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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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This bill seeks to amend the Defence Act 1903 to:
• permit states and territories to request that the Commonwealth call
out the Australian Defence Force (ADF) in a wider range
of circumstances;
• enable call out orders to authorise the ADF to operate 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
in certain
circumstances;
• allow the ADF to be pre-authorised to respond to land and maritime
threats, in addition to aviation threats;
• 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 power of the ADF to search and
seize, and to control movement during an incident;
• remove the distinction between general security areas and
designated areas;
• clarify that acting ministers are to be treated as substantive
ministers and add the Minister for Home Affairs as an alternative
authorising
minister; and
• make technical and consequential amendments
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Portfolio
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Attorney-General
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Introduced
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House of Representatives on 28 June 2018
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Bill status
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Before House of Representatives
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2.2 In Scrutiny Digest 8 of 2018[2] the committee requested the
Attorney-General's advice as to:
• the type of incidents that would fall within the definition of 'domestic violence', and whether incidents involving widespread industrial action, political protests or civil disobedience could fall within the definition;
• if the definition of 'domestic violence' would allow for orders to be made to stop or restrict protests, dissents, assemblies or industrial action, would action be able to be taken against peaceful protesters if there is a risk that other actors may cause injury to people or serious damage to property as a direct consequence of the protest;
• what would be covered by the term 'Commonwealth interests';
• why it is appropriate that before an order is made the authorising ministers must simply 'consider' the nature of the domestic violence and whether utilising the ADF would 'enhance' the abilities of the states and territories to protect the relevant interests, noting that this is not a precondition to the exercise of the power (but merely a matter which must be considered) and noting the stated intention that these orders only be made in exceptional circumstances; and
• why it is considered necessary to allow call out orders to remain in effect for up to 40 days.
Attorney-General's response[3]
2.3 The Attorney-General advised:
Definition of 'domestic violence'
Part IIIAAA provides the legislative framework authorising the Australian Defence Force (ADF) to be called out to use force to resolve 'domestic violence' occurring in Australia. The term is not defined in legislation but refers to conduct that is marked by significant force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term 'domestic violence' as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful industrial action, political protests or civil disobedience would not fall within the definition of 'domestic violence'.
Call out orders can only be made where domestic violence is occurring or likely to occur (subsections 33(1), 34(1), 35(1) and 36(1)). If the Governor-General makes a call out order, or in relation to a contingent call out order the circumstances specified in the order arise, subsection 39(1) requires the Chief of the Defence Force to utilise the Defence Force in such manner as is reasonable and necessary for the purposes specified in the call out order under subsection 33(3), 34(3), 35(3) or 36(3). This is subject to limitations, including that subsection 39(3) requires that in doing so the Chief of the Defence Force must not stop or restrict any protest, dissent, assembly or industrial action, except if there is a reasonable likelihood of the death of, or serious injury, to persons, or serious damage to property. Therefore, peaceful industrial action, political protests or civil disobedience, not giving rise to such circumstances, would not fall within the definition of 'domestic violence'.
Where other actors are engaging in domestic violence that may cause injury to people or serious damage to property, the ADF could be called out to respond to that violence. Part IIIAAA does provide the ADF with powers to evacuate innocent persons to places of safety, and crowd control powers to control the movement of persons and means of transport (subsection 46(7), section 51D and section 51L). These powers could be used in relation to peaceful protesters to protect them from other actors carrying out acts of violence.
It is important to note that state or territory police forces would be the first responders in such circumstances and they are well trained and equipped to respond to such situations.
Definition of 'Commonwealth interests'
The term 'Commonwealth interests' is not defined in legislation. For the purposes of Part IIIAAA, 'Commonwealth interests' would include the protection of: Commonwealth property or facilities; Commonwealth public officials; visiting foreign dignitaries or heads of state; and, major national events, including the Commonwealth Games or G20. This reflects the approach under existing Part IIIAAA.
The threshold for call out
The existing threshold for call out requires that authorising Ministers must be satisfied that the states and territories are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence. Any such assessment inherently involves a consideration of the 'nature' of the violence (including the type of violence, types of weapons used, number of perpetrators, and the scale of violence) as well as the capability and capacity of state or territory law enforcement agencies. It also requires an assessment that the state or territory has exhausted all other options, including support from other jurisdictions. Where the Commonwealth assesses that a state or territory has both the capability and capacity to resolve the incident, it would not be able to call out the ADF under Part IIIAAA to assist a state or territory. This precondition could operate to prevent the Commonwealth from providing ADF assistance to a state or territory, even where the state or territory has requested it, and even though the ADF possesses specialist capabilities that could assist law enforcement to resolve an incident in a safer, faster, and more appropriate manner, to most effectively protect the Australian populace and save lives.
