Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I seek the guidance of the chair. I've got a number of amendments which I'm looking to move and bring to a vote. Is this the appropriate place to do so? I want to make sure that I don't miss my opportunity.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

It's appropriate for you to commence with your amendments at this point.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I move Greens amendment (1) on sheet 1137:

(1) Schedule 1, item 2, page 3 (line 12), omit "notifiable instrument", substitute "legislative instrument".

Let me state clearly the aim of this amendment. We agree with concerns raised by the Standing Committee on the Scrutiny of Bills and the submission made by Mr Andrew Ray and Ms Charlotte Michalowski that the deployment of armed forces should be a matter of last resort and that the decisions to call them out should be subject to stringent parliamentary oversight—not a radical contention, you would have thought. This amendment seeks to ensure a layer of parliamentary scrutiny by making call-out orders subject to disallowance. While we understand that there are concerns around the timeliness and complexity of the call-out process, we do not accept that efficiency concerns cannot be addressed in other ways. We believe that efficiency concerns can be addressed in other ways, and it is not a reason to move past legitimate scrutiny by elected representatives.

Throughout the inquiry it was made clear that the desire to streamline the call-out process removes important processes of scrutiny in a way that is not only unjustified but also unnecessary. It is our view that a decision to call out reservists is a significant decision, and it should be one that is deliberated and able to be decided on by the parliament via disallowance of an instrument. Indeed, this view and position were put to the committee by a number of experts, and we entirely agree. Therefore, I commend this amendment to the chamber.

Linda Reynolds (WA, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

The government will be opposing this amendment. The bill as introduced would amend section 28 of the Defence Act to make a reserve call-out a notifiable instrument. This has substantially the same effect as the existing provision, which requires reserve call-outs to be published in the Gazette. This requires publication of the instrument on the federal register, and that is publicly available. We do not believe in any way that it is appropriate for reserve call-outs to be disallowable, noting the significant level of disruption that that would cause for the ADF's operation, its planning and, indeed, for ADF members who have been called out. There are numerous other mechanisms by which any decision of the government to call out the reserves can be scrutinised by the parliament, and scrutiny of the instrument itself is not necessary, noting that the instrument itself does not determine the law. So for these reasons the government will be opposing this amendment.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that the amendment on sheet 1137 be agreed to.

The committee divided. [20:43]

(The Temporary Chair—Senator McLachlan)

Question negatived.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Australian Greens amendments (1) to (4) on sheet 1141 together:

(1) Schedule 2, item 4, page 8 (line 14), before "emergency", insert "prescribed".

(2) Schedule 2, item 4, page 8 (line 19), before "emergency", insert "prescribed".

(3) Schedule 2, item 4, page 8 (line 21), before "emergency", insert "prescribed".

(4) Schedule 2, item 4, page 8 (after line 34), after subsection 123AA(3), insert:

(3A) The regulations may prescribe:

  (a) a particular emergency event as a prescribed emergency for the purposes of this section; or

  (b) a kind of emergency as a prescribed emergency for the purposes of this section.

(3B) However, regulations made for the purposes of subsection (3A):

  (a) may only prescribe as an emergency or kind of emergency, an event or occurrence that does not require a protected person to use force or other coercive powers against a person; and

  (b) must not prescribe protest, dissent, assembly or industrial action as an emergency or kind of emergency.

These amendments deal with one of the most serious aspects of the bill. It is our view and, indeed, that of many submitters that a lack of a definition of what could constitute an 'other emergency' leaves the door wide open for the scope of circumstances for using the powers in this bill basically to be whatever the minister would like to define. It is our intention to quarantine the provisions of this bill to the stated purpose of Defence aid to the civil community by outlining what emergencies cannot be; indeed, to make explicit what does not constitute an emergency a situation for the purposes of this bill.

Throughout the course of the inquiry it was made very clear that the lack of a definition of 'other emergency' was grossly insufficient and left the door far too open in terms of interpretation. These amendments should, I quite honestly believe, be a rather uncontroversial proposition for the chamber to consider. Anybody who takes a cursory glance at this legislation would be worried by the vagaries contained within the relevant section. These amendments tidy that up rather neatly and would make great improvements to the legislation. I therefore commend these amendments to the chamber.

