Bills Digest No. 15, 2020–21
PDF version [730KB]
Karen Elphick
Law and Bills Digest Section
David Watt
Foreign Affairs, Defence and Security Section
6
October 2020
Contents
Glossary
The Bills Digest at a glance
Purpose and structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
SCHEDULE 1—CALLING OUT THE RESERVES
Key issues and provisions
SCHEDULE 2—IMMUNITY AND MINISTERIAL
DIRECTION TO PROVIDE ASSISTANCE
Background
Key issues and provisions
SCHEDULE 3—SUPERANNUATION AND RELATED
BENEFITS
Date introduced: 3
September 2020
House: House of
Representatives
Portfolio: Defence
Commencement: The
day after the Act receives Royal Assent.
Links: The links to the Bill,
its Explanatory Memorandum and second reading speech can be found on the
Bill’s home page, or through the Australian
Parliament website.
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
website.
All hyperlinks in this Bills Digest are correct as
at October 2020.
Glossary
The Bills Digest at a glance
Purpose and structure of the Bill
The measures in this Bill are intended to enhance the
government’s ability to provide Defence Assistance to the Civil Community in
relation to natural disasters and other emergencies.
Schedule 1—Calling out the Reserves
Schedule 1 proposes amendments to streamline the process
for calling out members of the ADF Reserves. 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, who will be
required to consult the Prime Minister before advising the Governor-General. A
Reserve Call Out order will be a notifiable instrument.
Reserve members will not automatically render continuous
full time service (CFTS) when called out. It will be for the CDF to decide when
a Reserve member who has been called out is bound to render CFTS.
Schedule 2—Immunities and ministerial direction to provide
assistance
Schedule 2 provides immunities to certain personnel while they
are performing duties to support emergency and natural disaster preparedness,
recovery and response.
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.
For the purpose of issuing a direction, the nature of
‘other emergencies’ is not defined. There is no requirement for the Minister to
consult with any affected state or territory before issuing a direction, or for
a state or territory to requisition that assistance. There is no requirement
for the ministerial direction to be published. A ministerial direction is not
subject to any prescribed time limit.
The removal of criminal liability for actions taken in good
faith performance of duty while providing certain assistance is likely to have
the practical effect of expanding the circumstances in which the ADF can use
force when deployed within Australia.
Schedule 3—Superannuation and related benefits
This Schedule proposes amendments to certain legislative
superannuation schemes for ADF members to ensure that Reserve members who are
subject to a call out order receive the same superannuation benefits as Reserve
members who provide service voluntarily.
Purpose and
structure of the Bill
The purpose of the Defence Legislation Amendment
(Enhancement of Defence Force Response to Emergencies) Bill 2020 (the Bill)
is to amend the Defence
Act 1903 (Defence Act) and the Defence Reserve
Service (Protection) Act 2001 (DRSP Act) to streamline
the process for calling out members of the ADF Reserves, provide the Minister
with certain powers to direct use of the ADF in an emergency, and to provide
immunities to certain personnel while they are performing duties to support
civil emergency and disaster preparedness, recovery and response.
The Bill is divided into three schedules.
- Schedule
1—Calling out the Reserves proposes amendments to the process for calling
out members of the ADF Reserves under sections 28 and 29 of the Defence Act
- Schedule
2—Immunities proposes amendments to:
- provide
Australian Defence Force (ADF) members and other Defence personnel with immunity
from civil and criminal liability in certain cases while performing duties to
support civil emergency and disaster preparedness, recovery and response
- permit
the CDF or the Secretary to extend that immunity to other persons, including
members of foreign military forces and foreign police forces and
- in
the context of the immunity provision, provide the Minister with statutory
power to direct use of the ADF and other Defence personnel to provide
assistance in a natural disaster or other emergency.
- Schedule
3—Superannuation and related benefits proposes amendments to the Australian Defence
Force Cover Act 2015 (ADF Cover Act), the Australian Defence
Force Superannuation Act 2015 (ADF Super Act) and the Military Superannuation
and Benefits Act 1991 (MSB Act) to ensure that Reserve
members who are subject to a call out order receive the same superannuation
benefits as Reserve members who provide service voluntarily.
The measures in this Bill are intended to enhance the government’s
capacity to provide Defence Assistance to the Civil Community (DACC) in
relation to natural disasters and other emergencies.[1]
The key issues and provisions are discussed separately for each Schedule.
Background
Defence
Assistance to the Civil Community
The ADF definesDACC as ‘the provision of
Defence resources, within Australia and its territories, in response to a
request for assistance for the performance of support that is primarily the
responsibility of the civil community or other Government/non-Government
organisations’.[2]
DACC is not authorised by statute, the assistance is provided by the Department
of Defence through an internal administrative process, according to rules set
out in the Defence
Assistance to the Civil Community Manual (DACC Manual),[3]
and overseen by the Defence Minister and the CDF.
For DACC operations, the ADF is conceptualised as a
Commonwealth workforce, equipment and logistic resource, rather than a military
force. It is reasonable to characterise DACC operations, within certain limits,
as non-military operations.[4]
Operation
Bushfire Assist
Between September 2019 and March 2020, the ADF provided DACC
through ‘Operation Bushfire Assist’ which saw some 8,000 defence force
personnel assist with the bushfires, including more than 2,500 ADF Reserves. Approximately
500 defence personnel from countries including New Zealand, Papua New Guinea,
Japan and Fiji also provided assistance.[5]
On 28 November 2019, in response to the rapidly worsening
bushfire disaster, the Governor‑General issued an Order to Call Out the
Australian Defence Force Reserves. That order called out a large
portion of the Reserves for ten days from the date of the order.[6]
On 4 January 2020, the Governor-General issued a second Order to Call Out the
Australian Defence Force Reserves (January 2020 Call Out).[7]The
order applied only to ‘Army Reserve members from Forces Command’ who were
called out for continuous full time service, as specified by the CDF, to
provide civil aid, humanitarian assistance, medical or civil emergency or
disaster relief. A call out of the Reserves (Reserve Call Out) for this
purpose is authorised by paragraph 28(3)(g) of the Defence Act.
The Explanatory Memorandum advises that the bushfire
disaster was the first time a large scale Reserve Call Out was used provide
civil aid, humanitarian assistance, medical or civil emergency or disaster
relief;[8]
all other assistance provided by ADF members in response to natural disasters
has been provided by full-time members or Reserve members who had volunteered. According
to the Royal
Commission into National Natural Disaster Arrangements (Royal Commission),
the DACC contribution of the ADF in supporting state and territory governments in
response and recovery efforts during the 2019–2020 bushfires was without
parallel in peacetime.[9]
Defence’s experience during the January 2020 Call Out drew attention to ways in
which the Reserve Call Out provisions could be improved.[10]
The Royal Commission examined Operation Bushfire Assist,
and while it has not yet reported its findings, it has issued Interim
Observations,[11]
some of which are relevant to changes proposed in the Bill:
The involvement of the ADF in natural disasters in Australia
is already contemplated in government disaster plans... some stakeholders
questioned the limits of the existing authority to support DACC tasking. It has
been said, in the context of the 2019-2020 bushfire season, that the limits of
the existing legal framework were ‘tested’. We have not yet reached a view
about whether further legislative authority is required, and have sought
further information on this issue.
We have also heard that the ADF lacks privileges and immunities
otherwise afforded to state and territory emergency responders, and that the
legislative provisions for the call-out of the ADF Reserve force may not have
been sufficiently flexible. We have sought further information on the nature
and effect of those challenges.[12]
Counsel Assisting the Royal Commission has invited parties
with leave to appear before the Royal Commission to respond to a set of Draft
Propositions[13]
which may inform the findings and recommendations of the Commission. Two
propositions relate to the changes proposed in the Bill:
C14. The
legislative arrangements enabling the ‘call-out’ of reservists should be
examined to ensure that such call-outs are more streamlined, and flexible in
order to meet ADF operational requirements, including in natural disasters.
