Senate debates

Tuesday, 8 December 2020


Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020; Second Reading

7:38 pm

Photo of Richard ColbeckRichard Colbeck (Tasmania, Liberal Party, Minister for Aged Care and Senior Australians) Share this | | Hansard source

I table a replacement explanatory memorandum relating to the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020.

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

I rise to speak on the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020. It's a bill that arises out of the call-out of the 3,000 Australian Defence Force personnel during the Black Summer bushfires. The ADF reviewed the event post this call-out, sought what lessons there were to be learnt and worked out where things could have been done better. The result is this legislation. It is to the credit of Defence that it has reviewed the contribution to the 2019-20 bushfire effort in this way and has proposed these measures as a result. The bill represents a modest set of changes that improve the process of calling out the ADF Reserves, which Labor will support.

I want to add my voice to thank the ADF personnel who were engaged in the bushfires. During my visits to both the Adelaide Hills, the Cudlee Creek fire, and Kangaroo Island, people were most appreciative of their presence.

Let's be clear. Mr Morrison cannot blame the absence of this legislation for his catastrophic failure of leadership during the 2019-20 black summer bushfires, because that summer wasn't without warning. Scientists have been telling us for years that climate change increases the frequency and severity of extreme weather events and natural disasters. Unfortunately, their predictions are true. When I was minister for climate change I told this place, on 26 November 2009:

… we are also likely to see an increase in very extreme fire weather days. That is one of the effects of climate change that was documented again by the Bushfire CRC, the Bureau of Meteorology and the CSIRO in 2007, when they said that very extreme fire weather days now occur on average once every two to 11 years at most sites, by 2020 they may occur twice as often and by 2050 they may occur four to five times as often. And this is science that is two years old.

That's what I said in 2009.

In government we funded the climate change adaptation program, a $126 million program at that point, which was designed to help Australians better understand and manage the risks as a consequence of climate change, including extreme weather events and bushfires. But the Morrison government didn't want to understand, because then it would have had to have acted. In 2019 the Bushfire and Natural Hazards Cooperative Research Centre published a 'severe' bushfire outlook for last summer, and that was ignored by the Morrison government too. Immediately after the federal election last year, in May 2019, retired fire chiefs from around Australia warned that the 2019-20 summer would be particularly dangerous. They sought to meet with the Morrison government, and the government refused. On 22 November 2019 the Leader of the Opposition wrote to the PM and asked him to convene the Council of Australian Governments in order to discuss the impending bushfire season and the severity that was being presented. The Morrison government did not listen to that request either. Nor did it act upon it.

You see, warnings could have been listened to and action could have been taken. Action could have been taken by the government in the lead up to the 2019-20 bushfire season. It had promised an emergency relief fund—$200 million every year—which was ready to provide funding that could have been used to reduce risk, but not a cent was delivered. The National Aerial Firefighting Centre was asking for more funding back in September 2019, but nothing was delivered. With this bill the Morrison government wants people to believe that the main problem with last summer's bushfires was that defence reservists couldn't be called out fast enough. But you know the much bigger problem is the refusal of Mr Morrison to listen and his refusal to act despite warning after warning after warning. His derelict response then was: 'I don't hold a hose, mate.' He cannot now point to this bill and say, 'Because I didn't have this last summer, I wasn't able to act.' Mr Morrison's failure to take responsibility and his failure to lead have nothing to do with the absence of this legislation at that time. The fact is that when Australia most needed national leadership Mr Morrison was absent. Even today, entering another summer bushfire season, Mr Morrison still hasn't delivered a cent from this $4 billion Disaster Resilience and Recovery Fund and still has not acquired a national aerial firefighting fleet. Last week, as bushfires burned, he was holed up in the Lodge with his official photographer doing daggy-dad quarantine photo ops and posing in board shorts and spinning on his new exercise bike. Mr Morrison spins while Australia burns.

For decades the ADF has supported Australians in their time of greatest need and has done so magnificently. When states and territories have asked for assistance the Australian Defence Force has been there, providing confidence and relief. In the case of the summer bushfires this assistance was being provided before 4 January 2020, when the formal call-out occurred. Instead of summoning the courage to stare down the climate change denialists in his own party to end the climate wars, to act on the climate change that Australians can see, feel and smell, Mr Morrison is trying to hide behind the courage of the ADF. You see, as valiant as they are, our defence forces cannot solve this problem alone. Adapting to a changing climate and avoiding the worst of climate change—averting the worst of climate change—is not the Defence Force's job. It's the leader of the country's job. It's the Prime Minister's job. What Australia needs from Mr Morrison is a recognition that our climate is changing and bushfire risk is increasing. Australians need him to deliver on bushfire preparedness. They need him to deliver on resources like aerial bombers to fight fires. Australians need Mr Morrison to take action to avoid the worst impacts of unchecked climate change.

