New Bill to Give ADF and Foreign Military Forces Immunity and Power Over Australians During Emergencies

BY EVELYN RAEOCTOBER 9, 2020

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A new bill has been introduced in federal parliament that would give civil and criminal immunity to foreign military forces and police operating in Australia during a natural disaster or emergency, such as bushfires and the C0VID-19 pandemic.

The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 aims to amend the Defence Act 1903 (Defence Act) and the Defence Reserve Service (Protection) Act 2001 (DRSP Act) to streamline the process of calling out members of the Australia Defence Force (ADF) Reserves, provide the Minister with certain powers to direct the use of the ADF in an emergency, and to provide immunities to certain personnel performing duties to support civil emergency and disaster preparedness, recovery and response.

The bill will also grant immunities to members of the ADF, other defence personnel, and members of foreign forces called on during a civil emergency and disaster.

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The Explanatory Memorandum, which is submitted along with the bill, states:

“The measures in this Bill will enhance the ability to provide DACC assistance by: providing ADF members, other Defence personnel and members of foreign forces with similar immunities to State and Territory emergency services personnel in certain cases while performing duties to support civil emergency and disaster preparedness, recovery and response (Schedule 2).”

Presently, “ADF members, other Defence personnel and members of foreign forced performing activities in support of disaster preparedness, response or recovery are not afforded immunities from criminal or civil liability akin to those received by state and territory emergency services personnel performing similar activities in good faith.” According to the document, “this presents some legal risk to those individuals.”

The amendments to the legislation would see the definition of “protected person” to include a Commonwealth employee or member of a foreign armed force. These personnel would be covered under the immunity legislation in Section 123 of the Act.

To be authorised… a person must be either… A member of the naval, military or air force of a foreign country, or a member of a foreign police force. Inclusion of foreign forces in this provision enables members of those forces to be given the same immunity as ADF members when they have come to Australia to provide assistance in a natural disaster or other emergency, or are already embedded with ADF units.

It should be noted that while the individual employee has immunity, the Commonwealth does not.

What’s unclear in the bill are circumstances in which these military forces can be called upon for assistance. According to Section 123AA subsection 1(b):

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“The assistance is provided to prepare for a natural disaster or other emergency that is imminent, or to respond to one that is occurring or recover from one that occurred recently; and the assistance is provided at the direction of the Minister under subsection (2)”

Under subsection 2, the Minister may call on assistance if the nature or scale of the natural disaster or other emergency makes it necessary for the benefit of the nation and in order to protect Commonwealth agencies. However, the Explanatory Memorandum explains:

“(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. The 2019/2020 bushfire disaster and the 2020 COVID-19 pandemic would clearly be within the scope of this provision, as would assistance provided in relation to the Black Saturday bushfires in Victoria in 2009 and the Townsville floods in 2019.

“(b) The assistance is necessary for the protection of Commonwealth agencies, Commonwealth personnel or Commonwealth property. This could cover situations such as where part of the defence estate was threatened by an imminent or occurring natural disaster or emergency.”

In the Bills Digest report, published on October 6, it’s noted that the ADF is currently prevented from using force during operations in Australia by its own internal orders and rules and by federal and state criminal law.

The document warns however that: “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.

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“The circumstances in which the immunity will operate are very broad and application of the immunity will be self-regulated by the Defence executive.”