It is important that the legislative requirements for call out do not hinder the provision of unique ADF capabilities that may be best suited to resolving an incident. The proposed threshold will 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 be brought to bear. However, this proposed threshold will not impermissibly expand the circumstances in which the ADF might be called out, or result in the ADF being called out in response to minor incidents that police routinely and appropriately deal with. This is because the authorising Ministers will need to be satisfied that the ADF should be called out in response to a terrorist incident or other incident of significant violence, noting that this can only occur after a state or territory request for assistance, or the Commonwealth assessing that the violence affects, or would be likely to affect, a Commonwealth interest. In making this assessment, Commonwealth authorising Ministers are required to consider the nature of the violence, and whether the ADF would be likely to enhance the state or territory response, as well as any other relevant matters. These are the same factors that authorising Ministers would consider in making a decision under the existing threshold. The threshold in proposed sections 33 to 36 recognises that calling out the ADF to respond to an incident is a significant and exceptional act, and ensures that it is not to be done in relation to incidents that are within the ordinary capability of police.
However, by requiring authorising Ministers to consider these mandatory factors, the amended threshold will provide flexibility for the ADF to be called out in appropriate circumstances. This could occur where an incident is not beyond the capability of a state or territory, but where authorising Ministers determine that the ADF has relevant specialist capabilities that could most effectively resolve the incident. The requirement to consider 'nature' and 'enhancement' makes clear that it is not intended that the ADF be called out in response to every incident potentially falling within the meaning of 'domestic violence'.
There are a range of circumstances in which the ADF may be called out. For example in response to:
• unique types of violence, such as a chemical, biological, radiological or nuclear attack, for which the ADF maintains specialist response capabilities, or
• incidents of violence that are so widespread that law enforcement resources are in danger of being exhausted and ADF assistance is necessary to supplement the law enforcement response.
These circumstances are by their nature 'exceptional'. However, under the current threshold it may not be possible to call out the ADF to assist state and territory police in these circumstances, unless the capability and capacity of the police has been totally overwhelmed. The amendments are aimed at making it easier for the ADF to assist states and territories in responding to such incidents, where requested.
Time limitations on call out orders
The Bill does not allow call out powers to be exercised for longer than is strictly necessary, and does not automatically allow for call out orders to remain in effect for up to 40 days. The 20 day limitation on call out orders ensures that there is adequate time during which the ADF may be utilised to respond to the domestic violence or threat specified in the order, without a new order having to be made.
However, the Bill imposes strict limitations governing when a call out order must be revoked, and when an order may be extended. Proposed subsection 37(3) provides that the Governor-General must revoke a call out order if: one or more authorising Ministers cease to be satisfied of the matters in proposed subsections 33(1), 34(1), 35(1) or 36(1) (as the case requires), or if, in the case of a State protection order, the government of the State or self-governing Territory withdraws its application to the Commonwealth Government for the call out order. This proposed subsection operates to require that the authorising Ministers continually monitor the domestic violence or threat in question as it evolves. Where an authorising Minister identifies that either the domestic violence is no longer occurring, or is no longer satisfied that the ADF should be called out to deal with the violence (for example because it has subsided to such an extent that ADF support is no longer necessary), then the Minister must immediately advise the Governor-General that the criteria for the call out order are no longer met, and the Governor-General must revoke it.
Further, proposed paragraph 37(1)(a) makes clear that, before the Governor-General may vary a call out order, including to extend the period during which the order is in force, the authorising Ministers must still be satisfied of the preconditions for making the call out order in the first place, as set out in proposed subsections 33(1), 34(1), 35(1) or 36(1). Further, proposed paragraph 37(1)(b) requires that the order, as varied, must comply with proposed subsections 33(3) to (5), 34(3) to (5), 35(3) to (5), or 36(3) to (5), as the case requires. Relevantly, these proposed provisions state when an order is in force, when it ceases to be in force, and what information it must contain.
As such, the same conditions that apply to the making of a call out order also apply to the subsequent varying and extension of the order. The authorising Ministers must continue to be satisfied that the conditions for making the order are met. These limitations ensure that call out powers are only available during such time as they are necessary and the conditions for call out continue to be met.
