Law Council of Australia

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Independent Review of Part IIIAAA of the Defence Act 1903 (Cth)

The Law Council acknowledges changes in Australia’s national terror threat level to ‘PROBABLE’ and the risk that, in exceptional circumstances, events such as a serious terror attack may result in State capabilities being overwhelmed, or an urgent need for specialist capabilities that only the Australian Defence Force (ADF) can provide.

The Law Council is mindful that there may be specialist skills that the ADF can deploy in these exceptional circumstances (e.g., sniper or explosive ordnance diffusing capabilities, specialist reconnaissance aircraft and specialist aerial imagery) to enhance State or Territory police force abilities where the protection of life may be required. Part IIIAAA of the Defence Act 1903 (Cth) should be narrowly tailored to respond to such emergency circumstances with appropriate safeguards.

In this regard, the Law Council's concern with the current framing of Part IIIAAA is that it is broadly framed and leaves open the risk that Part IIIAAA may be used to authorise ADF deployment to respond to a range of domestic threats in circumstances other than national emergencies.

Australia's constitution reflects liberal democratic principles such that, in non-war times, the ADF should only be called out into the States and Territories in exceptional circumstances. There is an important distinction between the prospect of utilising a defence force within a country with robust borders and strong State and Territory police forces, such as Australia, compared to countries where borders may be more amorphous and police forces ill-equipped to deal with domestic threats.

Read the full submission below.

Last Updated on 20/11/2024

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