On 28 June 2018, the Senate referred the provisions of the Defence
Amendment (Call out of the Australian Defence Force) Bill 2018 (the bill) to
the Legal and Constitutional Affairs Legislation Committee for inquiry and
report by 3 September 2018.
This report comprises two chapters. This chapter provides a summary of
the bill, including its context and key provisions. The second chapter considers
issues raised in submissions, and sets out the committee's conclusions and
Purpose and context of the bill
According to the Explanatory Memorandum (EM), the bill would amend
Part IIIAAA of the Defence Act 1903 in order to 'streamline the
legal procedures for call out of the ADF and to enhance the ability of the ADF
to protect states, self-governing territories, and Commonwealth interests,
onshore and offshore, against domestic violence, including terrorism'. The EM further
explains that the bill will also restructure Part IIIAAA to 'give effect to
these amendments, remove repetition and ambiguity, and make the Part easier to
The amendments set out in the bill would implement the recommendations
of the Review of Defence Support to National Counter-Terrorism Arrangements,
and, as the EM puts it:
...complement efforts to enhance the Australian Defence Force’s
(ADF) posture and capability to respond to incidents of domestic violence and
terrorism. The amendments will also implement measures to enhance the ability
of the ADF to support state and territory law enforcement agencies in
responding to domestic violence.
The need for improved call out arrangements has been identified in other
reviews. In particular, the State Coroner of New South Wales, in its inquest
into the Lindt Café siege, found that existing arrangements for ADF call out in
relation to terrorist incidents are inadequate.
The Coroner recommended:
...that 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:
(i) whether further guidance is required on the criteria to be used by states
and territories in determining whether to apply for Commonwealth assistance;
and (ii) if so, what criteria ought to be stipulated.
Overview of the bill
To achieve the bill's purpose, the EM explains that the amendments to
Part IIIAAA would:
make it easier for states and territories to request ADF support
by removing the threshold requirement that the states and territories 'are not,
or are unlikely to be, able to protect themselves or Commonwealth interests
against the domestic violence'. However, authorising Ministers will need to
take into account the nature of the violence and whether the ADF would be
likely to enhance the state and territory response when deciding whether the
ADF should be called out;
enhance the ability of the ADF to respond to cross-jurisdictional
incidents by allowing for a Commonwealth interests order to authorise action in
multiple jurisdictions, as well as the offshore area;
authorise the ADF to respond to incidents that cross a border
into a jurisdiction that has not been specified in an order, so long as it is
for the purpose of protecting the interests specified in the order against the
specified domestic violence;
expand contingent call out to allow the ADF to be pre-authorised
to respond to land and maritime threats, in addition to aviation threats;
provide for contingent call out for the protection of states and
increase the requirements for the ADF to consult with state and
territory police where it is operating in their jurisdictions;
simplify, expand and clarify the powers of the ADF to search and
seize, and to control movement during an incident;
remove the distinction between general security areas and
designated areas to reduce complexity and uncertainty;
clarify that acting Ministers are to be treated as substantive
Ministers for the purposes of expedited call out;
add the Minister for Home Affairs as a named 'alternative'
Authorising Minister for expedited call out; and
make technical amendments to improve the clarity of the
According to the EM, four principles underpin the proposed changes to
call-out provisions. These are:
The ADF should only be called out to assist civilian authorities.
If the ADF is called out, civilian authorities remain paramount,
but ADF members remain under military command.
When called out, ADF members can only use force that is
reasonable and necessary in all the circumstances.
ADF personnel remain subject to the law and are accountable for
This part of the chapter summarises the key provisions of the bill. More
detailed explanations are provided in the Explanatory Memorandum and in the
submission provided by the Attorney-General's Department to this inquiry
Types of call out orders
The bill would amend and restructure the provisions governing different
types of call out, and set out four types of call out orders, as follows:
Call out to protect Commonwealth interests (proposed section 33).
Contingent call out to protect Commonwealth interests (proposed
Call out to protect states and territories (proposed section 35).
Contingent call out to protect states and territories (proposed
Threshold for call out
The bill would replace the existing threshold for the call out of the
ADF, and the new threshold would apply consistently across the four types of
call out set out in proposed sections 33 to 36. As the Attorney-General's Department
explained in its submission:
The current threshold for call out requires authorising
Ministers to be satisfied that a state or territory is not, or is unlikely to
be, able to protect itself or Commonwealth interests from domestic violence.
This threshold means that the Commonwealth could not call out the ADF under
Part IIIAAA where the Commonwealth assesses that a state or territory has
both the capability and capacity to resolve the incident. The affected state or
territory needs to exhaust all other options, including support from other
jurisdictions, before making a request for assistance from the Commonwealth.
This threshold is not optimal for facilitating ADF involvement to complement or
augment a civilian law enforcement response to a terrorist incident.
The Bill 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 assist. This will allow 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.
Authorising Ministers must satisfy themselves of various matters in
calling out the ADF, including in relation to the 'nature' of the domestic
violence that is occurring, and whether the utilisation of the ADF would be
likely to enhance the ability of a state or territory to protect itself or the
Call out in multi-jurisdictional
Proposed section 33 would also enhance the ADF's ability to respond to
domestic violence that is occurring across multiple jurisdictions, including
the offshore area, as well as domestic violence that may cross jurisdictional
boundaries. As the Attorney-General's Department explained:
Currently, call out orders for the protection of Commonwealth
interests in the onshore area are only able to specify a single state or
territory in which domestic violence is occurring or likely to occur. Where
domestic violence is occurring in multiple jurisdictions, or where a domestic
violence incident crosses a border between jurisdictions, including the
offshore area, the current structure of Part IIIAAA necessitates the making of
two or more separate call out orders. This arrangement has the potential to
cause significant delays in calling out the ADF.