Committee comment
2.4 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that the term 'domestic violence' refers to conduct that is marked by significant force, including a terrorist attack, hostage situation, and widespread or significant violence, but that peaceful industrial action, political protests or civil disobedience would not fall within the definition. The committee also notes the Attorney-General's advice that, although peaceful industrial action, political protest or civil disobedience would not itself fall within the definition and therefore meet the threshold for a call out order being made, where other actors are engaging in domestic violence that may cause injury to people or serious damage to property, the ADF could be called out to respond to that violence and then exercise crowd control powers under proposed subsection 46(7) and proposed sections 51D and 51L on peaceful protestors in order to protect them from such actors.
2.5 With respect to the definition of 'Commonwealth interests' the committee notes the Attorney-General's advice that, although this term is not defined in legislation, for the purposes of proposed Part IIIAAA it would include Commonwealth property or facilities, Commonwealth public officials, visiting foreign dignitaries or heads of state, and major national events such as the Commonwealth Games or G20.
2.6 The committee reiterates its concern that these two key terms lack a clear definition in legislation and that, as a result, it is not clear whether they would function to appropriately limit the circumstances in which the ADF may be called out and associated coercive powers may be used. This lack of clarity with respect to the definitions of these key terms is illustrated by the fact that the Attorney-General's explanation as to the types of events that will be captured under the term 'domestic violence' differs from that included in the explanatory memorandum—the latter states that domestic violence refers to conduct marked by 'great physical force, including a terrorist attack or other mass casualty incident', while the former states that it would include conduct marked by 'significant force, including a terrorist attack, hostage situation, and widespread or significant violence'.[4] Furthermore, although the Attorney-General's response provides a list of matters that would be considered 'Commonwealth interests' for the purposes of proposed Part IIIAAA, this list is not exhaustive and is not set out in the bill. Finally the committee notes that while peaceful industrial action, political protest or civil disobedience would not appear to meet the threshold for making a call out order, it is possible that persons participating in such actions may have their activities curtailed and be subjected to coercive powers where other actors engage in activities that could be characterised as 'domestic violence'.
2.7 The committee notes the Attorney-General's advice that the proposed threshold that must be reached before a call out order may be made will allow the ADF to be called out where an incident is not beyond the capability and capacity of a state or territory but the ADF has relevant specialist capabilities that could be brought to bear to most effectively resolve the incident. By contrast, the existing threshold provides that the Commonwealth may not make a call out order unless the authorising ministers are satisfied that the states and territories are not, or are unlikely to be, able to protect themselves or Commonwealth interests against domestic violence.
2.8 The committee further notes the Attorney-General's advice that the proposed new threshold will not impermissibly expand the circumstances in which the ADF might be called out because the authorising ministers must be satisfied that the ADF should be called out, and in making this assessment they must consider the nature of the violence and whether the ADF would be likely to enhance the response of the state or territory, as well as any other matter they consider relevant. The committee notes the Attorney-General's advice that these are the same factors the authorising ministers would consider when making a decision under the existing threshold, and that requiring consideration of these issues makes it clear that it is not intended that the ADF be called out in response to every incident potentially falling within the meaning of 'domestic violence'.
2.9 However, the committee emphasises that the relevant provisions of the bill[5] provide that in making a call out order the authorising ministers must be satisfied that the ADF 'should be called out'. In making this decision the authorising ministers must 'consider' the nature of the domestic violence and whether the utilisation of the ADF would 'enhance' the state or territory response. By contrast, the existing threshold requires an authorising minister to be satisfied on the objective matter of whether the state or territory is not, or is unlikely to be, able to protect itself or Commonwealth interests.[6] The proposed threshold would therefore grant authorising ministers a far broader discretion than is currently the case with respect to determining whether the ADF should be called out. In addition, the committee notes that calling out the ADF is likely to enhance the ability of the states and territories to respond to domestic violence in many cases and as such this does not appear to effectively limit the use of call out orders to the exceptional circumstances cited by the Attorney-General. The committee reiterates its view that the proposed new threshold appears to significantly expand the range of circumstances in which a call out order may be made, including in response to domestic violence incidents which state and territory authorities may be capable of resolving.