Linda Reynolds (WA, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

The government does not support these amendments. Clause 123AA provides immunity from civil and criminal liabilities for protected persons who are providing relevant assistance in natural disasters and other emergencies where they are acting in good faith and in the performance of their duties. These amendments would replace the broad term 'other emergency' with 'other prescribed emergency'. This would require regulations to be made in order to rely on the immunity provision in relation to any emergency that was not a natural disaster. The term 'other emergency' used in the bill as introduced takes its ordinary meaning. It is deliberately a broad term. It enables agility to respond to unexpected events. Requiring other emergencies to be prescribed in regulations would require them to have been identified ahead of time, which is clearly impracticable. This would prevent ADF members from receiving appropriate legal protections when they are providing assistance in an emergency—again, very undesirable and not necessary. There are other safeguards already in clause 123AA. Regardless of the nature of any emergency, the immunity would only ever apply in a situation when ADF members and other personnel were acting in good faith in the performance of their duties, and they must be lawful duties. This would not include using force or coercive powers. This provision does not authorise or permit ADF members to use force or coercive powers to quell or dispel protest, dissent, assembly or industrial action. It's for those reasons that the government does not support these amendments.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that amendments (1) to (4) on sheet 1141 be agreed to.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—I move Greens amendments on sheets 1143, 1144 and 1148 together:

Sheet 1143

(1) Schedule 2, item 4, page 8 (after line 28), after subsection 123AA(2), insert:

(2A) Before making a direction under subsection (2), the Minister must:

(a) if the assistance is proposed to be provided in relation to a State or Territory, or State or Territory authority or agency—notify the State or Territory of the proposed direction and consult with the State or Territory about:

  (i) whether the State or Territory agrees to the proposed provision of assistance; and

  (ii) the form and manner in which the assistance is proposed to be provided; and

(b) take into account any views of the State or Territory provided under paragraph (a).

Sheet 1144

(1) Schedule 2, item 4, page 9 (lines 3 to 8), omit all the words from and including "any of the following" to the end of subsection 123AA(4), substitute "an APS employee or other employee of the Commonwealth or a Commonwealth authority or agency".

Sheet 1148

(1) Schedule 2, item 4, page 9 (after line 21), at the end of section 123AA, add:

No use of force permitted

(9) A protected person must not use force against persons or things in relation to the provision of assistance mentioned in subsection (1).

These three amendments seek to do three crucial things: first, to ensure that there is appropriate consultation with the states and territories in relation to the call-out of reserve forces; second, to remove the immunities granted to foreign defence forces and foreign police forces in relation to civil and criminal liability; and, finally, to prescribe in the legislation that force and coercive power may not be used against civilians in the context of this legislation. We heard from Defence, the government and the ADF that personnel will not be permitted to use force under the arrangements that this legislation refers to. However, we have been told time and time again that if this is really the case then the legislation needs to explicitly say so. We do not think that it is sufficient merely to have this in the explanatory memorandum and we support the view of the submitters who stated that if it is the government's intention to ensure that use of force is not permitted then they should say so in the legislation. Once again, it's not a particularly radical contention that if the government intends force not to be used then there should be no harm in saying so in the legislation.

Finally, let me just circle back to a comment upon the granting of civil and criminal liability protection to foreign defence forces and foreign police. There have been contributions made to the discussion of this legislation which falsely lead those watching along at home to believe that the extension of civil and criminal liabilities to emergency personnel is the majority position in the states and territories. As we heard in the inquiry, this is not the case. The extension of criminal and civil liabilities is not the norm among the majority of state emergency services personnel in this country, so it is erroneous to suggest that one thing this legislation seeks to do is to offer the same protections that state emergency services personnel receive. It in fact grants protections well in excess of those granted to state emergency services personnel.

But let us leave that aside for a moment and stare blankly and clearly into the face of the reality that this legislation seeks to extend those civil and criminal liabilities to foreign police forces and foreign defence force personnel. That is a departure in extreme from any previous norm and, it must be said, will not be reciprocated, nor is it required to be reciprocated, by any foreign actor that we engage with in relation to our forces or our police forces in their jurisdiction. It exists as a totally new aberration upon the legislative field and is unacceptable in the extreme. It is a source of one of the most stringent streams of concern we have received, and that is why the Greens have put this amendment and its two partners to the chamber this evening.

