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ALHR cautions against widening ADF powers
Australian Lawyers for Human Rights (ALHR) has cautioned against proposed amendments to the Defence Act which would enable deployment of Australian Defence Force (ADF) personnel onto Australian streets and authorise them to use specific powers.
Grace Ormsby
The Defence Amendment (Call out of the Australian Defence Force) Bill 2018 is currently under consideration of the Senate legal and constitutional affairs committee and follows the inquest into the Lindt Café siege, where it was found that existing ADF call out arrangements are inadequate when responding to terror incidents.
ALHR president Kerry Weste said as the law currently stands, “the ADF can only be called out onto the streets when states and territories are not, or are unlikely to be, able to protect themselves or Commonwealth interests against an incident of domestic violence. This bill will lower that threshold and instead provide for contingent call out of the ADF in ‘specified circumstances’ – a term which concerningly is not defined in the bill.”
“There is no review mechanism within the Bill that would ensure accountability via a legislated process of retrospective analysis after a beclaration of ‘specified circumstances,” she noted.
The amendments contain provisions that would allow the ADF to be called to multiple states and territories simultaneously, and would allow the ADF to operate cross-jurisdictionally, even if jurisdictions are not specified in a call out order.
The bill also expands ADF powers to search and seize, detain persons, control movement during an incident and direct a person to answer questions. A statement from the ALHR suggests these measures appear to be unfettered by common law principles, particularly rights to silence and against self-incrimination.
Ms Weste said “introducing a wide exception to obligations on ADF members the bill 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 legal restrictions on the use of force as long as they act in ‘good faith.’”
Speaking on behalf of ALHR, she called for appropriate caution and scrutiny before any thresholds are lowered and ADF personnel powers are increased, “particularly in relation to dealings with members of the public.”
“While the Bill is being proposed as a direct response to the terrorist threat, its current drafting applies it to a much wider set of events which could, for example, see soldiers called in to dispel protests at facilities like the future Adani coal mine or the Pine Gap facility.”
She compared ADF member training for military combat and being equipped with highly effective weapons with policing, where entirely different community standards and expectations exist.
“ALHR is firmly of the belief that state and territory police are best suited to responding to domestic violence incidents. If, due to a need for particular technical capabilities or specialist knowledge, a situation calls for an ADF presence this should be limited to the specific ADF unit possessing those skills. This scenario is already catered for by the existing legislation.”
“We must think about the kind of society we want. Although abhorrent incidents of violent terrorism instill fear in us all, the reality is that, in Australia, we are far more likely to be victims of domestic violence or drunk drivers.”
