Link to this | Hansard source

Senator Patrick, as I've just said, these are practised and exercised regularly. We will have a series of exercises in 2019. I can assure you that the Governor-General is briefed and is fully aware of his requirements and also the processes. In terms of the requirements—his requirements—they have not changed.

Bill agreed to.

Bill reported without amendments; report adopted.