A key measure in this bill is to align the immunities that are held by the ADF with the immunities held by civil emergency response agencies in moments of crisis. When it was first introduced, concerns were raised about these provisions. Following inquiry by the Senate Foreign Affairs, Defence and Trade Legislation Committee and a request by our shadow defence minister, amendments have been made to the explanatory memorandum. As a consequence, there is now a firm statement that all references in the bill's provisions to assistance in relation to a natural disaster or other emergency relate only to Defence assistance to the civil community and thus, as a consequence, does not authorise the use force or other coercive powers. There is also a confirmation the proposed immunity provisions apply only to individual Defence members and not to the Commonwealth, so there is still an avenue for remedy should a member of the public suffer loss or damage as a result of assistance rendered by Defence. It is also explicit that immunity is not automatic for both foreign and domestic forces. Given that, we do recognise the government's efforts to address the concerns raised during the course of the examination of this bill by parliament. However, no legislation will make up for the lack of leadership from a Prime Minister who is interested only in announcements and photo ops rather than the leadership needed to deliver on bushfire preparedness for Australians.

7:46 pm

Photo of Jordon Steele-JohnJordon Steele-John (WA, Australian Greens) Share this | | Hansard source

As I commence my contribution to this discussion, I want to just briefly shout out and pay tribute to my fabulous and diligent policy adviser, Andrea Pizzie, to whom I owe a lot for a lot of the research work that went into the Greens position on this. I shall endeavour not to mangle the notes she has given me in my contribution to this bill's discussion.

The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020—very much contrary to its name—does nothing to enhance Defence's capacity to respond to natural disasters and other emergencies. Beyond the provisions around superannuation, the bill serves to reduce oversight of call-out processes and grants the ADF personnel, and indeed foreign defence forces personnel and foreign police, criminal and civil liability immunities. It is important that the ADF has the ability to provide assistance to civil emergency response capabilities in large-scale natural disaster responses. These circumstances have and will continue to occur, notwithstanding the passage of this legislation.

Defence Force assistance to the civil community, DFACC, will continue to stipulate the role of the ADF when providing assistance in domestic natural disasters. We note evidence given by the Royal Commission into National Natural Disaster Arrangements by officials of the ADF state that the DFACC arrangements were sufficiently flexible and effective during Operation Bushfire Assist and therefore question elements of this bill, which state otherwise.

The Greens express significant concern about the provisions of the bill which relate to immunities, the constitutional sources of power and the processes around calling out reserve members and, indeed, for overall human rights implications. We do not accept the characterisation made in the course of the Foreign Affairs, Defence and Trade Committee inquiry into this legislation that the concerns raised by constitutional, legal and policy experts are ephemeral to the substance of this legislation. As demonstrated by the expert evidence given to the committee, these issues are, in fact, central to this legislation.

The Greens do not support the passage of this bill. We do not believe that the bill is sufficiently justified. The risks to ADF members articulated by constitutional and civil liberties stakeholders and experts during the course of the inquiry into this legislation are significant and are unmitigated by the evidence given to the committee during the course of the inquiry. I note that the minister has circulated a replacement explanatory memorandum which attempts to address some of the issues brought up during the inquiry. However, I note, as did many others during the hearing and in their submissions, that ultimately the changes that need to be made should be made in the form of amending the legislation itself, because ultimately legal decisions made in relation to key aspects of this bill will come down to the letter of the law. We do, however, note the superannuation related benefits outlined in schedule 3, and we agree that it is necessary and important to change these sections to ensure that reservists are appropriately compensated for their service.

Let me go to the substantive issues that we have with the bill. The bill underwent a very quick inquiry process through the Senate Foreign Affairs, Defence and Trade Legislation Committee, with an extraordinarily small window of opportunity to explore the deeply complex issues that exist in this space. I would like to commend the many community members, the submitters and those who gave evidence to the inquiry for their contributions to this conversation. I would also like to put on the record that this inquiry process left more unanswered questions in relation to the issues brought up.

Let us first go to the issue of immunities offered by the bill. Contrary to the evidence given by departmental officials during the hearing, we do not agree that the granting of both criminal and civil immunities to ADF personnel, foreign defence personnel and foreign police contained within this bill appropriately balances the rights of civilians to legal remedy for neglect and damaging behaviour. It is our position that the Department of Defence was not able to sufficiently address the concerns of the considerable number of submitters who contested the provision of broad immunities. We do not support the extension of any immunities to foreign forces and police. We note the main committee report outlines a number of submissions which recommend against including this provision, and we agree with their view. Further, there is a significant lack of clarity contained within this bill in relation to what legal remedies are available to civilians in circumstances where ADF and foreign personnel have acted inconsistently with their obligations to provide assistance. This matter requires further consideration and clarification to ensure that the right to access the justice system is well understood and reflected in the legislation.

We must also look at the constitutionality of the immunity provisions contained in this legislation. We are very concerned that the issues brought up in evidence to the committee by constitutional law expert Professor Anne Twomey linked her substantial concerns with the constitutionality of this legislation to the immunity provisions themselves. In her submission, she stated:

This anomaly will be aggravated by proposed s 123AA of the Defence Act. It will provide immunity to all members of the Defence Force, both regulars and reserves, when acting in the performance of their duties if the duties are in respect of the provision of assistance to prepare for or respond to a natural disaster or other emergency. But this raises the question of when such matters are within the member's duties, which goes back to the question of whether there is constitutional power to deal with such matters.

