|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Precedent (Australian Lawyers Alliance) |
USE OF THE ADF IN EMERGENCIES
LEGAL LIABILITY AND INDEMNITY ISSUES
By Dr Michael Eburn
This article reviews the issue of legal liability during the response to and recovery from disasters. It considers the potential liability of responders, including those who are part of the Australian Defence Force (ADF), and discusses the impact of amendments to the Defence Act 1903 (Cth) (Defence Act) and what those amendments may mean for disaster management in the future.
Australians expect the ADF to form part of the response to natural disasters. This was particularly highlighted during the 2019–2020 Black Summer bushfires, with calls for the ADF to be deployed followed by a unique call up of reserve personnel to full-time service. However, following the bushfires, the Royal Commission into National Natural Disaster Arrangements (Royal Commission) reported:
‘Defence has indicated that the absence of any legislative framework means that ADF members and other Defence personnel providing assistance to states and territories in relation to natural disasters have not been provided with the same protections as their state or territory emergency service colleagues’.[1]
As a result, the Royal Commission recommended that:
‘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.’[2]
Legislation to protect responders who are affiliated with, or place themselves under the command of, state-based emergency services is well known and a familiar part of state emergency management legislation. For example, s62 of the State Emergency and Rescue Management Act 1989 (NSW) (State Emergency and Rescue Management Act) says that an act by an emergency or rescue management organisation, or a member of staff of such an organisation, does not attract any personal ‘action, liability, claim or demand’ if the act was done in good faith for the purposes of executing the Act or any other Act.
Similarly, s28 of the Rural Fires Act 1997 (NSW) (Rural Fires Act) provides immunity for protected persons, including ‘volunteer rural firefighters’. This term includes ‘any person other than a member of a rural fire brigade who, without remuneration or reward, voluntarily and without obligation engages in fighting (or in activities associated with fighting) a fire with the consent of or under the authority and supervision of an officer of a rural fire brigade’.[3]
One can see the issue for the ADF and its members. The ADF is deployed on the orders of the Commonwealth Government regardless of whether the Commonwealth is acting on its own initiative or at the request of the states and territories. The ADF is not an emergency management organisation, and its members are not NSW Government employees, so neither the ADF nor individual members gain any immunity from the State Emergency and Rescue Management Act. Equally, members of the ADF are not provided protection by the Rural Fires Act as they are being paid for their time and are therefore not acting voluntarily. Whether they have elected to respond or been ordered to respond, once they are part of the ADF task force they are obligated to comply with the orders of the ADF command – they are not acting ‘without obligation’. And while the ADF may support firefighting efforts, it is not engaged in firefighting (though it may be engaged in ‘activities associated with firefighting’).
At a glance, the definition of who receives the benefit of liability protection provisions will not include the ADF in the ACT, the NT, Queensland or Victoria.[4] In SA, Tasmania and WA, it is arguable that the ADF or members of the ADF enjoy some protection.
In SA, any person who is ‘carrying out, or purported[ly] carrying out ... any direction or requirement given or imposed, or purportedly given or imposed, in accordance with this Act’ is protected.[5] In Tasmania, legal protection extends to an ‘emergency worker’, which includes any person who ‘in good faith ... participates in emergency management or rescue and retrieval operations’.[6] In WA, a protected official includes ‘a person acting under the direction or on the requirement of an authorised officer, a hazard management officer, or a police officer, under this Act’.[7]
Arguably, if an appointed incident controller assigns a task to the ADF then the sailors, soldiers and aircrew who undertake that task could be said to be carrying out directions given by a relevant authorised officer. There are, however, problems with this analysis. Firstly, it is the ADF that is given the directions and then directs its members. The members themselves are following the orders or directions of the ADF officers who retain command of the ADF resources. Secondly, those protections will not be relevant where the ADF is acting on behalf of the Commonwealth to protect Commonwealth interests and not at the direction of state officials.
