Issues raised in evidence
This chapter considers the key issues raised in submissions to the
inquiry, and in turn sets out the committee's views and recommendations.
General support for the proposed amendments
The majority of submitters broadly supported the bill's objective of
streamlining call out orders of the ADF, in order to better protect the
Australian population from acts of domestic violence, including terrorism.
As discussed below, some submitters also:
suggested that the bill would better enable the ADF to apply its
specialist skills and capabilities in responding to incidents of domestic
violence, including terrorism;
welcomed the clarity the bill would provide in relation to the
use of lethal force;
argued in support of the bill's provisions for an expansion of
contingent call out; and
noted that the bill would enhance the ADF's ability to respond to
incidents across multiple jurisdictions.
Access to ADF specialist skills and
A number of submitters emphasised the importance of the ADF's specialist
skills and capabilities in enhancing and complementing the work of State and Territory
police during incidents of domestic violence and terrorism.
For example, Mr Michael O'Connell AM APM submitted that, while there is
a clear need for safeguards in relation to the call out of the ADF to protect
citizens' rights, there may be circumstances where:
...the knowledge, skills and capabilities available to the ADF
will provide either the better response to a terrorist or mass violence
incident or enhance the police response to such.
A similar argument was made by the Centre for Military and Security Law,
which submitted that lowering the threshold for call out of the ADF:
...reflects the possibility that it may be appropriate to use
special skills, equipment or capabilities possessed by the ADF in circumstances
that would result in the most effective response to an incident.
Use of lethal force
In recognising the potential use of lethal force by ADF personnel as a
consequence of the proposed amendments, a number of submitters described the safeguards
contained in the bill as appropriate and necessary. The Centre for Military and
Security Law argued:
[T]he proposed amendments are a significant improvement on
the current legislation as they simplify and clarify the circumstances in which
force, including lethal force, can be used. In essence, the Bill provides that
the only circumstance in which the use of lethal force can be justified is
where the use of such force is linked to the protection of life.
Contingent call out powers
Several submitters welcomed the expansion of contingent call out
arrangements as a necessary step to provide for rapid responses to a domestic
violence or terrorist incidents. For example, in supporting the expansion of
the contingent call orders to include land and the maritime domain, the Centre
for Military and Security Law noted:
[The proposal] recognises that security threats are not
one-dimensional and the legal basis for response to a potential threat should
not be limited to any particular operating environment... Indeed, the possibility
of a coordinated terror attack, such as that which occurred in Mumbai in
November 2008, is precisely the type of scenario that the proposed amendments
will now make it easier to plan for and address.
Multi-jurisdictional call out
As noted in the previous chapter, the bill's amendments are intended to offer
the ADF flexibility and enhance its ability to respond to incidents across
A range of submitters expressed their support for the proposed
multi-jurisdictional call out powers, noting that incidents of domestic
violence and terrorism can occur across jurisdictional boundaries.
Issues raised and suggested amendments
Despite the support for the bill, as outlined above, some submitters made
the case for a range of amendments to the bill as it is currently drafted. A
summary of issues raised by submitters, and suggested amendments, is provided
Proportionality and human rights
Some submitters argued that while it is important to acknowledge the
ongoing issue of terrorism and the need to adapt to changes in terrorist
methods, the proposed amendments contained in the bill may not be an
appropriate and proportionate response to that challenge.
Other submitters also raised human rights concerns, and suggested that the new
powers the bill's measures would provide to the government and the ADF were excessive
and disproportionate to the challenge at hand.
The Joint Parliamentary Committee on Human Rights (PJCHR) also
questioned whether the measures in the bill constituted a proportionate
response to the apparent problems the bill was intended to address.
In contrast, the Explanatory Memorandum (EM) suggested that the measures
contained in the bill are compatible with the Commonwealth Government's human
rights obligations. In the context of protecting the Australian population from
acts of significant violence, including terrorist incidents, it was argued that
'to the extent that they may limit human rights, such a limitation is necessary,
reasonable and proportionate'.
Changes to the threshold for call
A number of submitters expressed their concerns about proposed sections
33 and 35 of the bill, which would remove the requirement that State and Territory
authorities 'be unable, or likely to be unable', to manage a particular threat
before a call out order is given. The bill would lower the threshold to whether
the use of the ADF 'would likely enhance the ability of each of those States
and Territories to protect the Commonwealth interest against the domestic
violence' or 'to protect the State and Territory against the domestic
Some submitters were concerned that under the lower threshold it may
become routine for ministers to call out the ADF, even when circumstances might
not warrant call out.