In her evidence to the committee Professor Twomey elaborates on this point, stating:

But the problem here is that the immunity is tied to the word 'duties' in the legislation, and these duties would not formally exist if they're not supported adequately by the constitutional powers. So I think in that respect the immunity is actually probably in many cases just not effective.

The evidence given is that the constitutional ambiguities that surround that and the source of power that Defence relies on to determine the duties of the ADF personnel are not settled constitutional matters and directly interact with the proposed provisions within this bill. We are concerned about the significant implications that this complicated legal matter would have for civilians and ADF personnel who may find themselves not protected and the subject of legal matters and actions. More broadly, we are concerned that this complicates an already messy area of the law. It makes the problem worse.

We must now turn to proportionality and the issues of good faith. We in the Greens are concerned that the granting of immunity for criminal liability unacceptably provides protections for ADF personnel and foreign personnel beyond those granted to all state and territory emergency responders. We are of the view that the ADF personnel would be undertaking fundamentally civilian tasks in the circumstances that this bill concerns itself with, and we do not think that it is necessary or appropriate to water down the rule of law. Further, we note that immunity provisions granted to state and territory emergency responders do not include immunity from civil and criminal liability in the majority of cases. Whilst we agree that the ADF personnel should be appropriately protected in order to carry out their duties, we do not see that these protections should be over and above those granted to first responders and state based emergency personnel. This was also put to us in the clearest of terms during the course of the inquiry.

In relation to the scope of 'natural disaster and other emergency' offered in the bill, I would like to take the opportunity to point out that the proposed section 123AA(2) provides that the minister may in writing direct the ADF to provide assistance in relation to 'a natural disaster or other emergency'. In our view, the term 'other emergency' is deliberately undefined and left to unacceptably broad interpretation. We note that the foreign affairs, defence and trade main committee report alludes to concerns made in a number of submissions, and we agree that there need to be a greater definition and an explanation of what circumstances 'other emergency' could be understood as.

In relation to the issue of the non-use of force, we are deeply concerned that the bill does not prescribe the non-use of force in the legislation. Despite evidence from Defence during the inquiry that indicates that this bill does not permit the use of force by Defence personnel when assisting in natural disasters and other emergencies, there are significant and justifiable concerns from other submitters to the inquiry and in the community more broadly that will remain unanswered should this legislation not explicitly rule out the use of force. As submitted by Professor Twomey, once again:

… if you wish to confine the legislation in a way that makes it clear that the type of actions and duties relating to civil aid to the community are not to involve coercive action—which indeed is clear in DACC—then you could well say so in the legislation if you so chose.

We will be giving the Senate the opportunity to so choose via one of our amendments later in the debate. Further, we are concerned by the position that Defence have taken when questioned on whether they will or will not prescribe the non-use of force, particularly in an answer given on notice, which I believe I do not have enough time to go into in detail.

Professor Twomey and other submitters made it very clear—and I think this needs to be treated with the utmost seriousness, as I would have expected it to be by those so-called conservatives in this place whose political tradition once harked back to a deep reverence for the maintenance and clarity of constitutional issues—that the head of power under which DACC activities are managed by the executive is not a settled issue in any form or sense of it—and neither, by the way, is what exactly is meant by 'good faith', which is a broader conundrum facing this legislature and which we seem unable to confront. The Commonwealth has no settled definition of what is meant by good faith and actions taken therein.

I think I will end by doing two things. I will foreshadow that we will move a number of amendments in the committee stage of the legislation that deal with the various human rights definitions and other issues outlined in the bill, as well as giving the Senate the opportunity to split the legislation so that we might consider the superannuation element separately from the other questions contained within the legislation. But I will end with the ever caustic and incredibly intellectually compelling words of Professor Anne Twomey in relation to the central contention of the bill, which is that it is needed—that the bill is needed to enable the fast call-out of reserve Defence Force personnel because of the unwieldiness of the Federal Executive Council. She said:

If the Commonwealth Government has not yet worked out a means of instantly contacting all members of the Federal Executive Council to inquire of their immediate availability for a meeting, then it is an indictment on its management. Getting a person to sit down and ring each of them in turn is, frankly, absurd. It is hardly an excuse for changing the legislation. Rather, it should be a reason for changing communication methods. In any case, to state the obvious, if the situation is so urgent that there is no time to go through the system to organise a meeting of the Federal Executive Council, the Minister could be legitimately satisfied that there are other—

(Time expired)

8:01 pm

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

I'm just going to make a short contribution on this bill because I know we have a lot of legislation to get through tonight. I indicate at the outset that Labor does support the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020. We recognise that it will improve processes that the government needs to undertake in order to call out reserves to assist in a natural disaster situation.

I want to begin by thanking the ADF personnel who assisted so greatly in the Black Summer bushfires last year and those who have done so in previous natural disasters as well. Last year during the fires I had the privilege of visiting the Richmond air base to the west of Sydney to thank Air Force personnel for the efforts that they were putting in. I was joined on that occasion by the deputy Labor leader and shadow defence minister, Richard Marles; and the local federal MP, Susan Templeman, the member for Macquarie. On the same day we also visited some Army reserves who were clearing trees that had fallen down across roadways through the Blue Mountains, so that life could in some ways get back to normal for those affected by the bushfires. We thanked the Air Force and Army personnel for their efforts. For some of those people, it was their job to do what they were doing there, but many others, especially the reserves, of course, had given up other jobs in order to come and help their fellow Australians. So all of our nation owes all of our ADF personnel a debt of gratitude for the work that they undertook as part of fighting the Black Summer bushfires.

