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Foreign Affairs, Defence and Trade Legislation Committee
30/10/2020

MICHALOWSKI, Ms Charlotte, Private capacity

RAY, Mr Andrew, Private capacity

Evidence was taken via teleconference—

[12:06]

ACTING CHAIR: Welcome, Mr Ray and Ms Michalowski. Thank you for your time. Information on parliamentary privilege and the protection of witnesses and evidence has been provided to you. Would you like to make a brief opening statement before we proceed to questions?

Mr Ray : Charlotte would like to read an opening statement on behalf of both of us, and that might have also just been provided to you.

ACTING CHAIR: It's very short, so go ahead.

Ms Michalowski : Thank you, Chair and committee members. We provided a written submission to the committee on 15 October 2020, which set out our primary concerns with this bill. In general summary, the first is the continuing lack of clarity regarding the constitutional basis for the powers of ADF members deployed on domestic soil and, in particular, the fact that there remains no legal basis for ADF members to use coercive powers. Without a clear legal basis for the use of such powers, there are still significant risks in the deployment of ADF members domestically. We echo the sentiments of Anne Twomey on that basis. Secondly, there is limited justification for civil and criminal immunity contained in the proposed section 123AA. While the explanatory memorandum suggests that this is based on current immunities provided to state and territory emergency services, a survey that we've done of the equivalent provisions shows that many states do not afford criminal immunity or, when they do, impose a reasonableness standard on that immunity. Finally, the breadth of the proposed immunity provisions—especially the application of a good faith standard and its extension to foreign forces who, in many cases, already have various immunities under Australian law—continues to be problematic in our view.

We would like to thank you again for the opportunity to address the committee and we welcome questions from senators.

ACTING CHAIR: I will go to Senator Fawcett first.

Senator FAWCETT: Thank you very much for your submission. I notice you talk about the fact that there is no legal basis for coercive force. I have two questions for you. Firstly, it's been made very clear by a number of witnesses and the department that this bill is specifically not to do with coercive force; it's to do with assistance to the civil community, which does not involve force at all. Secondly, evidence has been provided to us that, in actual fact, there is very little legal basis for the assistance to civil community, but there is actually quite substantial basis for coercive force, which is rarely, if ever, used in the Australian context. In the light of those other submissions, do you accept the fact that, for coercive force, there is actually a legal basis but that is not the subject of this bill?

Mr Ray : The key concern that we would raise has already been identified by Professor Twomey just before us in her evidence to the committee, and that is the fact that, if there is no basis currently for ADF members when deployed to use coercive force, what exactly is the utility of the provision contained in section 123AA? We would mirror the concern that, if ADF members are deployed and are aware of this immunity, they perhaps might engage in coercive acts potentially on the spur of the moment. The example would be where those members have been deployed lawfully—and I think Professor Twomey used this example—on the border and somebody is making a break to cross that border. On the spur of the moment they might make an instantaneous snap judgement to intervene to prevent that from occurring, perhaps relying on the immunity provision, and then subsequent litigation might reveal that that immunity does not apply.

Senator FAWCETT: It doesn't quite answer my question, but that's okay. Given the limited time I'll go to one other question on your concern about foreign forces. I take it you're aware that Australia is frequently sending forces to help in Pacific island nations, Pakistan and other places where there are large-scale emergencies and, reciprocally, our Kiwi cousins and people from Fiji, Papua New Guinea and other places offer to send people here. You recommend that we shouldn't request foreign forces—and I assume implicit in that is that we shouldn't accept offers from foreign forces—unless all of our resources are depleted. Is that your position? That's how it reads in your submission.

Ms Michalowski : I don't know if that would fully express our position. Our position relates more to the extension of immunity for foreign forces. We do often supply aid and receive aid from foreign countries. In those instances we have agreements that have been set up bilaterally between Australia and those foreign nations and there are existing immunities and agreements in place. This immunity provision might have the effect that it sits on top of those and create a bit of confusion as to what the status is there.

Senator FAWCETT: I'm looking specifically at your recommendation 3 that says:

That section 123AA(4)(b) is amended to require a determination that no domestic force can respond to the disaster before a request is made to foreign forces.

So your recommendation is around capacity as opposed to the implications of immunity. Just through the normal behaviour of nations that support each other, we often deploy forces before a neighbouring nation may have exhausted all of their resources, and that's an expression of goodwill as a nation. Your recommendation has the import that we would reject all offers of help until every last one of our resources had been expended. I'm just wondering if that is actually your intent.

Mr Ray : The recommendation there is concerning an amendment to the section that confers the immunity. Perhaps the precise language in the recommendation goes a little bit further than we might have intended. For example, it might be that the determination to confer or grant that immunity isn't made where we have domestic forces that are available to respond. Circling back to a point made earlier, there was the concern that where you extend an immunity you could potentially create an issue in limiting a cause of action against the Commonwealth. That same concern might apply were a foreign force to be deployed on Australian soil and commit an act that then attracts a civil immunity. It might be quite difficult in those circumstances for an individual to get compensation from a foreign nation.

Senator FAWCETT: You would be aware that we normally have status of forces agreements where a formal body of troops either goes from us to another nation or goes from another nation to here. Given the fairly long experience that the defence has around getting agreements with other forces as to the nature of immunities that their personnel would have available to them here, do you have concerns that defence is not equipped to actually put in place those levels of agreement through what broadly are known as status of forces agreements to extend that to these kinds of operations?

