On 3 September 2020, the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 (‘the Bill’) was introduced in the Australian Parliament to amend the Defence Act 1903 (‘the Act’), which enhances the use of ‘call-out’ powers of the government on defence personnel including the Australian Defence Force (ADF), Reserves, foreign military forces and foreign police in a domestic emergency.

The Bill has two significant aims: one is to streamline the process for ‘calling-out’ members of the ADF Reserves for the purposes of responding to natural disasters or emergencies; and the second one is to provide ADF members, other Defence personnel and members of foreign forces with immunity from criminal and civil liability in certain cases, while performing duties to support civil emergency and responses.

This short article briefly discusses the worrying aspects of the Bill and its implication to basic democratic rights of ordinary citizens in Australia. But before discussing the disturbing aspects of the Bill, it is important to look at similar legislations previously passed by the Australian Parliament in order to contextualise the significance of the current Bill.

1. The historical context of the Bill

Successive governments have passed similar legislations to widen the ‘call-out’ powers to mobilise the ADF in case of civil unrest and ‘terrorist attack’. The first two amendments were introduced in 2000 and 2006 during the Howard government ‘to deal with potential threats to major sporting events’ (Head, 2019) such as the 2000 Sydney Olympics and the 2006 Commonwealth Games (See also Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 and Defence Legislation Amendment Act 2006).

During that period, the Labor Party supported the Liberal Coalition government in passing the said legislations, with only minor amendments. It was claimed that there was little public debate to scrutinise or to oppose these legislations.

The third amendment to the Act was introduced in 2018 – Defence Amendment (Call Out of the Australian Defence Force) Act 2018 and was depicted as a means to protect the population against terrorist attack, more particularly in response to the 2014 hostage-taking incident at a Sydney Café.

The 2018 amendment allows the Prime Minister or other ‘authorising Ministers’ to call out the ADF on a much broader basis, apart from fighting terrorist-related activities such as ‘domestic violence’. Here, ‘domestic violence’ does not mean violence in domestic home-setting, but political and industrial disturbances, violent protest and widespread rioting.

The main feature of the 2018 amendment was the expansion and the explicit use of the military power in ‘domestic violence’, including the use of lethal force (i.e. killing), to protect ‘declared infrastructure’ or end ‘threats to … public health or public safety’ (see Defence Act 1903, s 46(5)(b) & (c)).

2. The worrying features of the Bill

There are three worrying features of the Bill that need closer examination and greater scrutiny as these provisions can be regarded as trampling basic civil liberties and democratic rights of ordinary citizens.

A. Streamlining the process

First, the Bill provides the federal government ‘greater flexibility’ to call out the military, particularly the ADF Reserves. In order to ‘streamline the process’, the Bill gives an urgent deployment of the troops by a single Minister.

The Defence Minister alone has the power to call out the military and only need to ‘consult’ with the Prime Minister. There is no reference in the Bill to either consult or debate the legality of the deployment of troops in the Australian Parliament (Ramsden, 2020).

There is also no provision in the Bill that subject the call out of troops to parliamentary review or for the parliament to terminate the call out.

One can argue that the Bill would overturn any constitutional barriers to mobilise the troops in times of national emergency and in the name of ‘national interest’, with or without the consent of state governments.

All of these could be seen as a breach of a long-held principle of parliamentary accountability and responsible government, which jeopardise the functioning of a healthy democracy in this country.

B. The word ‘emergency’ is not defined

The second worrying aspect of the Bill is that the word ‘emergency’ is not defined in the proposed legislation. Certain events like bushfires, floods, cyclones and the present COVID-19 pandemic, may well be classified as ‘emergencies’ under the Bill. Thus, these events may justify the use of military forces to ‘provide assistance’ during ‘natural disasters and other emergency’ (see the Bill, s 123AA(2)(a) & (b)).

However, because the word ‘emergency’ is not defined in the Bill, many commentators argue that the Bill could possibly be used against strikes, picket lines and mass protest actions in Australia (Ramsden, 2020; Steggall, 2020).

Recently, we have witnessed draconian measures being used to supress mass protests around the world. In the United States, for example, President Trump has deployed the military throughout the country to quell legitimate protests regardless of opposition by state governors.

In Australia, state governments have already activated similar ‘emergency’ laws. In Victoria, for instance, the Andrews government has declared a ‘state of disaster’, invoking emergency measures to suspend any act of parliament and to impose de-facto martial law that impedes on people’s basic rights and civil liberties.

C. Immunity from civil and criminal prosecution

The third and final worrying aspect of the Bill pertains to the immunity provided to ADF personnel, foreign troops and foreign police forces from civil and criminal liability for actions arising from their assistance role in natural disasters and other emergencies.

Such immunity may provide a blanket use of lethal force to civilians, as already exemplified in the 2018 amendment. Such actions of military personnel should be subject to civil and criminal prosecution in the court of law.

The more disturbing part of this immunity provision is that it extends not only to ADF personnel, but also to foreign troops and foreign police forces that may be deployed in Australian emergencies. We already have US foreign forces stationed in Darwin, and these US troops are not under the control of the Australian government but take their orders from the US command outside Australia.

This is really worrying because military troops who commit crimes in foreign countries are rarely brought to justice in the domestic court, because of the provision of blanket immunity provided in legislations or treaties between countries.

3. Conclusion

To conclude, it is clear that this Bill introduces an even wider ‘call out’ power to the military in times of ‘emergencies’. Even before this Bill was introduced in September this year, there were already patterns of increasing military power introduced by successive amendments to the Act.

Since 2000, and under the pre-text of ‘war on terror’, bipartisan legislations have been enacted to give the Australian government explicit powers to call out the military to deal with undefined ‘domestic violence’ or ‘other emergency’.

We have witnessed unprecedented deployment of military reservists during the bushfire disaster season and the recent Covid-19 pandemic. However, we certainly do not need another amendment to an ever-increasing power of the military to deal with emergencies in Australia.

What we need to see is the Australian government putting its full effort in fighting climate change and providing budget for adequate health care, housing, education and job security, rather than military expansion and warmongering that suppress the basic needs and democratic rights of the people.

Reyvi Mariñas is a Research Fellow at Melbourne Law School and is the current Secretary of the Philippines-Australia Solidarity Association (PASA) and Legal Counsel of BAYAN Australia.

References:

Head, Michael (2019) ‘Another Expansion of Military Call Out Powers in Australia: Some Critical Legal, Constitutional and Political Questions’ 5 UNSW Law Journal Forum 1-14.

Ramsden, Bevan (2020) ‘Questionable amended defence legislation should be opposed’ Independent Australia, 19 October, 1-4.

Steggall, Zali (2020) ‘Transcript: Zali Steggall speaks on the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020’, 6 October.