As I said, Labor do support this legislation, but we shouldn't kid ourselves that this is going to prevent future bushfires or failures similar to those we saw from this Prime Minister and this government in last year's bushfires. It is well recognised right around the country, and, indeed, around the world, that this Prime Minister and this government comprehensively failed to prepare for last year's bushfires. They failed in their response to the bushfires and they have, in the course of this year, continued to fail in the recovery from these bushfires. So, as much as the government might like to say that improving the processes by which the reserves can be called out will make all the difference—and I have no doubt that it will assist in terms of fighting future bushfires—we shouldn't pretend that that is the only thing needed to keep Australians safe from the sorts of disasters that we saw last year.

We know very well that the Prime Minister failed to prepare. He failed to even have meetings with people who just wanted to warn him about what was coming and what should be done to avoid it, and he failed to take the various steps that were needed to make sure that Australians were kept safe—and we saw the consequences of those failures. Tragically, we're actually seeing that from this government again. You really would think that, after what happened last year, after what Australians went through last year with those bushfires, the government would have learned its lesson and would be taking every step possible to make sure that we avoid similar disasters and the loss of life, loss of property, loss of fauna and loss of species that we saw in last year's bushfires.

We know very well, from advice that has been given to this government by the Bureau of Meteorology repeatedly this year, that we face this year another terrible disaster situation—probably not so much in the form of bushfires, although there are serious bushfire risks in some parts of the country. We know that, due to La Nina weather conditions, the north of our country, particularly North Queensland, faces more cyclones, and more intense cyclones, that it normally does. Cyclones are to some extent a way of life in summers in northern Australia, whether it be North Queensland, the Northern Territory or Western Australia. But, when you have advice consistently coming from the Bureau of Meteorology, along with other scientific and weather experts, that this year is going to be worse, you really would think that you would do everything possible to keep Australians safe and minimise the damage that is coming our way. But that is not what this government is doing. Just as they did last year, they are ignoring the warnings and failing to take the steps that are needed to keep Australians safe.

I'll just give a couple of examples. Probably the best example is this government's failure to spend a single cent from the $4 billion Emergency Response Fund that it announced in last year's budget, 18 months ago. It set aside $4 billion for a disaster response and recovery fund that could be spent on repairing damage, on paying grants to people who suffered loss and, importantly, on projects and all sorts of prevention measures that would limit the damage from future disasters. Even though this government has had the funds available now for nearly a year, it has not spent a cent. Think of the number of cyclone shelters that could have been built over the last 12 months. Think of the number of evacuation centres for bushfire regions that could have been built. Think of the improvements to communications technology that could have been achieved if the government had just been prepared to spend anything from this fund, which the opposition voted with the government to create. Instead, whether it's due to penny pinching, negligence or a lack of care, this government has not spent anything from that fund, and consequently we don't have in place the preventive measures that could have been delivered.

If we do see those cyclones hit this year or if we do see bushfires hit in places like south-western Western Australia or western New South Wales, as is forecast, we will have to ask what could have been avoided if the government had just used those funds that were available. It's not as if the government needs to go and find new money. This money is in the budget. It was announced. It was provided for. But yet again the Prime Minister doesn't actually care once the announcement is made. He's got his headlines. He's got his photos with Army reservists and with fire chiefs and fire volunteers. He doesn't care about the delivery, and, as a result, Australians are yet again being put at risk by this Prime Minister.

The other example I'll give is this government's failure to implement the recommendation of its own bushfires royal commission to create a national aerial firefighting fleet. Again, last year we saw what happened when the government didn't take steps to make sure that we had the water-bombing aircraft that we needed to put out fires and prevent new fires starting. We saw what happened when the government had to scramble around and try and bring in planes from overseas to try to put out fires and found that those planes were unavailable because they were still needed in other countries. Now we have a recommendation from the government's own bushfires royal commission saying that we should create our own national sovereign aerial firefighting fleet. What does this government do? 'Noted'. It leaves it with the states, even though the royal commission has said that is not an adequate measure to make sure that we are well prepared for firefighting.

Of course, the elephant in the room is that this government continues to do nothing about climate change. Whatever anyone thinks about climate change, it is coming. You have every possible scientific expert, including the Bureau of Meteorology—

Senator Hanson interjecting

With respect, Senator Hanson, if I'm going to listen to anyone about climate change, I think I'll listen to the Bureau of Meteorology rather than you. Stick to what you know. We should not ignore the advice of the Bureau of Meteorology and the CSIRO, who actually know a few things about this. What they tell us consistently is that climate change is real, it is happening and it is going to lead to more natural disasters in the future. Senator Hanson, if you were really a senator for Queensland, you would actually care about that. You should care about the people in our state who are going to be facing more cyclones in the future, more floods in the future and more bushfires in the future. We should all take steps to fix that.

