This chapter examines the key issues raised in submissions in relation to the Bill. These include the need to streamline the process around calling out Reserve members, focussing on the removal of the Executive Council from the process, consultation with the states and territories and parliamentary scrutiny and accountability. It turns then to discuss the issues raised in relation to the proposed immunity from liability provided to members of the defence forces and foreign forces personnel and lastly the proposed amendments involving access to superannuation and related benefits for Reservists. The chapter concludes with the Committee's views and recommendation.
Processes around calling out Reserve members
Schedule 1 contains proposed amendments which streamline the process for calling out the Reserves. A number of concerns were raised including: why the Bill is necessary, constitutional powers and authorisation.
Why is it necessary to streamline the process?
The Australia Institute, Australians for War Powers Reform and Professor Anne Twomey questioned why it is necessary to streamline Call Out of the Reserves.
In its submission, the Department of Defence (Defence) indicated that the measures were developed:
…following consideration within Defence of lessons learnt during the 2019/2020 bushfire disasters. The measures also align with the interim observations and draft propositions of the Royal Commission into National Natural Disaster Arrangements.
It was emphasised to the Committee that the duration and intensity of the bushfire disaster in 2019-20, involving a number of jurisdictions, as well as the assistance provided for Operation COVID-19 Assist shows why the flexibility provided by the Bill is necessary. Major General Irving, the National President of the Defence Reserves Association, explained:
I think the big difference is that the call forward in the past has been relatively small numbers of reservists whereas this time—in both operations—we've had about 25 per cent of the 2nd Division involved in the operations. That's a very large number of people and many of them are doing significant amounts of time, and, to protect those reservists in their civilian employment, it's very important that the Australian Defence Force has the flexibility to call them out when they're required for these activities. I think the other thing that we should bear in mind is the intensity and the length and duration of these operations is much more extensive than calling forward reservists for a couple of weeks support for the operation. They need protection for their civilian employment, their studies et cetera and that's why it's important that the government has the ability to call them when required…I think the sheer numbers of reservists required this year has indicated why it was necessary to call out the reserves.
Mr Neil James, Executive Director of the Australia Defence Association (ADA) also referred to the scale of the bushfire disaster in 2019-20, noting that the resources of the fire and emergency services were overwhelmed. He also noted the compulsory call out of the Reserves which had not occurred previously.
In relation to the processes to call out Reserve members Defence emphasised:
The Bill does not alter, change or otherwise expand the circumstances in which the Reserves can be called out, or in which the ADF can be deployed in response to natural disasters or other emergencies.
The Explanatory Memorandum notes that the amendments in Schedule 1 seek to simplify the process for advising the Governor-General before making a Reserve Call Out order. The Parliamentary Library's Bills Digest noted that the proposed amendments will remove the requirement that the Governor‑General act on the advice of the Executive Council when calling out the ADF Reserve and instead require the Governor-General to act on the advice of the Defence Minister (Minister), who will be required to consult the Prime Minister before advising the Governor-General.
Professor Twomey questioned the removal of the Executive Council from the process observing that there is 'already a mechanism that accommodates urgency, there is no apparent reason why the Executive Council should be excluded from decision-making in non-urgent circumstances'.
Professor Twomey expressed her preference to retain the Executive Council, except for in emergencies, stating that it 'is still an important mechanism for calling out the reserve forces'. She argued that if there is an issue with the Executive Council processes, then that should be the focus of improvement rather than remove them from the process:
…the existing provision already says that if it's urgent and you can't get an executive council [meeting] in time then we can do it on the papers with the minister. So, I can't see why it's necessary to get rid of the executive council in these circumstances. The excuse that was given, as recorded in Hansard, was that it takes hours to work out whether you can have an executive council meeting, because someone sits on the phone and rings every single one of 45 people to find out if they can turn up. That just sounded incredibly stupid to me. They've never heard of text or email? Surely you can contact and get two people to an executive council meeting relatively quickly. And if you can't, surely you should be able to figure that out within 15 minutes or half an hour and then say, 'Hey, it's urgent; let's do it on the papers.' It just seemed a bit silly to me.