For example, Associate Professor Greg Carne, University of New England, argued:
[T]he Bill should not be crafted as a mechanism (however
unintentionally and inadvertently) to allow military deployments into the
domestic civilian sphere in other than extreme, essential and existential
situations, such as terrorism situations beyond the capacity of well trained
and equipped Federal, State and Territory police services.
Circumstances where a callout order could be made
The apparent lack of a clear definition of 'domestic violence' was
raised as an issue by some submitters.
For example, Mr Joshua Badge noted that the term 'domestic violence' was
'broad and subject to a high degree of interpretation'.
In the absence of a clear definition for 'domestic violence' within the
legislation, the PJCHR argued that there is a risk the term could be broadened to
include 'a range of disturbances, such as political protest and civil
disobedience'. This could result in the ADF being given unintended powers that
is disproportionate to the provision's objective.
Although the definition of 'domestic violence' is not found in the
legislation itself, the EM states that 'domestic violence' is 'conduct that is
marked by great physical force, and would include a terrorist attack or other
mass casualty incident'.
'Specified circumstances' in
contingent call out
The bill includes provision for the contingent call out of the ADF to
protect Commonwealth interests (section 34) or state and territories (section
36) if 'specific circumstances' arise. The Law Council noted that:
...neither the Bill nor the Explanatory Memorandum provide a
definition of 'specified circumstances' which justify, by reason of urgency,
the impracticality of orders to be made in the usual circumstances.
For the sake of clarity, the Law Council recommended that the EM be
amended to include examples of what may constitute 'specified circumstances'.
Similarly, Australian Lawyers for Human Rights referred to the lack of
definition within the legislation of 'specified circumstances', and recommended
that the government indicate, 'preferably within the text of the legislation',
what events and circumstances might be considered 'specified circumstances' for
the purposes of sections 34 and 36.
Further, to assess whether the call out of the ADF was justifiable in
the circumstances, a number of submitters suggested including a retrospective
review of its use through a parliamentary review mechanism.
Associate Professor Carne expressed support for regular and periodic review of
contingent call out orders by several existing mechanisms, including by
Parliamentary Committees. He also submitted that the review should 'guarantee a
genuinely independent review of the Part—either
as an ad hoc review or a five year review'.
Serious injury or death
Under proposed subsection 51N(3), the bill authorises the use of force
by ADF personnel, including lethal force:
in a call out order to protect life or prevent serious injury;
to protect declared infrastructure against domestic violence or
threat specified in the call out order;
to allow measures to be taken against aircraft and vessels to
give effect to the order; and
if the person against whom forced is used attempts to escape
being detained and the member believes on reasonable grounds that the person cannot
be apprehended in any other manner.
Several submitters expressed concerns about use of lethal force, and
whether the bill was sufficiently clear in linking the use of such force to the
protection of life.
In recognising concerns about the potential for 'a significant loss of
life caused by the use of force', the EM states that the proposed changes are
necessary, reasonable and proportionate to achieve their intended objectives.
The EM also points to the multiple safeguards available, including requirements
that apply to authorising Ministers in making call out orders.
Powers to detain persons and seize
The PJCHR questioned whether measures in the bill that engage the right
to liberty and right to freedom of movement are necessary. The PJCHR observed
this right included the 'right not to be subject[ed] to arbitrary detention
which requires that detention must be lawful, reasonable, necessary and
proportionate in all the circumstances'.
Some submitters raised concerns regarding the broad definitions and
their effect in relation to a 'person who may be detained' and 'thing that may
For example, Associate Professor Carne commented that the definition of
a 'person who may be detained' establishes 'a very low threshold', particularly
when exercising powers of detention under proposed subsection 46 (7)(f) and
proposed section 51P'.
Associate Professor Carne added:
The threshold for detaining a person (recalling that
detention is by the ADF and not the AFP, State or Territory Police) should be
raised by the inclusion of additional adjectival qualifiers before the word
"threat" - such as serious, substantial or demonstrable -
particularly as the referent categories are extremely broad - being a person's
life, health or safety, or public health or public safety.
The Australian Lawyers Alliance also expressed concern about the
broadness of the definitions of terms 'person who may be detained' and 'thing
that may be seized'. The Alliance suggested the bill, as currently drafted, could
allow the ADF detain a person or seize items 'in circumstances that are not
connected to the domestic violence or threat specified in the call out order'.
Powers to search and question
The bill would provide the ADF with certain powers it can exercise
during call out, including powers to search locations, things and people, and
to direct a person to answer a question or produce a document which is
reasonably accessible to the person (including identification).
The creation of these powers was a cause for concern for some submitters.
