The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020, contrary to its name, does nothing to enhance Defence’s capacity to respond to natural disasters and other emergencies. Beyond the provisions around superannuation, the bill serves to reduce oversight of the Call-Out process and grant Australian Defence Forces (ADF) personnel, foreign defence force personnel, and foreign police criminal and civil liability immunities.
It is important that the ADF have the ability to provide assistance to civil emergency response capabilities in large-scale responses to climate-related emergencies and disasters when requested to. These circumstances have occurred and will continue to occur, notwithstanding this legislation passing. The Defence Assistance to the Civil Community (DACC) will continue to stipulate the role of the ADF when providing assistance in domestic natural disasters. We note evidence given to the Royal Commission into Natural Disaster Arrangements by officials of the ADF which state that DACC arrangements were sufficiently flexible and effective during Operation Bushfire Assist and question elements of this bill which state otherwise.
We express significant concern about the provisions of the Bill which relate to immunities, the constitutional sources of power, the processes around calling out Reserve members, and human rights implications.
We do not accept the characterisation made in the main committee report that the concerns raised by constitutional, legal, and policy experts are peripheral to the substance of this legislation. As demonstrated by the expert evidence given to the committee, these issues are central to this legislation.
The Australian Greens note the analysis of the majority committee report, however, we do not support the conclusions and recommendations which emerge from the interpretations of evidence given during the inquiry. We therefore disagree with the majority committee report recommendation that the bill be passed expeditiously and unamended.
The Greens do not support the passage of this Bill. We do not believe that this bill is sufficiently justified. The constitutional and civil liberties risks, and the risks to ADF members articulated by experts and stakeholders during the course of this inquiry are significant and unmitigated by evidence given to the committee during the course of the inquiry.
We do, however, note the superannuation related benefits outlined in Schedule 3 and agree with the main committee’s view on this that it is a necessary and important change to ensure that Reservists are appropriately compensated for their service. We foreshadow an amendment to the bill which would separate this element from the rest of the bill.
Scrutiny by Other Committees
The Scrutiny of Bills Committee
The Scrutiny of Bills Committee reported on this bill and drew attention to issues pertaining to parliamentary oversight, immunity provisions, time limits and consultation, and scope of powers. Notably that:
The calling out of Reserves and the provision of ADF assistance in domestic natural disaster situations are very significant and should be subject to parliamentary oversight.
The appropriateness of granting civil and criminal immunities remains unanswered and determining whether these immunities hold being dependent on whether someone has acted in good faith is perhaps limited.
There is no time limit for how long a call-out order remains in force.
We note the analysis of this commentary in the main committee report and contend that the issues raised by the Scrutiny of Bills Committee continue to be relevant and were not sufficiently addressed in the evidence given to this committee’s inquiry process.
Contrary to the evidence given by the Departmental officials during the hearing, we do not agree that the granting of both criminal and civil immunities to ADF personnel, foreign defence personnel, and foreign police contained within this bill appropriately balances the rights of civilians to legal remedy for negligent and damaging behaviour. It is our position that the Department of Defence was not able to sufficiently address the concerns of the considerable number of submitters who contested the provision of broad immunities.
We do not support the extension of any immunities to foreign forces and police. We note that the main committee report outlines the number of submissions which recommend against including this provision and we agree with their view.
Further, there is a significant lack of clarity contained within this bill in relation to what legal remedies are available to civilians in circumstances where ADF and foreign personnel have acted inconsistently with their obligations to provide assistance. This matter requires further consideration and clarification to ensure that the right to access the justice system is well understood and reflected in the legislation.
Constitutionality and Immunity Provisions
We are very concerned with the issues brought up in evidence to the committee by constitutional law expert, Professor Anne Twomey. Professor Twomey linked her substantial concerns with the constitutionality of this legislation to the immunity provisions. In her submission she stated that:
This [constitutional] anomaly will be aggravated by proposed s 123AA of the Defence Act. It will provide immunity to all members of the Defence Force, both regulars and reserves, when acting in the performance of their duties if the duties are in respect of the provision of assistance to prepare for or respond to a natural disaster or other emergency. But this raises the question of when such matters are within the member’s duties, which goes back to the question of whether there is constitutional power to deal with such matters.
In her evidence to the committee, Professor Twomey elaborates on this point, stating that:
...the problem here is 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.
This evidence demonstrates that the constitutional ambiguities that surround DACC and the source of power that Defence relies upon to determine the duties of ADF personnel are not a settled constitutional matter and directly interact with the proposed provisions of this bill. We are concerned about the significant implications that this complicated legal matter would have for civilians, for ADF personnel who may find themselves not protected by immunities and the subjects of legal actions, and more broadly we are concerned that this complicates an already messy area of law.
