Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 191 (11 November 2020)

• Chapter 2
• Commentary on ministerial responses
• Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020
• Parliamentary scrutiny1
• Immunity from civil and criminal liability4

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Chapter 2

Commentary on ministerial responses

2.1 This chapter considers the responses of ministers to matters previously raised by the committee.

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

Purpose	This bill seeks to enhance Defence's capacity to provide assistance in relation to natural disasters and other emergencies
Portfolio	Defence
Introduced	House of Representatives on 3 September 2020
Bill status	Before the Senate

Parliamentary scrutiny^[1]

2.2 In Scrutiny Digest 13 of 2020 the committee requested the minister's advice as to:

• the scope of powers (including coercive powers and the use of force against members of the public) that may be exercised by reservists subject to a call out order under proposed subsection 28(1) and protected persons subject to a direction relating to the provision of Defence assistance under proposed subsection 123AA(2); and

• why it is considered necessary and appropriate to shield call out orders made under proposed subsection 28(1) and directions relating to the provision of Defence assistance under proposed subsection 123AA(2) from all forms of parliamentary scrutiny.^[2]

Department's response^[3]

2.3 The department advised:

Reserve call out orders
The power to call out Reserve members in section 28 of the Act does not authorise the deployment of the ADF, and does not provide called out Reserve members with any powers once they are deployed. In this context, called out Reserve members can be used in exactly the same way as Permanent ADF members when rendering emergency assistance. Except in very specific situations where Part IIIAAA of the Act is being used to respond to domestic violence or threats to Commonwealth interests, ADF members provide assistance in natural disasters and other emergencies under the executive power. This would not authorise the use of force, beyond what is available to members of the community (for example, self-defence), or the use of coercive powers (such as powers to control people’s movement or detain people). This Bill also does not authorise the use of force or coercive powers.
The Bill would amend section 28 to make a Reserve call out order a notifiable instrument. This has substantially the same effect as the existing provision, which requires Reserve call out orders to be published in the Gazette. It is not necessary or appropriate to make Reserve call out orders legislative instruments, for a number of reasons:
• Reserve call out orders would not be a legislative instrument within the meaning of sub-section 8(4) of the Legislation Act 2003. They do not determine the law, only the particular circumstances in which one aspect of Reserve members’ service obligation, as set out in Part III of the Act, applies.
• It would not be appropriate for Reserve call out orders to be disallowable, noting the significant levels of disruption this would cause for ADF operations, planning, and ADF members who had been called out.
• There are numerous mechanisms by which any decision by Government to call out the Reserves could be scrutinised by Parliament.
Directions under s 123AA(2)
The only purpose of a direction under proposed subsection 123AA(2) is to enliven the immunity provision in subsection 123AA(1). Subsection (2) was included to provide a clear decision that the circumstances described in the subsection had been met. The effect of subsection 123AA(2) is to limit the circumstances in which the immunity provision applies. Not all assistance provided by Defence will meet the threshold to enliven the provision.
Even if subsection 123AA(2) were interpreted as providing legislative authority to direct the deployment of the ADF, the scope of the provision does not increase the Minister’s existing power to direct the ADF to provide assistance under the executive power. It represents a subset of assistance Defence is already able to provide, including at the direction of the Minister. It does not authorise the use of force or coercive powers.
It is not necessary or appropriate to make directions under subsection 123AA(2) legislative instruments, for a number of reasons:
• Directions under subsection 123AA(2) would not be legislative instruments within the meaning of subsection 8(4) of the Legislation Act 2003. They do not determine or alter the law, only determine the particular circumstances in which the immunity in subsection 123AA(2) will apply.
• It would not be appropriate for directions under subsection 123AA(2) to be disallowable, noting the disruption this could cause to protected persons who are relying on the immunity.
• There are numerous mechanisms by which any decision by Government to direct assistance in relation to a natural disaster or other emergency could be scrutinised by Parliament.

Committee comment

2.4 The committee thanks the department for this response. The committee notes the department's advice that proposed subsection 28(1) relating to Reserve call out orders do not authorise the use of force or coercive powers. The department advised that it is necessary and appropriate to provide that a Reserve call out order is a notifiable instrument, as it would not be a legislative instrument for the purposes of subsection 8(4) of the Legislation Act 2003, it would be inappropriate to subject such an order to disallowance due to the need for operational certainty, and because there are other parliamentary scrutiny mechanisms available.

2.5 The committee also notes the department's advice that directions relating to the provision of Defence assistance under proposed subsection 123AA(2) do not authorise the use of force or coercive powers. The department further advised that it is not necessary or appropriate for these directions to be legislative instruments, as they do not determine the law and would not be considered legislative instruments for the purposes of section 8(4) of the Legislation Act 2003, and that disallowance may cause disruption to protected persons relying on the immunity, and because there are other parliamentary scrutiny mechanisms available.

2.6 While noting this advice, the committee reiterates its concerns that notifiable instruments and non-legislative directions are not subject to tabling, disallowance or sunsetting and as such are not subject to parliamentary scrutiny.