Mr Ray : Our response would be that the status of forces agreements already contain immunities and those are worked out on a bilateral, case-by-case basis with individual nations. We'd question the utility of including this immunity provision to foreign forces in proposed section 123AA if that immunity is already afforded through status of forces agreements.

Senator FAWCETT: Okay, thanks.

ACTING CHAIR: Senator Kitching.

Senator KITCHING: Thank you, Mr Ray and Ms Michalowski, for your submission and your time this morning. In relation to the proposed proportionality framework, how do you see it being used to assess the powers and immunities granted to the ADF personnel under the bill? Sorry, but are you able to hear me?

Mr Ray : Yes. There's perhaps a bit of lag at our end. We're both connecting in from the same building, so we might have an issue there. I think your question was garnered towards our concern regarding proportionality—is that correct?

Senator KITCHING: That's correct, yes—the proportionality framework you propose.

Mr Ray : Broadly, our position there is that where a power or immunity is conferred we want to make sure that in that particular instance it's reasonably and appropriately adapted. In terms of powers contained in the bill, there are not significant concerns. As has already been noted by many witnesses, the bill does not make any significant changes on when ADF forces or Reserve members could be deployed. Our main concern here focuses on the proportionality of the immunity provision, and whether, in particular, it is necessary that that immunity be both a civil and a criminal immunity—noting that civil and criminal immunity is generally not conferred by state legislation to state emergency services or first responders; and, similarly, whether or not the good faith standard is appropriate or whether a higher standard should be afforded there.

Senator KITCHING: Thank you.

ACTING CHAIR: Senator Steele-John, do you have questions?

Senator STEELE-JOHN: Yes, I most certainly do, following straight on from that. Did you just say that civil and criminal immunity together is not usually granted to state emergency service personnel? Is that your understanding?

Ms Michalowski : Yes, that is likely the point that we would be making. It is conferred in very limited circumstances—for instance, to police officers in South Australia and, I think, to police officers in the Northern Territory. Outside of that, the immunity that tends to be conferred—for instance, in New South Wales to the rural fire brigade—is only civil immunity.

Senator STEELE-JOHN: Alright, so we have a situation where this bill is conferring levels of criminal immunity and civil immunity combined, but actually it's conferring them to ADF personnel, foreign personnel and foreign police, and that greatly exceeds the level of immunity granted to state emergency services?

Mr Ray : Yes. Could we make one additional point, and I think this mirrors the comment made by Professor Twomey earlier. Often when state and territory legislation confers an immunity for first responders, there's an express statutory provision that particularly carves out an action that can be brought against that state or territory in a civil suit. So an additional point that could be made here to amend the bill would be to include a similar statutory basis for an action to be brought. That need might be heightened in response to foreign forces and foreign police forces.

Senator STEELE-JOHN: Alright. But to bring these things into alignment it sounds like we would also need to be limiting it to civil immunity rather than civil and criminal?

Ms Michalowski : Definitely that would be our submission.

Senator STEELE-JOHN: I'll just go back to the point about coercion. We've heard a lot through the course of today. Defence has said it is not the intent to grant coercive powers. We've heard there's the ability to use coercive force. We've heard Professor Twomey tell us very clearly that there's no constitutional basis for that, or that it would be highly questionable. I'm just seeking to draw you out. The obvious conclusion to me would seem to be to make clear in the definition of 'other emergency', or elsewhere in the actual bill—as opposed to the explanatory memorandum—the limitations excluding coercive force.

Mr Ray : That might be one option. Certainly, if it is going to be included, it should be included in the statute itself, rather than relying on the explanatory memorandum.

Senator STEELE-JOHN: Yes.

Mr Ray : However, the issue here might perhaps be slightly broader than simply redefining 'emergency', and that is because the decision to use, or not use, coercive powers is not really being made at the level of the Commonwealth deciding when to intervene or not intervene in a particular emergency. It's actually a decision that's being made on the ground, and the example that I think Professor Twomey used earlier—to once again refer to her earlier testimony—was the position of ADF personnel deployed on a border, perhaps to prevent crossings due to COVID-19. Redefining emergency to not capture COVID-19 wouldn't solve that problem. It's really an operational decision that's being made on the ground to use coercive force or not use coercive force.

Senator STEELE-JOHN: Finally, I take you to the point you made in your submission about recommendation 7, in relation to removing the ability of the minister to make a delegated decision, and I'd like you to tell us, if you could, the benefits that you see of these decisions being a legislative instrument, as you've also recommended.

Mr Ray : I'll take the first question. Broadly, our concern regarding the delegation was really in terms of the level of scrutiny that's applied and then clearly maintaining ministerial accountability for these decisions, as opposed to these decisions being delegated to members of the department or members of the defence forces. But that's not really our critical or key concern with the bill. Really, the broader concerns relating to the immunity holistically are of far greater importance than the specific delegations that are allowed under section 123AA(2). In relation to the point on legislative instruments, similarly we'd state that that's not really a primary concern and it's not currently contained in the act. Certainly, we want to make sure that, when these call-out orders are made, they are made publicly on the record and remain published, but we're not entirely sure that this bill significantly changes that. So, once again, that would be one of the minor concerns that we had, as opposed to a key concern.

Senator STEELE-JOHN: Thank you.

ACTING CHAIR: Senator Patrick, are you on the line now?

Senator PATRICK: Yes, I am.

ACTING CHAIR: Do you have any questions?

Senator PATRICK: Not for this witness because, unfortunately, I missed the dialogue, but I will have some for Defence.

ACTING CHAIR: I thank you, Mr Ray and Ms Michalowski, for your time and for your evidence. Thank you very much for appearing before the committee.