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Foreign Affairs, Defence and Trade Legislation Committee
30/10/2020
Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020

BARRATT, Mr Paul, AO, President, Australians for War Powers Reform

BEHM, Mr Allan, Head, International and Security Affairs Program, The Australia Institute

Evidence from Mr Barratt was taken via teleconference—

[10:15]

CHAIR: Welcome. I think both of you gentlemen have been well and truly before these parliamentary committees in the past, so we'll forgo the formalities of the things that are usually read out at this point. Do you wish to make an opening statement?

Mr Barratt : Thank you for your invitation to make a submission in relation to this inquiry and for the opportunity to appear today. I'm appearing in my own capacity as a former secretary to the Department of Defence and in my capacity as president of Australians for War Powers Reform. Our principal concerns are listed on the first page of our submission. To boil them down to their essence: we are concerned that facilitating the mandatory call-out of part or all of the Reserve will encourage state and territory governments whose responsibility it is to underprepare for what we know will be an increasing incidence and intensity of natural disasters; will undermine the defence purpose of the Reserve through an inevitable impact in recruiting resulting from the prospect of being called out at unpredictable times for a non-defence purpose for which the reservists have not been trained; will add little to the capability of the Defence Force to provide assistance to the civil community at times of need; and will be another step towards navigating a way around section 119 of the Constitution, which requires a request from the state in the presence of domestic violence therein before the Commonwealth can deploy the ADF to assist the civil authorities with their law enforcement responsibilities.

We say 'another step' because 2018 amendments to the Defence Act have already explicitly enabled the ADF to be called out to protect Commonwealth interests without a request from the state. We recommend that the proposed legislation not proceed. The benefits are too slight and the risks too high. If it is to proceed, we would strongly recommend that the legislation specify (1) that the Reserve may be called out only in response to a request from a state or territory government and may be called out only for the purposes specified in section 28(3)(g) of the Defence Act and (2) that the members of the Reserve force who are called out must be unarmed and must not use—and must not be required to use—force or engage in any form of coercive behaviour. Thank you.

CHAIR: Mr Behm?

Mr Behm : I think my opening remarks have been circulated to you, in the interests of time. So, I will abbreviate them quite a lot. The first point I make on this page is that the bill is actually not about the capacity to provide assistance, because there is no money attached to it. It's actually about streamlining how you get the forces deployed. I think it's an important thing to understand—that it's actually about process and not about capacity.

We've got a couple of additional points. You've heard Neil James talking about emergency. We strongly agree with the points that he made to you a moment ago. Second, the bill may allow a minister to act on their own motion, and we don't know that that's such a good idea. We can think of examples where it didn't work so well in the past. I think an F-111 was once deployed to the Franklin dam, and that wasn't such a clever move. So I think that the checks and balances within the—

CHAIR: I thought it just went for a scenic flight and took happy snaps!

Mr Behm : But you have an interest, Senator.

CHAIR: I do indeed. Thank you.

Mr Behm : So we think that the checks and balances within the decision-making system within government have to be honoured.

Our third point relates to the second, and that is that the role of the states and territories must be recognised in this. We've learnt from the management of Defence personnel over the COVID-19 experience in Australia that, where we don't have clear and agreed command and control arrangements, nobody knows who's doing what, where and when. I think that the way in which the bill is currently drafted could allow that kind of circumstance to occur. Finally, we are concerned that, by taking it away from the remit of cabinet more broadly, an unintended consequence of this bill could be to endanger members of the Defence Force themselves, a point which was also covered by the previous speaker. So I will just leave it at that.

CHAIR: Thank you very much. I will go straight to Senator Kitching.

Senator KITCHING: Thank you very much, Mr Behm and Mr Barratt, for your submissions and for appearing today. It's always nice to hear your voices. We've just had Mr James. I'm not sure whether you heard any of his evidence, but I asked him about the definition of 'emergency' or 'other emergencies', as it is in the bill. Your submission, Mr Behm, contends that 'emergency' should be defined narrowly in the bill. Defence's submission to this inquiry contends that it is not possible to predict every sort of emergency. For example, the coronavirus pandemic is an event which wasn't foreseeable, given the last pandemic was a century ago. What's your view of Defence's position, and how would you have 'emergency' defined in the bill? Could you just extrapolate or give us a view on those two things?