C15. The
Australian government should consider whether Defence (including ADF) and
Defence personnel and staff (including ADF personnel) engaged in activities
conducted under or pursuant to emergency DACC have the same or similar privileges
and immunities as states and territories, and their personnel do, when engaged
in activities in response to, and recovery from, natural disasters.[14]
The Royal Commission is due to deliver a final report by
28 October 2020.[15]
Ongoing
Operation COVID-19 Assist
On 29 March 2020, the Defence
Minister announced that the ADF had deployed teams across the country
to:
... work in partnership with state and territory law
enforcement agencies to conduct COVID-19 quarantine compliance checks. The ADF
will provide logistics support for the state and territory police as they
enforce mandatory quarantine and isolation measures.
The ADF response is being undertaken through the provisions
of the Defence Assistance to the Civil Community (DACC) framework. ADF
members have no coercive enforcement powers. As of today, around 350 ADF
personnel are supporting state and territory authorities.[16]
DACC Operation COVID-19 ASSIST is co-ordinated through the Emergency Management Australia-led
whole-of-government response, as is the standard procedure for emergency
DACC operations.[17]
Although Reserves have been used in the operation, as at the date of this
digest, no call out orders had been issued under any statute and the operation
was not authorised by specific legislation.
Calling out
the Reserves
Each arm of the ADF has a permanent force and a reserve
force;[18]
a key difference between the Permanent Forces and the Reserves
relates to the obligation to render continuous full time service (CFTS).[19]
Members of the Permanent Forces are bound to render CFTS by section 23 of the Defence
Act. By contrast, under section 24, a member of the Reserves is not bound
to render CFTS unless the member:
- is
involved in a period of training that requires CFTS (see section 25)
- is
required to render CFTS after volunteering to do so (see section 26) or
- is
called out under Division 3 of Part III or—in time of war—Division 1
of Part IV.
A Reserve Call Out can rapidly increase the size of the
full time force available for use by the Chief of the Defence Force (CDF).
It is an extraordinary power, overriding the largely voluntary nature of
Reserve service, and can only be used in exceptional circumstances. Subsection
28(3) of the Defence Act restricts the circumstances in which the
Governor-General can make a Reserve Call Out order to:
- war
or warlike operations
- a
time of defence emergency
- defence
preparation
- peacekeeping
or peace enforcement
- assistance
to Commonwealth, state, territory or foreign government authorities and
agencies in matters involving Australia’s national security or affecting
Australian defence interests
- support
to community activities of national or international significance or
- civil
aid, humanitarian assistance, medical or civil emergency or disaster relief.[20]
This Bill does not amend the prescribed
circumstances in subsection 28(3); it amends the process and service conditions
under which Reserves can be called out under Division 3 of Part III of the
Defence Act. The changes are discussed further under the heading Schedule
1—Calling out the Reserves.
Assignment
to CFTS
CFTS is an important administrative concept in the Defence
context and is contrasted with the administrative concept of Reserve
service. Section 1.3.15.1 of the Defence Determination
2016/19, Conditions of service provides that a Member of the
Reserves on Reserve service is not on continuous full-time service. [21]
Schedule 1 amends call out provisions so that instead of a call out
order automatically assigning Reserves to CFTS, the CDF has flexibility to
determine how and when particular members or units are required to serve.
Assignment to either CFTS or Reserve service has flow-on
effects for the Reserve member, including to the benefits provided as
conditions of service. For example, a member rendering CFTS can be required by
command to perform duty at any time (regardless of their ordinary hours of
work); is subject to military discipline law; and is entitled to prescribed
conditions of service relating to pay, allowances, housing and superannuation.
Powers and
immunities when conducting DACC
ADF members are not currently provided with any statutory
powers or protections when conducting DACC; the powers and immunities of ADF
members are the same as those of an ordinary citizen.[22]
The use of ADF members to conduct tasks in support of disaster preparedness,
response or recovery therefore presents some legal risks to those members. The
issues are discussed further under the heading Schedule 2—Immunities and
ministerial direction to provide assistance.
Committee
consideration
The Bill has not been referred to a committee for inquiry
and report as at the date of the Digest.
Senate
Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills
had not commented on the Bill as at the date of the Digest.
Policy
position of non-government parties/independents
No non-government parties or independents appear to have commented
on the Bill to date.
Position of
major interest groups
Independent
and Peaceful Australia Network (IPAN)
Bevan Ramsden, a member of the National Coordinating
Committee of the Independent and Peaceful Australia Network (IPAN) indicated
concern that ‘emergencies’ are undefined in the Bill and questioned whether it
would permit the use of the ADF in a disruptive industrial action or disruptive
mass climate change protest. Mr Ramsden also expressed concern that the Bill
could provide foreign military forces and foreign police with immunity from
civil and criminal prosecution when performing duties in an emergency.[23]
No other interest groups appear to have published comments
to date.
Financial
implications
The Explanatory Memorandum states that the Bill has no
significant financial impact on Commonwealth expenditure or revenue.[24]
Statement of Compatibility with Human Rights
As required under Part 3 of the Human Rights
(Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the
Bill’s compatibility with the human rights and freedoms recognised or declared
in the international instruments listed in section 3 of that Act. The
Government considers that the Bill is compatible.[25]
Parliamentary
Joint Committee on Human Rights
The Committee had no comment in relation to the Bill.[26]
SCHEDULE
1—CALLING OUT THE RESERVES
The purpose of the amendments in Schedule 1 is to
streamline and enhance the provisions enabling Reserve Call Out, including
where the Reserve Call Out is in response to a natural disaster or other
emergency. The amendments are intended to:
a. Enhance flexibility in how called
out ADF Reserve members serve by:
i.
removing references to continuous
full-time service (CFTS)
ii.
enabling the Chief of the Defence
Fore (CDF) to determine how and when they are required to serve.
b.
Simplify the process for advising
the Governor-General before making a Reserve Call Out order.
c.
Provide for Reserve Call Out
orders to be made by notifiable instrument.
d.
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.
e.
Modernise the language in Part III
of the Act.
f.
Amend the CDF's delegation power
in relation to Reserve Call Out to reflect the other changes to the Act.[27]
Key issues
and provisions
Reserve Call
Out process and advice to the Governor-General
The process required by the Defence Act for a
Reserve Call Out is that the Governor-General make an order under subsection
28(1) calling out some or all of the Reserves for CFTS. Subsection 29(1) then
requires the CDF to specify in writing the period for which a member of the
Reserves is bound to render CFTS. Subsection 28(4) currently requires the Governor-General
to act with the advice of either the Executive Council or the Minister,
provided that the Minister has consulted the Prime Minister and the Minister is
satisfied that the urgency of the situation requires that the Governor-General
should act on the advice of the Minister alone.
Item 3 repeals subsection 28(4) and replaces it
with:
- proposed
subsection 28(4) which requires the Governor-General to act with the advice
of the Minister and
- proposed
subsection 28(4A) which requires the Minister to consult with the Prime
Minister before giving advice to the Governor-General to make or revoke a
Reserve Call Out order.
The removal of the requirement to consult with the
Executive Council is consistent with the prerogative of command in chief of the
Defence Force being vested by section 68 of the Constitution
in the Governor-General acting alone (as opposed to the Governor-General in
Council).[28]
Removal of
the automatic requirement to render CFTS
The Bill removes references to CFTS in the call out
provisions; this has the effect that it will be for the CDF to decide when a called
out Reserve member is bound to render CFTS. The provisions will allow the CDF
more flexibility in using the available Reserve workforce.
Item 1 repeals paragraph 24(c) which currently has
the effect that members subject to a Reserve Call Out are liable to render
CFTS. Proposed paragraph 24(c) provides that a Reserve member who is
subject to a Reserve Call Out is bound to render CFTS only if CDF specifies
that they are to provide a period of CFTS.
Item 2 repeals subsections 28(1) and (2) and
replaces subsection 28(1). Proposed subsection 28(1) removes the
reference to CFTS so that the Governor-General may make an order ‘(a call
out order) calling out some or all of the Reserves for service’. The
type of service will not be prescribed. The Bill does not propose amending the
definition of call out order at section 4 of the Defence Act:
call out order:
(a) in Division 3 of Part III—has the meaning given by
subsection 28(1); and
(b) in Part IIIAAA—has the meaning given by section 31.
