Malcolm Turnbull and the ADF. (Photo, AAP, Brendan Esposito)

Family, Freedom & Federation

Only yesterday, surrounded by the paraphernalia of security, our illustrious Prime Minister, Malcolm Turnbull, announced sweeping changes to the Defence Act. Ostensibly designed to enable easier ‘call out’ of the Australian Defence Force (ADF) to deal with domestic terrorism incidents [i].

Then today, flanked by the Attorney General, Minister for Immigration and Minister for Justice, the Prime Minister announced a new ‘super ministry’ to bring together ASIO, Border Force and the Federal Police under the stewardship of a single minister. In this instance, Peter Dutton [ii].

But here’s the rub. Powers to call out the ADF already exist. They have done for over 100 years. Such power is already enshrined in section 119. Of the Australian Constitution. That foundation document that our nation is built upon, the bedrock of our federation, and which divides power to ensure no one tier of government, no one agency, branch or individual can gather to themselves all the mechanisms of state. It reads:

            119:  Protection of States from invasion and violence

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence [iii].

The specific application of those powers is outlined in several pages of laws and regulations in the Defence Act 1903, section IIIAAA [iv]. Those laws define all the examples of which the ADF may be used within Australia, who may give the orders, how long those orders may last, and what parameters the ADF must operate within.

But really it boils down to this; if an act of violence occurs within the boundaries of a state (and does not impact the Commonwealth Government or its interests) and the state does not feel it has the capacity to deal with the situation, then the state just has to ask.

The powers are broad and extensive. Australia’s armed forces have been called to deploy in Australian territory  when Commonwealth interests were threatened on many occasions, such as reconnaissance flights over Tasmania during the dam disputes of 1983 [v], as well as protests and industrial disputes within Commonwealth jurisdiction. Those capacities are available to states as well. There’s just that one caveat.

They must ask.

That’s it. That’s all. Just ask. It doesn’t even have to be an imminent threat, just a situation for potential violence that the state feels it can’t deal with. This has happened regularly for major events such as the Olympics, CHOGM, G20 and other events and situations. It’s also for this reason that the ADF has it’s Tactical Assault Groups, based on the East and West Coasts (and who the Prime Minister was posing with on Monday): to be able to respond to Commonwealth Government needs in terrorist and other situations; such as the seizure of the North Korean drug ship Pong Su in 2003 [vi], and to support state requests for support in similar situations within their jurisdictions.

Then there is this new super ministry. The Prime Minister is at pains to emphasise that there aren’t any new powers being granted to the government. They are just being centralised, except for the capacity to issue warrants for ASIO (remaining with the Attorney General).

Also emphasised is that a minister will be responsible for integrity and ensuring powers aren’t abused. So, not a statutory body, but a member of the ruling party, will have oversite of the ruling party and its use of the new super department …which apparently doesn’t have any new powers. Apparently.

But we’re told it will be based on the UK Home Ministry. When pressed by the media that the UK isn’t a federation and does not have states that have responsibility for law enforcement, the Prime Minister simply responded with words to the effect of ‘this won’t solve the problems of federation’ [vii].

But here’s the rub for this announcement and the ADF Call Out announcement. They were just press releases/conferences.

There’s been no legislative changes released, only reference that such will come out in due course. When pressed by the media there is passing reference to requiring the cooperation of the states, as the new super ministry does not incorporate them, and the mooted changes to call out powers have also not undergone consultation with the states [viii].

So here we have it.

Grand press conferences by the Prime Minister where he has announced coming laws that will put the power to spy on Australians within the hands of one man, but he’ll be overseen by his fellow party member. Power will also be extended to the military to undertake law enforcement operations within Australian territory. But there’s no detail on the legislation to enact these policies, and no word from the states on how this will impact their constitutionally mandated powers.

It appears that this is the Prime Minster’s next assault on the Fs of our nation: family, freedom, and now federation. We already know his stance on the family and his proud attempts to undermine its traditional roots and proven value.

But is he now assaulting the freedoms of the average Australian by drawing even more power to the federal government, granting immense power to a single individual, as well as pulling power from the states as to the use of the Australian Defence Force in law enforcement capacities within our own shores?

We hope to be able to answer those questions with deeper analysis over the coming weeks as more detail comes to light. Let’s hope it’s benign, but I suspect the devil will be in the detail, and it won’t be great for freedom or federation. Stay tuned.

Brendan Day, MPA, MA

Guest Writer

Brent is a former Captain in the Australian Army. He has operational service on Operation Astute in Timor Leste, and Operation Qld Flood Assist. He is a graduate of the Royal Military College Duntroon with a Diploma of Military Leadership, as well as a Masters in Strategy and Management from the Australian Defence Force Academy and a Masters in Public Administration from the Romney Institute of Public Management.

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