THE DEFENCE ACT 1903 (CTH): A GUIDE FOR RESPONDING TO AUSTRALIA'S LARGE-SCALE DOMESTIC EMERGENCIES.

• Date: 01 April 2022
• Author: Lippis, Zoe
• Published date: 01 April 2022
• Author: Lippis, Zoe

I Introduction II The Role of the ADF in Domestic Disaster Relief A The Australian 2019-20 Bushfire Season 1 Operation Bushfire Assist 2019-20 2 Royal Commission into National Natural Disaster Arrangements B The COVID-19 Pandemic 1 Operation COVID-19 Assist 2 Select Committee on COVID-19 III Defence Assistance to the Civil Community Framework A Legal Basis for DACC B The DACC Manual C The Transitioning Role of the ADF in the Domestic Disaster Era IV The Defence Act 1903 (Cth) pt IIIAAA A Section 119 of the Constitution B The Defence Power C The Defence Act 1903 (Cth) pt IIIAAA V Recommendations A Support Request and Delivery Models 1 Comparable pt IIIAAA Provisions 2 Recommendations B Multi-Jurisdictional and Trans-Boundary Operations 1 Comparable pt IIIAAA Provisions 2 Recommendations C Proper Purpose and Duty-to-Cooperate Requirements 1 Comparable pt IIIAAA Provisions 2 Recommendations D Accountability, Protections and Immunities 1 Comparable pt IIIAAA Provisions 2 Recommendations E Division of General and Specific Powers 1 Comparable pt IIIAAA Provisions 2 Recommendations VI Conclusion I INTRODUCTION

Encapsulating the tension between the civil-military divide, (1) the domestic utilisation of the Australian Defence Force ('ADF') has been a 'critical and controversial issue' since Federation. (2) With increased calls for the domestic deployment of the ADF, as a result of regional instability, terrorism, and natural disasters, debate has been reignited regarding the use of the military for purposes outside their traditional external defence role. (3) The catastrophic bushfire season of summer 2019-20 reinstated the domestic utilisation of the ADF on the national political agenda. (4) As the Morrison government unilaterally mobilised the military to provide support to civilian agencies, (5) scrutiny of the military's internal role intensified. Furthermore, the arrival of the COVID-19 pandemic on Australian shores in January 2020 (6) prompted additional questions surrounding the ADF's domestic role. For the second time in 2020, ADF members were deployed across Australia, this time to assist civilian agencies as they battled an insurmountable global public health emergency. (7)

Drawing upon these case studies, this article will examine the impact of legislation upon the increased domestic deployment of the ADF. Leveraging upon comparable provisions from an analogous statutory regime, namely pt IIIAAA of the Defence Act 1903 (Cth) ('Defence Act'), (8) it will consider how existing legislative provisions provide guidance for the development of a statutory framework to govern future internal deployment of the ADF during large-scale domestic emergencies.

The article will commence by examining, in Part II, the ADF's recent role in response to domestic crises, most particularly the Australian 2019-20 bushfire season and the COVID-19 pandemic. It will proceed in Part III to consider the existing legal basis for the domestic deployment of the military for disaster relief activities, including the Defence Assistance to the Civil Community ('DACC') policy framework. Following an analysis of the benefits of a legislative regime to govern ADF domestic operations, the article will examine in Part IV how pt IIIAAA of the Defence Act can provide guidance for the creation of a comparable Commonwealth legal framework for the domestic deployment of the ADF during large-scale disaster relief activities. The final section of the article, Part V, will recommend legislative provisions for inclusion within a new statutory regime, based upon an analysis of analogous provisions within pt IIIAAA. It will propose that while the DACC policy regime has served Australia well to date, the anticipated increase in requests for ADF domestic assistance warrants serious consideration as to whether a legislative framework is required to underpin such operations in the future. The article will conclude by proposing that existing provisions of the Defence Act provide significant guidance for the development of a Commonwealth statutory regime to govern future ADF assistance during large-scale domestic emergencies.