2.10 The committee notes the Attorney-General's advice that the bill does not allow call out powers to be exercised for any longer than is strictly necessary, and that the bill imposes strict limitations on when a call out order must be revoked and when it may be extended. For example, under proposed subsection 37(3) the Governor-General must revoke a call out order if one or more of the authorising ministers cease to be satisfied that the conditions under which the orders may be made continue to be met, or the state or territory withdraws its application to the Commonwealth. The committee notes the Attorney-General's advice that this subsection requires that authorising ministers continually monitor the domestic violence or threat in question as it evolves and immediately advise the Governor-General if the criteria for the call out order are no longer met. The committee further notes the Attorney-General's advice that the same conditions that apply to the making of a call out order also apply to the variation or extension of the order and authorising ministers must continue to be satisfied that the conditions for making the order are met.
2.11 However, while the requirement to revoke a call out order if the authorising ministers cease to be satisfied the conditions are met may operate to require some form of monitoring while a call out order remains in effect, the committee emphasises that the bill does not require an authorising minister to make a positive decision that a call out order should remain in effect until the 20-day time limit expires. In light of the extraordinary coercive powers that may be exercised by members of the ADF under a call out order, the committee considers that it may be appropriate for the bill to be amended to require authorising ministers to make a positive decision that a call out order should remain in place at more regular intervals than the current 20 days.
2.12 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.13 The committee reiterates its scrutiny concern that, given the extraordinary nature of the coercive powers the bill seeks to confer on ADF members who are utilised under a call out order, including the use of deadly force in certain circumstances, the bill may not adequately restrict the circumstances in which a call out order may be made.
2.14 In particular, the committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of:
• leaving significant terms, such as 'domestic violence' and 'Commonwealth interests', undefined;
• lowering the threshold with respect to the matters an authorising minister must be satisfied of before determining that a call out order should be made; and
• allowing a call out order to remain in effect for 20 days before requiring authorising ministers to make a positive decision as to whether it should remain in effect.
2.15 In Scrutiny Digest 8 of 2018[8] the committee requested the
Attorney-General's advice as to:
• the appropriateness of amending proposed subsection 51H(2)(b) so as to require that infrastructure can only be declared where damage or disruption would directly endanger life or cause serious injury; and
• the appropriateness of amending proposed subsection 46(3) to require that the minister may only authorise the taking of measures against an aircraft or vessel where this is necessary and reasonable to protect the lives or safety of others.
Attorney-General's response[9]
2.16 The Attorney-General advised:
It would not be appropriate to limit infrastructure declarations to circumstances where damage or disruption would directly endanger life or cause serious injury. To do so would unduly limit the ADF's ability to respond to damage or disruption to infrastructure which, though indirect, would nevertheless present a grave risk to life and safety. For example, an attack on a nuclear reactor could result in the release of radioactive material that causes direct and immediate harm to people. It could also result in radioactive material being released into a water source. In that case, a person may only be harmed by actually drinking the contaminated water, and therefore suffer indirect harm. In both cases, the cause of the harm and the gravity of the harm are the same and distinguishing between direct and indirect causes would be arbitrary. It is therefore important that infrastructure declarations can be made where the damage or disruption would directly or indirectly endanger life.
There must always be a nexus between the damage or disruption to the infrastructure and the risk of death or serious injury to a person. Under proposed subsection 51H(2), authorising Ministers can only make an infrastructure declaration if they believe on reasonable grounds that there is a threat of damage or disruption to the infrastructure, and that the damage or disruption would directly or indirectly endanger a person's life or cause serious injury to them.
The powers in relation to aircraft and vessels in section 46 are sufficiently connected with the protection of life. In addition to the specific limitations on the use of force that is likely to cause the death of, or grievous bodily harm to, a person as set out in subsection 51N(3), Part IIIAAA sets out an overriding requirement that in exercising their powers ADF members may only use such force as is reasonable and necessary in the circumstances (subsection 51N(1)). The taking of measures against an aircraft or vessel would only be reasonable and necessary where that aircraft or vessel posed a significant threat to life.
Committee comment
2.17 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that it is considered that limiting infrastructure declarations to circumstances where damage or disruption would directly endanger life or cause serious injury would unduly limit the ADF's ability to respond in circumstances where damage or disruption presents an indirect risk to life and safety—for example, where an attack on a nuclear reactor results in the contamination of the water supply, which then presents a threat to life or health. The committee further notes the Attorney-General's advice that it would be arbitrary to distinguish between direct and indirect causes where both the cause and potential gravity of harm are the same.
2.18 However, the committee reiterates its scrutiny concern that the bill may allow infrastructure declarations to be made in relation to a broad range of infrastructure, and therefore authorises the ADF to use force, including deadly force in certain circumstances, to protect such infrastructure.
