Title Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020
Database Bills Digests
Date 06-10-2020
Source Bills Digest Service
Parl No. 46
Author ELPHICK, Karen
WATT, David
Citation Id 7585955
Key item Yes
Major subject Natural disasters
Defence Force Reserves
Domestic deployment of forces
Ministerial discretion
Civil defence
Federal state relations
Emergency services
Australian Defence Force
Defence personnel
Military law
Minor subject Bills
Legislative amendments
Governor General's powers
Constitution s. 61
Superannuation
Pages 26p.
Volume no. 015 (2020-21)
System Id legislation/billsdgs/7585955


Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020

ISSN 1328-8091

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BILLS DIGEST NO. 15, 2020–21 6 OCTOBER 2020

Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 Karen Elphick Law and Bills Digest Section David Watt Foreign Affairs, Defence and Security Section

Contents

Glossary .......................................................................... 3

The Bills Digest at a glance .............................................. 4

Purpose and structure of the Bill ..................................... 5

Background ..................................................................... 5

Defence Assistance to the Civil Community ............... 5 Operation Bushfire Assist ............................................ 6

Ongoing Operation COVID-19 Assist ......................... 7

Calling out the Reserves .............................................. 8

Assignment to CFTS ..................................................... 8

Powers and immunities when conducting DACC ........ 9 Committee consideration ................................................ 9

Senate Standing Committee for the Scrutiny of Bills .............................................................................. 9

Policy position of non-government parties/independents...................................................... 9

Position of major interest groups..................................... 9

Independent and Peaceful Australia Network (IPAN) ........................................................................ 9

Financial implications ...................................................... 9

Statement of Compatibility with Human Rights.............. 10

Parliamentary Joint Committee on Human Rights ... 10 SCHEDULE 1—CALLING OUT THE RESERVES .................... 10

Key issues and provisions .............................................. 10

Reserve Call Out process and advice to the Governor-General ..................................................... 10

Removal of the automatic requirement to render CFTS ........................................................................... 11

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 2

Notification of the Reserve Call Out order................ 11 Providing the CDF with more flexibility in employing called out Reserves ................................. 12

Extending employment protection for Reserves ...... 12 SCHEDULE 2—IMMUNITY AND MINISTERIAL DIRECTION TO PROVIDE ASSISTANCE ............................. 13

Background ................................................................... 13

Limits of a Part IIIAAA Call Out ................................ 15

Immunities provided to state and territory emergency services personnel ................................ 16

Key issues and provisions .............................................. 17

The scheme of the provisions ................................... 17

The scope and effect of a Ministerial directive to provide assistance ..................................................... 18

Use of force domestically by the ADF ....................... 20

Existing immunity for ADF carriage and use of weapons in Australia ............................................. 20

Commonwealth constitutional capacity to respond to emergencies ........................................... 21

Potential conflict with state power to maintain public order ............................................................... 23

Effectiveness of the proposed immunity .................. 24 Public notice of direction to ADF to provide assistance .................................................................. 24

Inherent dangers of emergency laws and necessary limits ......................................................... 24

SCHEDULE 3—SUPERANNUATION AND RELATED BENEFITS ...................................................................... 25

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 3

Glossary Abbreviation Definition

ADF Australian Defence Force

ADF Cover Act Australian Defence Force Cover Act 2015

ADF Super Act Australian Defence Force Superannuation Act 2015

CDF Chief of the Australian Defence Force

CFTS Continuous full time service

DACC Defence Assistance to the Civil Community

DACC Manual The Department of Defence internal administrative rules that govern provision of DACC: Defence Assistance to the Civil Community Manual, 16 November 2017

DFACA Defence Force Aid to the Civil Authority—a military

operation to supress domestic violence which might involve a use of force by the ADF. It is regulated by Part IIIAAA of the Defence Act and a formal Defence Instruction: DI(G) OPS 01–1—Defence Force Aid to the Civil Authority.

DoD Department of Defence

DRSP Act Defence Reserve Service (Protection) Act 2001

MACP Military Aid to the Civil Power—a term equivalent in

meaning to DFACA.

MRCA Military Rehabilitation and Compensation Act 2004

MSB Act Military Superannuation and Benefits Act 1991

Part IIIAAA Call Out ‘Call out’ is used in several distinct contexts in the Defence Act 1903. Part IIIAAA Call Out is used in this digest to refer specifically to an order by the Governor-General made under subsection 33(3) of the Defence Act calling out the ADF.

Reserve Call Out ‘Call out’ is used in several distinct contexts in the Defence Act 1903. To avoid confusion, Reserve Call Out is used in this digest to refer specifically to an order by the Governor-General made under subsection 28(1) of the Defence Act calling out a specified part of the ADF Reserves.

Royal Commission Royal Commission into National Natural Disaster Arrangements

VCDF Vice Chief of the Australian Defence Force

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 4

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 5

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 defines DACC 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.

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).

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 6

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:

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].

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 7

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 Propositions13 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.

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 8

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.

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 9

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

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].

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 10

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.

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].

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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.

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 12

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.

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 13

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)36observed 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

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:

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 14

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 soldiers44 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

… 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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 15

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

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.

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• 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 detained55 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

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.

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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:

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.

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(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

61. See items 2 and 3 of Schedule 2 to the Bill.

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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

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.

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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

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…

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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

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.

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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.

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 23

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

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].

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 24

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:

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.

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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 25

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.

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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Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 26

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