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Senator Watt, your comments need to come through the chair.

Photo of Murray WattMurray Watt (Queensland, Australian Labor Party, Shadow Minister for Northern Australia) Share this | | Hansard source

Thank you, Madam Acting Deputy President. In summary, what we need from the government is more than just announcements. We need more than a headline about the creation of a new emergency response fund. We need more than a photo op for aerial firefighting. We need more than false claims that this government is taking action on climate change. We need real action on all of these things to make sure that Australians are kept safe.

We commend the government on bringing this legislation forward. We will vote for it. We have secured amendments from the government, particularly to the explanatory memorandum, to address a number of the issues that the Greens and other civil society groups have raised and to make sure that these powers can't be abused in the future. We cannot kid ourselves into thinking that this is all that needs to be done. There are practical steps that this government could be taking right now, using funds that it has made available for this express purpose, to keep Australians safe. I can tell you that, if we see these cyclones hit and if we see more bushfires hit, we're going to be reeling out every single time that we warned the government that they could have done something about this. They've really got to get moving. We're running out of time. We're already seeing bushfires around the country, and cyclones are only weeks away. Time is running out. It's time to do more than make announcements. It's time to actually deliver.

8:11 pm

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I can't let go what Senator Watt just said. He blamed the government for the bushfires that have happened in this country. They have been happening for centuries. He should really have a good look at it. State governments and councils have not allowed for clearing and haven't looked after the fuel that's lying on the floor. You couldn't do anything about it.

Photo of Jordon Steele-JohnJordon Steele-John (WA, Australian Greens) Share this | | Hansard source

Madam Acting Deputy President, I have a point of order on relevance. This is not relevant to the legislation we're discussing at all.

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Senator Steele John, that's not a point of order.

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I think I'm very much in order because we're talking about defence personnel coming from other countries to help us fight bushfires in this country. That's what it's all about—the problems that we have in Australia. Senator Watt stood up and made accusations about this. He blamed the government. It is not the government's fault. If you have arsonists setting bushfires and if you have local and state governments not clearing the fuel from the floor, of course we're going to have bushfires. We always have. It's not just about climate change. We know that for a fact.

What's important to this Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 is the firefighters and the people who help us. Australia is a land of extremes. It seems that we are never far from a natural emergency, like the bushfires we experienced late last year into early this year. (Quorum formed)

For all the people who have come in, thank you very much. The Greens intend to call these constantly to shut down time. I suggest that, instead of sitting in your chambers, you sit here, because they intend to do this constantly to shut down time in this parliament so that you cannot deal with the legislation that is here before this parliament. This is how bloody pathetic they are.

Honourable senators interjecting

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Order! Senator Hanson, would you like to resume your speech?

Photo of Pauline HansonPauline Hanson (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

I will, gladly. The bushfire on Fraser Island is the latest such emergency that has hit this nation. It shows how quickly an emergency can escalate. It has now destroyed approximately 82,500 hectares of the national park, and about half the island has been burned.

I think it's important that the Australian people know what this legislation is doing. Their concern is about foreign police, foreign military and everyone coming to the country and not being held accountable. That, it's not. The bill introduces some streamlining to enable the faster activation of our Army reservists in times of emergency, including civil emergencies, as well as for disaster preparedness, recovery and response. For our ADF reservists, it provides clarity in regard to their call-out responsibilities and remuneration. It also ensures immunity from civil and criminal liability for ADF personnel, reservists, authorised Commonwealth employees and military personnel and police from other nations while they participate in dealing with an emergency or a recovery. While there has been some concern raised that visiting forces should not receive immunity from both civil and criminal liability, the Centre for Military Security and Law has assured these provisions are in line with those of various state and territory jurisdictions. The Law Council of Australia also noted the safeguard that the immunity only covered acts done in good faith in accordance with specific written direction from the Minister for Defence. The Foreign Affairs, Defence and Trade Legislation Committee recently expressed the view that foreign defence personal assisting during natural disasters should not have less protection than members of the ADF if they are called upon to respond in the same way. This seems fair enough.

As everyone knows, I am a patriotic Australian. I am a very strong opponent of any measures that place Australia's sovereignty and safety at risk. Our sovereignty must not be compromised. The immunity provided in this bill is clear in that it applies only to those who, in good-faith performance of their duties, provide assistance before, during and after an emergency and only if that assistance is directed by the minister or his or her delegated authority. The bill provides no immunity for any deliberate crime or misconduct, as has been a concern of some Australians. It provides protection only for incidents that occur while performing actual tasks in good faith linked to the disaster response and emergency support initiatives. The immunity being granted to defence personnel includes that they may damage private property in order to preserve life. For example, I understand that they may commandeer a truck or back-burn land in order to protect the greater good. In such situations, accidents happen. The immunity will give our ADF personnel and visiting forces the peace of mind to carry out the work needed to address the emergency. The ADF also noted the example where the task of personnel may lawfully include transporting evacuees from a bushfire zone. The bill would operate to protect individual ADF members, not the Commonwealth, from civil liability in the event an evacuee is injured while being transported. What is also clear is that if defence personnel or foreign forces act in bad faith in any way then they would lose their immunity immediately and would be subject to prosecution under Australian law.