The opportunity has not been taken to amend the confusing
use of the defined term call out order to refer to two different
types of order which have quite different content, purpose and effect. The term
is also not used consistently throughout the Defence Act; it is
redefined in section 31 for the purposes of Part IIIAAA. In terms of the effect
of a Reserve Call Out order, it would be more accurate to refer to it as a ‘Reserve
call up order’ or a ‘compulsory activation order’.
Item 6 amends subsection 29(1) to remove the
reference to the period of service during a Reserve Call Out being a period of
CFTS service. Proposed subsection 29(1) will simply provide that a
Reserve member covered by a call out order is bound to render service for the
period or periods specified in writing by the CDF.
The Bill makes further minor consequential amendments to
remove certain other references to CFTS in the Defence Act.
Notification
of the Reserve Call Out order
Subsection 28(1) of the Defence Act currently
requires that the Reserve Call Out order be published in the Gazette,
and subsection 28(2) provides that the order is not a legislative instrument. Proposed
subsection 28(1) will instead make the Reserve Call Out order a notifiable
instrument.
As the order will be a notifiable instrument, the
Governor-General will be required to lodge the order for registration in the
Federal Register of Legislation as soon as practicable.[29]
Notifiable instruments are not generally subject to parliamentary scrutiny, nor
are they subject to automatic repeal 10 years after registration.[30]
No special provisions on these points are made in the Bill.
Item 4 repeals subsections 28(5), (6) and (7),
which provide for commencement and revocation of a call out order. These
provisions are no longer necessary since relevant provisions in the Legislation Act
2003 and Acts
Interpretation Act 1901 will provide for the commencement and
revocation of call out orders made by notifiable instrument.
Providing the
CDF with more flexibility in employing called out Reserves
The Explanatory Memorandum advises that a number of
practical problems were encountered with the operation of section 29 of the Defence
Act during the January 2020 Reserve Call Out:
Current subsection 29(2) provides that the period specified
by the CDF in subsection 29(1) must start on the day the call out order takes
effect. This requirement proved unworkable during the January 2020 Reserve Call
Out – the CDF needs flexibility to specify periods that start on a later day.
Further, current subsection 29(4), which provides that the specification of a
period did not prevent the specification of further periods, created ambiguity
as to whether periods specified by the CDF under subsection 29(1) needed to
start on the day the call out order took effect, or not.
Subsections 29(2) and (4) are repealed by item 7 of
Schedule 1 and are not replaced. Proposed subsection 29(1) will allow
the CDF to specify multiple periods of service under a call out order.[31]
Item 7 also repeals subsections 29(3) and (5),
however their effect is reproduced in the proposed provisions. Proposed
subsection 29(2) confirms that the CDF cannot specify a period of service
that extends beyond the end of the call out order. Proposed subsection 29(3)
confirms that the existence of a Reserve Call Out would not change any
other obligation on an ADF member to render service:
For example, if a Reserve member had volunteered for CFTS
under section 26 of the Act, they would still be required to render this
service even if a Reserve Call Out was in effect.[32]
Extending
employment protection for Reserves
The DRSP Act currently links certain protections
for called out Reserves to them rendering CFTS. Protections for education and
employment in Parts 5–7 of the DRSP Act apply to any service by a
Reserve member. However the financial and bankruptcy protections in Parts 8 and
9 of the DRSP Act only apply to Reserves members who are rendering CFTS
either under a call out order, or as operational service. The loans and
guarantees in Part 10 are only available to Reserves members rendering CFTS as
a result of a call out.[33]
If the Bill is passed, called out Reserves will not
necessarily be rendering CFTS. Items 9–17 amend the DRSP Act to
remove references to CFTS to ensure called out Reserves will receive the same
protections under the Reserve Service Protection Act even when they are not
rendering CFTS. Parts 8, 9 and 10 of the DRSP Act will apply to all
Reserve members who render service under a call out order, regardless of
whether that service is CFTS.
SCHEDULE
2—IMMUNITY AND MINISTERIAL DIRECTION TO PROVIDE ASSISTANCE
Background
Defence Assistance to the Civil Community (DACC) is not
currently authorised by statute,[34]
it is a non-statutory exercise of executive power.[35]
Schedule 2 proposes to:
- provide
Australian Defence Force (ADF) members and other Defence personnel with immunity
from civil and criminal liability in certain circumstances while performing
duties in relation to assistance provided in civil emergency and disaster
preparedness, recovery and response
- permit
the CDF or the Secretary to extend that immunity to other persons including
members of foreign military forces and foreign police forces and
- in
the context of this grant of immunity, provide the Minister with statutory
power to direct use of the ADF and other Defence personnel to provide
assistance in a natural disaster or other emergency.
Justice Robert Hope in the Protective
Security Review–Hope Review (Hope Review)[36]observed
that it was particularly important to subject the domestic use of the military
to critical review:
Use of the military other than for external defence, is a
critical and controversial issue in the political life of a country and the
civil liberties of its citizens. 'An armed disciplined body is in its essence
dangerous to Liberty: undisciplined, it is ruinous to Society’.[37]
Given that there must be a permanent Defence Force, it is critical that it be
employed only for proper purposes and that it be subject to proper control.[38]
The Australian public is entitled to expect safeguards to ensure
that the Defence Force is used only on appropriate occasions, that its action
is limited to the task allotted to it and that in performing that task it
complies with the requirements of the law.[39]
Perhaps the most satisfactory safeguard is a full recognition
by members of the Defence Force of the nature of the role which they perform
when acting in civilian security situations[40]
... other safeguards may be found in
parliamentary supervision, in the power of the courts to ensure that the law
has been complied with, and in proper procedures regulating the relationship
between the Defence Force and the civil authorities when it is acting in their
aid. Appropriate parliamentary safeguards seem the most satisfactory safeguards
that can be erected to prevent any misuse of members of the Defence Force in
civilian security operations.[41]
Hope found that there were circumstances in which the use
of the military was appropriate and made certain recommendations about the principles
that should govern use of the ADF, including that it be a force of last resort.[42]
Hope recommended that unarmed troops should be made readily available:
There are many situations in which the assistance of unarmed
members of the Defence Force might be needed, including those when logistic support
is needed by armed police forces. That use is the subject of quite different
considerations to the use of armed members of the Defence Force and should be
made available quite readily if the circumstances justify it.[43]
On the other hand he expressed concern with the use of
large numbers of armed soldiers[44]
and he agreed with a previous report to Government that:
... 'the over-riding principle governing all such activity ...
that troops should never, in any circumstances, be used to confront political demonstrators
or participants in industrial disputes. Whatever logistical support they
render, they must be protected by police who alone must deal with any violence
arising from objection to their support’.[45]
Military law academics Associate Professor David Letts and
Professor Rob McLaughlin observe:
The use of the ADF by the government in situations that do
not involve those specifically envisaged by the Constitution can be a cause of
tension between those who can see the logical benefit of using Commonwealth
assets to their maximum advantage in adverse situations, and those who are
cautious about deploying the ADF internally within Australia.
There are solid arguments which support both points of view
and there is also an extra dimension in terms of ensuring that there is
adequate legal protection for ADF members when they are used in circumstances
where an expectation might arise that they may be required to use some level of
force: Moore C The
ADF and Internal Security – Some Old Issues with New Relevance 523–537.[46]
ADF members are not currently provided with any statutory
powers or protections when conducting DACC, regardless of whether they are
rendering CFTS or voluntary service. As a consequence, the powers and
immunities of ADF members are the same as those of an ordinary citizen.[47]
Immunity for actions and omissions by ADF members in the
course of assisting in an emergency cannot be provided by an executive act;[48]
legislation is required.[49]
As Starke J stated in the case which established the doctrine of combat
immunity, Shaw Savill and Albion Co Ltd v Commonwealth:[50]
If any person commits ... a wrongful act or one not
justifiable, he cannot escape liability for the offence, he cannot prevent
himself being sued, merely because he acted in obedience to the order of the
Executive Government or any officer of State.[51]
Foreign military personnel who assist during disasters
also have no special powers or immunities, though the process of dealing with
any civil or criminal liability arising may be affected by the terms of any
applicable Status of Forces Agreement between Australia and the country
supplying the military personnel.