Proposed section 33 will overcome this limitation by allowing
a single call out order for the protection of Commonwealth interests to be made
in relation to separate incidents of domestic violence occurring in multiple
jurisdictions, threats in the offshore area, incidents that cross
jurisdictional boundaries including the offshore area, or, all of the above.
Increased consultation with state
and territory authorities
Proposed subparagraph 33(5)(b)(iii) will operate in conjunction with
proposed section 38 to require consultation with all relevant states and
territories when call out orders are made for the protection of Commonwealth
Proposed subparagraph 34(5)(b)(iv) operates to the same effect in relation to contingent
call out orders (discussed below).
Proposed section 40 expands the requirement for the ADF to assist and
cooperate with police forces of the states and territories.
Contingent call out of the ADF
'Contingent call out' refers to a pre-authorisation to call out the ADF
contingent upon a specified circumstance arising. Such orders have been
regularly made as part of security measures to protect major Commonwealth
events (for example, the G20, Commonwealth Games, and the ASEAN summit) from
circumstances involving air threats.
Contingent call-out, as the Attorney-General explained in his second
reading speech, 'removes any potential delay in seeking ministerial
authorisation to act once an incident has taken place, and enables the ADF to
already be on the scene, ready to assist the police response'.
As it currently stands, contingent call out is limited to aviation and the
protection of Commonwealth interests. The bill would extend contingent call out
so that is available to protect state and territory interests, whether in the
land, air, or in the maritime domain.
Powers available to the ADF during
a call out
The bill would consolidate and reorganise the provisions that set out
the powers available to the ADF during a call out into three distinct
Special powers generally authorised by an authorising Minister
(proposed Division 3).
Powers exercised in specified areas (proposed Division 4).
Powers to protect declared infrastructure (proposed Division 5).
The new divisions would apply to both the onshore and offshore areas to,
as the Attorney-General's Department submitted, 'facilitate the ADF's ability
to respond to multi-jurisdictional incidents, including in the offshore area.
Currently, Part IIIAAA distinguishes between powers available in the
onshore and offshore areas.'
The Attorney-General explained the purpose of these changes in his
second reading speech:
The bill expands the powers to prevent, put an end to, and
protect people from acts of violence to also cover threats to a person's life
or safety, or to public health or public safety.
This will make clear that the ADF can act in relation to
generalised threats which may not be directed toward any specific person, but
towards the community in general.
The amendments will also simplify, expand and clarify the
powers of the ADF to search and seize, and to control movement during an
For instance, the search powers currently available in
specified areas focus predominantly on 'dangerous things'.
The amendments will allow the ADF to also search for people
who pose a threat to a person's life, health or safety or public health or
These amendments have been carefully calibrated to ensure an
appropriate balance between rights and powers in an emergency situation.
Inclusion of the Minister for Home
Affairs as a named 'alternative' minister
Proposed subparagraph 51U(2)(c)(iv) introduces the Minister for Home
Affairs as a named alternative minister for the purposes of expedited call out.
The Attorney-General explained the rationale for the change in his second
It is the case that, under the existing legislation, in a
sudden and extraordinary emergency an expedited call-out made by the Prime
Minister acting alone or, if the Prime Minister is unable to be contacted, the
Minister for Defence and the Attorney-General acting together.
If only one of the authorising ministers can be contacted, an
expedited call-out order can be made by either the Minister for Defence or the
Attorney-General, together with an alternative minister, including the Deputy
Prime Minister, the Minister for Foreign Affairs or the Treasurer.
In recognition of the key role that the Minister for Home
Affairs plays in counterterrorism coordination, and as a member of the National
Security Committee of Cabinet, the amendments will add the Minister for Home
Affairs as a named alternative minister for the purposes of expedited call out.
Review of the Act
Division 8 of the bill sets out the requirement for an independent
review of the legislation at least every five years and provides accountability
to Parliament through the Minister’s tabling of the independent review report.
Compatibility with human rights
According to the EM, the bill is compatible with human rights and
freedoms recognised or declared in the international instruments listed in
section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
The Parliamentary Joint Committee on Human Rights
has expressed a number concerns about measures contained in the bill and has
requested further information from the Attorney-General. These concerns are
discussed in Chapter 2.
Senate Scrutiny of Bills Committee
The Scrutiny of Bills Committee assesses legislative proposals against a
set of accountability standards that focus on the effect of proposed
legislation on individual rights, liberties and obligations and on
parliamentary propriety. In Scrutiny Digest No. 8 of 2018, the
Scrutiny of Bills Committee asked the Attorney-General for advice and further
information on some aspects the bill. The Scrutiny of Bills Committee's concerns
are discussed in Chapter 2.
The EM states that the bill would have no financial impact.
Conduct of the inquiry
The committee advertised the inquiry on its website and wrote to
relevant organisations inviting written submissions. The closing date for
receipt of submissions was 31 July 2018. The committee received 16 submissions
which are listed at Appendix 1 of this report.
The committee thanks all of the individuals and organisations that
contributed to the inquiry.
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