Richard Marles (Corio, Australian Labor Party, Shadow Minister for Defence) Share this | Link to this | Hansard source

The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 arises out of the call-out of 3,000 ADF personnel during the 2019-20 black summer bushfires. In rising to speak on this bill, I do so in support of this bill in the House of Representatives and also indicate that the opposition will be seeking an inquiry in the Senate in relation to this bill, and the position we adopt in respect of the bill will ultimately be determined in the Senate after that inquiry.

This bill is a modest set of reforms that improve the process of calling out the reserves of the Australian Defence Force. What this bill is not is an excuse for the government's failure over the 2019-20 black summer bushfires, and the failures of the government in relation to that were manifest. The 2019-20 black summer came with warning. In August 2019 the bushfire CRC published a severe bushfire outlook for last summer, which was ignored by the government. Immediately after the federal election last year, in May 2019, the retired fire chiefs around Australia warned that last summer would be particularly dangerous, and they sought to meet with the government—a meeting that was ultimately refused.

On 22 November last year the Leader of the Opposition wrote to the Prime Minister asking him to convene COAG in order to discuss the impending bushfire season and the severity that was being presented. The government didn't listen to that request; nor did it act in relation to it. Actions could have been taken by the government in the lead-up to last year's bushfire season. It had put in place an emergency relief fund: $200 million every year, which would have been ready—was ready—to provide disbursements that could have been used to engage in the mitigation of risk in the lead-up to the 2019-20 black summer bushfires, but none of that occurred.

The National Aerial Firefighter Centre was asking for more funding back in September of last year. Nothing was provided. Indeed, even going back to February 2018, Emergency Management Australia highlighted that there was a need for increased funding for the National Aerial Firefighting Centre, but none of that occurred. The truth is that the National Aerial Firefighting Centre was in dire need of additional funding but all of that was ignored. The bill that we are considering today, while it will do some things, will not remediate any of that. This is not the excuse. This is not what the government can point to and say, 'Because we didn't have this last summer we weren't able to act.' All of those actions should've happened and they had nothing to do with the absence of this legislation being in place at that time.

The Australian Defence Force's involvement during the 2019-20 'black summer' bushfires was significant and it was magnificent. It started well before the call-out which occurred on 4 January this year. Prior to the call-out there were more than 2,000 members of our Defence Force who were engaged in support activities based on requests, largely from state agencies, in relation to supporting activities to fight the bushfires. From logistics to catering, from supporting the aerial tankers that were in play through to providing and assisting with accommodation, more than 2,000 of our personnel were engaged in the response to requests that were being made, in the normal way, in support of activities around the bushfires. In that, they were participating in an act and a heritage which has existed, in terms of the ADF's involvement in natural disasters in this country, for decades. States have asked for assistance and the ADF has always been there—those who wear our national uniform, helping in a moment of greatest need and being there with their uniform in a way that gave a sense of confidence and relief to those who were experiencing the worst effects of whatever the crisis was. That was playing out in this country in the 2019-20 'black summer' bushfires before 4 January this year when the formal call-out occurred.

On that day, to much fanfare, we saw the call-out, which was one of the biggest—if not the biggest—in our nation's history. There were 3,000 personnel called out to assist in the fighting of the bushfires. It was a very significant act. But it was one which was also done in a way that carried with it, on the part of the government, an outrageous claim, an outrageous act. On the very same day that this call-out occurred the government posted an advertisement, a Liberal Party advertisement, using the Australian Defence Force at the height of the crisis—at a moment when Australians were suffering, losing their homes, people were losing their lives, people were being injured. In that moment the Liberal Party, the government, chose to try and use the Australian Defence Force to raise money for the Liberal Party. It was an enormous indictment on the character of the government and the Liberal Party.

I can tell you this legislation won't remedy this government's lack of judgement on that question. This legislation won't remedy this government's lack of respect in that moment for those who wear our uniform, because that's what it was. It won't stop the Liberal Party from seeing the Australian Defence Force, a great institution which belongs to the entire nation, as, in some way, belonging only to the Liberal Party. It does not. It is the heritage of all of us. It is in the service of all of us. It deserves the respect of all of us. That ad on that day was a terrible indictment on the Liberal Party and the government.

The Australian Defence Force is made up of consummate professionals. In the aftermath of the call-out, looking at what had occurred, they did what they always do and reviewed the event, sought the learnings, worked out where things could've been done better. It was in the process of that that the legislation, the bill, that is before us today was conceived, and I want to make that clear from our point of view. We do accept that the measures that are contained in this bill, in terms of what they seek to do, are sensible, modest reforms, in respect of the system of calling out our reserves, that do improve things. It is to the credit of Defence that they have reviewed it in the way that they have and have come up with these measures.

