Robert McClelland (Barton, Australian Labor Party, Attorney-General) Share this | Hansard source

in reply—I would like to thank the members for Farrer, Isaacs, Cowan, Blair, O’Connor, Petrie, Bendigo and Page for their contributions to the debate. I welcome the support from both sides of the House. I can confirm, in response to the question from the member for Page, that the bill provides a framework for limited civil immunity to be provided where appropriate on a case-by-case basis.

Specifically, the Foreign States Immunities Amendment Bill 2009 amends the Foreign States Immunities Act to enable immunity from tort proceedings where a foreign state assists Australia in preparing for, preventing or managing emergencies or disasters. It is an important step to help Australian authorities prepare for the next bushfire season. In particular, I would like to thank opposition members for their bipartisan support of the bill and for their assistance in ensuring the speedy passage of this bill through the parliament in time for the forthcoming bushfire season.

The bill is necessary in order to permit the states and territories to finalise an agreement with the United States for the exchange of vital fire suppression resources prior to this year’s bushfire season. For some years, United States authorities have provided vital assistance to Victoria and other states in the lead-up to and during the annual bushfire season. Over 170 United States firefighters have been deployed to Victoria since 2003, including 73 for the devastating Black Saturday fires in 2009. These firefighters were deployed under an existing agreement between Victoria and the United States. While the existing agreement provides for the immunity of United States firefighters operating in Australia, that immunity has never been given effect in Australian law. This has been of some concern for the United States for some considerable time.

Victoria and the other states and territories are currently negotiating a new agreement with United States authorities that would apply across Australia. Due to their domestic legal requirements, the United States cannot finalise this agreement unless immunity is in place for its firefighters—in other words, that the terms of the agreement can be enforced and will apply as part of Australia’s general law. Without the new agreement in place, the United States may not be able to assist Australia in the upcoming bushfire season, potentially leaving state and territory fire services dangerously exposed.

The bill will facilitate the provision of immunity to the United States by inserting a new regulation-making power in the Foreign States Immunities Act. The bill will allow regulations to be made with respect to a foreign state that assists Australia to prepare for, prevent or manage emergencies or disasters. This will allow for immunity from tort proceedings to be provided to a foreign state that provides such assistance to Australia, pursuant to an agreement of the kind we were talking about.

It is important to note that the bill places limitations on the new regulation-making power. The regulation-making power only applies to actions of foreign personnel in the course of providing emergency management assistance to the Australian government or a state or territory government, as opposed to any conduct that they may become involved in outside those duties. No immunity can be provided for actions of foreign personnel outside of their allocated emergency service duties. The bill has no effect in relation to criminal proceedings. Criminal conduct by foreign emergency management personnel will remain subject to the full jurisdiction of Australian courts. I should note, though, that to my knowledge there have been no such incidents from these people who have provided tremendous assistance to Australian authorities. Finally, the bill does not affect the liability of Australian governments, agencies or officers.

The general framework of the bill is that it is a flexible option that permits the Australian government to assist the states and territories in future situations where they may urgently require assistance from overseas. There has been some commentary, I understand, as to whether it is appropriate to modify these provisions or permit this exemption to apply by way of regulation. The purpose of that is precisely to provide that flexibility. The regulation-making power is intended to cover a range of emergencies and disasters, natural or otherwise. It was thought too prescriptive to have the measures set in stone in the legislation rather than creating a more flexible regulation-making power.

Of course, the bill does not result in immunity being provided automatically to foreign emergency management personnel that may assist Australia in such circumstances. Rather, the bill provides a framework for limited civil immunity to be provided, as I have indicated to the member for Page, where appropriate, on a case-by-case basis. I also recall that any regulation made under the new power will, of course, be subject to parliamentary scrutiny in each case under the scrutiny power that the Senate possesses.

In conclusion, the bushfire exchange program with the United States is and will continue to be an integral part of Australia’s fire management and response capability. I should indicate our great appreciation to those United States firefighters who have assisted and will continue to assist Australian emergency workers. Because of their training and the similarity between Australian and United States conditions, United States firefighters are able to fit straight into crucial roles at very short notice. This extra capability is essential during long bushfire campaigns when state resources are overstretched and Australian fire fighters exhausted.

The bill does no more than is necessary to provide appropriate protection to United States firefighters, and it allows the United States to be confident in responding to our requests for assistance. It also provides a general framework so that the Australian government may assist the states and territories in future situations where assistance from overseas is required and the issue of immunity arises. As I said when I introduced this bill into the House, it is an important measure to enhance our capacity to respond rapidly and effectively to emergencies and disasters. This contributes to the safety and security of Australians. In turn, it will facilitate Australians assisting with the safety and security of citizens of the United States.

Question agreed to.

Bill read a second time.

Ordered that the bill be reported to the House without amendment.

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