Mr Behm : Yes. If I may comment quickly on that, I would be defining 'emergency' as any situation where the use of force or coercion is not contemplated. It would then cover so many different things, as you've just mentioned. Could I illustrate that, please. I was responsible for Defence Force aid to the civil power and Defence Force assistance to the civil community as a senior Defence official back in the eighties. You would recall the Russell Street bombing in 1986, where the Victoria Police wanted really urgent assistance from the Australian Defence Force, particularly the military police, to direct traffic, because all of the traffic lights in central Melbourne went down and they didn't want gridlock. The then commander of 3rd Military District approached the operations part of the Department of Defence, and they quickly decided that this was Defence Force aid to the civil power, because they were supporting policemen. It came to me as the policy officer, and I told them: no, that wasn't Defence Force aid to the civil power; it was assistance to the civil community, because the military police were not going to arrest or shoot or do anything to any member of the community. They were simply going to stand in the middle of the road and tell the traffic in the north that it could go south and the traffic in the east it could go west. So it's very important, I think, to define these things by the sorts of resources that you're going to bring to bear. If you're contemplating the use of weapons or tanks or something else, it should be completely beyond the scope of any definition of 'emergency' for the purposes of this bill.

Senator KITCHING: Thank you very much, Mr Behm.

CHAIR: Senator Kitching, I understand Senator Patrick has questions. Senator Steele-John, do you also have questions?

Senator STEELE-JOHN: Yes, I do.

CHAIR: Senator Fawcett?

Senator FAWCETT: Can I clarify one thing that Senator Kitching's just been talking about.

Senator KITCHING: Could I ask one question to both witnesses—

CHAIR: Senator Kitching, Senator Fawcett has a supplementary, then it's back to you. But can everybody keep in mind that 10.45 is where we end.

Senator FAWCETT: In terms of the definition, Defence has, for some years now, used the humanitarian assistance and disaster relief nomenclature for much of its work, particularly internationally. If the bill were to use words such as 'that assistance formed for those purposes'—humanitarian assistance and disaster relief—would that address some of your concerns?

Mr Behm : I think it would, but I would actually leave that to the lawyers. Once they've got some policy direction about the language, the drafters will get that right. I'm not a legal drafter. I admire the skills that they've got, but they're not mine.

CHAIR: Senator Kitching.

Senator KITCHING: Thank you very much, Chair. Mr Behm and Mr Barratt, your submissions express concern that the bill would provide a capacity for what might be termed 'own motion' deployments, by the Commonwealth, of Defence personnel in response to natural disasters and other emergencies and that these provisions might conceivably extend to situations beyond civil disasters. Defence's submission states categorically that the bill's measures do not alter the government's legal authority to deploy the ADF in response to natural disasters and other emergencies. If these interpretive assurances from Defence were included in the explanatory memorandum for the bill, would that assuage your concerns?

Mr Behm : I defer to Mr Barratt on that.

Mr Barratt : My response would be that you really have to rely not on the explanatory memorandum but on the word in the law. And, in that connection, I'd remind people that, when the 1975 amendments were made to the Defence Act, the parliament was assured that the changes, which I think involved section 8, would have no impact on the prerogatives of the Governor-General, who in those days used to be consulted about deploying the Defence Force into international armed force. That's gone into abeyance. We don't consult the Governor-General anymore about sending the troops off to war. So what might be in an explanatory memorandum today is not necessarily going to have the required longevity. While I've got the floor, could I also respond to the notion that the pandemic was unforeseen and refer senators to section 28(3)(g) of the Defence Act about the circumstances under which reserves can be called out, and it explicitly refers to medical emergencies.

Senator KITCHING: Thank you very much, Mr Behm and Mr Barratt.

CHAIR: Senator Steele-John.

Senator STEELE-JOHN: Can I take you both to the concerns that you have flagged around the criminal and civil immunity granted to ADF personnel and foreign police under the bill, particularly in relation to what I think was Mr Barratt's observation that these immunities go beyond the immunities granted to state based emergency services personnel.

Mr Barratt : I should emphasise that I'm not a lawyer, but, on my reading of the bill, the indemnities often go beyond those that are available to state first responders. I'm particularly referring to indemnity from criminal prosecution, and I acknowledge that, in the bill, it makes sense to indemnify people against civil suit, but indemnifying them against criminal prosecution is, I think, a step too far. My suggestion is that they be offered the same immunities as the first responders in the states in which they're responding.

CHAIR: Does the 'criminal activity' have to be done in good faith in this bill?

Mr Barratt : It is covered by the rubric of good faith, but I'm struggling to understand what 'criminal activity undertaken in good faith' actually means.