There are four. The first relates to the streamlining of the process, in effect, by which the Governor-General provides his or her assent to the calling out of the Reserve. Right now, that is a process that involves a federal executive council meeting, with the Governor-General. If that can't occur, or the matter is urgent, the defence minister, with the Prime Minister, is able to take the matter to the Governor-General, without a federal executive council meeting. The point is made that, often, a call-out of the Reserve will be done in an emergency situation, and the process of establishing that there is an urgency, beyond what would be the normal requirement now, can itself take hours. The very fact of ringing the 45 members of the federal executive council to see whether or not an executive council meeting can be convened in the time required can, of itself, take hours, which, in the moment of a crisis, may in fact make the difference. This bill, if it were to be passed, provides that the urgent mechanism now becomes the normal mechanism. In other words, the defence minister, in consultation with the Prime Minister, is able to then take a decision to the Governor-General and to provide that advice for the calling out of the Reserve.

The second is to provide greater flexibility to the Chief of the Defence Force, once the call-out has occurred, in terms of the manner in which, or perhaps the mode in which, those who have been called out are engaged. Right now, it is a pretty inflexible system where, when a call-out occurs, essentially, to think of it in employment terms, a full-time engagement is required of those who are called out, for the period of the call-out. The flexibility that is provided in this bill will allow the CDF to determine the degree to which the Reserve is used, in terms of whether it is on a part-time or a full-time basis. That may relate to the particular skills the reservist brings to bear on the situation, and it can also be time limited, in the sense of it not being for the whole period of the call-out. There is greater flexibility for the CDF in relation to how reservists are called out—and that makes sense.

The third is in respect of trying to align the immunities that are enjoyed by the ADF with the immunities that are enjoyed by our civil emergency response agencies in moments of crisis. As an aspiration, that makes sense. The ADF should be engaging in the work that it does, in the midst of this crisis, on the same footing in respect of immunities as, say, a rural fire service or a state emergency service, or indeed a state police force. When you look at the range of immunities across the country—a lot of them are in the state legislation that exists for these agencies—there is a spectrum, but what is being sought here is that the ADF be placed in the middle of that spectrum, and not only the ADF but indeed foreign defence forces and foreign police, who may have donated or volunteered some of their forces to assist in a moment of crisis, which is in fact what occurred over the 2019-20 Black Summer bushfires.

As this bill has been released, there has been some anxiety in respect of exactly how the immunities have been framed. This is an area where a short but important inquiry from the Senate, I think, is useful in terms of examining whether or not the aspiration that is being articulated here—that these immunities are brought into line with those enjoyed by state agencies—is in fact the effect of the legislation that is being proposed. That is one area where I think the Senate inquiry will be important. The fourth area, a situation which the bill improves, is to remedy an anomaly in relation to the superannuation that is paid for reservists who were called out in this manner. It should be noted those reservists who were called out last summer were paid superannuation, but this would make that a legislative right, as it should be.

There is one provision of the bill that I particularly want to highlight, and that's in proposed section 123AA(2). There has been a suggestion that this provision, which is directed to the question of immunities that would be provided to the ADF and indeed others in their participation in fighting or working with respect to a crisis, might inadvertently give rise to a greater power on the part of the minister in relation to call-outs generally. Let me be clear that it is obvious from the way in which the bill is framed that there is no intent to change the threshold for the call-out of the ADF. The Defence Act sets that out in some detail, and those provisions are not being altered by this bill, but there has been a suggestion that this particular subclause, albeit located in the immunities part of the act, might inadvertently have the effect of giving the minister greater power in relation to call-outs generally. We've sought clarity from the minister in relation to this, and I do thank the minister for providing us written advice that this is not the intent of the government in relation to this bill. That's an important piece of communication from the minister to me. But, again, the inquiry by the Senate committee will be able to look at this question and see whether or not there is an inadvertent outcome associated with the particular way in which that subclause has been drafted. We absolutely accept the minister's assurance that that is not the intent of the bill.

All of that puts us in the position of supporting this bill in the House today. We will, in the other place, be seeking to establish a short inquiry, which can absolutely take place prior to this coming bushfire season, to look at the matters which I have described. From there, the opposition will determine our final position in the Senate on the basis of that, but we acknowledge that the modest reforms contained within this bill seek to improve the situation with call-outs in the way in which I have described.