Proportionality and Good Faith Issues
We are concerned that the granting of immunity from criminal liability unacceptably provides protections for ADF personnel, and foriegn personnel, beyond those granted to all state and territory emergency responders. We are of the view that ADF personnel would be undertaking fundamentally civilian tasks in the circumstances that this bill concerns itself with and we do not think that it is necessary or appropriate to water down the rule of law.
Further, we note that immunity provisions granted to state and territory emergency responders do not majoritively include immunity from both civil and criminal liability. Whilst we agree that ADF personnel should be appropriately protected in order to be able to carry out their duties, we do not see that these should be over and above those granted to first responders and state-based emergency personnel.
Additionally, we agree with the submission made by Australians for War Powers Reform that criminal immunity from liability is unwarranted.
We are not satisfied that immunities should be granted against a standard of “good faith”. We share the concerns raised in Kellie Tranter’s submission to the committee, arguing that:
The Bill extends immunity for ADF personnel from civil and criminal liability as long as their acts are done in ‘good faith’. This is a very low and imprecise bar, especially when combined with the breadth of the expression ‘other emergencies’. I also note the Bill extends immunity to disaster preparedness. Preparation does not have the time constraints of an actual emergency, and in that situation there is no reason to provide any immunity to any authority for legal liability for any acts or omissions in taking those preparatory steps.
Mr Andrew Ray and Ms Charlotte Michalowski explored the issue of “good faith” further in their evidence to the committee, suggesting that perhaps a higher standard such as proportionality may be more appropriate. They also outline in their submission the lack of clarity around what “good faith” can be interpreted as, stating that:
...there are significant concerns regarding the use of the limitation of ‘good faith’ contained in the immunity provision. Good faith has been widely used in immunity provisions, however academic commentators have highlighted that the exact scope of the term is unclear, with few cases having applied the test in relation to immunities. At its widest the immunity may protect anyone who subjectively believes they are acting in good faith. Alternatively, in some cases courts have considered competing policy considerations to weigh up whether an action should fall within a good faith exception. It is unclear which standard would be applied were the application of immunity contained in s 123AA challenged. This leads to the situation where it is unclear when an individual could rely on the immunity, a position that is at odds with the stated justification of the amendment.
Scope of ‘natural disaster and other emergency’
The proposed subsection 123AA(2) provides that the Minister may, in writing, direct the ADF to provide assistance in relation to “natural disaster or other emergency.” In our view, the term “other emergency” is deliberately undefined and left to unacceptably broad interpretation. We note that the main committee report alludes to concerns made by a number of submissions and we agree that there needs to be greater definition and explanation for what circumstances other emergencies could be understood as.
Non-Use of Force
The Greens are deeply concerned that the bill does not proscribe the non-use of force in the legislation. Despite evidence from Defence that indicates that this bill does not permit the use of force by Defence personnel when assisting in natural disasters and other emergencies, there are significant and justifiable concerns from submitters to the inquiry and in the community more broadly that remain unanswered should this legislation not explicitly rule the use of force out.
As stated by Professor Twomey:
...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.
This sentiment was echoed by the Australia Defence Association who argued in their evidence to the committee that any confusion about the non-use of force could have been clarified in a definition of emergency that explicitly ruled out the use of force.
Further, we are concerned by the position Defence has taken when questioned on whether or not they will prescribe the non-use of force. In an answer provided on notice, Defence articulated the below:
Defence has two main concerns with amending the Bill as suggested:
Such an amendment would be redundant. The Bill as currently written does not authorise the use of force or coercive powers. The immunity provision would not enable the ADF to, for example, use force or coercive powers to disperse a protest or otherwise quell unrest.
Such an amendment could potentially have unintended consequences, inadvertently limiting Defence’s ability to provide assistance or the operation of the immunity provision in situations where Defence is providing assistance. For example, it would be important not to inadvertently prevent ADF members from using force consistently with any other member of the Australian community (such as in self-defence).
We do not accept that explicitly proscribing the non-use of force in this legislation is redundant, this assertion goes against the considerable weight of evidence provided to the committee by policy and legal experts. Further, we do not agree that this prescription would inadvertently prevent ADF members from exercising self-defence. This could be remedied, again, by greater attention to detail and further explanation in the legislation.
There are significant constitutional ambiguities around the source of power that can be drawn upon to use ADF personnel in civil disaster situations which remain unanswered by this bill and, as stated previously, directly affect provisions of this bill.
This point is made clear in the Bills Digest by the Parliamentary Library when it states that:
The manner in which the proposed amendments are drafted raises the question whether the Bill, as well as providing certain immunities, provides the Minister with a statutory power to direct use of the ADF and other Defence resources in certain ‘natural disasters and other emergencies’. The Minister already has some non-statutory executive power to direct assistance. The extent of that non-statutory power depends on the scope of the Commonwealth’s ‘nationhood power’ which is not regarded as settled in constitutional law. It is possible that these provisions expand the existing executive power.