The Medical Association for Prevention of War (Australia), Pax Christi Australia, and Kellie Tranter, a lawyer and human rights activist, also expressed concern regarding the removal of the 'supervisory role of the Executive Council' or any other responsible body.
Mr Neil James from the ADA spoke about his initial concerns being ameliorated:
…when we first read the bill we were a tad concerned about the streamlining of the Executive Council aspects. After talking this over with people in Defence, we were convinced that this was really just a matter of streamlining and not any subterfuge to get round the checks and balances about the Executive Council. Indeed, when you look at what happens in the counterterrorist contingency planning, it's very similar to that. Where you need speed in an emergency, as the floodwaters rise or the fires get close to a major city, the last thing you want to do is muck around by following very complex procedures for convening an Executive Council meeting. In those types of emergencies, you've really got to give ministers some form of flexibility in responding. On balance, after talking it over with Defence, and from the lessons learned from the bushfires earlier this year, we're not that concerned about it.
In relation to this issue and the need for the Bill, Major General Roger Noble, Head Military Strategic Command, Defence, submitted:
This entire bill stems from the lessons, really, of the bushfire period, and the objective of it, I think, has practical and real impact on how the defence department can respond. The first point is that there's been debate about the Executive Council and decision-making. The changes that are in the bill are really driven by urgency and speed. So, if you remember, the call-out occurred in the very first week of January, and it was in a pretty dire national situation. So it's about doing it quickly, appropriately…
Consultation with States and Territories
The role of and consultation with the states and territories in the process of issuing a call out direction for emergency response was raised in evidence to the Committee.
The Centre for Military and Security Law raised the issue of whether and how consultation between the Commonwealth and state and territory authorities should occur when using the ADF for emergency response, noting that:
…the Defence Act 1903's existing provisions are silent on this issue and the proposed amendments do not address the topic.
Mr Andrew Ray and Ms Charlotte Michalowski in their joint submission emphasised:
In this case it is particularly concerning that the Minister does not need to seek approval from State or Territory Governments before authorising the use of defence forces (including foreign forces). While, in practice, it is possible that this requirement is implicit (given that the Minister must be satisfied that it is necessary for the Commonwealth to intervene), there is no reason that this requirement (if it exists) is not clearly stated. Further, the lack of consultation (or required approval) is not mentioned in the Explanatory Memoranda. It is therefore possible that this is an unintended artifact of the Bill. This could lead to, in a particularly egregious case, the Minister authorising the deployment of foreign armed forces against the request of a State Government with no limit on the period of deployment, or the actions the foreign forces could take…
Noting that it is for the states and territories to manage their own affairs, the Australia Institute recommended that 'at Schedule 1, Part 1, Subsection 28(4), the Bill require that the Minister advise the Prime Minister that a state or states or a territory or territories have expressly requested Commonwealth assistance in the form of Defence personnel and equipment'. The Australia Institute also argued that when the ADF or other Commonwealth employees are deployed to support the states and territories, that:
…the command and control arrangements are absolutely clear. The default position should be that the state and territory authorities (e.g. SES, RFS or similar Commissioner) should exercise overall control, with clear lines of communication and control to ADF officers in charge of the deployed ADF and Reserve members.
Defence noted that the Bill 'does not alter, change or otherwise diminish the role of the States and Territories in the process of calling out the Reserves. State or Territory consent is not required or appropriate for a Reserve call out'.
Parliamentary scrutiny and accountability
Concern regarding the lack of parliamentary scrutiny and accountability involved in the Minister's authority to give advice to the Governor-General to make or revoke a Reserve Call Out order was raised by a number of witnesses.
Mr Ray and Ms Michalowski echoed the concerns raised by the Scrutiny of Bills Committee (Scrutiny Committee) outlined in Chapter 1 in relation to the lack of parliamentary oversight:
We recognise the concerns raised by members of Parliament that the current process is complex, and may, under certain extreme circumstances, hinder attempts to provide timely assistance. However, there are pathways to improving efficiency that do not require removal of legitimate scrutiny by our elected representatives. There are also provisions in the Defence Act 1903 (Cth) that already provide for expedited orders and declarations in extraordinary emergencies. It is unclear why those powers are not sufficient to deal with time-sensitive emergencies. The proposed provision acts as a blanket exclusion to parliamentary oversight, with little justification having been provided by the Minister to the Parliament, beyond advocating the pursuit of efficiency.