Andrew Wallace (Fisher, Liberal Party) Share this | Link to this | Hansard source

I rise in support of this bill. I'm heartened to hear that the shadow defence minister has alerted the House to the fact the Labor opposition will support the bill in the lower house. One of the important truths of 2020 has been that, in times of crisis, leadership is incredibly important. Across the world, we've seen that the countries which have best dealt with the relentless onslaught of COVID-19 have been those that, like Australia, have enjoyed responsive and decisive leadership. True leadership, shown in spades by the Prime Minister during this terrible pandemic, inspires unity, confidence and resilience. We've seen time and again that, when Australians have a clear understanding of what they are facing and what they're trying to achieve, when they have the information they need to take action and when they have confidence that the nation's direction is right, they stand up and work together to achieve incredible things. That, perhaps more than anything else, is what the Prime Minister has achieved during this COVID crisis. He has delivered absolute clarity on where we are, where we're headed and how we're going to get there. He has delivered a firm plan at every stage. Where circumstances have changed and the plan has had to adapt to meet them, he has been clear and transparent in explaining those changes. He's been focused, decisive and endlessly energetic. He has given all Australians confidence, whether they're on the front lines in our hospitals, trying to run a COVID-safe business or doing their bit to keep their distance and stop the spread. With that confidence and that clarity, Australians have had everything they have needed to get through this crisis.

On behalf of the people of Fisher, I want to take this opportunity to thank the Prime Minister for his tireless work and his exceptional leadership during the crises that we have faced over the past 12 months. Indeed, one of the most common things I've heard from the people in Fisher has been requests for me to tell the Prime Minister how pleased they are with him, and also the Treasurer, and to extend their best wishes.

One important part of the leadership the Prime Minister has shown, not only during the COVID crisis but through the black summer of bushfires that tragically preceded it, has been his willingness to take the bull by the horns and rapidly deploy the Australian Defence Force. The ADF had been supporting efforts to deal with bushfires since the first fires began in September 2019. However, as December progressed and the fires began to grow quickly, the Prime Minister took an unprecedented step. He asked the Governor-General to call out the ADF Reserve and create the largest peacetime disaster response operation in Australia's history.

Operation Bushfire Assist involved 6,500 ADF personnel, including the call-out of 2,500 reservists and hundreds of others from Australia's Defence Force partners overseas. More than 60 vehicles from three joint task forces were deployed alongside fixed wing aircraft and rotary wing. The Royal Australian Navy's largest vessel, the LHD HMAS Canberra, was also deployed. The difference the ADF made was immense. By the middle of March this year, ADF personnel, as part of Operation Bushfire Assist, had cleared 4,848 kilometres of roads and 240 kilometres of firebreaks. They repaired 1,286 kilometres of fences. They delivered 5,409,500 litres of water and 73,300 litres of fuel to firefighters on the front lines. For those whose lives were devastated by the fires, they purified more than 10 million litres of drinking water on Kangaroo Island and in Bega, and delivered more than 1.3 million kilograms of fodder for animals. They provided more than 77,000 meals to emergency service personnel and evacuees. It has, by all accounts, been a staggering effort.

Yet, as Operation Bushfire Assist wound down in March 2020, the Prime Minister and this nation asked the ADF to step up once again. Faced with a second crisis of international proportions not seen since the end of World War II, the government once again took clear and decisive action and ordered a smaller but no less important mission. Within weeks, on 1 April 2020, the Minister for Defence announced the establishment of Operation COVID-19 ASSIST. As of last Thursday, a total of 2,657 ADF personnel had been deployed as part of this operation. I ask that we take a moment to reflect on the fact that 91 of these members of the ADF have contracted COVID-19. More than 700 ADF personnel are deployed to Victoria, where they are supporting police checkpoints, assisting with COVID testing, managing logistics, and working on contact tracing and the response in Victorian care homes. Regrettably, the ADF's assistance in controlling hotel quarantine was not accepted by the Victorian Labor government, despite multiple offers being made, and we are now witnessing the aftermath of Australia's biggest public policy failure as a result.

In New South Wales, more than 650 ADF personnel have worked on border checkpoints and police quarantine in Sydney hotels. In my own state of Queensland, more than 550 have supported quarantine compliance at all airports and hotels and, until last week, were also assisting police at the borders.