The value of the work done by Australian Defence personnel, along with the input of the foreign forces in these emergency situations, can't be underestimated. In the fires last year and early this year, 3,094 homes, more than 1,000 other structures and 24 million hectares of bushland were destroyed across New South Wales, Victoria, Queensland, the ACT, Western Australia and South Australia, which shows how important it is to have humans ready for action when and where needed. About 6½ thousand full-time and more than 2½ thousand part-time ADF personnel were involved in the bushfire efforts, along with 450 personnel from overseas. In Queensland, we may well be calling on the help of such personnel again sooner rather than later. I understand the time frames and I've made my point clear because people have been concerned and ringing my office about this legislation. I made it clear that immunity only goes so far. They will not be covered for everything. It's in the line of duty of helping Australia through the emergencies, so I think is very important we do protect them in certain cases.

Going back to Senator Watt's comments here in the chamber regarding the lack of action from the Prime Minister in reflection of what happened last Christmas, we saw how distressing it was for people who lost their properties across many states. The fact is that we have to accept that—I stated this before—a lot of councils and states have not allowed for back-burning to happen. They have closed up national parks and have not allowed for the proper maintenance on these properties. They have even stopped people from cutting down bushland and trees close to their homes to protect their own home sites. This has been pure negligence from our councils, saying, 'You shouldn't touch bushes and shouldn't protect your own homes.' It's no good laying blame just on one person who was the Prime Minister at the time. This has gone on for a long time. I just feel that, under this legislation, it is important that we protect people coming from other countries to help us in times of disaster because we rely on them. That's what being friends and neighbours in this global world is—we help other countries through their disasters as well.

To blame it on climate change is a load of BS. Climate change has been happening for millions of years. The fact is we are actually now recording temperature changes. You hear in this chamber all the time the term 'on record'. The record is only the last 100 years, and they change that to suit their own agenda. The fact is that climate has been changing due to natural causes, not because of human emissions—that has not been proven. So when you talk about disasters in the nation, they will go on for centuries to come. If you listen to scientists, the earth is warming; glaciers are still growing, not shrinking. People must understand that we have to stop using all this as a political football and speak the truth, because it is concerning people. I hear it all the time from the Greens, with no evidence. They won't debate Malcolm Roberts. They won't put the true science up. It's alright to scaremonger; that happens all the time. This is the house of review on legislation. This is where the truth must be exposed. It's not about scaremongering; it is about telling the truth. If you can't debate and you don't know what the hell you're talking about, don't scaremonger in this country any longer and put fear into people.

8:23 pm

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

I'd like to put forward a simple proposition to Australians when they think about our armed forces. We call them defence forces, and the word 'defence' comes to mind. Would you prefer to have your serving personnel in your armed forces geared to going on foreign adventures and fighting foreign wars—as we have essentially done for the last 15 to 20 years very closely joined at the hip to the United States, our allies in the ANZUS treaty, including in the longest-running conflict in our nation's history in Afghanistan, and we've obviously seen some of the complications that have arisen from that in recent times—or would you prefer to have your personnel geared up to help fight the biggest threat to our national security?

Photo of Jim MolanJim Molan (NSW, Liberal Party) Share this | | Hansard source

It's either/or, is it?

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Senator Molan—interjections.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

I'm happy to take that interjection from Senator Molan. It's absolutely not a case of either/or; it's a case of where you prioritise the future role for the ADF. Senator Molan is a climate denier. He's of the same ilk as Senator Pauline Hanson and Senator Malcolm Roberts. He's a climate denier, yet he's in government, which, of course, makes him a lot more dangerous. I think he would dispute that proposition—

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Senator Whish-Wilson, resume your seat. Senator Molan?

Photo of Jim MolanJim Molan (NSW, Liberal Party) Share this | | Hansard source

I deny what the senator said. I do not deny climate change.

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Are you taking a point of order, Senator Molan? Senator Roberts?

Photo of Malcolm RobertsMalcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

May I take a point of order?

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

What's your point of order?

Photo of Malcolm RobertsMalcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

That I've been falsely labelled a climate denier; I do not deny climate.

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

That is not a point of order, Senator Roberts. Senator Roberts?

Photo of Malcolm RobertsMalcolm Roberts (Queensland, Pauline Hanson's One Nation Party) Share this | | Hansard source

He mislabelled me.

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

It's still not a point of order. Senator Whish-Wilson.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

Very spurious points of orders, I may add. It was worth a try—

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

A bit like some of the quorum calls.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

I've clearly touched a raw nerve with these senators tonight, which is always an interesting proposition. Obviously what concerns Senator Molan—through you, Acting Deputy President—is that climate change is the biggest threat to our national security. If you think about threats to livelihoods, threats to property, threats to our economy and threats to our communities—what bigger threat is there than our changing climate, our warming planet and our extreme weather events, be they the horrendous bushfires we've seen that are driven by this climate emergency, be they torrential floods, be they cyclones or be they the loss of our critical habitat, like on the Great Barrier Reef or in the giant kelp forests that the commercial fishing industry and communities in my home state of Tasmania are reliant on? That's the biggest threat to our national security. Don't just take my word for it; there are plenty of people and experts out there saying the same thing. I know you won't take my word for it, Senator Molan; I understand that. I don't think you'd take any scientists' word on climate change at its face value either, because you are a climate denier, Senator Molan, regardless of what you say. Perhaps a climate sceptic may be a more politically correct term to you.

