Call out order

The big news is the decision of the government to ‘call out’ the Australian Defence Force reserves as part of the response to the current fire emergencies.  A photo of the Governor-Generals order is above (though it is too small to read; sorry).  The text of the order says:

COMMONWEALTH OF AUSTRALIA

Defence Act 1903

Order to Call Out the Australian Defence Force Reserves

I, General the Honourable David Hurley AC DSC (Retd), Governor-General of the Commonwealth of Australia, acting with the advice of the Minister for Defence under subsection 28(4)(b) of the Defence Act 1903, call out some of the Australian Defence Force Reserves, as specified in Schedule 1, under subsection 28(1) of the Defence Act 1903 for continuous full-time service, as specified by the Chief of Defence Force, to provide civil aid, humanitarian assistance, medical or civil emergency or disaster relief, from the date of this Order, until revoked.

Signed and sealed with the Great Seal of Australia on 4 January 2020.

Details of what it will mean are published on the Defence Reserves Support website.

Section 28 of the Defence Act 1903 (Cth) says (emphasis added):

(1)        The Governor‑General may, by call out order published in the Gazette, call out some or all of the Reserves for continuous full time service.

(2)        A call out order is not a legislative instrument.

Circumstances for call out order

(3)        However, a call out order may only be made in circumstances (whether within or outside Australia) involving one or more of the following:

(a)        war or warlike operations;

(b)       a time of defence emergency;

(c)        defence preparation;

(d)       peacekeeping or peace enforcement;

(e)        assistance to Commonwealth, State, Territory or foreign government authorities and agencies in matters involving Australia’s national security or affecting Australian defence interests;

(f)        support to community activities of national or international significance;

(g)        civil aid, humanitarian assistance, medical or civil emergency or disaster relief.

Advice to Governor-General

(4) In making or revoking a call out order, the Governor-General is to act with the advice of:

(a) the Executive Council; or

(b) if, after the Minister has consulted the Prime Minister, the Minister is satisfied that, for reasons of urgency, the Governor-General should act with the advice of the Minister alone–the Minister.

When call out order takes effect

(5) A call out order takes effect on:

(a) the day specified in the order; or

(b) if no day is specified–the day on which the order is published in the Gazette.

When revocation takes effect

(6) A revocation of a call out order takes effect on:

(a) the day specified in the revocation; or

(b) if no day is specified–the day on which the revocation is published in the Gazette.

Effect of revocation

(7) To avoid doubt, if a call out order is revoked the call out under that order ends.

Further orders

(8) The making of a call out order in relation to particular circumstances does not prevent the making of further call out orders in relation to those circumstances.

Clearly this call out will be justified by reference to s 28(3)(g).

Neither the Constitution nor the Defence Act authorises the Commonwealth to take control of the emergency response or move ‘from responding to assistance requests from states to actively leading elements of the bushfire response (‘PM calls up reservists for firefighting effort’ Sydney Morning Herald (Online) 4 January 2020).

The Australian Constitution does provide, relevantly, that:

  • The Commonwealth can make laws with respect to ‘the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth’ (s 51(vi)); and
  • The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence (s 119).

Clearly this call out is not protecting the states against invasion or domestic violence, nor is it required ‘to execute and maintain the laws of the Commonwealth’.

There are provisions to call out the defence force to meet those constitutional responsibilities.  The notes provided as part of the ‘simplified outline’ to Part IIIA of the Defence Act say

There are 2 general kinds of call out orders: Commonwealth interests orders and State protection orders…

Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self‑governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor‑General makes a Commonwealth interests order.

A State or self‑governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.

Two significant publications – Michael Head “Calling Out the Troops – Disturbing Trends and Unanswered Questions” (2005) 28(2) UNSW Law Journal 479 and Cameron Moore Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force (ANU Press, Canberra, 2017) – do not address the use of the defence force in domestic civil emergencies rather they focus on the use of force by the ADF within Australia.

Discussion

The power to call up the reserves cannot expand the Commonwealth’s authority.  The reserves may be called out for full time service with the ADF but that does not expand what the ADF may be used for or when the Defence Force may be ‘called out’.  In effect the reserves can be called up to sit in their barracks.  There is not (and I would argue could not be a legitimate) call out of the Defence Force under Part IIIA of the Defence Act so the ADF itself must continue to operate as it has been, as a support to the civil community.

It therefore begs the question of what does the Prime Minister mean when he says the Commonwealth will be ‘actively leading elements of the bushfire response’?  The article in the Sydney Morning Herald cited above says HMAS Adelaide is to be ‘stationed off the coast along the NSW-Victorian border’ and that

The deployment will assist with any ongoing evacuations, particularly in isolated communities; offer support to evacuation centres, and assist in the recovery effort in fire-hit towns, including cutting containment lines into bushland around live fire grounds.