Further, evidence provided by Professor Twomey in both her submission and during the hearing clearly articulate that there are substantial and unresolved constitutional matters relating to the legal basis upon which the ADF can assist in domestic situations. In part of her evidence, Professor Twomey stated that:
The constitutional basis for defence aid to civil community relies on the prerogative power, not the statutory power. That ties back to the executive power and the nationhood power, which are pretty unclear.
Professor Twomey also stated that:
[The constitutional issue] It is a murky, unclear area. Hopefully, the bushfire royal commission report will help and there will be some deep consideration about trying to rationalise this and put it onto a sensible statutory basis to resolve some of these questions. I don't think using the executive power as a way of getting around the fact you're not sure whether your legislation will work is of itself an adequate answer for the poor people in the Defence Force who, in the end, are being told to go out and do these things.
Call-Out Arrangements and Processes
The proposed changes to the process of a call-out order are unnecessary as there is an existing mechanism that accommodates for urgency that allows the Minister to by-pass the Executive Council.
The bill seeks to normalise the “urgency” arrangements made to issue a compulsory call-out order. This means that instead of going through the Executive Council to test whether there are sufficient regular ADF personnel available and whether volunteer reserves had been adequate to cover an existing need, it is left at the discretion of the Minister and the Prime Minister to make the request to the Governor General as the commander -in-chief of the Defence Forces.
We agree with the comments made by Professor Twomey in her submission which summate that the proposed changes are unjustified:
If the Commonwealth Government has not yet worked out a means of instantly contacting all members of the Federal Executive Council to inquire of their immediate availability for a meeting, then it is an indictment on its management. Getting a person to sit down and ring each of them in turn is, frankly, absurd. It is hardly an excuse for changing the legislation. Rather, it should be a reason for changing communication methods. In any case, to state the obvious, if the situation is so urgent that there is no time to go through the system to organise a meeting of the Federal Executive Council, the Minister could be legitimately satisfied that ‘for reasons of urgency, the Governor-General should act with the advice of the Minister alone’ under the existing provision. Accordingly, there is no justification to make this change.
We also note the arguments and observations made in submissions by the Australia Institute and the Australians for War Powers Reform which similarly question the necessity for amending the call-out process in the proposed way and we agree with their positions on this.
It is our position that this bill attempts to set a dangerous precedent for normalising the compulsory call-out of reservists - taking them away from their ordinary jobs and lives where normal ADF personnel and volunteer reservists, and state-based civil emergency services may be more appropriate and sufficient.
Scrutiny and Consultation
The Greens are concerned that the proposed “streamlining” of the call-out processes remove a level of oversight that comes with screening call-out orders through the Executive Council.
We are also concerned by the lack of parliamentary scrutiny and accountability that comes with giving the Minister authority to give advice to the Governor General about call-out orders. We share the concerns raised by Mr Andrew Ray and Ms Charlotte Michalowski in their evidence to the Committee which largely reflect the issues outlined by the Scrutiny of Bills Committee:
...there are pathways to improving efficiency that do not require removal of legitimate scrutiny by our elected representatives...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.
We echo the recommendations made in submissions and in evidence to the committee that argue that compulsory call-out orders ought to be subject to disallowance by the Senate by way of legislative instrument.
Explicit approval from states and territories must be sought before authorising the use of ADF personnel (including and especially foreign defence personnel and police) in domestic emergency response.
In its submission to the committee, the Australia Institute stated that:
The Australia Institute considers that it would be entirely inappropriate for the Commonwealth to decide on its own motion to provide assistance in circumstances where there was no explicit request from the relevant states or territories. Hence we recommend 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.
We note that this position was also largely held by Mr Andrew Ray and Ms Charlotte Michalowski in their submission to the inquiry.
The Greens maintain that in order to ensure the greatest level of Commonwealth-State/Territory cooperation and the effective use and allocation of resources, explicit approval for the provision of ADF personnel and resources must be sought from the States and Territories.
Human Rights Implications
Neither the explanatory memorandum nor the evidence given to the committee by Defence make an effort to sufficiently explain and explore the human rights implications of this bill. As the explanatory memorandum concludes:
The Bill is compatible with human rights because it promotes and advances the right to just and favourable conditions of work, and does not otherwise engage any human rights.
We disagree with this conclusion and contend that it fails to understand and balance the rights of civilians, particularly in relation to accessing the justice system to seek legal remedy for negligent and damaging behaviour, and other civil and political rights.
We agree with Australians for War Power Reforms who argued that the bill ought to quarantine all of the new call-out provisions to DACC situations and provide explicit analysis on the human rights it does not engage with or intend to engage with.
The Australian Greens recommend that this bill not proceed.
Senator Jordon Steele-John