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Tuesday, 8 December 2020
Page: 7124

Senator STEELE-JOHN (Western Australia) (19:46): As I commence my contribution to this discussion, I want to just briefly shout out and pay tribute to my fabulous and diligent policy adviser, Andrea Pizzie, to whom I owe a lot for a lot of the research work that went into the Greens position on this. I shall endeavour not to mangle the notes she has given me in my contribution to this bill's discussion.

The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020—very much contrary to its name—does nothing to enhance Defence's capacity to respond to natural disasters and other emergencies. Beyond the provisions around superannuation, the bill serves to reduce oversight of call-out processes and grants the ADF personnel, and indeed foreign defence forces personnel and foreign police, criminal and civil liability immunities. It is important that the ADF has the ability to provide assistance to civil emergency response capabilities in large-scale natural disaster responses. These circumstances have and will continue to occur, notwithstanding the passage of this legislation.

Defence Force assistance to the civil community, DFACC, will continue to stipulate the role of the ADF when providing assistance in domestic natural disasters. We note evidence given by the Royal Commission into National Natural Disaster Arrangements by officials of the ADF state that the DFACC arrangements were sufficiently flexible and effective during Operation Bushfire Assist and therefore question elements of this bill, which state otherwise.

The Greens express significant concern about the provisions of the bill which relate to immunities, the constitutional sources of power and the processes around calling out reserve members and, indeed, for overall human rights implications. We do not accept the characterisation made in the course of the Foreign Affairs, Defence and Trade Committee inquiry into this legislation that the concerns raised by constitutional, legal and policy experts are ephemeral to the substance of this legislation. As demonstrated by the expert evidence given to the committee, these issues are, in fact, central to this legislation.

The Greens do not support the passage of this bill. We do not believe that the bill is sufficiently justified. The risks to ADF members articulated by constitutional and civil liberties stakeholders and experts during the course of the inquiry into this legislation are significant and are unmitigated by the evidence given to the committee during the course of the inquiry. I note that the minister has circulated a replacement explanatory memorandum which attempts to address some of the issues brought up during the inquiry. However, I note, as did many others during the hearing and in their submissions, that ultimately the changes that need to be made should be made in the form of amending the legislation itself, because ultimately legal decisions made in relation to key aspects of this bill will come down to the letter of the law. We do, however, note the superannuation related benefits outlined in schedule 3, and we agree that it is necessary and important to change these sections to ensure that reservists are appropriately compensated for their service.

Let me go to the substantive issues that we have with the bill. The bill underwent a very quick inquiry process through the Senate Foreign Affairs, Defence and Trade Legislation Committee, with an extraordinarily small window of opportunity to explore the deeply complex issues that exist in this space. I would like to commend the many community members, the submitters and those who gave evidence to the inquiry for their contributions to this conversation. I would also like to put on the record that this inquiry process left more unanswered questions in relation to the issues brought up.

Let us first go to the issue of immunities offered by the bill. Contrary to the evidence given by departmental officials during the hearing, we do not agree that the granting of both criminal and civil immunities to ADF personnel, foreign defence personnel and foreign police contained within this bill appropriately balances the rights of civilians to legal remedy for neglect and damaging behaviour. It is our position that the Department of Defence was not able to sufficiently address the concerns of the considerable number of submitters who contested the provision of broad immunities. We do not support the extension of any immunities to foreign forces and police. We note the main committee report outlines a number of submissions which recommend against including this provision, and we agree with their view. Further, there is a significant lack of clarity contained within this bill in relation to what legal remedies are available to civilians in circumstances where ADF and foreign personnel have acted inconsistently with their obligations to provide assistance. This matter requires further consideration and clarification to ensure that the right to access the justice system is well understood and reflected in the legislation.

We must also look at the constitutionality of the immunity provisions contained in this legislation. We are very concerned that the issues brought up in evidence to the committee by constitutional law expert Professor Anne Twomey linked her substantial concerns with the constitutionality of this legislation to the immunity provisions themselves. In her submission, she stated:

This anomaly will be aggravated by proposed s 123AA of the Defence Act. It will provide immunity to all members of the Defence Force, both regulars and reserves, when acting in the performance of their duties if the duties are in respect of the provision of assistance to prepare for or respond to a natural disaster or other emergency. But this raises the question of when such matters are within the member's duties, which goes back to the question of whether there is constitutional power to deal with such matters.