2.19 The committee also notes the Attorney-General's advice that it is considered that powers in relation to taking measures against aircraft and vessels are sufficiently connected with the protection of life by proposed subsections 51N(1) and (3), and that the taking of measures against an aircraft or vessel would only be reasonable and necessary where that aircraft or vessel posed a significant threat to life.
2.20 However, the committee notes that the bill does not expressly state that the taking of measures against an aircraft or vessel can only be considered reasonable and necessary where the aircraft or vessel poses a significant threat to life. The bill instead requires that an authorising minister must not authorise the taking of measures against an aircraft or vessel unless satisfied that taking the measure is reasonable and necessary, and an ADF member must not use force against an aircraft or vessel likely to cause death or grievous bodily harm unless it is reasonable and necessary to give effect to the order or authority under which the member is acting.[10]
2.21 The committee accepts that it would generally not be considered reasonable and necessary to take measures against an aircraft or vessel unless it posed a significant threat to life. However, it considers that this might not always be the case. As such, the committee considers that it may be beneficial to amend the bill so as to make clear on the face of the legislation that the taking of measures against an aircraft or vessel can only be considered reasonable and necessary in circumstances where this is necessary to protect the lives of others.
2.22 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.23 The committee reiterates its scrutiny concerns in relation to:
• authorising the use of force, including deadly force in certain circumstances, to protect a broad range of infrastructure, and
• the absence of an explicit limitation on the circumstances in which measures may be taken against aircraft or vessels to instances where this is necessary and reasonable to protect the lives or safety or others.
2.24 The committee otherwise draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of allowing ADF members who are being utilised under a call out order to use force against persons and things, including deadly force in certain circumstances.
2.25 In Scrutiny Digest 8 of 2018[12] the committee requested the Attorney‑General's advice as to the appropriateness of amending the bill so as to preserve legal liability in instances where an ADF member has exceeded their legal authority in circumstances that cannot be characterised as minor or technical.
Attorney-General's response[13]
2.26 The Attorney-General advised:
Proposed section 51S is not intended to remove legal liability in instances where an ADF member has exceeded their legal authority in circumstances that cannot be characterised as minor or technical. An ADF member who exceeds their legal authority in circumstances which could not be characterised as minor or technical would be highly unlikely to have exercised their powers in good faith. For example, an ADF member who uses force against a person in doing anything that is likely to cause the death of, or grievous bodily harm to, the person without believing on reasonable grounds that doing that thing satisfies one of the matters specified in subparagraphs 51N(3)(a)(i) to (iii), would be highly unlikely to have exercised their powers in 'good faith'.
Committee comment
2.27 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that proposed section 51S is not intended to remove legal liability where an ADF member exceeds their legal authority in circumstances that cannot be characterised as minor or technical. The committee also notes the Attorney-General's advice that an ADF member who exceeds their legal authority with respect to more serious matters would be highly unlikely to have exercised their powers in good faith.
2.28 However, the committee reiterates that the provision seeks to exclude liability in relation to a failure to comply with any obligation imposed under Part IIIAAA on the use of a power, provided the ADF member acted in good faith. As such, it remains unclear to the committee why it would not be possible for an ADF member to exceed their legal authority in circumstances that cannot be characterised as minor or technical yet still have exercised their powers in good faith, and therefore enjoy immunity from legal liability.
2.29 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.30 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of limiting the legal liability of ADF members who exceed their legal authority to instances where bad faith can be demonstrated, noting the extraordinary nature of the powers conferred on ADF members under the proposed call out regime.
[1] Schedule 1, item 2, proposed Part IIIAAA. The committee draws senators’ attention to this proposed Division pursuant to Senate Standing Order 24(1)(a)(i).
[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2018, at pp. 3 to 8.
[3] The minister responded to the committee's comments in a letter dated 4 September 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[4] Explanatory memorandum, p. 6 (emphasis added).
[5] See proposed subsections 33(2), 34(2), 35(2) and 36(2).
[6] Defence Act 1903, subsections 51A(1) and 51B(1).
[7] Schedule 1, item 2, proposed sections 46, 51H and 51N. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[8] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2018, at pp. 8 to 12.
[9] The minister responded to the committee's comments in a letter dated 4 September 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
[10] See proposed subsections 46(3) and 51N(3).
[11] Schedule 1, item 2, proposed section 51S. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).
[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 8 of 2018, at pp. 12 to 13.
[13] The minister responded to the committee's comments in a letter 4 September 2018. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 10 of 2018 available at: www.aph.gov.au/senate_scrutiny_digest
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