Thursday, 28 June 2018

Doorstop: Introduction of the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018, Canberra


Minister for Defence
Senator the Hon Marise Payne

The Hon Christian Porter MP


Subjects: Defence call out, Family Law, Ernest Wong, Brazil extradition

CHRISTIAN PORTER: Well, good morning everyone and thanks for being here. I'm here obviously with Marise Payne, the Minister for Defence, and today's announcement is with respect to a significant change, but perhaps not an overdue change, to the threshold for the participation and potential participation of the Australian Defence Force in domestic terrorist events, which we hope of course that we do not see, but we must be prepared for. Essentially, this is a legal change, and I'll just describe to you how it operates and then I think Marise is going to talk a little bit about some of the cooperation that has preceded this change, but also perhaps some of the assets that might be brought to bear if should the worst situations arise.

For many years in Australia, the threshold pursuant to which a potential callout of any ADF skill or asset or personnel might be occasioned has been an incredibly high and very, very inflexible standard. The standard was, in effect, the legal standard that the state-based authority who was dealing at the coalface with a terrorist incident would need to make a determination that they were unlikely or unable to deal with the incident. So in effect, the standard that has operated for many years is that a determination would have to be made that the state authorities were being completely overwhelmed by an incident. The difficulty with that standard is that it is incredibly high, it's very inflexible and it's not something that can be easily determined until very deep into the time that would have elapsed inside a terrorist event, by which time it is in all intents and purposes too late for there to be proper assistance through the ADF.

The new standard that is being employed in this bill which will be introduced to Parliament today is still a very high standard and a cautious standard, but a far more flexible standard. The standard will require the state-based authorities to ask a series of questions which go to the nature of the violence inherent in the terrorism incident that they are experiencing, and whether or not specific assets, skills or personnel that they know exist inside the capabilities of the Australian Defence Forces could be brought to bear in the relevant circumstances to improve the outcome, which is to say - protect and save Australian lives. It's likely that three types of scenarios that we might see these powers invoked are siege-type scenarios that are often long scenarios, where long periods of time elapse and where staged, key decisions need to be made. Should this ever happen - we hope it never does - but a Paris-style incident, where you have widespread geographically connected and coordinated incidents of violence over a period of time. And there is a third area again that we hope we never see on Australian soil, but there is always a potential for terrorists to employ chemical or biological agents in an attack. The ADF is the peak organisation in terms of specialist skills in terms of responding to one of those types of threats.

So this has been many, many months in the making. A full round of consultations with all of the states and territories, the First Ministers, their AGs, their counter-terrorism authorities. It simply allows a greater depth and skill inherent in any response and it is designed to protect Australian lives and protect the safety of Australian citizens, which has always been a cornerstone of the efforts of the Turnbull Government.

MARISE PAYNE: Thank you very much Christian, and I particularly want to acknowledge the cooperative work of the Attorney-General's Department and the Defence Department in bringing together the revision of Part IIIAAA of the Defence Act, in relation to these powers. The Attorney-General is absolutely right; of course, a government wishes that these never have to be used, but we also have to ensure that we are properly equipped to address the challenges as they arise. And certainly, the nature of the threat has changed over the years. The last deep look at the operation of Part IIIAAA was around the 2000 Olympics in Australia. So it is certainly a timely review by the Turnbull Government, and one which we've taken very seriously. The Attorney's also mentioned the extensive liaison between the Commonwealth, through particularly the Defence Department and the states and territories, and also through the work of the Attorney-General's Department. But Defence is working closely with the law enforcement agencies in the states and territories to ensure that we have very effective engagement and communication cooperation happening between them. We have a significantly enhanced counter-terrorism liaison capacity and that has also developed during the discussions in relation to the review of the legislation. We have engaged with police in specialist training activities across the jurisdictions. I think that is very valued by the law enforcement agencies, and certainly an engagement which we intend to continue. It doesn't stop with the review of the legislation. We've also worked closely with law enforcement agencies in relation to access to Defence facilities that enable them to do some of the training that they occasionally are limited in doing, because of their own lack of facilities. So that sort of engagement between the Commonwealth and the state, between Defence and the law enforcement agencies, helps us with familiarity, helps us with cooperation, helps us with collaboration to make sure we are best placed to respond in Australia in the sorts of events that we're discussing here today.

QUESTION: Ministers, many of the terrorism incidents we've seen recently would be over in, say, the first 30 minutes. What discussion has been had about improving civil responses to counter-terrorism events, given that our two tactical response groups are both in very distinct locations and could take a while to get there?

