Defence Amendment (Call Out of the Australian Defence Force) Bill 2018
The submission to the Senate Legal and Constitutional Affairs Legislation Committee’s Inquiry into the Defence Amendment (Call Out of Australian Defence Force) Bill 2018 was prepared by the Law Council.
The Law Council notes that the Bill follows the State Coroner of New South Wales Inquest into the deaths arising from the Lindt Café Siege in May 2017, which found that existing arrangements for the transfer of responsibility for terrorist incidents to the Australian Defence Force (ADF) were inadequate.
The Bill amends Part IIIAAA of the Defence Act 1903 (Cth) with the aim of streamlining the legal procedures for call out of the ADF to protect States’, selfgoverning Territories’, and Commonwealth interests, onshore and offshore, against certain incidences of violence, including terrorism. The Bill, if enacted, would:
- make it easier for states and territories to request ADF support by changing the legislative threshold from ‘are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence’ to whether ADF support would be likely to enhance the state or territory’s ability to protect itself or Commonwealth interests prior to authorising call out of the ADF;
- expand the ADF’s search and seize powers when operating under a call out order to enable the ADF to search for and seize things, and search for and detain people, that are likely to pose a threat to a person’s life, health or safety, or to public health or safety;
- enable the ADF to respond to multi-jurisdictional call out; and
- expand pre-authorised contingent call outs beyond air threats to land and maritime domains.
The Law Council considers that, in non-war times, the ADF should only be called out into the states and territories in exceptional circumstances. Each of the states and territories have highly functioning operative police forces that are familiar with their local territories and have well developed legislative frameworks to regulate their powers. Further, the ADF have specialist capabilities developed for deployment extraterritorially and in times of war or national emergency which are equally well-defined in those circumstances.