Assistance in an emergency that is not expected to involve
the use of force by the ADF is currently provided through an internal defence
administrative process, governed by the DACC Manual and overseen by the
Defence Minister and the CDF. ADF personnel are bound by military disciplinary
law to follow the formal instructions in the DACC Manual.[52]
Limits of a
Part IIIAAA Call Out
Part IIIAAA of the Defence Act 1903
provides a statutory footing for use of the ADF in Australia in response to domestic
violence or another threat to Commonwealth interests.[53]
Section
30 of the Defence Act provides a simplified outline of Part IIIAAA.
ADF command power and freedom of operation is significantly constrained by Part
IIIAAA.
In general terms, ADF members called out under
Part IIIAAA are given power to:
- use necessary and reasonable force[54]
- control the movement of persons or of means of transport
- search persons, locations or things for things that may be
seized, or persons who may be detained, in relation to the call out order
- detain any person found in the search that the member believes on
reasonable grounds is a person who may be detained[55]
in relation to the call out order for the purpose of placing the person in the
custody of a member of a police force at the earliest practicable time
- provide security (whether or not armed, and whether or not with a
police force) including by patrolling or securing an area or conducting cordon
operations
- direct a person to answer a question put by the member, or to
produce to the member a particular document that is readily accessible to the
person (including by requiring the person to provide identification to the
member).[56]
Obvious questions arise as to the extent to which the ADF
may access similar powers and protections in the absence of a Part IIIAAA Call
Out. It could reasonably be argued that at least some of those powers should be
available to ADF members assisting emergency services or law enforcement, at
least with the agreement of the state or territory concerned.
In the context of the January 2020 Call Out, military law
expert Associate Professor David Letts argued that a Part IIIAAA Call Out order
should be used when the ADF is assisting state and territory authorities:
... it is grossly unfair to place members of the ADF in a
situation where they are ordered to provide assistance to state and territory
authorities without ensuring that adequate legal protections for both the
Australian community and the ADF are in place. Although Part IIIAAA of the Defence
Act may not have been intended for this purpose, it seems that the use of a
Call Out Order under that scheme would be one way of
providing the legal certainty that should accompany the widespread use of the
ADF within Australia.[57]
The absence of protections for ADF members during
Operation Bushfire Assist was noted as a concern by senior ADF officers in
evidence before the Royal Commission:
One of the consequences, and this has been an area ‑
a lesson out of this season, that is leading to us conducting a review, is that
there are limitations for Defence personnel when they are providing a response
under the aid to the Civil Community Framework, where the level of protection
to Defence personnel is not the equivalent to other emergency service responders.[58]
The conditions to be met for issue of a Part IIIAAA
Call Out order mean it will not usually be available for use in natural
disasters or to respond to a pandemic. The Bill does not propose altering the
conditions for a Part IIIAAA Call Out.
Immunities
provided to state and territory emergency services personnel
The immunities available to state and territory emergency
services personnel vary according to the type of duties they perform and the
jurisdiction in which they are operating. The applicable law and the immunities
available are considered in detail by Dr Michael Ebern in Emergency law:
rights, liabilities and duties of emergency workers and volunteers.[59]
Key issues
and provisions
Schedule 2 of the Bill proposes amendment of the Defence
Act to provide immunity to a protected person from criminal
or civil liability for actions done in good faith in the performance of duties
which meet certain criteria. One of the criteria is that the Minister (or a
delegate) has issued a written direction to provide assistance.[60]
The scheme
of the provisions
Item 4 of Schedule 2 inserts proposed
section 123AA.
Proposed subsection 123AA(1) provides immunity to a
protected person from criminal or civil liability for actions
done in good faith in the performance of duties when:
- the
person is providing assistance to the Commonwealth, a state or territory, or
the community, on behalf of the ADF or the Department of Defence and
- the
assistance is provided to:
- prepare
for an imminent natural disaster or other emergency or
- respond
to a natural disaster or other emergency that is occurring or
-
recover from a natural disaster or other emergency that occurred
recently and
- the
assistance is provided under a written direction of the Minister given under proposed
subsection 123AA(2).
Proposed subsection
123AA(2) permits the Minister, if satisfied of either or both
of the following:
(a) the
nature or scale of the natural disaster or other emergency makes it necessary,
for the benefit of the nation, for the Commonwealth, through use of the ADF’s or
Department’s special capabilities or available resources, to provide the
assistance;
(b) the
assistance is necessary for the protection of Commonwealth agencies,
Commonwealth personnel or Commonwealth property
to give a written direction to provide assistance in
relation to a natural disaster or other emergency. Proposed subsection 123AA(2)
does not specify who is to receive the direction or the type of assistance to
be provided. Proposed subsection 123AA(7) specifies that the written
direction is not a legislative instrument (the direction is also not a
notifiable instrument). The power to issue the direction can be delegated to
the CDF or the Secretary (proposed subsection 123AA(5)).
Protected person is defined in proposed
subsection 123AA(3) as:
- a
member of the ADF
- an
APS employee in the Department of Defence
- another
person authorised in writing by the CDF or the Secretary to render assistance
in relation to a natural disaster or other emergency.
Proposed subsection 123AA(4) permits the CDF or the
Secretary to authorise a person or class of persons to perform duties to
provide that assistance. The persons who may be authorised are:
(a) an
APS employee or other employee of the Commonwealth or a Commonwealth authority
or agency;
(b) a
member of the naval, military or air force of a foreign country, or a member of
a foreign police force (however described).
A person authorised under proposed subsection 123AA(4) becomes
a protected person. The power to authorise a person to perform
duties can be delegated to an ADF member of a rank equivalent to a Commodore in
the Navy (proposed paragraph 120A(3D)(e)) or an SES employee of the
Department of Defence (proposed paragraph 120A(3D)).[61]
The scope
and effect of a Ministerial directive to provide assistance
Schedule 2 appears, given the ordinary meaning of
the words used, to empower the Minister (or delegate) to:
- identify
a natural disaster or other emergency that meets certain criteria
- direct
provision of assistance from the resources of the Department of Defence to
prepare for, respond to, and recover from that natural disaster or other
emergency and
- grant
certain persons immunity while rendering assistance to prepare for, respond to,
and recover from that natural disaster or other emergency, providing they are
acting in good faith:
- ADF
personnel
- APS
personnel employed by the Department of Defence
- other
persons from the classes below specifically authorised by CDF or the Secretary
- APS
personnel employed by other Departments
- other
employees of the Commonwealth or a Commonwealth authority or agency
- a
member of the armed forces of a foreign country or
- a
member of the police force of a foreign country.
The written direction of the Minister in proposed subsection
123AA(2) does not appear on its face to be limited to the purpose of
providing an immunity. The provision does not merely declare that certain
personnel are carrying out duties to provide certain assistance; it appears to
direct certain personnel to provide certain assistance. It is therefore possible
it could have the larger effect of a statutory authorisation to deploy the ADF
and other Department of Defence resources in a broad range of emergencies. If
that is correct, the title of Schedule 2—Immunity, and proposed
section 123AA—Immunity in relation to certain assistance, do not appear to
accurately reflect the full content of the provisions since they do not refer
to the apparently broad power given to the Minister to direct that assistance
be provided in certain emergencies.
However, an argument can be made that the ordinary meaning
of proposed subsection 123AA(2) is limited by the context in which it
appears. This argument might conclude that instead of granting a broad power to
the Minister to direct that assistance be provided in certain emergencies, the
scope of that power is limited by the context so that the only purpose of a
direction made under proposed subsection 123AA(2) is to enliven the
immunity provision in proposed subsection 123AA(1).
Statutory interpretation is a technical area of law and
reasonable legal minds may differ on the interpretation a court is likely to
apply. The High Court has been clear that the starting point for ascertaining
the meaning of a statutory provision is the text of the provision considered in
light of its context and purpose. In SAS Trustee Corporation v Miles [2018]
HCA 55 Gageler J stated:
The statutory text must be considered from the outset in
context and attribution of meaning to the text in context must be guided so far
as possible by statutory purpose on the understanding that a legislature
ordinarily intends to pursue its purposes by coherent means.[62]
A subsection must be understood in the context of the
provision as a whole and of the statute as a whole, however the clearer the
natural meaning of the words used, the more difficult a court will find it to depart
from that ordinary meaning in interpreting and applying the provision.