CHRISTIAN PORTER: You're quite right, and post the Lindt Café siege and that terrible event, this that we are talking about today was one of many things that was considered. And of course, it is always going to be the case that state authorities will be first responders. And very often, that is frontline police officers, brave men and women in our state police services. Each of the states has recourse to a variant of a tactical response group. In fact, many of the states now have also bridged the gap between frontline police and tactical response groups by having mobile units that are capable of delivering more serious armaments and equipment to these on the ground episodes. So I think that gives you one example of how this entire process is about collaboration and trying to cover the field. But you're right, many of these incidents involve low-tech responses, edged weapons and the like. They're over very quickly, and ultimately what we are is a reserve position where we can bring skills and assets and deploy them - we hope very quickly - that may be of assistance. But in many instances, the incident will be over with before we are even considered.

QUESTION: Attorney, if domestic violence gives the constitutional power to make these changes and terrorism is a subset of that. Why not limit the legal changes to responding to terrorist incidents? Why not exclude other incidents like riots?

CHRISTIAN PORTER: Well, I think the difficulty when you try and move between the evolution of terrorist events is that distinguishing between one type of violence and another is something that terrorists could very easily use as a cover for events. So for instance, with the Paris attacks, in the very early stages it was quite unclear what was going on. So what we have is the use of a constitutional power and we've replicated the constitutional language, you're right. That language has some breadth at law. But let me assure you that the type of authorisation processes that we go through emanating with a request from the states culminating in the consideration of senior ministers and the Governor-General mean that this will be a very heavily scrutinised process. You will not get called out unless it is utterly appropriate and unless there are specific assets or skills or personnel who can be brought to bear to save and protect Australian lives.

QUESTION: Can we use the Lindt siege as an example, at what stage had these laws existed there, at what stage would it have been appropriate to call on the ADF?

CHRISTIAN PORTER: Well, it is very difficult with hindsight to make those sorts of determinations. But what I indicated earlier is that one of the types of scenarios that may see the use of these powers is a siege scenario.  Unlike a scenario where there is an incident outside a police station using an edged weapon which is over very quickly, siege scenarios by their very nature may last hours or days. Now, those are the types of scenarios that we would expect state police authorities in their command structure would make an early determination as to whether or not an air asset or a personnel asset, whether that be in the commando or SAS regiment, may be able to be deployed to be of assistance.

Those assets would still be under instruction and request from the state authorities, but that ultimately is a question that would need to be asked and answered by the state authorities who have the command on the ground.

QUESTION: Can I ask on another matter?

CHRISTIAN PORTER: Are there any more questions on the defence call out?

QUESTION: Minister Payne, you mentioned some of that training that's been offered to police forces. I was talking to Peter Jennings about this last year. He said that there's already been an attitudinal shift in the police forces since the Lindt Cafe siege towards a shoot to kill mentality, whereby the sort of arrest mentality was holding people back from taking decisive action perhaps in the Lindt siege situation. Would you agree with that characterisation and has the military training that's been offered to police helped them to develop a more acute shoot to kill mentality in these kinds of situation?

MARISE PAYNE: Well, I'm not sure it's appropriate for me to comment on the particular mentality of police forces and the approaches that they take. Most importantly though, operational decisions are made by commanders on the ground, whether they're military commanders or police commanders, and we respect the skills and the training and experience they bring to those circumstances. What engaging together, though, enables us to do is to appreciate what the ADF is able to contribute, what the police already do and then to determine - particularly in the context of the review of the laws that we are taking forward - whether an ADF contribution will enhance the law enforcement agency response, whether it's necessary to add to the law enforcement agency response. That's the context in which we have this discussion today.

It is really important, I think, to emphasise that the primary responsibility for response remains with the state and territory law enforcement agencies. These are specific powers that will be used based on the – or called for based on the nature of the threat, the nature of the violence, and whether an ADF contribution will enhance the response.

CHRISTIAN PORTER: And I think also- perhaps I can add to that, legally.  The rules of engagement, if you like, and pursuant to which decisions and determinations will be judged, are the state rules. There are very well-known rules with respect to the use of lethal force or force that might occasion grievous bodily harm and that is that cannot be exacted by police force personnel unless they consider that there is a reasonable prospect that that is necessary to save someone's life or prevent serious injury for a civilian. And they will be the same rules that will apply to any personnel from the ADF deployed. They are excruciatingly difficult on-the-ground judgements, but nothing in this measure changes the framework for making those judgements.

QUESTION: So does there need to be training then in the other direction, which teaches an SAS soldier how to make an arrest?

