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


Peter Khalil: I also rise to speak on the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020. Throughout our history the Australian Defence Force has played a vital role in assisting the Australian community in emergencies and other natural disasters. We’ve witnessed this, sadly and tragically, during the devastating 2019-20 bushfire season and more recently throughout the coronavirus pandemic. We thank our Defence personnel for their service and support when our communities have needed it most.

There is obviously a need for all levels of government to plan well for increasingly severe fires, floods and other natural disasters and emergencies, but it is also true to say that the federal government was slow on its feet in the last bushfire season. Following the compulsory call-out of the Reserves during the last bushfire season the government conducted a review that identified several deficiencies, which this bill seeks to address. Let us be clear that the findings of this review have led to the amendments that are before us now. The government should not use as an excuse for their own poor planning last bushfire season, which the shadow minister for defence spoke about earlier, that this bill wasn’t in place during the last bushfire season. The government’s own failures and shortcomings in planning and bushfire management are the main reasons for the shortcomings we saw play out. It was not because of a lack of these technical changes that are before us, as important as they are.

This bill does deal with technical matters as well as streamlining the process for the call-out of the ADF in an emergency situation. I share the same outrage and disappointment that the shadow minister for defence highlighted to the House earlier about the Morrison government’s use of the ADF in what could only be political advertising by the Liberal Party. It was absolutely disgraceful.

This bill is on face value a set of technical amendments that may streamline processes and other incidental measures, such as the call-out of the ADF. Of course we will see this bill’s passage through the House. However, given the importance of the powers that these amendments pertain to, particularly in the context of our parliamentary democracy, we in Labor believe it is prudent to insist on a Senate legislative inquiry. It may seem like an abundance of caution by us, but I and my colleagues believe that it is necessary and required.

Why is it necessary? Why is it required? Because the very real scenario of armed forces assisting, either in disasters or emergencies and with law and order and other domestic security tasks, should never, particularly for the latter tasks, become the norm in a mature democracy. In 1628—and that’s a long time ago—the Petition of Right made it unconstitutional for the Crown to impose martial law on civilians, and in 1688 the Bill of Rights declared it illegal for the Crown to raise or keep an army without parliamentary consent. These were the beginnings, the foundations, the genesis, of the very important lines of responsibility and the separation of powers that in many respects separate us, as a parliamentary democracy, from many of the authoritarian and autocratic military regimes that exist around the planet.

We have deep delineations, set out in our Constitution, and checks and balances on executive power in our system. One of these principles, which of course we are all familiar with, is the civilian control of the military. Part of that is the delineation of the responsibility of the defence forces to defend from external threats and the responsibility of domestic law enforcement agencies and services to maintain law and order internally. That boundary, as a general principle, should not be easy to cross. It should not be easily or frequently crossed, frankly. It can and may need to be crossed in extreme emergency situations. It’s these types of situations that the laws we are debating today provide the framework for, a framework that is very important.

Defence forces used in a civilian context, though, should never be normalised. That is a starting principle in this debate. I want to make it clear that it is so important that we look closely at these amendments, particularly through the Senate legislative inquiry. These changes, even if they are technical, are connected to some very important fundamental principles of our parliamentary democracy, and it is important that we proceed with caution to ensure we don’t diminish, even in an unintended way, the separation of powers that I have just outlined.

The bill makes several changes to the administrative arrangements, as we’ve heard from previous speakers, about the use of ADF personnel, particularly the call-out of Reserve personnel, in response to emergencies and natural disasters—simplifying the arrangements for advising the Governor-General prior to issuing an order to call out the Reserves; increasing the flexibility in terms of the types and periods of service that Reserves render during a call-out, rather than requiring continuous, full-time service; providing immunity in certain circumstances from civil and criminal liability for Defence personnel and other designated protected persons responding to an emergency, similar to that enjoyed by civil emergency services personnel; and addressing a gap in current arrangements that means Reserves providing continuous, full-time service during the period of call-out do not receive superannuation.