Mr Ray and Ms Michalowski recommended that 'Item 2 of the Bill should reinstate the requirement that the call out of troops be made under a legislative instrument'.
Pax Christi Australia also highlighted the lack of parliamentary scrutiny. Dr Charles Knight, an adjunct senior lecturer in terrorism and security studies at Charles Sturt University, submitted that the 'perceived or actual lack of transparency and oversight in the proposed new arrangements is problematic'.
Defence argued that:
The Bill does not alter, change or otherwise diminish the role of Parliament in the process of calling out the Reserves. The nature of Reserve call out does not lend itself to Parliamentary review, noting that it can occur in a wide range of circumstances, including urgent circumstances, for short or long periods. Reserve call out orders are published on the Federal Register and are publicly available.
The Bill does not alter, change or otherwise diminish the role of Cabinet in the process of calling out the Reserves. There is currently no requirement for Cabinet to be involved in the decision to call out the Reserves, and that will continue to be the case.
The Law Council of Australia recommended that consideration be given to 'a statutory public reporting requirement for directions issued by the Minister (or the CDF or Secretary, of the power is delegated)'. It suggested this may take the form of:
…an annual reporting requirement, which requires disclosure of the total number of directions issued in the financial year, and requires a description of the types of directions that were given (including, for example, the types of disasters or other emergencies, and the types of assistance directed).
Defence indicated at the hearing that they did not see an issue with publishing this information.
The Committee received evidence relating to broader constitutional issues, beyond the scope of this Bill, of using the ADF to engage in civil aid during a disaster or emergency. This is an appropriate topic for the government to consider on another occasion.
The Explanatory Memorandum notes that the amendments in Schedule 2 insert 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 their duties, provide assistance in the preparation for, response to and recovery from a natural disaster and other emergency.
Defence explained that the intent of the provisions in Schedule 2 relating to immunity is to 'provide ADF members and others with similar immunities as are available to State and Territory emergency services personnel.' The provision would be enlivened by a direction from the Minister if the Minister is satisfied that at least one of the listed circumstances in subsection 123AA(2) of the Bill applies.
Civil and criminal liability
Some submitters had concerns over providing criminal as well as civil immunity.
Australians for War Powers Reform disagreed with the proposal to provide criminal immunity from liability to ADF members, arguing:
The immunities proposed to be granted to ADF (including Reserve) personnel appear far too wide. It would be reasonable to grant immunity from civil liability, but the granting of immunity from criminal liability to people who are in effect carrying out civilian duties seems unwarranted. ADF personnel involved in DACP-type activities should have no higher level of immunities than those available to the state and territory first responders they are meant to be assisting.
The Centre for Military and Security Law suggested that the 'claim in the Explanatory Memorandum that immunity from "any liability, whether civil or criminal…is analogous with the immunity available to emergency services in some States and Territories" warrants further examination', explaining:
Some recent research on this topic by a CMSL Emergency Management expert notes that exclusion from criminal liability is "unusual" as "most" State and Territory legislation only provides exemption from civil liability. However, a brief review of some of the relevant legislation from other jurisdictions has identified that a variety of different forms of release from liability are used, and some of these do expressly provide for release from criminal liability.
The Law Council of Australia however, was reassured that the measures in Schedule 2 of the Bill contained valuable safeguards to ensure their proportionality. In particular the Law Council noted that:
…the immunity is only available for acts done in good faith, in accordance with a specific, written direction from the Minister for Defence (Minister). Those directions may only be issued if certain statutory criteria are met, which require an assessment of the nature or scale of the disaster or emergency; or the necessity of the assistance to protect Commonwealth interests. Further, the immunity is only available to persons who have been specifically authorised (individually or by class) by the Chief of the Defence Force (CDF) or the Secretary of the Department of Defence (Secretary) or a senior executive service-level or a one-star officer delegate.
Defence addressed this issue:
The operation of the immunity in proposed section 123AA can, and would, be given a far narrower construction. The provision does not extend the scope of duties that an ADF member can perform while providing assistance. Instead, it provides protection from civil and criminal liability in the way the ADF member performs those duties, provided they are undertaken in good faith.