CHRISTIAN PORTER: Well, they won't be able to make arrests. They won't be able to engage in the gathering of evidence. They will be able to stop and detain and to take weapons off people. But again, only if that is absolutely necessary to protect members of the public. So we are not entering into a law enforcement or evidence gathering role here. We potentially assist using our skills personnel and assets. The central command and the central authority for dealing with these matters will still be with the states.

QUESTION: Attorney, did you consult with stakeholders other than states, police and military about these changes? Did you seek out alternative voices like civil liberties groups at all?

CHRISTIAN PORTER: Well, the primary consultation is with the counter-terrorism authorities in the states and all of the states' ministers. And they, of course, consult beneath them whether any number of bodies. But might I say that since the Lindt siege, these issues have been debated in our civil and democratic space in an utterly exhaustive way and we have paid very particular and cautious attention to all of the views. What we have endeavoured to do in cooperation with all of the states and their premiers and attorneys-general and counter-terrorism ministers, is devise the most balanced response. But ultimately what we couldn't let persist is a situation where serious skills and personnel available inside the ADF were always going to end up being left in the shed, whereas they could be deployed to save Australian lives. And what we all agreed was that saving and protecting Australian lives is of paramount concern.

QUESTION: Minister, if I can ask you about Huawei, what did you make of Mr Lord's comments yesterday and about dispelling myths about the telco and will it have any sway over Australia's decision over Huawei's involvement in the 5G network [indistinct]?

MARISE PAYNE: Well, I'm not going to comment on international- on specific businesses, I'm sorry. But what I will say is that the Government's first priority is to ensure that in any advances in our telecommunications structure, we're protecting Australian interests, that will be at the forefront of our consideration.

QUESTION: Attorney-General, what did you make of it?

CHRISTIAN PORTER: Well, I watched it. It didn't make matters much clearer for me I must say.

QUESTION: In relation to Ernest Wong, I was hoping to get your thoughts on that. Are you concerned that foreign agents are actively trying to cultivate Australian politicians?

CHRISTIAN PORTER: Well, that's always a risk. And what we have done as a parliament and with bipartisan cooperation, for which I am warmly appreciative, is we have legislated for the first time ever to have a criminal offence of foreign interference, for the first time ever to have a register where we can transparently assess whether someone exacting influence in our democratic system is doing so at the request or pursuant to a funding arrangement with a foreign principal. And the reason we're doing that is because we accept that there is always a risk that there is foreign interference or foreign influence and that might occur with respect to members of your profession, members of my profession, with the corporate sector. And all we want is a proper criminal offence to ensure that that cannot happen in a deceptive and covert way and where it happens legitimately that people know about it.

QUESTION: Attorney-General, just on the other thing that you're announcing today, this bill to ban abusers from being able to directly cross-examine victims in the Family Court, do you think people would be surprised that this practice actually occurs if they haven't had that exposure to the Family Court? It does seem like it's something everyone is widely saying just enhances the trauma for victims.

CHRISTIAN PORTER: So, I think that people might be surprised. However, it is a very small number of cases. And we've gone to exhaustive analysis of the actual data inside the court system. We think maybe 170 cases over a two year period, so half that number every year. But the point of the reform is to mirror what occurred in the criminal law many years ago, which is that it's quite appropriate that people be cross-examined, as harrowing and as difficult as that is, because propositions need to be tested in a proper way inside a court system. But the idea in a criminal context that the alleged perpetrator of the violence could personally themselves cross-examine their victim is not something that we've accepted for a very long time. Now, we've identified circumstances where something similar unfortunately has been happening inside the Family Court system and it's time for it to end. Cross-examination can still be conducted but only through an independent counsel and that's quite proper and appropriate.

UNIDENTIFIED SPEAKER: Last question, last question.

QUESTION: [Talks over] Senator, your colleagues in industry are very keen for an announcement on the Future Frigates project. Can you say whether ASC will have an involvement and can you assure your West Australian colleagues, like Christian, that perhaps Austal will also have a role in that program.

MARISE PAYNE: Well, the Government has said that we will make the announcement in relation to the Future Frigates decision in the middle of the year. And we will do that but I'm not going to comment on the detail of that process, Andrew.

UNIDENTIFIED SPEAKER: Alright, thank you.

QUESTION: [Talks over] Attorney-General, can I just ask about the Brazilian man who is wanted over the murder of a Sydney woman? He's back in Brazil, is there anything the Australian Government can do to get him back?

CHRISTIAN PORTER:  Well look, what I will say - and this may not surprise you - is that the way that extradition works and the only way that it can work in this co-operative way with other jurisdictions, that we just don't talk about singular individual extradition matters. So, I'll just politely decline that request at this point.