Critically, behind the scenes, there are also dozens of ADF personnel in key advisory roles embedded in national and state government agencies, including the Department of Home Affairs and Services Australia. There they are providing the benefit of their unique skills and the decades of experience in the mass mobilisation of security personnel and disaster relief efforts to help ensure that our civilian administration can respond to this crisis with the efficiency of a military operation. Right across the ADF's responses to these crises there have been incredible numbers, which show what a vital role they have played.

In this country, only the ADF has the capacity and the training to deliver more than 6,000 kilometres of repaired roads and fences in a matter of only a few weeks. Only the ADF can immediately feed tens of thousands from a standing start. Only the ADF has the flexibility to simultaneously take up hundreds of roles as contact tracers, logistics planners, quarantine officers and border guards, with little or no notice. The decisive, timely and significant deployments of the ADF made by the Governor-General, the Prime Minister and the Minister for Defence have made a critical difference in supporting our emergency services, our public servants and our health professionals to do their jobs during two of this nation's most difficult challenges. We thank each and every one of them for their sterling service and their outstanding professionalism.

However, while these deployments have been absolutely the right thing to do and another sign of the strength of the Prime Minister's leadership, it was not a simple matter. As the Prime Minister himself said in February this year:

During the Black Summer bushfires, we entered a constitutional grey zone by directly initiating defence force deployments, utilising the first ever compulsory call out of Reservists … without clear rules.

The bill before us today helps to clarify those rules and streamline the process so that we can ensure the ADF can provide all the assistance we need in emergencies to come.

In particular, the bill will ensure that we can roll out and call out our ADF Reserves when they are needed and that, when we do, they're adequately protected and remunerated. First, the bill will simplify the process of calling out the ADF Reserve by giving the Governor-General the ability to act on the advice of the Minister for Defence, in consultation with the Prime Minister, whatever the circumstances and not only for reasons of urgency. This will ensure that there are no unnecessary administrative delays in any future call-outs.

Secondly, once called out, this bill will give the Chief of the Defence Force the power to determine what kind of service is required from each Reserve member, rather than requiring continuous full-time service from all Reserve personnel. This will allow the Reserve to deploy more flexibly and meet the specific needs dictated by the crisis. Not every emergency is the same. They come with different risks and different requirements, while the skills and personal circumstances of each reservist mean that the length and type of service appropriate to them varies. This bill ensures the Chief of the Defence Force can get the most out of all personnel and deploy just what we need to face down any emergency at home or overseas.

Thirdly, the bill ensures that we'll not ever have to see the unfortunate spectacle of ADF members providing emergency aid being sued or convicted for simply doing their jobs in good faith. Emergency service workers are rightly given immunity from civil and criminal liability for doing their jobs in good faith and in line with the rules that govern their work. Remarkably, ADF personnel who are engaged in supporting disaster preparedness, response and recovery are not afforded the same immunity. Although one would hope that Australians would not choose to pursue such a case against our dedicated and professional service men and women, we cannot rely on that goodwill, and we must enshrine this protection in legislation.

Finally, the bill ensures that all our reservists will be properly remunerated for their work in emergency response. As it stands, reservists who provide continuous, full-time service under a reserve call-out, including those 2,500 who assisted with this year's bushfires, are not lawfully entitled to superannuation benefits for the time they served, despite paying tax on their pay. This is clearly not what these committed reservists deserve, and this bill would resolve that loophole. Importantly, the new provision would be backdated to November 2019 to ensure that the thousands of reservists who gave such incredible service during the black summer bushfires do not miss out. That alone would be reason enough to support this bill.

During times of crisis, more than ever, we need excellent leadership. Over the course of the past 12 months the Prime Minister and the cabinet have delivered that leadership in spades. However, for great leadership to be effective our leaders need access to the tools and resources to get the job done. One of the most effective tools available to the federal government in helping our community through its darkest times is the Australian Defence Force. This bill makes is easier for the government to call on that resource. It makes it easier, fairer and safer for the dedicated service men and women who answer. Although I hope it will be a long time before we need it again, if ever, now is the time to plan for the moment we will turn to the ADF in an emergency. Now is the time to pass this bill, and I commend it to the House.

Shayne Neumann (Blair, Australian Labor Party, Shadow Minister for Veterans' Affairs and Defence Personnel) Share this | Link to this | Hansard source

I am pleased to speak on the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020. At the outset, I will say that Labor will not stand in the way of this legislation. The bill should not be seen as an excuse for the government's manifest failures during the 'black summer' bushfires, which ravaged our country and were so tragic in terms of the impact on lives and property. The Australian Defence Force is a critical part of the national response to emergencies and natural disasters and performed admirably during the bushfires to protect people, businesses and homes. The ADF should never be used as a partisan tool, as it was earlier this year. It should never be used as a marketing mechanism or a donation device, which this government did, to its shame.