For example, an ADF member’s duties might lawfully include transporting evacuees from a bushfire zone. Section 123AA would operate to protect individual ADF members (not the Commonwealth) from civil liability in the event an evacuee is injured while being transported.
The immunity provision is also limited by the requirement that an ADF member be acting in ‘good faith’ performance of their duties. This means that the action in question must be done while making a genuine effort to perform their duties. Actions that are clearly outside the scope of an ADF member’s duties would not be protected. For example, an ADF member who assaults someone or steals property while supposedly providing assistance would not be protected.
Defence clarified that South Australia, Tasmania and the Northern Territory currently provide immunity from civil and criminal liability for their emergency service workers; Western Australia and Queensland limit the provision to civil immunity and New South Wales, Victoria and the Australian Capital Territory provide for immunity without specifying whether it includes criminal liability.
Professor Twomey raised a possible issue tying in her constitutional concerns with the immunity provisions. She noted that the immunity is tied to the word 'duties' in the legislation and:
…these duties would not formally exist if they're not supported adequately by the constitutional powers. So I think in that respect the immunity is actually probably in many cases just not effective.
She explained further:
It's suggesting to people that they have an immunity, when actually they don't because their duties as members of the ADF are not supported by the executive power, or whatever it is, to enable them to do the things that they are now saying they have got immunity for. So I think there are flaws in the immunity provision, but not on the basis that it's widening all the powers; simply on the basis that it's just not properly connecting to them in a way that gives you the result you're trying to achieve.
Commonwealth and the immunity provisions
The Law Council of Australia noted that the immunity is conferred only upon individual Defence personnel and:
…does not extend to the actions of the Commonwealth in issuing the directions. It therefore does not disturb the legal rights of individuals to remedies against the Commonwealth, seeking compensation for loss, damage or injury (for example, if the Commonwealth was negligent in issuing a direction to act).
However, Professor Twomey had some concerns, observing that:
It is possible that by giving immunity to ADF members, s 123AA also gives immunity to the body the member serves (i.e. the ADF and/or the Commonwealth). The Committee should therefore inquire into whether or not this provision would prevent persons, who have been injured due to the negligence or other acts/omissions of ADF members, from being able to obtain any kind of compensation or redress. Given the complicated issues that arise in this area, it would probably be best to make this clear in the legislation itself.
She pointed out that the application of state legislation dealing with civil liability might indirectly affect the Commonwealth's liability:
The way the legislation works, it only applies the immunity to the member. But, I am told, and again, it is beyond my expertise, that there is some legislation—it depends; it's different in every state—where the fact that the actual person who did the thing had an immunity means that then gets passed on to the person who employs them. Then I got told, 'Well, hang on a minute. The people in the armed forces aren't employees, they're servants, and it's slightly different there.' It gets pretty complicated.
To address this, Professor Twomey recommended that if the intention is that anyone who is injured still has the right to sue the Commonwealth then this should be clarified.
In response to this issue, Defence made the following statement in its submission:
The Bill does not provide the Commonwealth with any immunity from liability. Any person who suffers loss or damage as a result of assistance provided by the ADF will still be able to exercise legal rights against the Commonwealth.
Inclusion of foreign forces
As noted above, proposed section 123AA of the Bill includes a mechanism to extend the protection from liability to members of foreign forces who are providing assistance in Australia in a natural disaster or emergency, in the good faith performance of their duties.
While recognising that foreign armed forces and emergency services forces have provided support during natural disasters in the past, Mr Ray and Ms Michalowski submitted that 'it appears that little justification has been provided as to why these personnel require immunity from not only civil, but criminal prosecution, in Australia'.
Dr Charles Knight, Australians for War Powers Reform and a number of other submitters were also of the view that this provision should not be included. Australians for War Powers Reform argued:
We note the provision in the draft legislation for the CDF or Secretary to authorise a member of a foreign police force to undertake duties in respect of the provision of assistance, and thereby make them a “Protected Person”, with all the indemnities and protections that status entails.
