On 3 September 2020, the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 (the Bill) was introduced into the House of Representatives by the Assistant Defence Minister, the Hon. Alex Hawke MP. On 6 October 2020 the Bill was introduced into the Senate.
On 8 October 2020, pursuant to the Senate Selection of Bills Report, the Bill was referred to the Senate Foreign Affairs, Defence and Trade Legislation Committee (the Committee) for inquiry and report by 4 November 2020.
Conduct of the inquiry
The Committee advertised the inquiry on its website, calling for submissions by 15 October 2020. The Committee also wrote directly to a range of organisations and individuals to invite them to make written submissions. Submissions received are listed at Appendix 1.
The Committee also received 8 form letters with minor variations raising concerns which are covered in Chapter 2. The Committee agreed to publish an example of each form letter.
The Committee held a public hearing in Canberra on 30 October 2020. Witnesses who appeared at the public hearing are listed at Appendix 2. Published submissions and the Hansard transcript of the public hearing are available from the Committee's website: www.aph.gov.au/senate_fadt.
Background to the Bill
The Department of Defence (Defence) advised that the measures contained in the Bill are intended to 'improve existing arrangements for the ADF and other Defence personnel to provide assistance during natural disasters and other emergencies'.
Purpose of the Bill
The stated aim of the Bill is to amend the Defence Act 1903 (Cth) (Defence Act) to 'enhance Defence's ability to respond to natural disasters and other civil emergencies'. The Bill will do this by:
streamlining the process to call out the reserves, thereby enabling a more timely Defence contribution to national efforts;
provide defence personnel with immunities, similar to that of state and territory emergency services counterparts, when performing their duties in good faith to support disaster preparedness, recovery and response; and
ensuring that reserve members who serve under a call-out order will receive commensurate superannuation to those reservists who provide the same service on a voluntary basis.
Defence emphasised that the measures do not:
expand or alter the Government’s legal authority to deploy the Australian Defence Force (ADF) in response to natural disasters or other emergencies;
expand or alter the powers legally available to ADF members and other personnel who are providing assistance in relation to a natural disaster or other emergency;
authorise ADF members and other personnel to use force or coercive powers against members of the Australian community.
The current framework for providing ADF assistance for natural disasters or other emergencies (not requiring the use of force) to civil authorities and the community is the Defence Assistance to the Civil Community (DACC) Manual and Policy. Defence submitted that the ADF has provided assistance to civil authorities and the community in these sorts of events for decades.
More recently, Defence advised that in 2020, assistance has included the 2019-20 bushfires and the COVID-19 Pandemic, adding that:
The 2019/2020 bushfire disasters was the first time the Reserves have been called out to support DACC operations, instead of relying only on members of the Permanent forces and Reserve members who have volunteered.
The Law Council of Australia noted that while the DACC Manual is unclassified 'it does not appear to be pro-actively published on the Department of Defence website', and suggested that:
In view of the proposed arrangements in the Bill to make it easier to call out the ADF Reserve, and to enhance the ability of the ADF to provide civilian disaster and emergency assistance, the Law Council considers there would be value in the periodic, pro-active public release of the DACC.
The report of the Royal Commission into National Natural Disaster Arrangements notes that during the 2019-20 bushfires the DACC manual was not publicly available but that a version dated 11 August 2020 has since been published on the Defence website. At the hearing, Defence confirmed that it is available on the Defence website and that it will continue to be reviewed and updated based on lessons.
This section outlines the key provisions of the Bill in general terms.
Calling out the Reserves
The proposed amendments in Schedule 1 aim to streamline and enhance the provisions enabling call out of the Reserves (Reserve Call Out), including where the Reserve Call Out is in response to a natural disaster or other emergency. In particular, the amendments will:
Enhance flexibility in how called out ADF Reserve members serve by:
removing reference to continuous full-time service (CFTS).
enabling the Chief of the Defence Force (CDF) to determine how and when they are required to serve.
Simplify the process for advising the Governor-General before making a Reserve Call Out order.
Provide for Reserve Call Out orders to be made by notifiable instrument.
Extend Parts 8, 9 and 10 of the Defence Reserve Service (Protection) Act 2001 to any service rendered by Reserves under a Reserve Call Out order and not just CFTS.
Modernise the language in Part III of the Act.
Amend the CDF's delegation power in relation to Reserve Call Out to reflect the other changes to the Act.
Proposed Schedule 2 inserts a provision providing immunity, in certain cases, from civil and criminal liability for ADF members, other Defence personnel, and members of foreign forces who, in the good faith performance of duties, provide assistance in the preparation for, response to and recovery from a natural disaster or other emergency.
This immunity provision is enlivened by a direction from the Minister that the ADF or the Department is to provide such assistance, and in circumstances where the relevant duties are being performed in relation to that assistance.
Superannuation and related benefits
Proposed Schedule 3 amends the Military Superannuation and Benefits Act 1991, the Australian Defence Force Superannuation Act 2015, and the Australian Defence Force Cover Act 2015 to ensure Reserve members providing service during a Reserve Call Out will receive the same superannuation and related benefits as Reserve members who provide equivalent service voluntarily. The amendments would operate retrospectively, applying from the date of the first call out in November 2019, benefitting reserve members who provided service during the Reserve Call Outs in the 2019-20 bushfire disasters.
The Explanatory Memorandum (EM) states that the Bill has no significant financial impact on Commonwealth expenditure or revenue.
Scrutiny by other committees
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights did not provide comments on the Bill.
The Scrutiny of Bills Committee
The Scrutiny of Bills Committee (Scrutiny Committee) considered the Bill in the Scrutiny Digest 13 of 2020 (Scrutiny Digest) and made comments focusing on parliamentary scrutiny, immunity from civil and criminal liability as well as time limits and consultation and scope of powers.
The Scrutiny Committee considers that the calling out of Reserves and the provision of Defence assistance in time of natural disaster or emergency are significant matters that should be subject to effective parliamentary oversight. The Scrutiny Committee requested the Minister's advice as to why it is considered necessary and appropriate to shield call out orders made under proposed subsection 28(1) and directions relating to the provision of Defence assistance under proposed subsection 123AA(2) from all forms of parliamentary scrutiny.
Civil and criminal immunities
The Scrutiny Committee also requested the Minister provide more detailed advice as to why it is considered appropriate to provide protected persons with both civil and criminal immunity so that civil and criminal proceedings may only be brought against a protected person in circumstances where lack of good faith is shown. The Scrutiny Committee noted that in the context of judicial review, bad faith is said to imply lack of an honest or genuine attempt to undertake the task and that will involve personal attack on the honesty of the decision-maker. The Scrutiny Committee also observed that the courts have taken the position that bad faith can only be shown in very limited circumstances.
Time limits and consultation
The Scrutiny Committee also noted that there are no time limits on how long a call out order or direction may remain in force, nor any requirement to consult with affected state or territory governments.
Scope of powers
The Scrutiny Committee requested the Minister to provide advice as to the scope of powers, including coercive powers and the use of force against members of the public, that may be exercised by reservists subject to a call out order under proposed subsection 28(1) and protected persons subject to a direction relating to the provision of Defence assistance under proposed subsection 123AA(2).
At the time of tabling, the Scrutiny Committee had not published a Ministerial Response to their issues raised in the Scrutiny Digest.
Structure of the report
Chapter 2 provides an overview of issues raised in evidence and contains the Committee's views and recommendation.
At the outset the Committee wishes to convey its gratitude to members of the ADF for assistance to the civil community over many years in relation to natural disasters. In particular, the Committee acknowledges the recent work for Operation Bushfire Assist and Operation COVID-19 Assist.