Defence legislation re call-out of Reserves should not proceed

As currently drafted, the legislation to facilitate the call-out of the ADF Reserves contains too many risks for too little benefit. It should not proceed in its current form.

Credit – Unsplash

The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 is currently before the Parliament. The legislation as drafted opens the community to serious risks, while doing little to enhance the capacity of the Australian Defence Force (ADF) to respond to natural disasters or similar emergencies.

By way of background, there are two quite distinct sets of circumstances under which the ADF can be called upon to provide assistance to a State Government. The distinction between them is fundamental and it is vital that it be preserved. The first, thankfully hardly ever used, is assistance to the States with their law enforcement responsibilities – so called Defence Aid to the Civil Power (DACP). This means, potentially, use by the ADF of force or coercive power within Australian territory, against members of the Australian community. The gravity of such assistance is reflected in the fact the processes for activating it are prescribed in the Constitution (s.119). There must be a state of “domestic violence” within the State concerned, and the Commonwealth must be in receipt of a request for assistance.

The other, quite commonplace, form of assistance is so-called Defence Assistance to the Civil Community (DACC), the provision of assistance in emergency situations not requiring the use of force, such as the aftermath of extreme weather events.

In the ordinary course of events, responding to natural disasters and large-scale accidents, such as a train or aircraft accident or industrial fire or explosion, is the responsibility of the state and territory governments. Accordingly, our minimum expectation should be that they will plan and equip their police, fire, ambulance and emergency services for their foreseeable workload, including relatively rare (say, one in twenty year) events. Preparation for events currently considered rare is especially warranted because climate change is increasing the frequency and intensity of major weather events. Too ready reliance on the ADF will encourage the States and Territories to under-prepare, and the Commonwealth should not encourage this.

Subject to that, it of course makes sense in extreme or urgent situations to make use of defence assets that are fit for purpose and can be made available within the requisite timeframe. What is not clear, however, is why the existing arrangements for DACC, arrangements for which are of very long standing, require supplementation. The additional capability that would be achieved by the “calling out” of the Reserve would be very marginal. The principal useful assets – aircraft, ships, trucks in quantity, and specialised engineering skills – will be found in the permanent force, and the permanent force is maintained at a higher level of capability and readiness. To the extent that members of the Reserve are needed, the Reserve is likely to be an abundant source of volunteers, and it should not be necessary to call them out.

There are several objections to the call-out of Reservists, as distinct from the deployment of volunteers, at times of natural disasters. The first and most obvious of these is it potentially exposes the individuals concerned to dangers they have not signed up for and have not been trained to deal with. The ADF is a national defence force; that is its sole purpose, and the sole purpose of the Defence Reserve is to provide supplementation to the permanent forces. Neither the ADF nor the Reserve is trained or equipped to deal with natural disasters or large-scale accidents, and nor should they be. Sending ADF members into dangerous situations for which they are neither trained nor equipped exposes them, and perhaps those they are meant to be assisting, to danger, and should be avoided except in extremis.

Second, any measure which exposes Defence Reserve members to the risk of being compulsorily called out for a non-defence purpose for which they have not been trained will have an impact on the willingness of Australians to join the Reserve, and hence on Australia’s defence preparedness.

Third, the way the legislation is currently framed, calling out of the Reserve in response to emergencies does not require a request from the relevant State or Territory. Defence justifies this by reference to the legal fact that State or Territory consent is not required for a Reserve call out. While strictly true, that statement is both misleading and lacking in good sense. It is misleading because it fails to note that for very good reason the current DACC procedures involve the State or Territory making a request for assistance; how can the CDF decide what assistance to render in the absence of a request from those whose responsibility it is, with a description of what is needed? It makes no sense for the Commonwealth, on its own motion, to inject the ADF into a situation for which its assistance has not been sought. So while State or Territory consent is not required for a Reserve Call-out, a request should be required when the purpose of the call-out is to provide assistance to a subordinate jurisdiction, and the legislation should say so.

The most serious flaw is the fact that the circumstances in which the legislation would permit the Reserves to be called out are too open-ended, a flaw to which I drew attention in a submission (Submission No. 4 here) to the Senate Foreign Affairs Defence and Trade Legislation Committee (SFADTLC) on behalf of Australians for War Powers Reform, and in evidence to the Committee on Friday 30 October.

Defence has indicated in the Explanatory Memorandum attached to the Bill, and in its own submission to the Committee, that the circumstances envisaged by the legislation are those which do not require the use of force, or the use of coercive powers, but the legislation does not actually say that. The legislation is stated to facilitate call-out to deal with a “natural disaster or other emergency” – which means it facilitates call-out in all circumstances covered by the relevant section of the Defence Act (s.28(3)). That means that, in addition to “civil aid, humanitarian assistance, medical or civil emergency or disaster relief” (s.28(3)(g)), cover would be extended to “warlike operations within Australia” (s.28(3)(a)) and to “matters involving Australia’s national security or affecting Australian defence interests” (s. 28(3)(e)) – a category that is capable of extraordinarily wide interpretation.

The intent might be as limited as it is represented to be by Defence, but it might also be, or might over time become, a means of navigating a way around the requirements which s.119 stipulates in relation to provision of DACP. If this seems fanciful, consider the example of the amendment to s.8 of the Defence Act which was included in the Defence Force Reorganization Act 1975. This amendment established a new office of “Chief of the Defence Force Staff” (now CDF), who would have command over the Army, Navy and Air Force Chiefs. It specified that the Minister for Defence had administrative control over the CDFS and the Secretary.

In his Second Reading Speech on the Bill, Defence Minister Lance Barnard stated, “The Secretary and the Chief of Defence Force Staff would be concerned principally with important matters of defence policy and administration particularly those affecting the whole of the defence force, the aggregates and the common policies – which I, as Minister, and the Government look to them to co-ordinate in the interests of consistent application of policy requirements, including financial requirements”.

Notwithstanding these reassuring words, s.8 is now used as a power to make war – instead of seeking the authority of the Governor-General to deploy the ADF into armed international conflict, in accordance with long-standing Constitutional practice, governments now just issue a direction under s.8 of the Defence Act. This is a rather significant evolution of “defence policy and administration”.

In its report the Committee acknowledges the problem with the definition, but its solution is entirely unsatisfactory. It simply recommends that the Explanatory Memorandum be amended to clarify the intention and operation of the Bill, including “that the operative elements of the Bill relating to the employment of the ADF and the Reserves, including proposed immunities, relate to Defence Assistance to the Civil Community tasks and, as a result, do not authorise the use of force or coercive powers by defence personnel (beyond the inherent right to self-defence)”.

Unfortunately, changes to the Explanatory Memorandum cannot change the law as it is drafted and enacted by the Parliament. This legislation should not proceed, on the grounds that the benefits (if any) are far outweighed by the risks.

If the legislation is to proceed, it should be clearly and strictly quarantined to situations that involve no possibility of the use of force, such as natural disasters and large-scale accidents, or the situations set out in s.28(3)(g) of the Defence Act. It should stipulate that the Reservists called out are to be unarmed, and are not to be required to undertake any coercive act towards any person.

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Paul Barratt AO is the President, Australians for War Powers Reform; former Secretary, Department of Defence.

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