I have paid tribute before, and I do again, to the men and women of the ADF for the contribution they made to the 'black summer' fires and to other disasters and emergencies in which they have performed in an exemplary manner. As the shadow minister for defence personnel, with responsibility for reserves, I know our reservists have often answered the call when natural disasters have struck, at home and in our region, and have provided humanitarian assistance in times of crisis. That's why Labor welcomed the compulsory call-out of our defence reserves, to provider greater support to those communities affected by the catastrophic bushfires last summer. That call-out order—the first ever during peacetime—saw around 3,000 reservists, together with regular ADF personnel, provide invaluable support to state fire and emergency services as part of Operation Bushfire Assist.

I had the opportunity to attend a Parliamentary Friends of Defence briefing from operation commander Major General Jake Ellwood in February this year. I remember speaking with Major General Ellwood at the briefing and telling him how I had seen firsthand the full spectrum of emergency responses in my own community over the years.

I was a child when the 1974 floods devastated South-East Queensland and flooded my home in Ipswich. Eight feet over the top of our roof the floodwaters went. I vividly recall watching, as a young boy, the soldiers and the Army trucks helping to move furniture and belongings from our family home before it was flooded, for which, I know, my parents were very grateful; we all were, and so were our neighbours.

Then, in 2011, my electorate of Blair, based around Ipswich in the Somerset region, was heavily impacted by the Queensland floods. As the federal member, I liaised with different levels of government and assisted by doing what I could in the coordination of efforts on the ground. Frankly, I was disappointed and frustrated at the slow rollout of the ADF's support. That said, we were very happy to see the wonderful work of Air Force and Navy and Army units—the Army and Air Force units being based at RAAF Base Amberley—in assisting communities in evacuation, relief and recovery and the rebuilding of communities. Their operational work was fantastic.

The importance of getting disaster recovery arrangements in place, getting them right and taking on board and learning the lessons from every disaster is absolutely essential for governmental response. So it is that the changes in this bill are the result of a review of existing arrangements conducted by Defence following the 2019-20 bushfire season. The bill will make several changes to the administrative arrangements for the use of ADF personnel and particularly for the call-out of reserve personnel in response to civil emergencies and natural disasters under the Defence assistance to the civil community, or DACC, policy. These arrangements will be streamlined. The amendments in this bill will streamline the process to call out the reserves to allow a more rapid deployment of the ADF in these scenarios.

Firstly, the bill will simplify arrangements for advising the Governor-General prior to the issue of an order to call out the reserves by allowing the Governor-General to act on the advice of the Minister for Defence, after consultation with the Prime Minister, in all circumstances, not just for reasons of urgency. In effect, this will make the current urgent advice mechanism the standard procedure and remove the need for advice to go through the Executive Council.

Secondly, it will increase flexibility in terms of the types and periods of service the reserves can render during a call-out rather than require continuous full-time service. For example, this would allow the use of reserve service days for shorter periods where this might be more appropriate.

Thirdly, the bill will provide immunity in certain circumstances from civil and criminal liability for Defence personnel and other designated protected persons similar to that enjoyed by civil emergency services. There are several limitations to these immunity provisions—namely, the individual must act in good faith and perform their duties in support of disaster preparedness, recovery and response. Those limitations are appropriate.

It's worth noting that these protections could be extended to members of the armed forces or police forces of a foreign country. They're intended to cover scenarios where other nations come to our aid and send military or police services to assist where they may be needed in Australia—for example, the US Marine rotations in the Northern Territory. During the 2019-20 bushfire season, for example, Australia received considerable assistance from the armed forces of New Zealand, Singapore, Japan, Papua New Guinea, Fiji, Indonesia, Canada and the United States. Indeed, one of General Ellwood's observations from Operation Bushfire Assist was that the acceptance of such support can be even more powerful for relationship building than the provision of it itself, particularly for our Pacific neighbours. Being able to provide these immunities will make it easier for our overseas partners to provide this support.

Finally, the amendments address anomalies and gaps in current arrangements which mean that reserves who provide continuous full-time service during a call-out will have to pay tax and yet, strangely—this is really odd, I think—they do not receive superannuation. It's not fair that that's the case. So these changes will ensure reserve members who undertake continuous full-time service under a call-out order will get the same entitlement to super and related benefits regardless of whether their service was voluntary or not.