We consider the use of foreign police to be undesirable and unnecessary, and question its legal basis. If foreign police are to be involved in any way, the legislation should stipulate that they are to be unarmed, and not to be required to undertake or participate in acts of coercion towards any member of the Australian public…
Defence explained that 'there is a long-standing practice of nations providing assistance to each other during emergencies', adding that:
Foreign military and police forces have played critical roles in numerous natural disasters and emergencies in Australia. During the 2019/2020 bushfire disaster, eight nations providing military assistance through the ADF, including members of: the New Zealand Defence Force, the Papua New Guinea Defence Force, the Republic of Fiji Military Forces, the Indonesian National Armed Forces, the United States Air Force, the Singapore Armed Forces, the Japan Self-Defense Forces, and the Royal Canadian Air Force.
Defence commented that the ADF has also provided disaster relief and humanitarian assistance to other countries and 'ADF members providing such assistance will sometimes enjoy immunity from liability, depending on the country and the arrangements in place for our forces'. Defence argued that the extension of immunities to foreign military and police forces is appropriate and justified:
…given the long-standing practice of nations providing this sort of assistance to each other. It recognises these important relationships, and provides appropriate protection in situations where they are offering assistance and putting themselves in harm’s way. This is also comparable to some State and Territory emergency management legislation, which can similarly extend immunities to volunteers from overseas agencies.
Defence emphasised that the immunity mechanism does not occur automatically but requires a decision from the Chief of the Defence Force, the Secretary of Defence or a delegate. Defence also emphasised that 'extending the immunity to members of foreign military and police forces does not authorise them to enter Australia or to use force or coercive powers in Australia'.
Use of force
The Committee received a number of submissions raising concern regarding the Bill's effect on the use of force by defence forces when assisting in civil aid during a disaster or emergency.
The Centre for Military and Security Law reported that the Bill 'does nothing to address the prospect, however remote, that members of the ADF may be required to use force or other coercive powers when responding to an emergency'. Associate Professor David Letts, drew attention to his comments made in January 2020:
It is foreseeable that ADF personnel will be required to assist civil authorities dealing with people who are unwilling to comply with directions to leave an area, or to conduct searches of property and seize items for a variety of reasons. Without specific authority to undertake these activities, members of the ADF have no greater legal right to direct, search or seize than an ordinary citizen, so this situation should be clarified.
Professor Twomey suggested:
…if you wish to confine the legislation in a way that makes it clear that the type of actions and duties relating to civil aid to the community are not to involve coercive action—which indeed is clear in DACC—then you could well say so in the legislation if you so chose.
The ADA addressed this concern in their submission by providing a brief history of ADF assistance to the civil community in certain domestic situations. The ADA noted that categories of assistance, such as natural disasters, the provision of geo-spatial survey data and industrial disputes, does not involve the carriage of weapons or use of force by ADF personnel. The ADA commented that some of the confusion or concern relating to the use of force could have:
…been precluded if the Bill, as the explanatory memorandum does, defined the emergencies concerned as not applying to situations involving the use of force (or law enforcement) by ADF personnel.
Defence explained that the provisions in proposed section 123AA:
…would not authorise the use of force or coercive powers by ADF members and others when providing assistance in a natural disaster or other emergency. That is, the provision would not give the ADF any additional powers beyond those already available under the executive power. As outlined above, this generally means that ADF members can only use force that is available to any person (e.g. self-defence), and cannot use coercive powers (e.g. search and seizure powers).
Defence continued by noting that:
The principle of legality, as a principle of statutory construction, means that in the absence of clear words or necessary implication the courts will not interpret legislation as abrogating or contracting fundamental rights or freedoms. The use of force or coercive powers are clear examples where the fundamental rights or freedoms of individuals are abrogated. Proposed section 123AA does not, by clear words or necessary implication, purport to authorise the use of force or coercive powers. Accordingly, section 123AA does not expand the powers available to ADF members and others.
At the hearing Defence repeated that the duties authorised by the executive power does not authorise the use of force.
Scope of 'natural disaster and other emergency'
Proposed subsection 123AA(2) provides that the Minister may, in writing, direct the provision of assistance in relation to 'a natural disaster or other emergency'. The Committee received a number of submissions raising concerns relating to the definition of 'other emergency' tying this in with concerns about the use of force. While there was acceptance that there is no constitutional authority for the coercive use of force in the circumstances and emergencies covered by the Bill, there was a desire to put this beyond all doubt.
