The Law Council of Australia has cautioned that the law must be very clear about the circumstances in which the Australian Defence Force (ADF) can be deployed in response to domestic threats and safeguards established to protect people's rights.
"Part IIIAAA of the Defence Act 1903 (Cth) enables the ADF to be called out to assist civilian authorities, such as the police, in response to 'domestic violence' in the States and Territories, as well as to protect Commonwealth interests," Law Council of Australia President, Mr Greg McIntyre SC said. "A review of Part IIIAAA is currently underway.
"Unfortunately, in the world we live in today, we must acknowledge that there may be exceptional circumstances, such as a serious terror attack, that cause State capabilities to be overwhelmed or require specialist assistance that only the ADF can provide.
"Therefore, a review to ensure our laws adequately support action at such time is welcome.
"In our submission to the review, we have highlighted a number of concerns which we believe should be addressed through this process.
"In particular, we have emphasised that the Part IIIAAA should only enable ADF deployment in times of national emergencies. The exceptional circumstances in which this can occur must be clearly defined in the Act.
"We would also like to make sure that the powers given to the ADF at such a time are balanced against Australian's individual and long-held democratic rights.
"We are most concerned about the disproportionate limitation on the privilege against self-incrimination and freedom of movement, without appropriate safeguards.
"Therefore, we have recommended the Defence Act should specify that a person can have a lawyer present during questioning and preserve the privilege against self-incrimination.
The Law Council has also recommended that Division 6 of the Act should more clearly state that any use of reasonable and necessary force must be materially connected with the protection of life and preventing serious bodily harm or to arrest a person found committing an offence.
"We would also like to see retrospective reviews of ADF call out orders to determine whether the calling out of the ADF was in fact justified and powers under the regime were exercised lawfully," Mr McIntyre said.
"This would help us identify and resolve any misuse moving forward. In this regard, the role of Parliament and the Inspector General of the ADF must be strengthened and entrenched in primary legislation."