2.7 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the department be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.8 In light of the committee's ongoing scrutiny concerns in relation to parliamentary scrutiny, the committee requests the minister's further advice as to:

• which parliamentary scrutiny mechanisms apply to a call out order made under proposed subsection 28(1) and to a direction relating to the provision of Defence assistance made under proposed subsection 123AA(2) as currently drafted; and

• whether the bill can be amended to:

- provide that call out orders made under proposed subsection 28(1) must be tabled in both Houses of the Parliament, noting that the tabling of documents in Parliament provides opportunities for debate that are not available where documents are only published online;

- provide that an annual report on the use of directions made under proposed subsection 123AA(2) must be included in the Defence annual report prepared by the secretary and given to the minister under section 46 of the Public Governance, Performance and Accountability Act 2013; and

- provide at least high level guidance on the scope of powers that may be exercised by reservists subject to a call out order under proposed subsection 28(1) and protected persons subject to a direction relating to the provision of Defence assistance under proposed subsection 123AA(2), including clarifying on the face of the bill that these orders and directions do not authorise the use of force or coercive powers beyond what is available to members of the community.

Immunity from civil and criminal liability^[4]

2.9 In Scrutiny Digest 13 of 2020 the committee requested the minister's advice as to why it is considered appropriate to provide protected persons with both civil and criminal immunity so that civil and criminal proceedings may only be brought against a protected person in circumstances where lack of good faith is shown.^[5]

Department's response

2.10 The department advised:

The immunity provision applies in relation to acts or omissions done, in good faith, in the performance or purported performance of the protected person's duties, when rendering emergency assistance. The use of the term 'good faith' in an immunity provision of this sort is very common, with multiple examples in State and Territory legislation. The existence of the immunity is limited by the requirement that the actions or omissions be done in the performance or purported performance of the person's duties. The duties directed to be done must be lawful duties. This provision does not expand the scope of lawful duties – for example, it does not authorise the use of force or coercive powers, and does not provide authority for protected persons to commit criminal offences with impunity. A person acting outside the scope of their lawful duties will not have the protection of this provision, even if they are acting in good faith.
The immunity provision provides protections against liability in relation to how protected person performs their lawful duties, but does not expand the scope of lawful duties. For this reason, there will only be a narrow range of criminal offences where the immunity could be relied on.

Committee comment

2.11 The committee thanks the department for this response. The committee notes the department's advice that the use of the term 'good faith' in immunity provisions is common and that the provision does not expand the scope of lawful duties. The department also advised that it does not authorise the use of force or coercive powers and does not provide authority for protected persons to commit criminal offences with impunity. The department further advised that there will be a narrow range of criminal offences where the immunity may be relied upon.

2.12 While noting this explanation, the committee notes that the response did not directly address the committee's question as to why it is considered appropriate to provide civil and criminal immunity for protected persons. The committee expects that if a bill seeks to provide immunity from civil and criminal liability, particularly where such immunity could affect individual rights, this should be soundly justified. While the committee appreciates that the provision may not expand the scope of lawful duties that may be performed by protected persons, the committee does not consider that this provides a reason as to why the provision is considered necessary.

2.13 The committee's concerns in relation to this issue are heightened by the fact that the bill does not define the term 'other emergency', which is essential to the operation of proposed section 123AA as the immunity is in relation to duties performed in good faith by protected persons in the context of a natural disaster or other emergency. The committee is concerned that the bill does not define what may constitute an 'other emergency', which may widen the scope of when the immunity in proposed section 123AA may apply. In addition, the committee considers that the lack of a definition of an 'other emergency' in the bill limits the ability of the Parliament to effectively scrutinise the appropriateness of the provision.

2.14 The committee is also concerned that it is not clear on the face of the bill whether the Commonwealth as a whole may also be covered by the proposed immunity. While the committee notes that the explanatory memorandum clarifies that the immunity does not apply to the Commonwealth,^[6] the committee considers that this would be best set out on the face of the bill to provide appropriate clarity given the significance of the provision.

2.15 The committee therefore requests the minister's further advice as to:

• why it is considered necessary and appropriate to provide protected persons with both civil and criminal immunity; and

• whether the bill can be amended to:

- include an inclusive definition of the term 'other emergency' (or, at a minimum, whether the explanatory memorandum can be amended to include examples of what may constitute an 'other emergency'); and

- clarify that the immunity in proposed section 123AA does not extend to the Commonwealth as a whole.

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[1] Schedule 1, item 2, proposed subsection 28(1); Schedule 2, item 4, proposed section 123AA. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(v).

[2] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2020, pp. 9-10.

[3] The department responded to the committee's comments in a letter dated 26 October 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 15 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest

[4] Schedule 2, item 4, proposed section 123AA. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

[5] Senate Scrutiny of Bills Committee, Scrutiny Digest 13 of 2020, pp. 10-11.

[6] Explanatory memorandum, para 30.