The Law Council recommended consideration be given to providing an illustration of the types of emergencies intended to be covered by the proposed immunity and explained:
While the Law Council understands the need for flexibility to respond to unforeseen circumstances, public transparency and confidence would be greatly assisted by the insertion of either an inclusive statutory definition from the Defence Act itself, or at least the inclusion of some examples in the Explanatory Memorandum, which could be utilised as aids to statutory interpretation, where permitted under section 15AB of the Acts Interpretation Act 1901 (Cth).
The Spirit of Eureka supported ADF assistance to local and regional community organisations in coordinating responses to natural disasters, however recommended the need to specifically define emergencies solely as 'natural disasters – such as bushfires, floods, hurricanes, earthquakes.' It also noted that the Bill should:
…explicitly state that the ADF and the Army Reserves will not be used against workers and communities during industrial action, social justice campaigns and environmental protests.
Noting that proposed section 123AA is only enlivened in a situation involving a 'natural disaster of other emergency', Defence indicated that it is aware of concern regarding the potential scope of 'other emergency'. Defence argued that while some emergency situations where the ADF might provide assistance to the civil community are well known, others are 'less apparent or foreseeable'. Defence submitted that:
It is not possible to predict every sort of emergency where the ADF might be asked to provide assistance, or the type of assistance they might be asked to provide. Any attempt to list all sorts of emergencies that might be relevant would run the risk of failing to include an emergency that actually occurs.
However, Defence emphasised:
In addition to meeting the relevant threshold of ‘domestic violence’ and meeting the procedural safeguards, Part IIIAAA includes a strict prohibition on using the ADF to ‘stop or restrict any protest, dissent, assembly or industrial action’ unless there is a reasonable likelihood of death, serious injury, or serious damage to property. The Bill does not change these limitations.
Superannuation and related benefits
The Explanatory Memorandum notes that the amendments in Schedule 3 seek to rectify a 'legislative gap' relating to superannuation access for Reservists who are rendering continuous full time service as a result of a Reserve Call Out. The Committee received no opposition in relation to these proposed amendments.
In relation to the proposed amendments involving superannuation, this was fully supported by the Defence Reserves Association. Major General Irving explained:
There was a lesson learnt when the Reserve was called out at the beginning of 2020 for Bushfire Assist. Some people would have been disadvantaged through their civilian employment and their superannuation arrangements had they gone onto continuous full-time service as opposed to reserve service days. As it turned out, whilst a large number of reservists did go onto continuous full-time service, some reservists were still engaged but on reserve service days. The bill will provide flexibility to the Chief of Defence Force to be able to call out people on continuous full-time service and/or reserve service days.
It was also supported by the Law Council of Australia:
The Law Council further supports the measures in Schedule 3 to the Bill, to ensure that ADF Reservists who render continuous full-time service as part of a call-out, have a legal right to be paid superannuation contributions by the Commonwealth. The Law Council understands that such contributions are presently paid on an administrative basis. The Law Council supports the conferral upon those personnel of a legal right to superannuation contributions by the Commonwealth. This will promote parity with requirements for civilian employees and provisions made for ADF Reservists on voluntary continuous full-time service. It will also appropriately recognise the national service of ADF Reservists on call-out.
Mr Ray and Ms Michalowski indicated that in their view the retrospective effect of the proposed changes is appropriate, stating:
The retrospective effect compensates members of the defence forces deployed under a Reserve Call Out to combat the 2019/2020 bushfires. These provisions appear sensible, given the current taxable status of the income those members receive when deployed in that manner, and are aimed at correcting the unintended operation of existing legislation.
Mr James submitted that the lessons learnt from the compulsory call out of the Reserves around employment protections are important to address.
Major General Irving from the Defence Reserves Association (DRA) raised a related issue with the system of recording reserve service, noting that it currently does not show what personnel did in relation to a particular piece of service and that this may affect personal indemnity and future claims as they may not be able to prove what they did. He added that the DRA is currently in discussions with senior officer in relation to properly recording the service of reservists and what they did while on disaster relief service.
