The Albanese Government's proposed Defence legislation raises serious concerns over sweeping ministerial powers, reduced parliamentary scrutiny and weakened oversight. David Higginbottom writes.
ON WEDNESDAY 4 November, at the National Press Club, the commissioners of the independent AUKUS Public Inquiry released their report.
It follows months of hearings and evidence taken around the country. The timing is worth noticing. The parliamentary committee examining the Defence Legislation Amendment (Accelerating Capability and Protecting Bases) Bill 2026 closed submissions on 3 November, the day before, on a Bill the House of Representatives had already passed.
The Bill was introduced on 27 October and passed the House on 29 October, over three sitting days. It was referred to the Parliamentary Joint Committee on Defence the day it passed, with submissions closing on 3 November, five business days after introduction. It runs to 231 pages and six schedules, amends about 20 Commonwealth Acts and repeals two.
That is the procedural objection, but there are stronger ones. The Government says the Bill is needed to deal with drone incursions at Defence sites and to speed up capability. Those are real concerns, but a narrow problem has been answered with a broad transfer of power — and the broad part deserves examination.
A pen instead of a parliament
Schedule 1 of the Defence Legislation Amendment (Accelerating Capability and Protecting Bases) Bill 2026 would allow the Minister for Defence to issue a capability declaration specifying activities and the laws that would not apply to them. The Bill does not limit which laws can be named. The Parliament is not asked to approve the list, because each declaration writes its own.
Commonwealth laws can be set aside only where the law itself permits it. That sounds like a safeguard until you notice that the Bill supplies the permission. Schedule 1 amends the Criminal Code so that a declaration may disapply the telecommunications offences (Subdivision B of Division 474) and the computer offences (Part 10.7).
It amends the Telecommunications (Interception and Access) Act 1979 so that interception conduct specified in an electronic declaration does not contravene it, where the declaration says so and any conditions are met. State and territory laws carry no equivalent requirement: a declaration can set them aside without any permission in the law itself.
The Bill does limit the interception and computer powers. They can be used only through a temporary "electronic" declaration lasting no more than six months, for developing, testing, evaluating or training. Only defence officials can use them and they must follow rules made by the Attorney-General. Information obtained is subject to destruction rules.
But the Attorney-General's rules are not a legislative instrument. A temporary declaration can be kept off the Federal Register of Legislation if the minister decides that publishing it could prejudice defence or international relations and then only the Inspector-General is told. The power to make temporary declarations can be handed to senior officials.
Nothing in the minister's tests requires consideration of international humanitarian law, the Genocide Convention, the Arms Trade Treaty or the nuclear weapons treaties. Those obligations get a mention only when the minister chooses to attach a condition to a foreign official and only so far as the minister considers them relevant.
Nor is the framework confined to Australia's own military. Work for a foreign country's armed forces, a foreign authority or an international body can be covered. A looser test applies to work done in connection with cooperation with other countries than to work for Australia's own defence. The line between the defence of Australia and the defence of somewhere else is not clear.
This is not a secret police force. But it is a signature and for temporary declarations the minister keeps them off the Register; there is no moment at which the public or the Parliament is asked to agree.
Zones that move
Schedule 2 builds the physical half. The Bill itself, not any ministerial decision, makes the Pine Gap Defence Area a special defence security zone. Unauthorised entry or presence carries a penalty of up to seven years' imprisonment or 420 penalty units ($152,880), or both. The Woomera Prohibited Area carries a lower penalty of two years or 120 penalty units ($43,680), or both.
Beyond those, the minister may declare temporary zones over land, sea, seabed, subsoil and airspace, and mobile zones around the personnel, assets, equipment and activities of a foreign force.
Temporary and mobile zones are made by legislative instrument and temporary zones last up to three months. But a mobile zone's boundary moves with the people or equipment it follows, and the Bill states no maximum duration for it.
Emergency zones, which last 72 hours at a time and can run to 30 days, are not legislative instruments at all, although they must be publicised. The duty to consult people affected applies only ‘so far as is reasonably practicable’ and a failure to consult does not affect a declaration's validity.
Inside a zone, the Bill creates offences of unauthorised entry, presence, filming and photography, drafted around observation and information, and the strict-liability version requires no showing of risk. It is an offence to photograph or film a zone, or a person or thing in it, while in the zone, with a drone or against a direction, where that risks harming defence security.
The penalty is two years or 120 penalty units ($43,680). A strict-liability version carries 20 penalty units ($7,280). Defence security officials may stop vehicles, vessels and aircraft, and may detain a person they reasonably suspect of an offence until police take over. Those officials can be contractors, authorised by class.
This matters to the communities near Pine Gap and Woomera, and to anyone travelling through that country. They would live and travel inside a legal architecture in which being in a zone may turn on an instrument they cannot easily find and in which a camera inside a zone can carry criminal penalties.
The oversight that is said to exist
The Government may argue that oversight bodies keep their functions. The Bill, however, amends the National Anti-Corruption Commission Act 2022, the Ombudsman Act 1976 and the Freedom of Information Act 1982 so that entry to a special defence security zone for an investigation depends on the Defence Minister's approval and conditions. Pine Gap is a special zone by force of the Bill.
An integrity investigation at the facility most associated with sensitive foreign cooperation would need the permission of the minister responsible for it. Whatever the drafting intention, that is a limit on whether oversight can be performed at all.
The rest of the architecture is consistent with that. The declaration of a zone is not a reviewable decision and review reaches permissions rather than powers. The Inspector-General of the Australian Defence Force can investigate and demand information, but cannot order anything to be fixed.
The five-year review of the framework can be redacted by the minister before it is tabled, although the Parliamentary Joint Committee on Defence receives the full version.
What is at stake
The usual objection is that this view is alarmist. Look at the text instead. Each element is modest. Together they give one minister a jurisdiction within the jurisdiction, in which specified laws can be switched off on the minister's say-so, the people who would examine it need permission to enter and some of the instruments never reach the public record.
A clause outlasts the minister who first uses it, and the reassurance that it will be used well is not part of the text.
What the Senate can do
Three things, none of them radical.
- Decline to pass the Bill until it has both the AUKUS Public Inquiry's report and the Committee's own report before it.
- Require every capability declaration, including temporary and electronic declarations and the Attorney-General's rules, to be registered, or tabled in confidence with the Committee where publication would prejudice defence or international relations.
- Remove the amendments that make the National Anti-Corruption Commission, the Ombudsman and the Information Commissioner depend on the minister's permission to enter a zone.
On Wednesday 4 November, the AUKUS commissioners showed what inquiry looks like when it is done properly: hearings, evidence, a report that answers to the record. The Bill before Parliament does not abolish inquiry into its own powers. It narrows what an inquiry can see.
David Higginbottom is a member of the coordinating committee of the Independent and Peaceful Australia Network (IPAN) and coordinator of the Make Peace A Priority campaign (mpap.au).
This work is licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia License
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