II THE ROLE OF THE ADF IN DOMESTIC DISASTER RELIEF

The role of the ADF in domestic disaster relief has remained largely uncontroversial to date, with the Commonwealth and the states and territories deriving mutual benefit from the provision of military aid during times of national emergencies. (9) With the ADF demonstrating their ability to provide assistance during Australia's time of need, it is unsurprising that the ADF has become the Commonwealth government's go-to agency to assist states and territories in resolving domestic disasters. (10) As will be explored below, it is anticipated that requests for ADF assistance in responding to domestic disasters will continue to increase in the coming decades, with the frequency, intensity and severity of national disasters expected to rise. (11) This predicted tempo change for domestic operations presents an opportune time to assess whether amendments should be made to strengthen the current DACC regime.

Currently, the legal basis for DACC operations is primarily derived from the Commonwealth's executive power and articulated in Commonwealth government internal policy. (12) In the absence of an overarching legislative framework, ADF members completing DACC activities must comply with both Commonwealth law and the jurisdictional laws of the individual states and territories where they are operating. (13) The ensuing legal lacuna attracts a multitude of complexities. (14) Furthermore, ADF members assisting emergency services during domestic disaster relief activities do not have powers beyond those of a normal citizen (15) and consequently lack the privileges and immunities of their state and territory emergency service counterparts. (16) With this in mind, the time has come to consider how the current DACC policy framework can be improved in light of the anticipated increase in domestic utilisation of the ADF, including the development of an explicit legislative framework to underpin such operations. Several recent case studies demonstrate the rationale behind translating current DACC policy into a statutory regime.

A The Australian 2019-20 Bushfire Season

The Australian 2019-20 bushfire season menaced the nation with widespread damage and destruction, presenting a formidable and unrelenting challenge for the highly skilled and experienced state and territory emergency service agencies on the ground. (17) Referred to colloquially as the Black Summer bushfires, the catastrophic event marked the arrival of a new era in Australia's security policy. Outside of more traditional domestic threats, the bushfires demonstrated that large-scale natural disasters, including droughts, floods, cyclones, bushfires, and other severe weather events, present a new challenge for the protection of Australia's national interests. (18)

While it has traditionally been the role of the states and territories to respond to emergencies within their jurisdictions, the devastating loss of life, property, and wildlife caused by the bushfires prompted a re-examination of the roles, responsibilities and powers of the Commonwealth on the one hand, and the states and territories on the other, in responding to large-scale disaster events. (19) The intensity and severity of the Black Summer bushfires demonstrated the need for the states and territories to consider supplementary assistance from the Commonwealth, most particularly through the domestic deployment of the ADF. (20)

1 Operation Bushfire Assist 2019-20

Representing the 'largest mobilisation of the ADF for domestic disaster relief in Australia's history', (21) Operation Bushfire Assist involved the deployment of more than 8,000 ADF personnel in support of emergency relief, response, and recovery activities arising from the Black Summer bushfires. (22) Commencing on 31 December 2019, (23) the operation augmented existing local support activities and signified the most substantial, deliberate, and formalised internal deployment of the ADF since Federation. (24) Labelled by Prime Minister Morrison as a change in Commonwealth force posture from 'respond to request' to 'move forward and integrate', (25) the operation unified Navy, Army and Air Force resources, utilising 'boots on the ground ... planes in the sky ... [and] ships at sea'. (26) Drawn from multiple force elements, (27) ADF members were deployed throughout Australia to provide state- and territory-based emergency services with planning, engineering, medical, reconnaissance and logistic support. (28) Military assistance was also provided by several partner nations. (29)

The ADF can provide domestic support to the states and territories through several different frameworks, including the DACC and Defence Force Aid to the Civil Authority ('DFACA'). (30) As will be considered in greater detail below, (31) the overarching framework for ADF assistance during Operation Bushfire Assist was the DACC policy framework. This framework provides mechanisms for the ADF to assist state and territory governments when their own resources are insufficient or overwhelmed. (32) The DACC policy construct has worked successfully for several decades, enabling local military commanders to flexibly deploy their troops and assets during emergencies within their region. The utilisation of the DACC framework during Operation Bushfire Assist was unique for several reasons.

First, the Commonwealth had previously only provided ADF DACC assistance to the states and territories when responding to a request from a particular jurisdiction. (33) The Black Summer bushfires demonstrated a marked departure from this previous convention. The Commonwealth government informed affected states and territories of their intention to deploy the ADF but did not await a formal request for assistance before doing so. (34) As identified by Prime...