In her evidence to the committee Professor Twomey elaborates on this point, stating:

But the problem here is that the immunity is tied to the word 'duties' in the legislation, and these duties would not formally exist if they're not supported adequately by the constitutional powers. So I think in that respect the immunity is actually probably in many cases just not effective.

The evidence given is that the constitutional ambiguities that surround that and the source of power that Defence relies on to determine the duties of the ADF personnel are not settled constitutional matters and directly interact with the proposed provisions within this bill. We are concerned about the significant implications that this complicated legal matter would have for civilians and ADF personnel who may find themselves not protected and the subject of legal matters and actions. More broadly, we are concerned that this complicates an already messy area of the law. It makes the problem worse.

We must now turn to proportionality and the issues of good faith. We in the Greens are concerned that the granting of immunity for criminal liability unacceptably provides protections for ADF personnel and foreign personnel beyond those granted to all state and territory emergency responders. We are of the view that the ADF personnel would be undertaking fundamentally civilian tasks in the circumstances that this bill concerns itself with, and we do not think that it is necessary or appropriate to water down the rule of law. Further, we note that immunity provisions granted to state and territory emergency responders do not include immunity from civil and criminal liability in the majority of cases. Whilst we agree that the ADF personnel should be appropriately protected in order to carry out their duties, we do not see that these protections should be over and above those granted to first responders and state based emergency personnel. This was also put to us in the clearest of terms during the course of the inquiry.

In relation to the scope of 'natural disaster and other emergency' offered in the bill, I would like to take the opportunity to point out that the proposed section 123AA(2) provides that the minister may in writing direct the ADF to provide assistance in relation to 'a natural disaster or other emergency'. In our view, the term 'other emergency' is deliberately undefined and left to unacceptably broad interpretation. We note that the foreign affairs, defence and trade main committee report alludes to concerns made in a number of submissions, and we agree that there need to be a greater definition and an explanation of what circumstances 'other emergency' could be understood as.

In relation to the issue of the non-use of force, we are deeply concerned that the bill does not prescribe the non-use of force in the legislation. Despite evidence from Defence during the inquiry that indicates that this bill does not permit the use of force by Defence personnel when assisting in natural disasters and other emergencies, there are significant and justifiable concerns from other submitters to the inquiry and in the community more broadly that will remain unanswered should this legislation not explicitly rule out the use of force. As submitted by Professor Twomey, once again:

… if you wish to confine the legislation in a way that makes it clear that the type of actions and duties relating to civil aid to the community are not to involve coercive action—which indeed is clear in DACC—then you could well say so in the legislation if you so chose.

We will be giving the Senate the opportunity to so choose via one of our amendments later in the debate. Further, we are concerned by the position that Defence have taken when questioned on whether they will or will not prescribe the non-use of force, particularly in an answer given on notice, which I believe I do not have enough time to go into in detail.

Professor Twomey and other submitters made it very clear—and I think this needs to be treated with the utmost seriousness, as I would have expected it to be by those so-called conservatives in this place whose political tradition once harked back to a deep reverence for the maintenance and clarity of constitutional issues—that the head of power under which DACC activities are managed by the executive is not a settled issue in any form or sense of it—and neither, by the way, is what exactly is meant by 'good faith', which is a broader conundrum facing this legislature and which we seem unable to confront. The Commonwealth has no settled definition of what is meant by good faith and actions taken therein.

I think I will end by doing two things. I will foreshadow that we will move a number of amendments in the committee stage of the legislation that deal with the various human rights definitions and other issues outlined in the bill, as well as giving the Senate the opportunity to split the legislation so that we might consider the superannuation element separately from the other questions contained within the legislation. But I will end with the ever caustic and incredibly intellectually compelling words of Professor Anne Twomey in relation to the central contention of the bill, which is that it is needed—that the bill is needed to enable the fast call-out of reserve Defence Force personnel because of the unwieldiness of the Federal Executive Council. She said:

If the Commonwealth Government has not yet worked out a means of instantly contacting all members of the Federal Executive Council to inquire of their immediate availability for a meeting, then it is an indictment on its management. Getting a person to sit down and ring each of them in turn is, frankly, absurd. It is hardly an excuse for changing the legislation. Rather, it should be a reason for changing communication methods. In any case, to state the obvious, if the situation is so urgent that there is no time to go through the system to organise a meeting of the Federal Executive Council, the Minister could be legitimately satisfied that there are other—

(Time expired)