Paragraph 15AB(2)(e) of the Acts Interpretation
Act 1901 permits a court to refer to the Explanatory Memorandum when
considering the meaning of a provision. In this case the general introduction
to Schedule 2 in the Explanatory Memorandum mentions only the immunity and does
not address the direction of the Minister:
This Schedule inserts a new provision in the Act to give ADF
members, other defence personnel and foreign armed forces immunity from civil
and criminal suit in relation to actions done in good faith performance of
their duties, where the duties are in relation to certain assistance provided
in the context of a natural disaster or other emergency.[63]
In relation to proposed subsection 123AA, the
Explanatory Memorandum states:
The 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.[64]
[...]
New subsection 123AA(2) provides for the Minister to direct,
in writing, the provision of assistance in relation to a natural disaster or
emergency. Without a direction under this subsection, the immunity does not
apply. The Minister may make a direction in one or both of two circumstances...[65]
Both explanations make clear that the Minister’s direction
is an essential trigger for the operation of the immunity; however, both stop
short of identifying the activation of the immunity provision as the sole
purpose of proposed subsection 123AA(2); they leave room for ambiguity
in understanding the purpose and operation of the Minister’s direction.
It is possible, perhaps even likely, that a court would
‘read down’ the power to give a direction under proposed subsection 123AA(2)
so that it has effect only in terms of granting immunity, rather than
authorising the provision of certain assistance. That conclusion is not,
however, beyond doubt.
Where the ordinary meaning of the words in a provision may
differ from its intended effect, Parliament has the opportunity to adjust the drafting
so that the intended meaning is clear. There is no special legal necessity for
a direction by the Minister to underpin the statutory grant of immunity in proposed
subsection 123AA(1). It is a drafting device chosen to assist in defining
when the immunity would apply. The circumstances in which an immunity would
apply could alternatively be defined directly or by a different drafting
device. If adjusting the drafting is difficult, a good alternative might be to
amend the Explanatory Memorandum to make the intention of Parliament clear.
Use of force
domestically by the ADF
The ADF is currently prevented from using force during
operations in Australia by:
- its own internal orders and rules and
-
federal and state criminal law.
Use of force during a Part IIIAAA Call Out is specifically
regulated in Part IIIAAA. Proposed section 123AA(1) will extend immunity
from criminal liability to both the ADF and other protected persons. That
immunity will effectively permit ADF members to use force, without criminal
sanction, in the good faith execution of their duties while rendering
assistance to prepare for, respond to, and recover from a natural disaster or
other emergency, as directed by the Minister. The circumstances in which the
immunity will operate are very broad and application of the immunity will be
self-regulated by the Defence executive.
The immunity may have the unintended effect of permitting
the domestic use of force by the ADF without the safeguards currently required
under Part IIIAAA of the Defence Act. That is, on one reading (as
explored above), the provisions may allow what is, in effect, a call out of the
ADF on domestic operations, without a call out order being issued by the
Governor-General, and without notice to the Parliament, the states and
territories or the general public of that order being made.
In light of the comprehensive nature of the scheme in Part
IIIAAA, the non-statutory executive power of the government to deploy the ADF
inside a state or self-governing territory to deal with domestic violence,
other than on the terms of the Defence Act, appears to have been
displaced.[66]
While substantial executive power remains available to the
Australian Government to deploy the ADF within Australia in circumstances other
than domestic violence,[67]
it is not clear that proposed section 123AA excludes the use of a
Ministerial direction to provide assistance in an emergency involving domestic
violence.
Existing
immunity for ADF carriage and use of weapons in Australia
There is no restriction in the Constitution or the Defence
Act on the ADF carrying arms within or outside defence bases. In fact, section
123 of the Defence Act provides that ADF members are not bound by
any law of a state or territory which would require them to register, or to
have permission to use or possess, ‘a vehicle, vessel, animal, firearm or
other thing belonging to the Commonwealth’.[68]
Possession and use of ADF weapons is regulated almost
entirely by internal ADF orders, up to the point where such use might
contravene the criminal law.[69]
There are a number of disciplinary offences under the Defence Force
Discipline Act 1982 associated with negligence, use contrary to orders,
and dangerous conduct associated with weapons.
Commonwealth
constitutional capacity to respond to emergencies
The Commonwealth does not have a specific constitutional
power to make laws with respect to emergencies. Note however that, to the
extent the executive power of the Commonwealth permits the government to act in
response to a natural disaster or emergency, the Parliament will also have
power under section 51(xxxix) of the Constitution to legislate with
respect to the exercise of executive power. Jacobs J in the AAP case
explained the capacity of Parliament to legislate with respect to the exercise
of executive power:
The Parliament is sovereign over the Executive and whatever
is within the competence of the Executive under s 61, including or as well
as the exercise of the prerogative within the area of the prerogative attached
to the Government of Australia, may be the subject of legislation of the
Australian Parliament.[70]
In Davis
v. Commonwealth,[71]
the High Court confirmed that the incidental power under s 51(xxxix) of
the Constitution could be relied on to enact legislation in
aid of the exercise of the executive power. In that case, Mason CJ, Deane and
Gaudron JJ remarked that, in general:
... the existence of Commonwealth executive power in areas
beyond the express grants of legislative power will ordinarily be clearest where
Commonwealth executive or legislative action involves no real competition with
State executive or legislative competence.[72]
The High Court has recognised that the very existence of
the nation gives rise to a Commonwealth power to protect the nation. This
‘nationhood power’, which is a subset of executive power, has been considered
several times recently by the High Court, but questions remain as to its scope.[73]
The High Court has not, to date, found that this ‘nationhood power’ includes a
general power to act with respect to national emergencies. Constitutional law
expert Professor Anne Twomey noted at least one judge expressed caution on the
point in Pape v Commissioner of Taxation [2009]
HCA 23 (Pape):
French CJ concluded that the executive power extends to
‘short-term fiscal measures to meet adverse economic conditions affecting the
nation as a whole, where such measures are on their face peculiarly within the
capacity and resources of the Commonwealth Government.’ His Honour
was concerned to stress, however, that this ‘does not equate it to a general
power to manage the national economy.’ Nor did it necessarily amount to a
power with respect to matters of ‘national concern’ or ‘national
emergency’. He appeared to be sensitive to the need to confine the scope
of his finding.[74]
As public law academic Shreeya Smith notes:
There is little guidance from
the High Court about how to determine whether a particular measure comes within
the Commonwealth’s nationhood power, nor in relation to the scope of the
Commonwealth’s incidental power under s 51(xxxix) to enact coercive laws in aid
of any such power.
...whether the Commonwealth could rely on a nationhood power to
undertake coercive measures without statutory authority remains contested. As
to whether the existence of a national crisis or concern could be relied on to
make coercive laws pursuant to the incidental power under s 51(xxxix), French
CJ noted, in obiter, that reliance on a combination of s 61 and the incidental
power under s 51(xxxix) to enact coercive laws was likely to be approached
conservatively.[75]
As currently outlined by the High Court, the nationhood
power probably allows the Commonwealth government to act without legislative
authority, and Parliament to legislate, in relation to matters that are
uniquely related to national government, provided:
- the action cannot be effectively carried out by the states and
territories; that is, it is ‘necessary’ for the Commonwealth to act
- the action does not create an offence
- (probably) the action is not coercive
- proper authorisation for any spending is given by Parliament and
- the action is carried out in a manner consistent with the
principles of responsible government; that is, under the authority of a
Minister.[76]
Smith suggests that for an emergency to enliven the
nationhood powers, as a minimum:
- there
must exist a national concern and
-
the necessary response is peculiarly within the capacity and
resources of the Commonwealth.[77]
According to Smith, a broader characterisation of the
power remains open because it was not ruled out in Pape, though she
notes that, to the extent that a power to undertake coercive measures has been
recognised, it relies on necessity. Smith also observes that the High Court has
not set criteria to determine whether a particular means directed to toward the
end or purpose of responding to a national crisis was within power.[78]
A national civil emergency would not change the legal
limits of the nationhood power.[79]
However it would likely temporarily expand the range of activities which are
peculiarly national and which cannot be effectively carried out by the states
and territories.
