On 8 December the Parliament passed the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020. The Bill will now go to the Governor-General for royal assent and will then become law. I expect that will happen any day now.

The significant section of the Bill is the new section 123AA to be inserted into the Defence Act 1903 (Cth).  The new section will say

(1) A protected person (see subsection (3)) is not subject to any liability (whether civil or criminal) in respect of anything the protected person does or omits to do, in good faith, in the performance or purported performance of the protected person’s duties, if:

(a) the duties are in respect of the provision of assistance, by or on behalf of the ADF or the Department, to:

(i) the Commonwealth or a State or Territory, or a Commonwealth, State or Territory authority or agency; or

(ii) members of the community; and

(b) the assistance is provided to prepare for a natural disaster or other emergency that is imminent, or to respond to one that is occurring or recover from one that occurred recently; and

(c) the assistance is provided at the direction of the Minister under subsection (2).

(2) The Minister may, in writing, direct the provision of assistance in relation to a natural disaster or other emergency if the Minister is satisfied of either or both of the following:

(a) the nature or scale of the natural disaster or other emergency makes it necessary, for the benefit of the nation, for the Commonwealth, through use of the ADF’s or Department’s special capabilities or available resources, to provide the assistance;

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

(3) Each of the following is a protected person:

(a) a member of the Defence Force;

(b) an APS employee in the Department;

(c) a person authorised under subsection (4) to perform duties in respect of the provision of assistance mentioned in subsection (1).

(4) The Chief of the Defence Force, or the Secretary, may, in writing, authorise a person, or each person in a class of persons, to perform duties in respect of the provision of assistance mentioned in subsection (1), if the person, or each person in the class of persons, is any of the following:

(a) an APS employee or other employee of the Commonwealth or a Commonwealth authority or agency;

(b) a member of the naval, military or air force of a foreign 7 country, or a member of a foreign police force (however 8 described)…

As an indemnity clause it is not much different from the clauses found in emergency management legislation in each of the states and territories. The extension to both criminal and civil liability is not usual but is not unheard of. 

Recommendation 7.3 of the Royal Commission into National Natural Disasters Arrangements was:

The Australian Government should afford appropriate legal protections from civil and criminal liability to Australian Defence Force members when conducting activities under an authorisation to prepare for, respond to and recover from natural disasters.

This Bill is clearly intended to give effect to that recommendation and as a response to that recommendation it is unobjectionable; but there are clauses of the Bill that may cause concern.

In a Replacement Explanatory Memorandum filed with the Bill, the Government says (at [3]):

The Bill does not extend or otherwise change the Government’s existing legal authority to deploy the ADF under the executive power to provide assistance during natural disasters or other emergencies, including ADF Reserves. The Bill also does not extend or otherwise change the powers available to the ADF, including ADF Reserves, when providing assistance. The Bill does not authorise the use of force or other coercive powers. ADF members providing assistance in accordance with the DACC policy are not permitted to use force, beyond what is available to any other member of the community (such as in self-defence).

And at [26]

The immunity provision does not extend or otherwise change the authority for the Government to deploy the ADF (including ADF Reserves) in relation to a natural disaster or other emergency, and does not extend or otherwise change the powers available to ADF members and others when providing assistance. The immunity provision does not authorise the use of force or coercive powers.

With respect that conclusion is not clear. Section 123AA(2) provides that the Minister may, in writing, direct the provision of assistance in relation to a natural disaster or other emergency if the Minister is satisfied that the provision of that assistance is ‘necessary, for the benefit of the nation’. If the Minister thinks it is in the national interest she or he can make that order and the members of the defence force can act with legal impunity. That means they could act in breach of state emergency management legislation that for example requires a person to place themselves under the control of the incident controller or to not enter or leave an emergency area. It would allow the use of force as there is no civil or criminal liability for that use of force. In the case of the COVID-19 quarantine these provisions would exempt members of the ADF from criminal and civil liability in the use of force to enforce quarantine orders – a privilege they do not currently enjoy (see Using the ADF to maintain quarantine (July 2, 2020)).

In a  Digest prepared by the Parliamentary Library to assist the Parliamentarians in their deliberations, the authors of that digest say (p. 4):

The manner in which the proposed amendments are drafted raises the question whether the Bill, as well as providing certain immunities, provides the Minister with a statutory power to direct use of the ADF and other Defence resources in certain ‘natural disasters and other emergencies’… It is possible that these provisions expand the existing executive power. For the purpose of issuing a direction, the nature of ‘other emergencies’ is not defined. There is no requirement for the Minister to consult with any affected state or territory before issuing a direction, or for a state or territory to requisition that assistance. There is no requirement for the ministerial direction to be published. A ministerial direction is not subject to any prescribed time limit.