Photo of Catryna BilykCatryna Bilyk (Tasmania, Australian Labor Party) Share this | | Hansard source

Through the chair.

Photo of Peter Whish-WilsonPeter Whish-Wilson (Tasmania, Australian Greens) Share this | | Hansard source

Through you, Acting Deputy President—a climate sceptic, a climate denier and a denier of science. I thought previous Liberal Prime Minister Malcolm Turnbull actually delivered a fantastic rebuttal to The Australian on Q&A a few weeks ago. He said: 'If you deny climate, it's like denying physics. Did you fly here in an aeroplane? Do you understand physics?' We're talking about the same fundamental concepts, yet these people have turned climate into a matter of identity, as Mr Turnbull so rightly pointed out. They've turned it into a matter of ideology and identity, but it's actually about physics and science. It really is appalling that in this day and age we're having these political debates when the community and the rest of the world is moving on and recognising the fact that our planet is warming and that that is having an impact on us and putting us at risk.

To get back to the debate, climate change, global warming, is the biggest threat to our national security. I personally believe that the defence forces have a huge role to play in this country and in our region, whether it's providing aid, assistance or expertise on so many different levels. Going back three or four years, I initiated a Senate inquiry. The Greens didn't chair it, but we sat in on it through Defence, Foreign Affairs and Trade, and we actually looked at this. We looked at the preparedness of the Australian Defence Force for climate change and for a climate emergency. We took evidence from experts all around the country, who talked about the threat climate change poses. At a minimum, you got out of these people—and some of these people Senator Molan would know very well—that they all recognised climate change as a threat multiplier. Some went a lot further than that and were prepared to say it actually is the biggest threat to our national security. So I support a more active use of the defence forces, and I've got to say, like a lot of Australians I felt very proud seeing our Navy evacuating Australians off beaches in January this year. While I was down the coast at Bicheno, we had ash falling on our heads as we were walking along the beach on New Year's Day. We were also worried about fires on the east coast of Tasmania, and everybody was glued to what was going on just here on the South Coast of New South Wales, and all up and down the coast in the months preceding. The fact that we had to use our armed forces to evacuate Australian civilians off beaches was quite extraordinary. I recognise the role the armed forces have played over the climate emergency we've seen this summer, and it will only get worse. It is not going to get better. If the Bureau of Meteorology is telling us that under current business-as-usual scenarios we are on a three to four degree warming trajectory by the end of this century, we're in really serious strife. Sadly, Senator Molan, you and I probably won't be around when the worst effects of this are being felt by our children and our grandchildren, but we're going to leave them that legacy.

The Greens support a much more active role for the Australian defence forces in terms of realigning their training, their capabilities, their procurement and a whole range of things, like potentially looking at remote area firefighting like we see with the New Zealand defence forces. We want to see the Australian government, as we debated in here last week, buy our own water bomber fleet. I did dare suggest that perhaps the Air Force, seeing as we've got very good pilots, might consider flying those aircraft as well if we were going to buy them, but it could just as easily be given to state emergency services. But either way, I think this is a discussion we should be having at a national level. We call our defence forces 'defence' forces for a reason, but it seems that they are 'offence' forces. They spend all their time—and all their procurement is based around—fighting in foreign theatres of war, endless wars, for what strategic political objective I don't know, when we clearly have a clear and present danger here in Australia and in our region, and a need to employ our service personnel to protect Australians and to protect our region.

Saying that, we've got to be extremely careful that we get the balance right in how we legislate that and what kinds of powers we give the government to call out our defence forces. As has been outlined here tonight by my colleague Senator Steele-John, who's participated in this inquiry and has raised a number of significant issues that the Greens want to see amended, if we don't get that balance right then we risk unintended consequences in the future. And we certainly risk undermining public confidence in the rollout of our defence forces in the future.

I wanted to put that on the table. I think this is a really important discussion. I commend the government for their increased rollout of the defence forces over summer. I was very proud of what they achieved, Senator Reynolds. However, we don't believe you've got the balance right here. But this is a conversation we need to continue to have. We're going into committee stage, so we will talk in more detail on our amendments then.

8:34 pm

Photo of Linda ReynoldsLinda Reynolds (WA, Liberal Party, Minister for Defence) Share this | | Hansard source

I would like to very sincerely thank all senators who've contributed to the debate on this important bill, the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020, both here in the chamber this evening and during the committee phase. I commend this bill to the chamber and I seek leave to have my comments incorporated in the Hansard.

Leave granted.

The document read as follows—

I would like to thank all Senators who contributed to the debate on this important Bill.

Substance of Bill

This Bill makes changes to Defence legislation that will enhance the Commonwealth's ability to prepare for, and respond to, natural disasters and emergencies of national scale.