Penny Wong (SA, Australian Labor Party, Leader of the Opposition in the Senate) Share this | Link to this | Hansard source

I know the senator has moved a number of amendments together. I would like to make some brief comments on the opposition's position in relation to the amendment on sheet 1144, which I think, from what I can discern, was the subject of the contribution that the senator just made.

Labor opposes the amendment. We acknowledge the presence of foreign forces on Australian soil is, quite rightly, a matter which draws significant public interest and scrutiny, which was in part why Labor asked that this bill be referred to a legislative inquiry—to ensure there were no unintended consequences as a result of the bill's provisions. It's important to note that what is proposed in the bill is neither the automatic grant of immunity to foreign forces nor an automatic approval for their presence on Australian soil. I note that the amended explanatory memorandum states:

… any participation by foreign military or police forces in any domestic civil emergency would remain contingent upon the receipt and acceptance of an appropriate offer by the Commonwealth, as is normal practice. As such, the Bill in no way provides for the automatic participation of foreign forces in domestic civil emergencies. Extension of the proposed immunities to foreign forces would likewise not be automatic and be contingent upon the issuing of a direction by the Minister.

There are important limitations with respect to the proposed immunity, including that it would only apply 'in relation to a protected person's actions (or omissions) that are done in good faith in the performance (or purported performance) of their duties'.

I also note that, during the 2019-20 bushfire season, Australia received assistance from the defence forces of New Zealand, Singapore, Japan, Papua New Guinea, Fiji, Indonesia, Canada and the United States. So, whilst international assistance should not be a substitute for appropriate domestic capabilities—and I note that I referred to this in my speech in the second reading debate—the generous offers of assistance from other countries during those bushfires were most welcome. Where Australia has accepted an offer of foreign forces to assist Australian communities in their time of need, it seems appropriate that a mechanism be available to potentially provide immunity in certain circumstances, noting again that the granting of such immunity would not be automatic—that it would be the subject of an issuing of a direction by the minister and that there are important limitations with respect to the scope of the immunity.

Linda Reynolds (WA, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

The government will not be supporting all three of these amendments. I will turn first of all to the amendment on sheet 1143. Section 123AA already provides immunity from civil and criminal liability for protected persons who are providing relevant assistance in natural disasters and other emergencies where they are acting in good faith and in performance of their duties. The provision is not the source of authority for using the ADF to provide assistance, which remains the executive power of the Commonwealth. It operates only to trigger the immunity. The effect of this particular amendment would be to insert an additional requirement to consult with states and territories before triggering the immunity provision, which is not necessary nor appropriate. This provision—and, in particular, the language for triggering the immunity through the minister's direction—has been very, very carefully drafted to ensure that it is within the constitutional authority of the parliament.

In relation to the amendment on sheet 1144, first of all, I thank the opposition very much for their support for this and I also acknowledge the opposition's thanks and acknowledgement relating to the foreign forces who came to assist us in the bushfires earlier this year. In relation to this, the immunity provision in section 123AA as introduced can be extended to members of foreign military and police forces who are providing the relevant assistance on behalf of the ADF or on behalf of Defence. Contrary to what we've heard in this chamber, there is a longstanding practice of nations providing assistance to each other in times of emergencies and disasters. During the 2019-20 bushfire disaster, eight nations provided military assistance through the ADF—New Zealand, Papua New Guinea, Fiji, Indonesia, the United States, Singapore, Japan and Canada—and, as Senator Wong has said, we are deeply grateful for that assistance. Similarly, the ADF has also provided significant disaster relief and humanitarian assistance to many other nations.

The effect of this amendment would be to remove the ability to extend immunities to foreign forces who are providing assistance to our nation. The extension of immunities to foreign military and police forces is appropriate and it is justified, given longstanding practices of nations providing this sort of assistance to one another. It recognises that they are important relationships, and, also, it provides appropriate protection in situations where they are offering assistance and putting themselves in harm's way for Australians and for people in our local communities. The immunity, however, does not apply automatically. It requires a decision by Defence. The provision does not authorise foreign military or police forces to enter Australia or to use force or coercive powers while providing assistance. It's for those reasons that the government will not be supporting these three amendments.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

I will speak very briefly. Putting aside the usual theatrics that surround the contention that there's been any opposition to or scrutiny of this legislation, it was really disappointing to see so much fuss and fluff made about the creation of an inquiry into this legislation, only to see most of the recommendations made by the experts who gave their time to it thoroughly ignored by the opposition and the government. But let me just pick up this critical point around 'good faith' that has been made in the contributions by the minister and by the opposition and the fact that that offers us a protection in relation to the issues raised in this particular amendment.

