Chapter 2

Issues raised in evidence

2.1        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

2.2        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.[1] As discussed below, some submitters also:

Access to ADF specialist skills and capabilities

2.3        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.[2]

2.4        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.[3]

2.5        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.[4]

Use of lethal force

2.6        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.[5]

Contingent call out powers

2.7        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.[6]

Multi-jurisdictional call out powers

2.8        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 multiple jurisdictions.[7] 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.[8]

Issues raised and suggested amendments

2.9        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 below.

Proportionality and human rights concerns

2.10      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.[9] 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.[10]

2.11      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.[11]

2.12      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'.[12]

Changes to the threshold for call out

2.13      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 violence'.[13]

2.14      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.[14] 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.[15]

Circumstances where a callout order could be made

'Domestic violence'

2.15      The apparent lack of a clear definition of 'domestic violence' was raised as an issue by some submitters.[16]

2.16      For example, Mr Joshua Badge noted that the term 'domestic violence' was 'broad and subject to a high degree of interpretation'.[17]

2.17      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.[18]

2.18      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'.[19]

'Specified circumstances' in contingent call out

2.19      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.[20]

2.20      For the sake of clarity, the Law Council recommended that the EM be amended to include examples of what may constitute 'specified circumstances'.[21]

2.21      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.[22]

2.22      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.[23] 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'.[24]

Serious injury or death

2.23      Under proposed subsection 51N(3), the bill authorises the use of force by ADF personnel, including lethal force:

2.24      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.[25]

2.25      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.[26]

Powers to detain persons and seize items

2.26      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'.[27]

2.27      Some submitters raised concerns regarding the broad definitions and their effect in relation to a 'person who may be detained' and 'thing that may be seized'.[28]

2.28      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'.[29] 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.[30]

2.29      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'.[31]

Powers to search and question

2.30      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).[32] The creation of these powers was a cause for concern for some submitters.[33]

2.31      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.[34] 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 order.[35]

2.32      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.[36]

2.33      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.[37] 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'.[38]

Restrictions on protest, assembly or industrial action

2.34      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.[39] The PJCHR suggested that this could potentially infringe on the right to free speech, association and assembly.[40]

2.35      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'.[41]

2.36      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 targeted'.[42]

2.37      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 assembly.[43]

2.38      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 3(b)(ii)).[44] 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'.[45]

2.39      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.[46]

2.40      Another concern identified in evidence received relates to the possible unintended use of proposed section 51L.[47] Under proposed section 51L, ADF members are authorised to take action to:

2.41      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.[48]

Protections for ADF members when 'acting in good faith'

2.42      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.

2.43      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 name badge'.[49]

2.44      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: 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.[50]

2.45      Likewise, the Law Council of Australia expressed its concern that 'such a provision may have the potential to grant immunity where actions may be be 'manifestly unlawful''.[51]

2.46      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 action taken.[52]

2.47      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.[53] For his part, Professor McLaughlin, Australian Centre for the Study of Armed Conflict and Society, suggested that the protection available should be tightened and clarified.[54]

Other issues raised

Definition of substantive criminal law

2.48      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'.[55]

2.49      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 apply.[56]

Timeframe order

2.50      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'.[57]

Making, varying and revoking call out orders

2.51      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'.[58]

2.52      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.[59]

Constitutional validity if a state withholds consent for use of the call out powers

2.53      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.[60]

Committee view

2.54      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.

2.55      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.

2.56      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.

2.57      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.

2.58      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.

2.59      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.

2.60      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 itself.

2.61      The committee recommends that the bill be passed subject to the Commonwealth government's consideration of the committee's recommendations.

Recommendation 1

2.62      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.

Recommendation 2

2.63      The committee recommends that the Defence Amendment (Call out of the Australian Defence Force) Bill 2018 be passed.

Senator the Hon Ian Macdonald

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