The announcement by the Prime Minister, the Minister for Defence and the Chief of the Defence Force that the Governor-General had signed an order to call out the Australian Defence Force Reserves raises some interesting questions regarding the legal status of the men and women of the Australian Defence Force undertaking the "civil aid, humanitarian assistance, medical or civil emergency or disaster relief" that is specified in the order.
While the ADF, and the ADF Reserves, have been used many times in the past to provide assistance during periods when natural disasters have affected Australia, the order is unprecedented in the sense that it is the first time that the compulsory powers available under the Defence Act to call out the ADF Reserves have been used.
The most significant aspects of the order are that:
- employment protection is provided to any member of the ADF Reserves that is subject to the Call Out Order; and
- any employer whose employee is ordered to perform continuous full-time service is required to preserve that employee's job and the employer may also seek compensation for costs incurred in covering the absence of the employee.
Nonetheless, the order is limited in scope as it only directs "some of the ADF Reserves" to undertake continuous full-time service as specified by the CDF. Significantly, the order does not authorise the ADF to exercise the much more extensive powers that are available, including detaining, seizing and searching, when a call out of the Defence Force is made under Part IIIAAA of the Defence Act. Although on its face Part IIIAAA of the Defence Act seems to only apply in circumstances when Australia is being faced with "domestic violence" that arises from a terrorist or security incident, there are valid reasons for considering invoking a Call Out Order under Part IIIAAA when the ADF is being used to provide assistance during natural disasters.
Why is this a potential issue? A number of reasons can be postulated as to why the protection that is provided to both the ADF and the Australian community under Part IIIAAA of the Defence Act might be usefully invoked in circumstances where the ADF is being used to assist state and territory authorities during natural disasters.
First, providing legal certainty regarding the constitutional basis for the deployment of the ADF within Australia is critical in terms of establishing and maintaining public confidence that the ADF is being used in a manner that serves the national interest. The example of the NSW Rural Fire Service Commissioner stating that he was unaware of the deployment of 3000 army personnel provides sound reason why legal certainty is required.
Second, as the extent of the destruction caused by the natural disaster becomes apparent, it is highly likely that frustration and anger will emerge as the time taken for response and reconstruction starts to build. It is foreseeable that ADF personnel will be required to assist civil authorities dealing with people who are unwilling to comply with directions to leave an area, or to conduct searches of property and seize items for a variety of reasons. Without specific authority to undertake these activities, members of the ADF have no greater legal right to direct, search or seize than an ordinary citizen, so this situation should be clarified.
Finally, it is grossly unfair to place members of the ADF in a situation where they are ordered to provide assistance to state and territory authorities without ensuring that adequate legal protections for both the Australian community and the ADF are in place. Although Part IIIAAA of the Defence Act may not have been intended for this purpose, it seems that the use of a Call Out Order under that scheme would be one way of providing the legal certainty that should accompany the widespread use of the ADF within Australia.
Fortunately, during the current bushfire crisis there have been no reports of any circumstances where the involvement of the ADF has been anything other than welcomed and appreciated. Nevertheless, removing any potential legal uncertainties associated with the call out of the Reserves and the use of the ADF during Operation Bushfire Assist would be a highly prudent course of action. The men and women of the ADF deserve nothing less.
- Associate Professor David Letts is director of the Centre for Military and Security Law at the ANU College of Law.