The Committee again wishes to express its gratitude to the ADF for the long history of assistance to the civil community in relation to natural disasters, most recently for Operation Bushfire Assist and Operation COVID—19 Assist. As was pointed out to the Committee by the Australia Defence Association, the ADF is the nation’s primary national surge capacity in times of disaster relief. They are capable, organised, disciplined and accustomed to doing a range of tasks at short notice. The Committee was reminded of the range of tasks the ADF excelled at during the lengthy 2019-20 bushfire crisis when emergency services were overwhelmed. These included supporting the evacuation of people via Navy ships, providing helicopter and logistical support, transport, accommodation, meals as well as personnel who assisted feeding the rescued baby koalas at Kangaroo Island in the aftermath of the bushfires there.
This bill is a product of lessons learned from the 2019-20 bushfires which was the first compulsory call out of the Reserves and the Committee supports its intent to:
streamline the procedures for calling out the Reserves quickly;
provide defence personnel and foreign service personnel, who come to Australia to assist with natural disasters or other emergencies, immunities similar to state and territory emergency services personnel; and
protect the civil employment conditions of reservists when called out for disaster relief and other emergency assistance so they can provide service without detriment to their civilian employment.
The Committee acknowledges that the measures contained in the Bill do not change the government’s legal authority to deploy the ADF in response to natural disasters and other emergencies but just streamline the process for making them available.
The Committee noted with concern the views put forward by some in the community which misrepresent the purpose of the Bill.
The Committee notes that while there is a legislative basis for the ADF to use coercive force, it was made clear to the Committee that this bill is about assistance to the civil community which does not involve the use of force or law enforcement. It appears this distinction is not well understood in the wider community and the government may wish to consider whether further clarification of this point, that the emergencies referred to in the Bill do not involve the use of force or coercion by ADF personnel, may be warranted.
There also appeared to be a misunderstanding of the intent around the inclusion of foreign service personnel in the immunity provisions. During previous natural disasters Australia has received assistance from overseas and Australians have assisted other countries with disaster assistance. The scale and duration of the bushfires in 2019-20 overwhelmed resources in numerous states. The defence website lists the international assistance which contributed to Operation Bushfire Assist and Australia is grateful to them for doing so. The view of the Committee is that foreign service personnel assisting during natural disasters should not have less protection than members of the ADF if they are called upon to respond in the same way.
The Committee notes that the immunities proposed in the Bill have been recommended by the Royal Commission into National Natural Disaster Arrangements. The Committee did however receive evidence of a potential unintended consequence that by giving an immunity to the actual individual members of the defence force that it could potentially trigger provisions in state legislation that then pass the immunity onto the Commonwealth. As the intention of the legislation is not to affect the ability of anyone who may be injured to sue the Commonwealth then to this end the government may wish to consider whether further clarification is required on this aspect.
The Committee supports the intention of Schedule 3 of the Bill to ensure that reserve members who serve under a call out order will receive commensurate superannuation to those reservists who provide equivalent service voluntarily and acknowledges the retrospective application of these provisions. The Committee notes the concerns raised by the DRA in relation to recording reserve service but notes the advice that the DRA is in discussions with senior officers to resolve this aspect.
Although not within the scope of this bill, submitters took the opportunity to raise wider concerns about whether there is an adequate constitutional head of power for using the ADF to provide disaster relief and other non-law and order assistance to the states and territories. The Committee agrees it would be helpful for this issue to be clarified at some future point to maintain public confidence and strengthen the capacity to provide and regulate such assistance to the wider community. However, that is not the subject of this bill.
The Committee recommends that the Bill be passed without delay, subject to the Explanatory Memorandum being amended to clarify the intention and operation of the Bill, including:
it does not alter, extend or otherwise change the Government's existing legal authorities to deploy the ADF, including the Reserves;
the operative elements of the Bill relating to the employment of the ADF and the Reserves, including proposed immunities, relate to Defence Assistance to the Civil Community tasks and, as a result, do not authorise the use of force or coercive powers by defence personnel (beyond the inherent right to self-defence);
examples are provided with respect to the 'other emergencies' referred to in section 123AA of the Bill; and
the requirement for a direction by the Minister under proposed section 123AA is intended to provide a check on the proposed immunities and does not grant a new authority to the Minister to direct the deployment of defence personnel.
Senator the Hon Eric Abetz