I draw your attention to the evidence given by Mr Andrew Ray and Ms Charlotte Michalowski, who explored the issue of good faith further in their evidence to the committee, suggesting that perhaps a higher standard, such as proportionality, may be more appropriate. They outlined in their submission the lack of clarity around what 'good faith' can be interpreted as, stating:

… there are significant concerns regarding the use of the limitation of ‘good faith’ contained in the immunity provision. Good faith has been widely used in immunity provisions, however academic commentators have highlighted that the exact scope of the term is unclear, with few cases having applied the test in relation to immunities. At its widest the immunity may protect anyone who subjectively believes they are acting in good faith. Alternatively, in some cases courts have considered competing policy considerations to weigh up whether an action should fall within a good faith exception. It is unclear which standard would be applied were the application of immunity contained in s 123AA challenged. This leads to the situation where it is unclear when an individual could rely on the immunity, a position that is at odds with the stated justification of the amendment.

So there we have it very clearly from two people who know what they're talking about and have no political vested interest in getting this bill sorted out and done. I think it's worth noting that this is a vagary which is causing the Commonwealth, broadly, many problems. As some of your own members acknowledge, there is a need to define clearly what we mean when we say 'good faith'. Just like the questions around the constitutional head of power that supports many of the activities described in this bill, it would be much better to clarify this issue before leaning on a concept of 'good faith' that is not settled and may prove to be unstable when relied upon.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

The question before the committee is that Greens amendments on sheets 1143, 1144 and 1148 be agreed to.

Jordon Steele-John (WA, Australian Greens) Share this | Link to this | Hansard source

by leave—The Greens oppose schedules 1 and 2 in the following terms:

(1) Schedule 1, page 3 (line 1) to page 6 (line 5), to be opposed.

(2) Schedule 2, page 7 (line 1) to page 9 (line 21), to be opposed.

With the conclusion of this committee stage, we've now offered the chamber the opportunity to make clear that such call-out orders will be subject to the scrutiny of the parliament, which was voted down. We've given the chamber the opportunity to prescribe exactly what is meant by 'emergency', something which the major parties in this place have also voted against in the course of this committee stage. We've given the major parties the opportunity to ensure that actions are taken in consultation with the states and territories, and they have voted against that. We've given them the opportunity to remove the provision of immunity to foreign defence forces and to foreign police—something which they have just voted against—along with a clarification of the use of force, which has just been voted against. Every opportunity to improve this bill has been foregone by the major parties in this place. Every concern raised at the committee level has been ignored. So, finally, we give the opportunity for these highly inappropriate sections of the legislation to be separated from the one piece of this bill which does have merit—that is, the sections in relation to superannuation. There is indeed a need to address the discrepancies identified by the legislation—something that we support—and we now seek to separate the bill to enable those two pieces to be considered independently of each other. So I commend that position to the chamber.

Linda Reynolds (WA, Liberal Party, Minister for Defence) Share this | Link to this | Hansard source

The government will not be supporting either of these amendments, because the measures in this bill will enhance the ability to provide defence assistance to the civil community by doing two things: firstly, by streamlining the process for calling out members of the ADF reserves under sections 28 and 29 of the Defence Act and, secondly, 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 they are performing duties in good faith to support civil emergency and disaster preparedness, recovery and response. These amendments would take away both of these schedules in the bill. These have been designed to enhance Defence's ability to provide assistance in relation to natural disasters and other emergencies. They would also remove the opportunity to legislate some of the key lessons learned from the 2020-21 bushfires, which would be a significant missed opportunity ahead of the upcoming high-risk weather season. It's for these reasons, amongst many others that we've discussed here tonight, that the government will not be supporting these two amendments.

In closing, I thank the opposition. Senator Wong, I thank you and also Richard Marles and his office for the constructive way in which we've engaged with this to get to this very important legislation.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

The question is that schedules 1 and 2 stand as printed.

Andrew McLachlan (SA, Liberal Party) Share this | Link to this | Hansard source

The time allotted for debate has expired, so we will now report progress.

Bill agreed to.

Bill reported without amendments; report adopted.