Schedule 1 amends the Defence Act 1903 to streamline the process by which advice is provided to the Governor-General regarding a call out of the Reserves, including for the purposes of responding to natural disasters or emergencies.

Streamlining this process allows the Minister for Defence, after consultation with the Prime Minister, to advise the Governor-General on the need for a call out of the Reserves, in all circumstances and not just for reasons of urgency.

The changes provide the Chief of the Defence Force the ability to determine the nature and period of Reserve service provided under a Reserve call out order.

This will deliver the ADF the flexibility required to integrate the Reservist effort in a manner that best supports the broader Defence response and individual members' circumstances.

These changes will improve consistency in the treatment of Reserve members who are providing assistance during a disaster or emergency, regardless of whether they have volunteered their service or have been called out to serve.

The changes will also enable more flexible service options for Reservists while allowing alignment with the nature and requirements of a specific Reserve call out order.

Schedule 2 will amend the Defence Act 1903 to provide immunities to those Defence personnel supporting disaster preparedness, recovery and response efforts.

The immunity will apply where the Minister is satisfied that:

a. the nature or scale of the natural disaster or other emergency warrants the provision of ADF capabilities and makes it necessary, for the benefit of the nation, for the Commonwealth, through use of the ADF's special capabilities or available resources, to provide the assistance; and/or

b. the assistance is necessary for the protection of Commonwealth agencies, Commonwealth personnel or Commonwealth property.

This will see our Defence personnel being provided with immunity from civil and criminal liability when they are performing their required emergency response duties in good faith, similar to immunities provided to state and territory emergency services personnel.

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.

These amendments will ensure Reserve members who provide continuous full time service under a Reserve call out order will receive commensurate superannuation and related benefits to those Reservists who provide the same service on a voluntary basis.

This Bill originates from Defence's experience in providing assistance to the civil community in response to natural disasters from Operation BUSHFIRE ASSIST 2019-2020.

The Bill accords with the recommendations of the Royal Commission into National Natural Disaster Arrangements.


The primary responsibility to respond to natural disasters and other emergencies rests with the States and Territories.

Disaster relief is not the ADF's primary role – the ADF is not an auxiliary emergency service.

However, the ADF has for many decades provided assistance to State and Territory authorities in their response to major natural disasters.

Operation BUSHFIRE ASSIST 2019-2020 was the Australian Defence Force's most significant civil assistance operation in our history.

Over 8,000 ADF personnel served on Operation BUSHFIRE ASSIST 2019-20.

At its peak, 6,500 ADF members provided support as part of emergency relief, response and recovery operations. This included 3,000 Reserve members.

In addition, eight nations provided direct assistance to the ADF.

This included members of the:

                  On behalf of all Australians, I thank those friends and the military personnel who provided support in our nation's time of need.

                  At the conclusion of Operation BUSHFIRE ASSIST, Defence's capabilities were called on to assist the Australian community.

                  To date, over 9,000 personnel have been deployed on Operation COVID-19 ASSIST, with over 3,500 personnel deployed at its peak.

                  On behalf of the Australian people, I extend my thanks to the men and women of Defence and our friends from other nations who helped Australians in our times of need.

                  Lessons learned

                  Defence reviewed the lessons from the 2019-2020 bushfires and set about putting in place the necessary improvements.

                  These include:

                      Royal Commission Recommendations

                      This Bill also implements recommendation 7.3 of the Royal Commission into National Natural Disaster Arrangements.

                      The Royal Commission recommended that the Government afford appropriate legal protections from civil and criminal liability to ADF members when undertaking activities under an authorisation to prepare for, respond to, and recover from natural disasters.

                      Defence has undertaken non-legislative activities to address the remaining recommendations.

                      Senate Committee Inquiry

                      The Senate Foreign Affairs, Defence and Trade Legislation Committee has conducted an inquiry into this Bill.

                      The Committee recommended that the Bill be passed without delay, with amendments to the Explanatory Memorandum to clarify the intention and operation of the Bill.

                      These amendments:

                      a. Clarify that the Bill does not alter, expand or otherwise change the Government's existing legal authorities to deploy the ADF;

                      b. Clarify that the operative provisions of the Bill, including the proposed immunities, relate to Defence Assistance to the Civil Community tasks and do not authorise the use of force (beyond self-defence);

                      c. Provides examples of 'other emergencies' referred to in the immunity provision; and

                      d. Clarifies that the requirement for a direction from the Minister is intended to provide a check on the proposed immunity and does not grant a new authority to the Minister to direct the deployment of Defence personnel.

                      I thank the members of the Committee for their comprehensive and diligent work in its inquiry into the Bill.

                      The Government accepts the Committee's recommendation in full.

                      The Explanatory Memorandum has been amended to clarify the intention and operation of the Bill in line with the Committee's recommendations.


                      The amendments in this Bill make three important, practical and fair changes:

                      1. provide greater flexibility in implementing a call out of the Reserves,

                      2. enable greater consistency in the treatment of our Reserves

                      3. and ensure that our Defence personnel have appropriate legal protections when serving our nation in good faith.

                      I commend this Bill to the Senate.

                      Question agreed to.

                      Bill read a second time.