CHAIR: For example, destruction of property and trespassing are technically criminal offences. Bashing down somebody's front door without their authority could be seen as criminal conduct as well. If that is done in the exercise of desperately searching to see if somebody's in the house that needs to be removed then I suppose you would want protection from that potential criminal act. Albeit, one assumes that a criminal activity would need to be prosecuted by the Director of Public Prosecutions, who would need to exercise his or her discretion as to whether it's in the public interests to so prosecute. But, that said, somebody can bring private criminal matters as well if they are so motivated. So I just add to that to the discourse, for what it's worth.

Senator STEELE-JOHN: I will just take you, Mr Barratt, to the questions you have raised around chain-of-command concerns. In your submission, you have highlighted significant complications that come with enmeshing ADF personnel and civil emergency response services due to conflicting and unclear chains of command between the two. I'm wondering whether you can elaborate on this.

Mr Barratt : Just by way of background, there is a very longstanding history of providing defence assistance to the civil community. The way the procedures have worked to date were very well set out by Lieutenant General Greg Bilton in his evidence to the royal commission on the bushfires back in about May. The important thing is that it's always in response to a request from a state, that there is a description of what the ADF is asked to do and then that the ADF command chain takes over command of that particular space of the operations. What I'm concerned about is, if the ADF gets injected into a situation without the request of a state, we have the prospect of divided command and people tripping over each other, which is not going to be to the benefit of either the first responders in the state or the ADF. So my solution is that there must always be a request from the state for assistance.

Senator STEELE-JOHN: Thank you. Mr Behm, do you have anything to add to that?

Mr Behm : No. I completely agree. It is in our submission, too.

Senator STEELE-JOHN: You have both said this very clearly in your submissions, but I want to give you the chance to state it for the record. Do you think this bill provides any enhancement to defence's ability to provide a supporting role in disasters such as we saw in 2019-20 in relation to the bushfires?

Mr Behm : I don't believe that the bill does anything to enhance the readiness or capability of the Defence Force, either the standing regular force or the reserve force. What the bill does is allow for some streamlining in decision-making about call-out and deployment. Because it doesn't do anything about capability, that's why, in our submission, we think that we have to think through whether or not the bill might unintentionally put members of the Defence Force or members of the reserve into dangerous situations for which they are not as well trained as their civilian counterparts in the RFS, the SES or whatever the emergency body is called. I do think that that requires a lot of contemplation because we have had instances historically where Defence personnel have actually died in supporting the civil community during times of emergency, partly because they were not properly trained to handle that emergency.

Senator STEELE-JOHN: It follows, therefore, doesn't it, that opposition to this bill would not limit that capacity in the future, if we're talking primarily process?

Mr Behm : This bill is about process. I don't think it would be a very good idea to limit the capacities of the Defence Force any further than they have already been limited, actually.

Senator STEELE-JOHN: Thank you. Do you have anything to add to that, Mr Barratt?

Mr Barratt : No, Senator. It's been well covered by Mr Behm. In the interests of time, I'll just say I support his comments and have nothing to add.

Senator PATRICK: I just have a couple of questions, Mr Behm. Welcome back to the building. I did enjoy your book—for those who haven't read it, it's called No, Ministerand is recommended reading for all staffers. In respect of the role of the Defence Force, obviously you have great experience in this area. You are looking at the roles of the Defence Force, its structure and so forth, and that feeds down into a whole range of things about procurement and training. Does this bill create a risk that, in some way, there's a statutory obligation from a Defence Force perspective that may drive force structure or that may drive training requirements that become an unintended consequence? So instead of simply using resources or skills that are available, it places an obligation on the Defence Force to have particular resources and particular skills?

Mr Behm : Thank you, Senator Patrick. That is a really, really interesting question, and one that I did not actually turn to myself in looking at the impact of the bill. My suggestion would be that it would not impact on force structure planning. I don't think there is any probability that this bill would impact on force structure planning. If one looks at the history of Emergency Management Australia and all of the bodies that went before that, they were generally sort of unhappily located on the far periphery of the Defence organisation, which is why they have bobbed around in the administrative arrangement orders for the last 30 years. Part of that is that Defence's remit is to prepare itself for war; it is not to prepare itself for civil emergencies. So when there is a civil emergency of any kind, it is come as you are. I think that that would be the continuing paradigm for Defence Force operational planning, and I don't believe that that would have any feedback loops into capability planning.