That sounds like pre-deployment in order to be able to meet requests for Defence Aid to the Civil Community (or DACC).  As noted elsewhere, the defence force does provide assistance to the states (see Paying for Commonwealth assistance (January 4, 2020) and The Australian Defence Force – Defence Aid to the Civil Community (DACC) and Defence Force Aid to the Civil Authorities (DFACA) (October 21, 2013)) but that assistance does depend on a request.  The reservists having been called to full time duty mean there is a significant resource that may be called upon, but it does not expand the Commonwealth’s authority.

For the Commonwealth to deploy the ADF reserves into states to act without a request from the affected state it would have to argue that the response was necessary to protect a Commonwealth interest.  I have argued elsewhere that these disasters do not yet constitute a national emergency that would justify unilateral Commonwealth action (see What is a ‘national emergency’? (December 25, 2019)).

An alternative is that the Commonwealth could just start doing things – eg arrange to drive a bus into a town and offer to take out anyone who wants to go, without reference to the states or the incident management team. In effect the Commonwealth might put itself in the position of a spontaneous volunteer trying to meet a need as it perceives it; with all the complexity that spontaneous volunteers’ cause emergency managers.

Perhaps the Commonwealth will seek to ‘actively [lead] elements of the bushfire response’ by virtue of Catch-22.  In the famous book by Joseph Heller (Catch 22 (Vintage Books, London, 2011), p. 467) Catch-22 is described by a woman recounting an act of violence by soldiers:

… ‘Catch-22 says they have a right to do anything we can’t stop them from doing.’

What the hell are you talking about?’ Yossarian shouted at her in bewildered, furious protest. ‘How did you know it was Catch-22? Who the hell told you it was Catch-22?’

‘The soldiers with the hard white hats and clubs. The girls were crying. “Did we do anything wrong?” they said. The men said no and pushed them away out the door with the ends of their clubs. “Then why are you chasing us out?” the girls said. “Catch 22,” the men said. All they kept saying was “Catch-22, Catch-22.” What does it mean, Catch 22? What is Catch-22?’

‘Didn’t they show it to you?’ Yossarian demanded, stamping about in anger and distress. ‘Didn’t you even make them read it?’

‘They don’t have to show us Catch-22,’ the old woman answered. ‘The law says they don’t have to.’

‘What law says they don’t have to?’

‘Catch-22.’

If the Commonwealth behaves as if it has power to be ‘actively leading elements of the bushfire response’, and others comply, then it has a defacto power.  And if the Commonwealth purports to act and no-one stops them, then they have the power to act – Catch-22.  (Noting that acquiescence or consent does not create a legal power or establish a precedent for the future, the Constitution cannot be changed by consent).

Conclusion

Calling up the reserves may be good politics but there has been no suggestion that the ADF has been unable to meet requests for DACC with permanent troops and reserves who have volunteered to serve so it is not clear why it is required. The reservists will form a significant and capable pool of people who can respond to requests, but they are not going to be in a position to step in and replace firefighters or take control from state agencies.  As the ADF itself says ‘The ADF is not trained, equipped or certified to undertake ground-based or aerial bush firefighting and does not get involved in the direct act of fighting bushfires outside Defence property’.

The current disaster is not ongoing because of a lack of resources or a lack of leadership. As RFS Deputy Commissioner Rob Rogers said, back on 7 December 2019 “We cannot stop these fires, they will just keep burning until conditions ease, and then we’ll try to do what we can to contain them” (‘Australia bushfires north of Sydney ‘too big to put out” BBC News (Online) 7 December 2019).    We have seen interstate resource sharing and extensive assistance from the Commonwealth. It is hoped that the entire response will continue to be managed in a cooperative way with control vested in the state agencies supported by the Commonwealth.  If the Commonwealth wants to get into a showdown with the states as to who is in charge it will put at risk years of experience in emergency management and the arrangements that have and continue to serve Australia well.

POSTSCRIPT

It is interesting to read (Latika Bourke, ”Disappointing’: RFS boss says he heard of defence deployment from media, not PM‘ Sydney Morning Herald (5 January 2020)) the day after the announcement, that:

NSW Rural Fire Service Commissioner Shane Fitzsimmons says Prime Minister Scott Morrison did not inform him he was deploying 3000 army reservists to help with the bushfire crisis and the timing of the announcement hampered the response effort on a catastrophic day.

Commissioner Fitzsimmons said it was “disappointing” to hear about the announcement via media reports amid a horror day for the state, adding it had tied up resources.

and

… Victorian Emergency Management Commissioner Andrew Crisp said on Sunday morning he was only made aware of the announcement “informally”.

“I picked up something informally, that we thought something was going to happen around reservists,” he told Today.

It does confirm that this announcement was, and it said it was, intended to show the Commonwealth doing something on its own initiative rather than doing something useful – Commonwealth as spontaneous volunteer.

As both Commissioners say their response arrangements have been well supported by the ADF so it is not at all clear what these announcements are meant to add to the response, other than a photo opportunity for the Prime Minister – see