The provisions of proposed subsection 123AA(2)
setting out the criteria for exercise of the power are clearly directed at
ensuring the emergency power remains within the Commonwealth’s constitutional
power. The Minister may only direct the provision of assistance in relation to
a natural disaster or other emergency if:
- use
of the ADF’s or Department’s special capabilities or available resources, is
necessary for the benefit of the nation due to the scale or nature of the
natural disaster or emergency and/or
- the
assistance is necessary for the protection of Commonwealth agencies, Commonwealth
personnel or Commonwealth property.
Although neither ‘natural disaster’ nor ‘other emergency’
are defined, the scope of the power is confined to some extent by the two
criteria above. The nature of an ‘other emergency’ is not confined in any way beyond
those two criteria. The term could potentially encompass a broad range of
emergency situations; for example: serious interruptions to the supply of goods
and services, biosecurity emergencies, pandemic, street protests, industrial
action, the aftermath of a bombing or an aircraft crash, or a cyberattack.
Potential
conflict with state power to maintain public order
The maintenance of public order is a residual Crown
prerogative. The continuing relevance of the prerogative as an element of
executive power was recognised in the 1989 UK ‘Northumbria Police Case’.[80]
Nourse LJ said:
The wider prerogative must have
extended as much to unlawful acts within the realm as to the menaces of a
foreign power. There is no historical or other basis for denying to the war
prerogative a sister prerogative of keeping the peace within the realm ...
I am of the opinion that a
prerogative of keeping the peace within the realm existed in mediaeval times,
probably since the Conquest and, particular statutory provision apart, that it
has not been surrendered by the Crown in the process of giving its express or
implied assent to the modern system of keeping the peace through the agency of
independent police forces.[81]
However, under Australia’s federal system of government,
only those Crown prerogatives remaining at Federation and properly exercisable
by the Commonwealth executive were incorporated into Chapter II of the Constitution.
Dixon J in R
v Sharkey affirmed that the states retained executive power in relation
to the maintenance of order:
‘The maintenance of order in a State is primarily the concern
of the State, for which the police powers of the State are ordinarily adequate.
But even if the State is unable to cope with domestic violence, the Federal
Government has no right to intervene, for the protection of the State or its
citizens, unless called upon by the State Executive.
If, however, domestic violence within a State
is of such a character as to interfere with the operations of the Federal
Government, or with the rights and privileges of federal citizenship, the
Federal Government may clearly, without a summons from the State, interfere to
restore order. Thus if a riot in a State interfered with the carriage of the
federal mails, or with inter-state commerce, or with the right of an elector to
record his vote at federal elections, the Federal Government could use all the
force at its disposal, not to protect the State, but to protect itself. Were it
otherwise, the Federal Government would be dependent on the Governments of the
States for the effective exercise of its powers’: Constitution of the
Australian Commonwealth by Quick & Garran, at p. 964.[82]
Effectiveness
of the proposed immunity
The effectiveness of the immunity provided in proposed section
123AA will depend on the Commonwealth’s power to lawfully provide
assistance in relation to a natural disaster or other emergency. Where the
Commonwealth has constitutional capacity to offer such assistance, it will also
have a sufficient power to legislate to provide effective immunity from civil
and criminal liability, including from state law, to persons properly
authorised to provide that assistance on behalf of the Commonwealth and who are
carrying out their duties in good faith.
Public
notice of direction to ADF to provide assistance
The Bill does not contain a requirement to publish a
written direction given under proposed subsection 123AA(2). Hope’s
observations about dealing with civilian security operations in a statute are
relevant to whether any direction given under proposed subsection 123AA(2) should
be published:
It is important that the Commonwealth government, the Defence
Force, and all relevant civil authorities should know where they stand and what
they have to do, and what they can do, if the Defence Force is to be used in
this special role. It is also important that the general public knows the
position.[83]
No public notification is currently required when the ADF
provides DACC.
Inherent
dangers of emergency laws and necessary limits
The rule of law forms an assumption behind the Australian
constitutional order—‘the idea that all power is sourced in law, with the
highest law being the Constitution.’[84]
The executive cannot change the law to create new entitlements, create new
criminal offences, or dispense with the operation of the law and seek to
immunise itself from legal liability of those who act on its behalf.[85]
Parliament, however, has power to do each of those things, with the result that
‘The bulk of the emergency powers enjoyed by the Australian executive are those
that have been conferred by statute.’[86]
It has been observed that a risk exists that the granting
of statutory powers to the executive to act in an emergency can have the effect
of encouraging the executive to generate ‘emergencies’, rather than merely
reacting to them; particularly if the nature of the emergency is not tightly
prescribed.[87]
The High Court has warned about the underlying danger to a
constitutional democracy of the overuse of executive power. Dixon J stated in
the Communist
Party Case in 1951:
History and not only ancient history, shows that in countries
where democratic institutions have been unconstitutionally superseded, it has
been done not seldom by those holding the executive power. Forms of government
may need protection from dangers likely to arise from within the institutions
to be protected.[88]
SCHEDULE 3—SUPERANNUATION
AND RELATED BENEFITS
The Bill seeks to rectify what the Explanatory Memorandum
calls a ‘legislative gap’ relating to superannuation access for Reservists who
are rendering CFTS as a result of a Reserve Call Out.[89]
The current system provides an entitlement to superannuation for Reservists
rendering voluntary CFTS but not to Reservists rendering CFTS as a result of a
Reserve Call Out.
The gap exists because the definition of continuous full
time service contained in the ADF Super Act and the ADF Cover Act
refer to subsection 26(2) of the Defence Act and this, in turn,
refers only to voluntary service by Reserves.[90]
The MSB Act defines, in paragraph 6(1)(b), continuous full-time service
only as an undertaking and not as a call out. [91]
In order to ensure that superannuation entitlements are available to
Reservists rendering CFTS as a result of a Reserve Call Out these definitions
are changed to remove the link to voluntariness and subsection 26(2) of the Defence
Act.
To this end, Schedule 3 of the Bill proposes
amendments to the ADF Super Act and the ADF Cover Act which would
repeal the current definition of continuous full-time Reservist contained in
both of them and insert a new definition of continuous full-time Reservist
as ‘a member of the Reserves who is rendering a period of continuous full-time
service’.[92]
The proposed amendment to the MSB Act simplifies the definition of
persons who are a member of the scheme at paragraph 6(1)(b) so that a Reservist
rendering a period of full-time service will be a member.
Both the ADF Cover Act and the ADF Super Act
refer to the Military
Rehabilitation and Compensation Act 2004 (MRCA) for their
definition of defence service. The MRCA definition refers to ‘warlike
service, non‑warlike service or peacetime service’. The current Bill
seeks to repeal the definitions of defence service from the ADF Cover Act
and the ADF Super Act.[93]
The term ‘defence service’ is only used in these Acts for the purposes of the
current definitions of ‘continuous full-time Reservist’ and will no longer be
needed for the purposes of the new definitions.
The amendments will operate retrospectively applying from
the date of the first Reserve Call Out on 28 November 2019.[94]
This will benefit Reserve members who provided service during the bushfires of
summer 2019-20.
[1]. Explanatory
Memorandum, Defence Legislation Amendment (Enhancement of Defence Force
Response to Emergencies) Bill 2020, [p. 1].
[2]. Department
of Defence (DoD), Defence
Assistance to the Civil Community Manual (DACC Manual), DoD,
Canberra, 16 November 2017, p. 2-1.
[3]. The
DACC Manual, which regulates the circumstances in which DACC will be
provided, is unclassified but not currently published by the Department of
Defence in a manner which allows access by the general public. It became public
when tendered as an exhibit to the Royal Commission
into National Natural Disaster Arrangements: EXHIBIT
30-023.006 - DEF.0001.0004.0001 - Defence Assistance to the Civil Community
Manual (DACC) (updated 7 June 2019).
[4]. In
the carefully defined terms used by the ADF, DACC is neither a ‘military
operation’ nor a ‘civil–military operation’. In some contexts a
‘civil–military operation’ is referred to as ‘military aid to the civil power’.