The removal of criminal liability for actions taken in good faith performance of duty while providing certain assistance is likely to have the practical effect of expanding the circumstances in which the ADF can use force when deployed within Australia.

And at pp. 18-20:

The written direction of the Minister in proposed subsection 123AA(2) does not appear on its face to be limited to the purpose of providing an immunity. The provision does not merely declare that certain personnel are carrying out duties to provide certain assistance; it appears to direct certain personnel to provide certain assistance. It is therefore possible it could have the larger effect of a statutory authorisation to deploy the ADF and other Department of Defence resources in a broad range of emergencies. If that is correct, the title of Schedule 2—Immunity, and proposed section 123AA—Immunity in relation to certain assistance, do not appear to accurately reflect the full content of the provisions since they do not refer to the apparently broad power given to the Minister to direct that assistance be provided in certain emergencies.

However, an argument can be made that the ordinary meaning of proposed subsection 123AA(2) is limited by the context in which it appears. This argument might conclude that instead of granting a broad power to the Minister to direct that assistance be provided in certain emergencies, the scope of that power is limited by the context so that the only purpose of a direction made under proposed subsection 123AA(2) is to enliven the immunity provision in proposed subsection 123AA(1).

Statutory interpretation is a technical area of law and reasonable legal minds may differ on the interpretation a court is likely to apply. The High Court has been clear that the starting point for ascertaining the meaning of a statutory provision is the text of the provision considered in light of its context and purpose…

A subsection must be understood in the context of the provision as a whole and of the statute as a whole, however the clearer the natural meaning of the words used, the more difficult a court will find it to depart from that ordinary meaning in interpreting and applying the provision.

Paragraph 15AB(2)(e) of the Acts Interpretation Act 1901 permits a court to refer to the Explanatory Memorandum when considering the meaning of a provision. In this case the general introduction to Schedule 2 in the Explanatory Memorandum mentions only the immunity and does not address the direction of the Minister:

This Schedule inserts a new provision in the Act to give ADF members, other defence personnel and foreign armed forces immunity from civil and criminal suit in relation to actions done in good faith performance of their duties, where the duties are in relation to certain assistance provided in the context of a natural disaster or other emergency.

In relation to proposed subsection 123AA, the Explanatory Memorandum states:

The immunity provision is enlivened by a direction from the Minister that the ADF or the Department is to provide such assistance, and in circumstances where the relevant duties are being performed in relation to that assistance.


New subsection 123AA(2) provides for the Minister to direct, in writing, the provision of assistance in relation to a natural disaster or emergency. Without a direction under this subsection, the immunity does not apply. The Minister may make a direction in one or both of two circumstances…

Both explanations make clear that the Minister’s direction is an essential trigger for the operation of the immunity; however, both stop short of identifying the activation of the immunity provision as the sole purpose of proposed subsection 123AA(2); they leave room for ambiguity in understanding the purpose and operation of the Minister’s direction.

It is possible, perhaps even likely, that a court would ‘read down’ the power to give a direction under proposed subsection 123AA(2) so that it has effect only in terms of granting immunity, rather than authorising the provision of certain assistance. That conclusion is not, however, beyond doubt.

Where the ordinary meaning of the words in a provision may differ from its intended effect, Parliament has the opportunity to adjust the drafting so that the intended meaning is clear. There is no special legal necessity for a direction by the Minister to underpin the statutory grant of immunity in proposed subsection 123AA(1). It is a drafting device chosen to assist in defining when the immunity would apply. The circumstances in which an immunity would apply could alternatively be defined directly or by a different drafting device. If adjusting the drafting is difficult, a good alternative might be to amend the Explanatory Memorandum to make the intention of Parliament clear.

One can infer that the Parliament took on board the author’s recommendations as paragraphs [3] and [26] in the Replacement Explanatory Memorandum do not appear in the original Explanatory Memorandum that was the subject of the commentary in the Digest.  Even so the conclusion that the words in s 123AA(2) will not be given their natural and ordinary meaning, that is The Minister may direct the provision of assistance in relation to a natural disaster or other emergency if he or she is satisfied that the criteria in s 123AA(2)(a) and/or (b) are met is not certain. There are no words of limitation in s 123AA(2), the only criteria are set out in (a) and (b) and without reference to any pre-statutory authority that may be found in the ill-defined executive power of the Commonwealth.

If that is correct, and it is at least ambiguous, it may invite the Commonwealth to send in the ADF without request and without any compulsion to comply with state and territory emergency management arrangements where the Minister sees that such action is in the interest of the nation – or perhaps the national government.