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Questionable amended defence legislation should be opposed

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The Australian Defence Force was called upon to assist in the catastrophic bushfires earlier this year (Screenshot via YouTube)

A bill is before Federal Parliament to enable the Australian Defence Force, Reserves, foreign military forces and foreign police to be used in Australian emergencies.

It gives them immunity from civil or criminal prosecution for actions arising in the performance of these emergency duties. “Emergencies” are undefined. Could they include industrial actions or large scale protest actions?

There are very worrying implications in this bill, called the Defence Legislation Amendment (Enhancement of Defence Force response to Emergencies) Bill 2020, being considered in Federal Parliament.

The first worry is that the term “emergencies” is undefined, leaving open the possibility that Australian and foreign military forces could be called out in response to industrial disputes or public protests such as those connected with the climate emergency. However, to appreciate the full potential impact which this bill could have on our human and civil rights, we need to go back to the “father” of this legislation as this current bill extends the scope of that earlier legislation.

The Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 was passed in September 2000 by the Government of former Prime Minister John Howard supported by the Australian Labor Party. It amended the 1903 Defence Act and gave the Federal Government the power to call out the armed forces on domestic soil against perceived threats to ‘Commonwealth interests’, with or without the agreement of state governments.

Once deployed, military officers can order troops to open fire on civilians, as long as they determine that it is reasonably necessary to prevent death or injury. Under this amended Act, 2,000 solders now have greater powers in domestic situations than the police in some circumstances, including the right to shoot to kill someone escaping detention, search premises without warrants, detain people without formally arresting them, seal off areas and issue general orders to civilians.

This legislation gives three people the power to call out the troops: the Prime Minister, the Defence Minister and the Attorney General. All three together – or for reasons of urgency, one of these can be the authorising minister – can advise the Governor-General as Commander-in-Chief of the armed forces to call out the troops to deal with domestic violence which is occurring or is likely to occur. “Domestic violence”, of course, not meaning violence in a domestic home situation but civilian disturbance, terrorism, political or industrial unrest.

John Howard’s Government passed this legislation several days before the opening of the Sydney Olympic Games and the legislation was justified as a measure necessary to deal with possible terrorist acts during the Games. However, it was not retracted after the Games. No sunset clause was contained in the legislation and it remains in force today.

This new Defence Amendment Bill 2020 before Parliament adds to the powers and scope of the Defence Amendment Bill 2000.

Firstly, the new bill gives the Defence Minister alone the authority to call out the military, the only proviso being that he or she must consult with the Prime Minister. “Consult” being the operative word, because the Prime Minister’s actual approval is not required. The Governor-General gives the call-out order and the amended Act says that he or she is to act on the advice of the Minister.

The Independent and Peaceful Australia Network’s (IPAN) concern is that there is no reference to Parliament and no requirement for parliamentary debate and approval for the calling-out of the military. The Act makes no provision for the call-out to be subject to parliamentary review or scrutiny or for Parliament to terminate the call-out.

The second concern is that, again, the term “emergencies” is not defined.

However, clause 123AA(2) states that the Minister may, in writing, direct the provision of assistance in the event of a natural disaster or ‘other emergency’ if the Minister is satisfied that either or both of the following conditions apply:

(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...to provide assistance.


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

Again, authority rests with the Minister alone and there is no requirement for approval, review or scrutiny by Parliament.

In clause (1)(b) of paragraph 123AA, ‘assistance’ is described as that needed 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.

Bushfires, floods and earthquakes are emergencies that could well justify the use of the Defence Forces but because there is no definition of what constitutes an emergency, the amended bill could conceivably allow the military to be used against strikes, picket lines and mass protest actions. All of these are forms of political and social expression which are essential for the functioning of a truly democratic society.

This sort of ill-defined, dragnet-style legislation is reminiscent of that seen in police states and one could speculate that this bill may be part of preparations for a militarised response to social breakdown resulting from the climate crisis.

Another disturbing aspect of the legislation is the proposed use of foreign military and police forces in Australian emergencies. Surely, we Australians are, with appropriate resources and organisation, capable of addressing emergencies without the need for foreign troops or foreign police. We didn’t need them to address and cope with the COVID-19 pandemic which has been done more successfully than most countries in the world.

Furthermore, we certainly don’t want these foreign forces confronting and suppressing legitimate protest actions by Australian citizens. This proposed use of foreign military and police forces in Australian emergencies is especially disturbing given that we already have foreign forces on our soil, in the form of the U.S Marines stationed in Darwin. These U.S. Marines are not under the control of the Australian Government but take their orders from the United States Indo-Pacific Command which is stationed outside of Australia.

This is the case, generally, of foreign troops on our soil. Their first loyalty is to a foreign state and command structure and if stationed on our soil compromise our sovereignty, if not potentially our national security.

Another point of concern is that the bill gives the Defence Forces/Reserves, foreign forces and police immunity from civil and criminal prosecution for acts arising from deployment in their assistance role in natural disasters or other emergencies. In fact, this immunity may have the practical effect of expanding the circumstances in which the Australian Defence Force (ADF)/Reserves can use force when deployed within Australia.

Further, the immunity may encourage some members of the ADF/Reserves or foreign forces to deliberately act in a way which may distress, humiliate, or indeed even cause bodily harm to civilians; actions which should require the individuals concerned to face civil or criminal prosecution in the courts. This type of behaviour is rare but has occurred in overseas deployment and the provision of blanket immunity for their actions does not discourage such behaviour.

To the contrary, the bill says that this immunity operates when the Defence Forces and individuals act in ‘good faith’. That should be a matter which a court decides. The Defence Forces and individuals in the Defence Forces/Reserves must be responsible for their actions just as any other Australian citizen is required to be.

In the debate over the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000, former Senator Bob Brown drew attention to the then-current ‘Australian Army Manual of Land Warfare’ Section 543 which instructed military personnel to cover up the killing or wounding of dissidents.

The section stated:

Dead and wounded dissidents, if identifiable, must be immediately removed by the police... When being reported, dissidents and own casualties are categorised as merely dead or wounded. To inhibit propaganda exploitation by the dissidents the cause of the casualties (for example “shot”) is not reported. A follow-up operation should be carried out to maintain the momentum of dispersing crowds.

It is not known whether this manual has been revised since 2000, but it does indicate an attitude not conducive to acting in ‘good faith’ or consistent with respect for human rights.

A Senate Foreign Affairs, Defence and Trade Committee is examining the legislation and considering submissions made by individuals and organisations concerned with it.

IPAN has made a submission  based on five points:

  1. an amendment to the bill to ensure that before the Defence Minister can initiate a troop call-out for assistance in emergencies, that such actions be approved by Parliament and subsequent to such a call-out these actions will be regularly reviewed by Parliament and terminated by Parliament when it considers that necessary;
  2. an amendment to the bill to ensure that “other emergencies” does not refer to political protests or industrial disputes;
  3. an amendment to the bill to ensure that no immunity from civil and criminal prosecution be given to the Defence Forces or Reserves when providing assistance in a natural disaster or other emergencies;
  4. an amendment to the bill so that all reference to foreign troops and foreign police in the bill be deleted; and
  5. an amendment that Defence personnel deployed to assist in national disasters (“emergencies”) shall not be armed.

A number of organisations have made submissions to the Senate Committee calling for amendments and it is hoped that these proposed amendments are given favourable consideration.

Bevan Ramsden is an ex-telecommunications engineer and a long-time peace activist and advocates for Australia’s independence. He was a member of the co-ordinating committee of the Independent and Peaceful Australia Network (IPAN) for a number of years and is editor of its monthly publication, Voice.

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