Note that the DACC Manual states at p. 2‑1 that DACC
activities must not involve use of force directly by the ADF or indirectly by
the ADF assisting others to use force. ‘Force’ is defined to include the
restriction of freedom of the civil community whether or not by physical
contact: DACC Manual, op cit., p. 2-1. It is difficult to describe
ceremonial parades and displays of military skills using military equipment,
such as fly-bys, demonstrations of infantry operations, and firepower displays,
as non-military operations even though they do not involve any application of
military force.
[5]. Royal
Commission into National Natural Disaster Arrangements (Royal Commission), Interim
Observations, 31 August 2020, Royal Commission, [Canberra], p. 11 [54].
[6]. Order to Call Out the
Australian Defence Force Reserves, 28 November 2019. The order called out for
continuous full time service: ‘a) Army Reserve members from Forces
Command; b) Air Force Reserve members from Combat Support Group; and c) Navy
Reserve members from Fleet Command’.
[7]. Order to Call Out the
Australian Defence Force Reserves, 4 January 2020.
[8]. Explanatory
Memorandum, op. cit., [p. 2].
[9]. Royal
Commission, Interim Observations, op cit., p. 11 [54].
[10]. Explanatory
Memorandum, op. cit., [p. 2].
[11]. Royal
Commission, Interim Observations, op cit., p. 11 [54].
[12]. Ibid.,
pp. 11–12, [56]–[59].
[13]. Royal
Commission, Draft
Propositions: Counsel Assisting, Royal Commission, [Canberra], 31
August 2020.
[14]. Ibid.,
pp. 16.
[15]. Royal
Commission, ‘About
the Royal Commission’, Royal Commission website.
[16]. L
Reynolds (Minister for Defence), Defence
support to mandatory quarantine measures commences, media release, 30 March 2020.
[emphasis added]
[17]. DoD,
‘Defence COVID-19 Taskforce’,
DoD website; Department of the Prime Minister and Cabinet (PMC), Australian
Government crisis management framework, version 2.2, PMC, December 2017, p. 16.
[18]. The
ADF has a special constitutional position and is not an ordinary Department of
State; while it is recognised in the Australian Constitution, it is
created by the Defence
Act 1903 (the Defence Act). Section 17 of the Defence Act
prescribes that the ADF consists of three arms: the Royal Australian Navy; the
Australian Army; and the Royal Australian Air Force. In turn, sections 18–20 of
the Defence Act prescribes that each of those arms has a permanent force
and a reserve force.
[19]. Permanent
Forces is defined in section 4 of the Defence Act to mean the Permanent
Navy, the Regular Army and the Permanent Air Force. Reserves is
defined in section 4 of the Defence Act to mean the Naval Reserve, the
Army Reserve and the Air Force Reserve.
[20]. Defence
Act 1903, subsection
28(3).
[21]. Member
is defined section 4 of the Defence Act to include any officer, sailor,
soldier and airman.
[22]. No
extra-legal emergency powers that could be exercised by the Executive have to
date been recognised by Australian courts. See HP Lee, M Adams, C Campbell and
P Emerton, Emergency
powers in Australia, 2nd edn, Cambridge University Press, Cambridge,
United Kingdom, 2019, pp. 80–81.
[23]. B
Ramsden, ‘A
Bill to enable use of foreign troops or foreign police in Australian
“emergencies”’, Pearls and Irritations: public policy journal,
blog, 1 October 2020.
[24]. Explanatory
Memorandum, op. cit., [p. 3].
[25]. The
Statement of Compatibility with Human Rights can be found at pages 4–5 of the
Explanatory Memorandum to the Bill.
[26]. Parliamentary
Joint Committee on Human Rights, Human
rights scrutiny report, 11, 2020, 24 September 2020, p. 81.
[27]. Explanatory
Memorandum, op. cit., [p. 1].
[28]. In
fact, there is some doubt that Parliament is constitutionally competent to
require the Governor-General to act on the advice of the Executive Council
(effectively Cabinet) when exercising his or her prerogative as Commander in
Chief. While the exercise of the command in chief can be shaped by Parliament
(as section 28 of the Defence Act does by limiting the circumstances in
which a Reserve Call Out order can be made) the prerogative is constitutionally
fixed in the Governor-General acting alone. Nevertheless, the Governor-General
remains bound by the fundamental principles of constitutional monarchy to act
only on the advice of a Minister.
[29]. Legislation Act
2003, subsection 15G(2).
[30]. See:
Legislation Act
2003, section 7. Note also that legislative instruments are required to
be tabled in Parliament, but notifiable instruments are not.
[31]. Explanatory
Memorandum, op. cit., [p. 8].
[32]. Ibid.
[33]. Ibid.
[34]. DACC
is the provision of Defence resources, within Australia and its territories, in
response to a request for assistance for the performance of support that is
primarily the responsibility of the civil community or other Government or
non-Government organisations. DACC is provided by the Department of Defence
through an internal administrative process, according to rules set out in the DACC
Manual and overseen by the Defence Minister and the CDF.
[35]. Lieutenant
General Bilton (Chief of Joint Operations of the Defence Force), told the Royal
Commission on Wednesday 3 June 2020: ‘Our responses for aid to the civil
community are conducted under the Constitution, section 61 of the Constitution,
rather than a specific legislation.’ Royal Commission, Transcript
Hearing Block 1 - Wednesday 3 June 2020, p. 457–458. Section 61 of the Constitution
authorises the use of executive power for ‘the execution and maintenance of
this Constitution, and of the laws of the Commonwealth.’ Note that section
51(vi) of the Constitution authorises Parliament to make laws with
respect to ‘the control of the forces to execute and maintain the laws of the
Commonwealth’ and s51(xxxix) authorises Parliament to legislate with respect to
the exercise of executive power.
[36]. R
Hope, Protective
Security Review: Report (Hope
Review), Parl. Paper 397, Canberra, 1979. The Hope Review was commissioned
following an emergency call out of the ADF to provide security after the Hilton
Hotel bombing in February 1978.
[37]. Edmund
Burke, Works, Rivington, London, 1815, vol. V, p.17.
[38]. Hope
Review, op. cit., p. 142 [10.10].
[39]. Hope
Review, op. cit., p. 174 [10.100].
[40]. Hope
was not completely clear on the activities which were included within his term
‘civilian security operations’. However at [10.12] he specifically included cordon,
control of public movement, and picketing and guarding within the term. He also
made clear that his terms of reference related to situations where the ADF
rendered:
... aid to
the Commonwealth and State governments and their civil authorities in meeting
civil emergencies, especially terrorist attacks and other politically motivated
violence, but also riots and the like. I am not concerned with the performance of
other law enforcement tasks [for example, enforcing customs or fishing
legislation], or use of the Defence Force to counter the effects of natural
disasters, to maintain services during strikes, for coastal surveillance,
search and rescue, to provide bands and displays, or to render harmless
explosive ordnance, for example old bombs and hand grenades (other than in the
context of a civil emergency). Hope Review, op. cit., pp. 141–142 [10.8].
[41]. Hope
Review, op. cit., pp. 174–175 [10.100]–[10.102] [emphasis added].
[42]. Ibid.,
pp. 160–162 [10.63]–[10.69].
[43]. Ibid.,
p. 162 [10.69] [footnote removed].
[44]. Ibid.,
p. 162 [10.69].
[45]. Ibid.,
[10.66], citing Sir Robert Mark, Report to the Minister for Administrative
Services on the Organization of Police Resources in the Commonwealth Area and
other Related Matters, Australian Government Publishing Service, Canberra,
1978. Note that while subsection 33(4) of the Defence Act provides the Reserves must
not be called out or utilised in connection with an industrial
dispute, there is no such restriction on use of the Permanent Forces.
[46]. D
Letts and R McLaughlin, ‘Military aid to the civil power’, Chapter 11 in R
Creyke, D Stephens and P Sutherland, Military Law in Australia, The
Federation Press, Sydney, 2019, p. 115–132 at p. 115, citing C Moore, ‘"To
execute and maintain the laws of the Commonwealth" the ADF and internal
security: some old issues with new relevance’, UNSW Law Journal,
28(2), 2005, pp. 523–537.
[47]. The
existing and required powers of ADF members supporting civil authorities was
considered by in the Hope Review at pp. 167–173 [10.81]–[10.97].
