Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 - Commentary on Ministerial Responses [2021] AUSStaCSBSD 27 (3 February 2021)

• Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020
• Parliamentary scrutiny10
• Immunity from civil and criminal liability14

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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	Received Royal Assent on 17 December 2020

Parliamentary scrutiny^[10]

2.28 The committee initially scrutinised this bill in Scrutiny Digest 13 of 2020 and requested the minister's advice.^[11] The committee considered the minister's response in Scrutiny Digest 15 of 2020 and requested that an addendum to the explanatory memorandum relating to coercive powers and the use of force be tabled in Parliament. The committee also requested 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.^[12]

Minister's response^[13]

2.29 The minister advised:

Ahead of debate of this Bill in the Senate, I tabled a replacement explanatory memorandum which included:

• Clarification that the Bill does not alter, expand or otherwise change the Government's existing legal authorities to deploy the ADF

• Clarification that the operative provisions of the Bill, including the proposed immunity provision, relate to Defence Assistance to the Civil Community and do not authorise the use of force (beyond self-defence)

• Examples of 'other emergencies' referred to in the immunity provision

• Clarification that the requirement for a direction by the Minister under s 123AA(2) is intended to provide a check on the proposed immunity and does not grant a new authority to the Minister to direct the deployment of Defence personnel.

The Committee has sought advice about which parliamentary scrutiny mechanisms apply to a Reserve call out order made under subsection 28(1) and to a direction relating to the provision of Defence assistance made under subsection 123AA(2). There are a range of mechanisms available to the Parliament to scrutinise decisions of Government, including decisions to call out the Reserves or to deploy the ADF in response to a natural disaster or other emergency. This includes (but is not limited to):

• Notices of motion by Members of Parliament

• Inquiries by Parliamentary committees

• Senate estimates processes

• Question time.

The Committee has also sought advice on whether the Bill can be amended in several ways:

• To provide that Reserve call out orders must be tabled in both Houses of Parliament.

As outlined above, even without tabling a Reserve call out order in Parliament, there are numerous opportunities for members of Parliament to consider such an order and debate it.

• Provide that Defence's annual report include information about any directions made under subsection 123AA(2).

Defence's annual report will generally include information about any significant Defence Assistance to the Civil Community that has occurred (see for example page 5 of the 2019-2020 Defence Annual Report).

• Provide high level guidance on the scope of powers that may be exercised by Reserve members who are subject to a Reserve call out order, and protected persons subject to a direction relating to the provision of assistance under subsection 123AA(2), including clarifying that these orders and directions do not authorise the use of force or coercive powers beyond what is available to members of the community.

Reserve members who are subject to a Reserve call out order have exactly the same scope of powers as a Permanent member of the ADF or a Reserve member who has volunteered for service. If the Reserve call out is in relation to Defence Assistance to the Civil Community, this would not include use of force or coercive powers. A protected person subject to a direction relating to the provision of assistance under subsection 123AA(2) has exactly the same scope of powers as an ADF member providing assistance of that sort without the benefit of this provision. This would not include power to use force or coercive powers. The replacement explanatory memorandum makes this position explicit.

Committee comment

2.30 The committee thanks the minister for this response. The committee welcomes the minister's advice that a replacement explanatory memorandum has been tabled which clarifies that Reserve members subject to a Reserve call out order have the same scope of powers as a permanent ADF member. The minister advised that Reserve call out orders in relation to defence assistance to the civil community do not authorise the use of force or coercive powers, and that similarly a protected person subject to a direction relating to assistance under subsection 123AA(2) does not have the power to use force or coercive powers, and that this information is included in the replacement explanatory memorandum.

2.31 The minister also advised that there are numerous opportunities for Parliament to consider and debate call-out orders even if the orders are not tabled, and that the defence annual report will generally include information on significant defence assistance to the civil community.

2.32 While noting the above information in relation to parliamentary scrutiny of orders and directions made under the bill, the committee reiterates its scrutiny concerns that call out orders made under proposed subsection 28(1) and directions relating to the provision of Defence assistance under proposed subsection 123AA(2) are not subject to disallowance or tabling in the Parliament.

2.33 In light of the fact that this bill has already passed both Houses of the Parliament the committee makes no further comment on this matter.

Immunity from civil and criminal liability^[14]

2.34 The committee initially scrutinised this bill in Scrutiny Digest 13 of 2020 and requested the minister's advice.^[15] The committee considered the minister's response in Scrutiny Digest 15 of 2020 and requested 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.^[16]

Minister's response

2.35 The minister advised:

The Committee has sought advice as why it is considered necessary and appropriate to provide protected persons with both civil and criminal immunity.
The range of criminal offences to which this provision would be relevant is narrow. However, it is important to include criminal offences, so that ADF members and other protected persons who are providing assistance in good faith performance of their duties, including in high risk situations, are able to take appropriate action without fear of prosecution.
I also note that inclusion of immunity from criminal liability was recommended by the Royal Commission into National Natural Disaster Arrangements (recommendation 7.3).
The Committee has also sought advice as to whether the Bill can be amended to:

• Include an inclusive definition of the term 'other emergency'.

The term 'other emergency' takes its ordinary meaning. The replacement explanatory memorandum includes a further explanation of this term at paragraph 34.

• Clarify that the immunity in section 123AA does not extend to the Commonwealth as a whole.

The immunity provision only applies to 'protected persons', which are named as being ADF members, APS employees in the Department, and certain other persons authorised by the CDF or Secretary. It does not include the Commonwealth. This position is further emphasised in the explanatory memorandum.

Committee comment

2.36 The committee thanks the minister for this response. The committee notes the minister's advice that the replacement explanatory memorandum clarifies that the term 'other emergency' takes its ordinary meaning for the purposes of the bill. The minister also advised that the range of criminal offences to which immunity from criminal liability applies is narrow and is important to protect ADF members and protected persons performing their duties in good faith. The minister further advised that the immunity in proposed section 123AA does not extend to the Commonwealth as a whole.

2.37 In light of the fact that this bill has already passed both Houses of the Parliament the committee makes no further comment on this matter.

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[10] 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).

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

[12] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 51-54.

[13] The minister responded to the committee's comments in a letter dated 17 December 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.

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

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

[16] Senate Scrutiny of Bills Committee, Scrutiny Digest 15 of 2020, pp. 55-56.