Senator PATRICK: I know you're not a lawyer. I am working at this coming backwards: in three or five years time some soldier, sailor or airman gets injured and, in pursuing damages or pursuing a claim, reading the act as a whole, there might be some allegation that the person wasn't trained properly and there was a statutory obligation. Then—you know how these things work backwards through Defence—over time it causes the thing that I don't think necessarily upfront it would suggest, but perhaps as a result of circumstances down the track it may back feed into planning and training.

Mr Behm : I completely agree. You can't preclude possibilities like that. In part it would be answered by the comments that Senator Abetz made earlier—the question of the role of the DPP, how charges are actually laid, who thinks it's in the public interest to do that, and whether there's another remedy for the problem that you have addressed. Generally speaking, the Commonwealth is very good at that. As I say, the concern that we have is that through the speed of decision-making, inadvertently you could put the soldiers at risk. But if you slow it down just a little bit and have a bit more contestability in the decision chain—that's all that I'm arguing for—you would probably address that problem and make sure that the right people are deployed to do the right sorts of jobs. So you won't have infantry people, for instance, being deployed on the fire line, but you will have engineers involved in perhaps preparing fire breaks or the mopping-up operations that go after the fire itself, where the civil community often needs very particular sorts of heavy engineering support.

Senator PATRICK: My final question in some sense puts you back into a chief of staff role. If this bill were to be brought to the floor of the Senate—this committee may make recommendations about changes, but, were it not to or were it to make recommendations that weren't accepted by the government—on balance, should the bill be supported?

Mr Behm : I'm not sure that's a question that I should be answering.

Senator PATRICK: It's a question I have to answer, so I'm seeking help.

Mr Behm : I'd be very happy to talk to you privately about that—

Senator PATRICK: Okay.

Mr Behm : But I could hint perhaps at the sort of advice that I would be offering you and it would start from a position of caution.

Senator PATRICK: Thank you.

CHAIR: It is the definition of 'emergency' altered by this legislation?

Mr Behm : No, I don't think so.

CHAIR: What groups within our civil society are purpose-trained for, let's say, a bridge collapse or a building collapse?

Mr Behm : That's a very good question. I don't know that you've got any civil society groups particularly trained for that. Normally, if there is a bridge collapse somewhere other—this is another Tasmanian example, isn't it, Chair?

CHAIR: Yes! Were at the forefront of the good and bad!

Mr Behm : That's your remark! You've got the municipal authorities, which have quite big civil engineering departments. You've got the immediate take-up, normally, by state governments of such engineering resources as are available to them, either through the universities, their higher ed facilities—for example, you'll find that the sinking buildings in Sydney had professors of engineering coming in from the universities to advise the state on how best to manage that sort of emergency—

CHAIR: But can I take you to an actual building collapse, not one that's sinking, where you have a fair bit of time. Where a building has collapsed and time is of the essence and you just need manpower, sufficiently skilled, to remove rubble to see if anybody is still alive and can be rescued, every single minute counts. Therefore, the quickness of the deployment, and having a workforce capable of doing it, seems to be the issue. I'm not sure there is one within the states, other than, let's say, a police force, which would undoubtedly assist. But you then ask what their training has been at the police academy for a building or a bridge collapse and it's a bit like the Defence Force or the Reserves, as you talk to in page 2, I think, of the submission.

Mr Behm : The fire brigade normally will step in at the very early phases of that. We haven't had a lot of experience of this—

CHAIR: Thankfully—

Mr Behm : I can only think of Newcastle, frankly, where the local engineers, the municipal workforce, the people who go out and deal with roads and things like that, come in with heavy equipment. It is a situation in which, if it were a very serious collapse, you could mobilise military engineers. I would simply point out that it would take bit of a while to get them there, depending on the location. So, it's a local issue—

CHAIR: Can I briefly interrupt. If a building has collapsed, don't you just need the raw manpower to try to remove the rubble, as opposed to some professor of engineering—and no disrespect to them—pontificating on all sorts of reasons as to why the building may have collapsed or further collapsed. Don't you really want to get in there quick smart to try to save people?

Mr Behm : You do. I think that is very difficult, at least in my experience, to mobilise military forces in the sorts of timeframes that you are talking about, unless you are thinking of something of the Thredbo collapse, where people were still being dragged out 72 hours later—Mr Diver, for example. There, you could have military people and they would probably be unskilled, frankly. They would be directed by people who have a bit more skill than they have. It is risky, but you still have the resource. The question there is the time that it would take to deploy those resources.

CHAIR: I thank both gentlemen very much for sharing their wealth of experience with the committee. It is much appreciated.

Mr Behm : Thank you.