Importantly, these amendments will be backdated to the first reserve call-out, in November 2019, to benefit members who deployed then. All up, these amendments provide greater flexibility in a call-out of our reserves, enabling greater consistency in the treatment of reserves and ensure that our Defence personnel have the appropriate legal protections when serving our nation under these emergency arrangements.

Labor is aware of concerns, however, about some elements of the bill, including the immunity provisions and potential interpretations of subsection 123AA(2) of the bill. Secondly, while we appreciate the need to address delays with the current urgent advice mechanism experienced during the recent call-out, there are some concerns that removing the executive council from the process for advising the Governor-General before the issue of a call-out order could be removing an important constitutional safeguard.

In light of these two issues, Labor considers there is value in referring the legislation to a short inquiry in the Senate. We'll reserve our final position on the bill until the Senate legislative inquiry delivers its report. Also, this may allow time to consider the recommendations of the final report of the Royal Commission into National Natural Disaster Arrangements, otherwise known as the bushfire royal commission, which is due to report by 28 October. Labor appreciates the briefings provided to date by Defence officials with respect to the legislation and we thank the government for doing so. I had the opportunity to participate in one such briefing with the shadow minister for defence, and the additional information provided by the Minister for Defence helps us in our consideration of this bill.

Labor has consulted with key defence personnel and reserve representative bodies, which are broadly supportive of the increased flexibility these changes should provide—in part, due to defence workplace reforms initiated by the former Labor government. The Australian Defence Association noted the reserves provide useful surge capacity for regular units, and the amendments will improve the ADF's overall emergency response capability, while reserve members will continue to receive the existing protections, under a call-out order, under the Defence Reserve Service (Protection) Act 2001.

The ADA noted that it was regrettable the government had abolished the longstanding Defence Reserves Support Council, the DRSC, in a shock announcement last year. For more than 40 years the DRSC had built positive relationships between defence, industry, reserves, welfare organisations, unions and the community and played an important role in increasing understanding of support for reserves service. I was very critical, at the time, of the decision by the government to scrap this body, given there was a secret review and minimal consultation with the DRSC and its members, including the ADA. I understand the new replacement body is made up of industry and big business employer representatives, hand-picked by Defence, with next to no ministerial responsibility or oversight. So I remain sceptical of just how effective this will be in protecting the interests of reservists in the future.

Moving on, the Defence Reserves Association supported the removal of the requirement to use continuous full-time service during a call-out and provide flexibility to use reserve service days as part of the bill. However, the DRA noted that the reserve service days often involved less bookkeeping, record keeping, on behalf of the units compared to continuous full-time service. So it would be important to maintain a paper trail on members using reserve service days during a call-out in the event, for example, of future compensation claims in relation to service.

While this point doesn't necessarily go to the substance of the bill, it's useful feedback for the government on how the legislation should be implemented and administered, going forward. As the shadow minister for veterans' affairs, I'm very mindful of our duty to look after defence personnel not just during their service but afterwards and of the need for good data and information sharing between Defence and the Department of Veterans' Affairs.

I might add that the DRA was disappointed they're not being consulted on the bill and that Defence did not appear to consider a previous review of reserve employment undertaken by retired Army Reserve officer and Victorian Supreme Court judge Greg Garde. Given the minister's own background as an Army Reserve officer, I expected her to have consulted widely and wisely and ensured that stakeholders, like the DRA, were engaged. Indeed, I spoke at the DRA's annual conference last year with the minister, Senator Reynolds, on a panel. I understand that after we alerted them to the bill the DRA wrote to the minister, so I trust that they have now had an opportunity to have input into the process.

In conclusion, our brave service men and women put on the uniform every day and are ready and willing to keep Australians safe, be it overseas or at home. We see the best and brightest of their contributions during emergencies and disasters, whether it's fires in Western Australia, cyclones in Queensland, floods in South-East Queensland or bushfires in Victoria. Labor wants to thank our Defence personnel for their service and support at all times, especially when our communities are most in need. As the shadow minister I acknowledge the outstanding contribution provided by our reservists and, indeed, all ADF personnel and defence civilians during the bushfire season and during the current pandemic. They have performed in an exceptional way. I think I can speak for all members in this place when I say that they represent the very best of our country. I commend the bill to the House.

Peter Khalil (Wills, Australian Labor Party) Share this | Link to this | Hansard source

[by video link] 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.

Llew O'Brien (Wide Bay, National Party) Share this | Link to this | Hansard source

The debate is interrupted in accordance with standing order 43.