The Australian Lawyers Alliance, for example, commented that the wording
of proposed section 51A, which gives authorisation to search premises in a
specified area, is too open to interpretation. It submitted that the bill
should be amended to ensure there was a clear connection between the person who
is likely to pose a threat, or thing in proposed subsection 51A(1)(b), with the
domestic violence or threat specified in the call out order.
The Australian Lawyers Alliance added:
...that under s51A(2)(b)-(d) the search authorisation must
relate to the call out order. [Furthermore], it is essential that the basis of
making a search authorisation under s51A(1) must include a connection between
the person who is likely to pose a threat, or the thing that is referred to in
s51A(1)(b), with the domestic violence or threat specified in the call out
In relation to the right to remain silent, a number of submitters voiced
concern that this right is restricted by proposed subsections 46(7)(h),
51D(2)(i), and 51L(3)(g). Submitters argued that these provisions limit the
privilege against self-incrimination.
For example, Mr Badge proposed amendments be included to provide a right
to 'reasonably refuse to answer such questions or produce such documents under
proposed subsection 46(7) in relation to actions taken in proposed subsection
46(5) to protect against self-incrimination.
As an alternative to the removal of these provisions, the Law Council suggested
it should be made clear the provision 'may only be enlivened in an emergency'
or 'compulsory questioning safeguards should be in place such as use and
derivative use immunities'.
Restrictions on protest, assembly
or industrial action
Some submitters raised concerns that the ambiguity of the language used
under proposed section 39 could lead to a call out order being used to quell civil
protests or industrial action.
The PJCHR suggested that this could potentially infringe on the right to free
speech, association and assembly.
Mr Badge argued that lethal force authorised against civilians should be
curtailed and the 'contexts in which it is permissible must be defined and
justified with greater clarity'.
Associate Professor Carne and Civil Liberties Australia (CLA) echoed
these concerns, with CLA noting that these rights are 'inherently bound in public
protest, for which the call out section of the bill is at least partially
The EM states:
[P]roposed paragraph 39(3)(b) prevents the CDF [Chief of the
Defence Force] from utilising the ADF to stop or restrict any protest, dissent,
assembly or industrial action. This prohibition is a safeguard against
infringement on rights, including the right to peaceful protect and freedom of
However, the inclusion of exceptions in proposed subsection 39(3)(b) to
this general prohibition raises the possibility of these restrictions occurring
if there is a 'reasonable likelihood of serious damage to property' (subsection
Mr Badge argued that as the bill is currently drafted there is no lower or
upper threshold for 'reasonable likelihood of serious damage to property'.
Indeed, there is 'some ambiguity as to whether the ADF could be deployed in
cases of violent or aggressive demonstration'.
Associate Professor Carne also submitted that the bill:
...provides for an inadequate default provision for the
protection of protest, dissent, assembly or industrial action. This should be
replaced with a pro-active exclusion from the capacity to grant call out orders
that have the likelihood, effect or consequence of deterring, stopping or
restricting peaceable protest, dissent, assembly or industrial action.
Another concern identified in evidence received relates to the possible
unintended use of proposed section 51L.
Under proposed section 51L, ADF members are authorised to take action to:
prevent, or put an end to, damage or disruption to the operation
of the declared infrastructure; and
prevent, or put an end to acts of violence, or threats to a
person's life; health or safety, or to public health or public safety.
Mr Badge suggested that the above provisions do not provide sufficient
protection against their potential use in a call out to restrict a civil demonstration
under the guise of protecting infrastructure.
Protections for ADF members when 'acting in good faith'
The bill includes protections for ADF members acting in good faith when
exercising a power under call out. Section 51S of the bill provides that:
If, before, while or after exercising a power under any of
Divisions 3 to 5 or this Division, a member of the Defence Force fails to
comply with any obligation imposed under this Part that relates to the exercise
of the power, the member is not, and is taken not to have been, entitled to
exercise the power unless the member exercised the power in good faith.
According to the EM, this protection is intended to ensure ADF members
are not prosecuted for 'a minor technical obligation, such as failing to wear a
However, some submitters suggested that the protections might in fact
provide ADF members with a broader immunity than was intended. For example,
Australian Lawyers for Human Rights submitted that:
...in practice this is a wide exception to obligations on ADF
members under the Bill. For example, clause 51S could mean that an ADF member
can use force that is likely to cause the death of, or grievous bodily harm to,
a person without complying with the restrictions on the use of force if they
act in 'good faith'.
The term 'good faith' is abstract and has not been completely
established within Australian law. The inclusion of this nebulous term in the
Bill only serves to create confusion in the legal obligations of individual ADF
members when they are exercising powers under the Bill.