[48]. No
extra-legal emergency powers that could be exercised by the Executive have to
date been recognised by Australian courts. See: Lee, Adams, Campbell and
Emerton, Emergency
powers in Australia, op. cit., pp. 80–81. However, it is possible that
limited powers could be recognised, or at least extra-legal action indemnified,
in some circumstances in a crisis. The point is legally complex and currently
uncertain. See: C Moore, Crown and
Sword: Executive power and the use of force by the Australian Defence Force,
ANU Press, Canberra, 2017, p. 18; A Twomey, The
veiled sceptre: reserve powers of heads of state in Westminster systems,
Cambridge University Press, Port Melbourne, Vic., 2018, pp. 14–15 and 84–85; M
Head, Emergency
powers in theory and practice: the long shadow of Carl Schmitt, Taylor
and Francis Group , London, 2016, p. 14.
[49]. In
A v Hayden, Brennan J noted that the absence of any prerogative power to
dispense with the operation of general law is a principle ‘fundamental to our
law, though it seems sometimes to be forgotten when executive governments or
their agencies are fettered or frustrated by laws which affect the fulfilment
of their policies’. A v Hayden (1984) 156 CLR 532, [1984]
HCA 67 at 580.
[50]. Shaw
Savill & Albion Co Ltd v Commonwealth (1940) 66 CLR 344, [1940]
HCA 40, per Starke J at 353; cited in Moore, Crown and
Sword, op. cit., p. 5
[51]. Ibid.
[52]. Defence
Force Discipline Act 1982: for example, section
29 Failing to comply with a general order and section
35 Negligence in performance of duty.
[53]. Domestic
violence is a term used in the Constitution and the Defence
Act to identify violence within Australia.
[54]. Defence
Act, section
51N.
[55]. Defined
in section 31 of the Defence Act 1903.
[56]. Defence
Act, section
46.
[57]. D
Letts, ‘Sending
in the military? First let's get some legal questions straight’, The
Canberra Times, 8 January 2020, p. 20.
[58]. Royal
Commission, Transcript
Hearing Block 1 - Wednesday 3 June 2020, evidence of Lieutenant General
Bilton, pp. 457–458.
[59]. M Ebern, Emergency law: rights, liabilities and
duties of emergency workers and volunteers, Federation Press, 3rd edn,
Leichhardt, NSW, 2010.
[60]. The scheme has some structural similarities to the statutory
immunity provided in sections 35C and 35K of the Australian
Security Intelligence Organisation Act 1979.
[61]. See
items 2 and 3 of Schedule 2 to the Bill.
[62]. SAS Trustee Corporation v Miles (2018) 265 CLR
137, [2018]
HCA 55, per Gageler J at [41].
[63]. Explanatory Memorandum, op. cit., paragraph 24.
[64]. Explanatory Memorandum, op. cit., paragraph 8.
[65]. Explanatory Memorandum, op. cit., paragraph 31.
[66]. If
Parliament legislates on the same subject matter as a prerogative, the
prerogative is constrained or even displaced, depending on the scope of the
statute:
It is uncontentious that the relationship between a
statute and the prerogative is that where a statute, expressly or by necessary
implication, purports to regulate wholly the area of a particular prerogative
power or right, the exercise of the power or right is governed by the
provisions of the statute, which are to prevail in that respect.
Ruddock
v Vadarlis (Tampa Case) (2001) 110 FCR 491, [2001]
FCA 1329, per Black CJ at 501–502 [33], citing Attorney-General v De
Keyser’s Royal Hotel Ltd [1920] AC 508.
[67]. See
the discussion in Moore, Crown and
Sword, op. cit., at p. 89. The control and disposition of the armed
forces is, according to Quick & Garran, ‘one of the oldest and most
honoured prerogatives of the Crown’. J Quick and R Garran, Annotated constitution
of the Australian commonwealth, 1901. The most relevant authority for the
scope of the prerogative as it was received into Australia is in the judgment
of Lord Reid in Burmah
Oil Co. Ltd. v Lord Advocate [1965] A.C. 75:
There is no doubt
that control of the armed forces has been left to the prerogative ... subject to
the power of Parliament to withhold supply and refuse to continue legislation
essential for the maintenance of a standing army...
[68]. The
scope of this provision has been subject to judicial comment in the Commonwealth
v Vance (2005) 158 ACTR 47, [2005] ACTCA
35.
[69]. There are Commonwealth laws which have some effect,
notably aviation and transport safety regulations.
[70]. Victoria
v The Commonwealth (AAP case) (1975) 134 CLR 338, [1975]
HCA 52, per Jacobs J at p. 406 [9] [emphasis added].
[71]. Davis
v. Commonwealth (1988) 166 CLR 79, [1988]
HCA 63.
[72]. Ibid.,
per Mason CJ, Deane and Gaudron J at [14].
[73]. Pape v Commissioner of Taxation (2009) 238 CLR 1,[2009]
HCA 23; Williams v Commonwealth (2012) 248 CLR 156, [2012] HCA 23 ; and Williams v Commonwealth
of Australia (No. 2) (2014) 252 CLR 416, [2014]
HCA 23. The current position is discussed in D
Hertzberg, ‘The
three forms of executive power and the consequences for administrative law
review, AIAL Forum, 96, September 2019; and S Smith, ‘The
scope of a nationhood power to respond to COVID-19: unanswered questions’, AusPubLaw,
blog, 13 May 2020.
[74]. Ibid.
[citations removed].
[75]. Smith,
‘The scope of a nationhood power’, op. cit.
[76]. Pape
v Commissioner of Taxation, op. cit.; Williams v Commonwealth, op.
cit.; Williams v Commonwealth of Australia (No. 2), op. cit. The current position is discussed in A Twomey, ‘Pushing
the boundaries of executive power: Pape, the prerogative and nationhood powers’,
Melbourne University Law Review, 34(1), 2010, pp. 313–343; Hertzberg, ‘The
three forms of executive power’, op. cit.; and Smith, ‘The
Scope of a Nationhood Power’, op. cit.
[77]. Smith,
‘The
Scope of a Nationhood Power’, op. cit.
[78]. Ibid.
[79]. Note
that the Royal Commission has indicated that one issue it intends to focus on
is the role of a declaration of a national emergency. Royal Commission, ‘Royal
commission entering final hearing week’, media release, 18 September 2020.
[80]. R v Secretary of
State for the Home Department, Ex parte Northumbria Police Authority (‘Northumbria
Police Case’) [1989] 1 QB 26, 58–9.
[81]. Northumbria
Police Case, pp. 185–186 [citations removed].
[82]. R
v Sharkey (1949) 79 CLR 121, [1949] HCA 46, per
Dixon J at [8]. See further discussion in Moore, Crown and
Sword, op. cit., p. 166.
[83]. Hope
Review, op cit., at p. 147 [10.19] [emphasis added].
[84]. Lee,
op cit., pp. 64–65.
[85]. Ibid.
p. 76, citing Davis v. The Commonwealth, op. cit., p. 112–113; Pape
v. Federal Commissioner of Taxation, op. cit., p. 92 [243]–[245] (Gummow,
Crennan and Bell JJ).
[86]. Lee,
op cit., pp. 80–81 [emphasis added].
[87]. See
discussion in: E Goitein, ‘What
the President could do if he declares a state of emergency’, Brennan Centre
for Justice, blog, 12 December 2018 and C Rossiter, Constitutional
dictatorship : crisis government in the modern democracies, Taylor
& Francis Group, Oxford, 2017 (first published 1948), p. 266.
[88]. Australian
Communist Party v The Commonwealth (Communist Party case) [1951] HCA 5, (1951)
83 CLR 1, per Dixon J at [25].
[89]. Explanatory
Memorandum, [p. 2].
[90]. See
section 4 of the Australian
Defence Force Superannuation Act 2015 and section 4 of the Australian Defence
Force Cover Act 2015.
[91]. Military
Superannuation and Benefits Act 1991
[92]. Schedule
3, Part 1.
[93]. Schedule
3, items 2 and 4.
[94]. Schedule
3, items 8 and 9. Explanatory Memorandum, [p. 12].
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