While Labor will support the passage of the bill through the House, having a legislative inquiry in the Senate is, as I say, critical to making sure that there are no unintended consequences, because of the importance of these technical changes to a much deeper and more critical element of the way that we frame and separate our powers, with the use of our defence forces for both external and internal support. The changes, as we know, were a result of the review that the government undertook in looking at the existing arrangements for Defence for the devastation that we saw in the bushfire season. The elements of the bill which will need to be looked at particularly closely and which there may be some issues around include the immunity provisions and potential interpretations in subsection 123AA(2). That will require forensic examination because it expands the immunity from civil and criminal liability for ADF personnel, including both Australian Public Service officials and Defence employees, as protected persons. There is real value in making sure that the Senate inquiry looks into these particular changes.

The other element is the authorisation for foreign military and police forces that may come to our assistance in times of emergency to be included in the immunity provisions as they undertake those tasks. I know that Defence officials have characterised this type of immunity, or these provisions, as in effect affording defence personnel and others responding to disasters the similar or the same immunities—that are provided to civil and criminal liability—as those enjoyed by civilian emergency services personnel in the same situation. That needs to be looked at to make sure that that intent is clear and is actually the outcome of the bill.

Our shadow minister for defence, in an abundance of prudence, has sought and received assurances from the Minister for Defence that these sections do not extend the ability to deploy the ADF or enhance or increase those executive powers. But, of course, the Senate inquiry will need to confirm this as part of their work. They will look at the areas, look at the definition of ‘other emergencies’, look at the issue around regulating the call-out of defence forces and reserves to assist—under those particular sections that I mentioned—making sure there is thorough scrutiny and debate for a whole range of reasons. The basic principles are of critical importance: to make sure there is no negative impact on civil liberties, to make sure that that crossing over of the line of external defence and internal security is one that is held watertight in respect of the law—even in the sense of technical amendments that make sure that that cannot be breached, or the line crossed, in a manner which would be unsatisfactory to us as a parliamentary democracy and with respect to any enhancements in executive power.

These concerns that I have raised are shared by many of my colleagues and other members of parliament, both in the House and I know in the Senate, and that is why it’s so important for the Senate legislative inquiry to do its work. We are looking at the worst possible case scenarios, but part of our role is to make sure that we are looking at some of these scenarios and how certain terms, amendments and sections could be interpreted. We have to ask these questions. We have to forensically examine the potential impacts of any changes in the law, regardless of whether the intention is there or not, or whether the amendments are seen to be, on the surface, technical or not. That’s why Labor supports the Senate legislative inquiry to do its work and to do that forensic examination, which they have done many times in the past—good work on bills before both houses.

We live in a volatile world. It has been said before that our democracy is precious. We hear that all the time. But it is certainly even more true today given the geostrategic uncertainty and the volatility that we see all around us in the global pandemic that we are facing and in the shifts that are occurring globally in geostrategic tectonic plates that are shifting very dramatically. Where we see authoritarian, autocratic regimes around the world on the march it is more important in that context that we do the work as a parliament to safeguard those foundations of democracy that I alluded to and articulated earlier. They include defending the lines that separate the responsibilities of our military and our civil authorities in their work to defend against external threats, which is the primary responsibility of our defence forces. Our domestic security is the primary responsibility of our law enforcement agencies and services.

There will be times, and there have been times, where our defence forces—our armed forces, our personnel—have been called on to support us domestically, whether it be natural disaster, emergency and so on. They have done so in the past and have done so bravely in support of the Australian community. There will be times again in the future. The legal framework around that needs to be watertight. We need to be asking those questions, regardless of whether we think this is a technical set of amendments or not, because they are so important in that they relate to those very basic fundamentals that I have articulated. In this precious democracy that we live in, we need to safeguard that separation of powers and the clear delineation between the roles and responsibilities of our military forces and our civil authorities and personnel. As such, we will reserve our final position on the bill until the Senate legislative inquiry has done its work and delivered its report on this bill.