Likewise, the Law Council of Australia expressed its concern that 'such
a provision may have the potential to grant immunity where actions may be
considered...to be 'manifestly unlawful''.
Civil Liberties Australia argued that the standard for holding troops to
account for their actions is too low. It argued that the standard should be
measured against whether or not the circumstances were sufficient for the
Proposed section 51Z, which offers the defence
of following superior orders in certain circumstances, also attracted the
attention of several submitters. For example, Civil Liberties Australia claimed
that it would provide a defence to 'any criminal act' committed by an ADF
member who acted under the order of a superior.
For his part, Professor McLaughlin, Australian Centre for the Study of Armed
Conflict and Society, suggested that the protection available should be tightened
Other issues raised
Definition of substantive criminal
The Law Council and Civil Liberties Australia suggested there was a need
to clarify the bill's definition of 'substantive criminal law'. According to
the Law Council, the definition in proposed section 31 includes confiscation
proceedings, which are not regarded as 'a substantive matter of criminal law'
and are 'typically civil proceedings'.
Civil Liberties Australia claimed the term, as it is used in the bill,
is 'problematic because it is vague', adding:
...people might think something is a criminal
offence, when it isn't. This means that higher criminal standards of evidence
(beyond a reasonable doubt) or the rule against self-incrimination don't
The Law Council suggested changes be made to proposed subsections
33(5)(d)(ii) and 35(5)(d)(ii) so that an order makes it clear that 'it ceases
to be in force at the end of a specified period (which must be no later than 20
days after it is made), unless it is revoked earlier'.
Making, varying and revoking call
The Law Council submitted that proposed subsection 37(4) on making,
varying and revoking call out orders be amended for clarity. As currently
drafted, it is not clear 'what will happen to ADF members who are on the ground
that engage in certain actions based on the belief that orders (which have in
fact been recently varied or revoked) are still in place'.
As a proposed immunity, under proposed subsection 51S(2), explicitly
applies to an invalidly made order, declaration or authorisation exercised in
good faith. However, the Law Council noted that it is unclear whether this
would also apply to a revoked or varied order.
Constitutional validity if a state
withholds consent for use of the call out powers
A number of submitters raised the issue of constitutionality under
proposed section 38, where an authorising Minister is able to make a call out
order of the ADF without requiring a state or territory's request for
assistance or for them to give their consent.
The committee welcomes the government's reforms to streamline call out
orders of the Australian Defence Force (ADF) to protect the Australian population
from acts of domestic violence, including terrorism.
Ensuring the Australian population is protected from significant
violence is paramount in the current challenging and complex threat
environment. The measures in the bill would enhance the ability of the ADF to
support State and Territory authorities to respond to domestic security
incidents, particularly with respect to terrorism.
The committee recognises that this may, at times, warrant the use of
force, including lethal force that is reasonable, necessary and proportionate
to achieve the objective of saving lives and protecting Australians from
significant violence. The committee regards these amendments as a positive
development in realising this objective.
The committee notes a general agreement among most submitters that
current legislation under Part IIIAAA does not adequately recognise nor
address the difficult and complex security environment within which State and
Territory authorities can rapidly respond to domestic violence or terrorist
incidents. To this end, the committee appreciates the need to make it easier
for States and Territories to access the ADF's specialist skills and
capabilities in responding to such threats. The bill would achieve this by simplifying
and clarifying the process for the call out of the ADF, and thereby enhancing
the ADF's ability to protect States, Territories, and Commonwealth interests,
onshore and offshore, against domestic violence and terrorism. The committee
considers that the ADF can and does complement and enhance the highly capable
police forces of States and Territories in such circumstances.
The committee notes some issues identified by submitters and comments
made by parliamentary committees on human rights and scrutiny of bills
regarding proportionality and the possible need for clearer definitions and
tighter safeguards against unintended consequences. Some of these concerns
include the circumstances in which the ADF is called out, the ADF's use of
lethal force as measured against proportionality, and matters relating to
accountability and authorisation.
The committee is satisfied that the bill includes strong safeguards to
ensure that call out of the ADF would only occur in limited circumstances, and
that appropriate protections apply to the exercise of the ADF's powers under a
call out order.
The committee also considers that the government might consider
providing a clearer definition of 'specified circumstances' in relation to
contingent call out, either in the Explanatory Memorandum or in the legislation
The committee recommends that the bill be passed subject to the
Commonwealth government's consideration of the committee's recommendations.
The committee recommends that the 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.
The committee recommends that the Defence Amendment (Call out of the
Australian Defence Force) Bill 2018 be passed.
Senator the Hon Ian
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