Senate Considers Bill to Enhance Defence Force Response to Emergencies

On 3 September, the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 (Cth) (‘the Bill’) was introduced to the House of Representatives. The Bill was passed by the House of Representatives and introduced to the Senate on 6 October.

Purpose of the Bill

In his Second Reading Speech, the Assistant Defence Minister, Mr Alexander Hawke, stated that the events and impacts of the recent bushfire emergency crisis and the ongoing COVID-19 pandemic have highlighted that Defence ‘is a critical element of the national response to crises’.  The Bill is intended to enhance the capacity of Defence to provide ‘Defence Assistance to the Civil Community’ (‘DACC’) in relation to natural disasters and other emergencies. DACC enables Defence to provide resources in response to a request for assistance and support that is primarily the responsibility of the civil community or other Government/non-Government organisations. 

In order to enhance the accessibility of DACC, the Bill proposes to:

1. Streamline the process for calling out members of the ADF Reserves;
2. Provide ADF members, other Defence personnel and members of foreign forces with similar immunities to State and Territory emergency services personnel in certain cases while performing duties to support civil emergency and disaster preparedness, recovery and response; and

3. Amend ADF superannuation legislation to ensure that Reserve members who provide continuous full time service (‘CFTS’) following a call out are appropriately covered for superannuation and related benefits.

Calling Out Reserves

The Reserves are intended to be distinct from the Permanent Forces by virtue of the voluntary nature of the Reserves. A ‘Reserve Call Out’ is an extraordinary power that enables the Chief of the Defence Force (‘the CDF’) to override the largely voluntary nature of the Reserves in exceptional circumstances such as war, defence preparation, peacekeeping, medical and civil emergencies, humanitarian aid and disaster relief. Currently, a Reserve Call Out Order will bind members of the Reserves to an obligation to render CFTS. In order to enhance flexibility in calling out ADF Reserve members, the Bill proposes to remove references to CFTS and enable the CDF to determine how and when members are required to serve. Furthermore, under the current framework, the obligation to render CFTS attracts certain employment protections.The Bill will ensure that called out Reserves will receive the same protections under the Defence Reserve Service (Protection) Act 2001 even when they are not rendering CFTS.

The Bill provides other provisions to enhance and simplify the process of making a Reserve Call Out Order including:

• enabling Reserve Call Out Orders to be made by a notifiable instrument;
• removing the requirement that the time period specified within a Reserve Call Out Order must start on the day the Order takes effect; and
• enabling a Reserve Call Out Order to specify multiple periods of service.

Immunities 

The Bill also proposes to provide Australian Defence Force (ADF) members and other Defence personnel with immunity from civil and criminal liability in certain circumstances while performing duties in relation to assistance provided in civil emergency and disaster preparedness, recovery and response.

The Assistant Minister in his Second Reading Speech explained that the immunity will only cover assistance directed by the Minister of Defence when the minister is satisfied that the scale of the natural emergency or disaster makes assistance necessary for the benefit of the Commonwealth and/or the assistance is necessary for the protection of agencies, property and personnel, of Commonwealth. 

The Bill also outlines provisions for the following:

1. Powers to the CDF or the Secretary to extend immunities to other persons such as members of foreign military forces and foreign police forces; and
2. A statutory power for the Minister, in the context of this grant of immunity, to direct use of the ADF and other Defence personnel to provide assistance in a natural disaster or other emergency.

Superannuation

Finally, the Bill proposes to rectify the ‘legislative gap’ in regards to access to superannuation benefits for Reservists. Currently, the system provides superannuation entitlements for Reservists rendering voluntary CFTS but not Reservists rendering CFTS because of a Reserve Call Out Order. Schedule 3 will make amendments to the Military Superannuation and Benefits Act 1991, the Australian Defence Force Superannuation Act 2015 and the Australian Defence Force Cover Act 2015 to ensure that in either case, Reservists will receive superannuation and related benefits.

TimeBase is an independent, privately owned Australian legal publisher specialising in the online delivery of accurate, comprehensive and innovative legislation research tools including LawOne and unique Point-in-Time Products. Nothing on this website should be construed as legal advice and does not substitute for the advice of competent legal counsel.

Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020, Bills and explanatory materials, available from TimeBase's LawOne service