Even without legislation, the liability of emergency responders and emergency service agencies is largely unknown. The common law recognises that those responding to an emergency have to make decisions in situations where time is of the essence and all relevant information may not be available to make what in hindsight may be a better decision.[8]
The power to act to save a life or prevent a catastrophe, even where it involves deliberate damage to the property of another, is well established. In the 1600s, it was said that the common law allowed a person to come onto their neighbour’s land so that, in order to save ‘a city or town, a house shall be plucked down if the next be on fire’.[9]
In 1988, the High Court of New Zealand said:
‘A person may enter the land or building of another in circumstances which would otherwise amount to a trespass if he believes in good faith and upon grounds which are objectively reasonable that it is necessary to do so in order (1) to preserve human life, or (2) to prevent serious physical harm arising to the person of another, or (3) to render assistance to another after that other has suffered serious physical harm.’[10]
In 2008, the High Court of Australia said:
‘The common law has long recognised that any person may justify what would otherwise constitute a trespass to land in cases of necessity to preserve life or property. The actions of fire fighters, police and ambulance officers will often invoke application of that principle.’[11]
Since the ADF is unlikely to be actively involved in such an acute emergency, it is doubtful that these common law protections will apply. ADF personnel are more likely to be deployed, for example, to clear or restore roads, provide emergency accommodation, food or healthcare facilities, and evacuate people from the danger zone. They are not or should not be ‘faced with a situation which requires immediate action of some sort ... in the so called “agony of the moment”’.[12]
The Commonwealth’s solution has been to pass the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Act 2020 (Amendment Act). This Act inserted s123AA into the Defence Act. The new section says that a protected person:
‘(1) ... 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’ [emphasis added].[13]
The Minister of Defence (the Minister) may direct the ADF to provide assistance under s123AA(2) if the Minister alone is satisfied that either:
‘(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; [or]
(b) the assistance is necessary for the protection of Commonwealth agencies, Commonwealth personnel or Commonwealth property.’[14]
The power to issue a relevant direction may be delegated to the Chief of the Defence Force (CDF) or the Secretary of the Department.[15]
Analysis of s123AA
In the explanatory memoranda filed with the amendment Bill, the Minister said:
‘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’.[16]
Further, the Minister added that:
‘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.’[17]
At first blush, s123AA is not problematic. State and territory emergency services legislation provides statutory protection for members, and in some cases for the Crown, where an action is undertaken in good faith to prepare for or respond to an emergency.
There are, however, some troubling issues with s123AA.
Extension to criminal liability and broad ministerial discretion
First, the new section extends to criminal liability which, while not unheard of,[18] is unusual.[19] The immediate problem with extending protection to criminal liability is that it can extend its application to deliberate and otherwise unlawful actions, in particular to the use of force.
The broad discretion of the Minister or the CDF is also troubling. On its face, s123AA allows the Minister to determine that an emergency requires the deployment of the ADF, either to assist the states or territories or the community, and on making the direction the members of the ADF are immune from any civil or criminal liability. ADF officers who are tasked to enter property, detain or remove people, or do any other thing that they are ordered to, can do so with immunity.
No requirement to consult
Expanding on the Minister’s ambiguous statements in the Bill, a digest prepared by the Parliamentary Library identified that the proposed amendments raise questions as to whether the Minister is given ‘a statutory power to direct use of the ADF and other Defence resources in certain “natural disasters and other emergencies”’.[20] The digest further noted that ‘[i]t is possible that these provisions expand the existing executive power.’[21]
The authors argued that the removal of criminal liability ‘is likely to have the practical effect of expanding the circumstances in which the ADF can use force when deployed within Australia’.[22]
As the Parliamentary digest notes, 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’, nor is there any requirement for the Minister, or the CDF if delegated, to consult with anyone else.[23] International best practice would suggest that where emergency powers are anticipated, the person who authorises the use of emergency powers should not be the person who exercises those powers.[24] For example, the Prime Minister or Governor-General could declare that the relevant situation exists to allow the CDF to act. However, in s123AA it is the Minister who makes the declaration to authorise action by the Department or of greater concern, where delegated, the CDF can make the ultimate decision that the interests of the nation require the deployment of the ADF to protect the community from an undefined emergency.
State and territory emergency management legislation and doctrine provide that for each emergency there is an incident controller responsible for determining the response and recovery objectives.[25] Agencies that are providing assistance report to the incident controller. Legislation requires those involved to be subject to the direction of the incident controller. Consistent with these laws and practices, the Commonwealth and the ADF wait for a request from states or territories and then provide resources to meet that request.[26]
Section 123AA now provides that the Minister can make a unilateral decision that ‘the community’ needs the assistance of the ADF and then deploy them. Future ministers may be tempted to confuse the test ‘for the benefit of the nation’ with a test of ‘for the benefit of the national Government’. Where the Federal Government sees that there is demand for ADF resources from local communities, as was the case during the Black Summer bushfires, the Minister may be satisfied that the criteria of s123AA(2) have been met and send in the ADF without having regard to or consultation with state or territory emergency managers, in an effort to be seen as being proactive. However, uncoordinated deployment may not enhance the emergency response, even if it looks good on the evening news.
National emergency declaration
When the Commonwealth Parliament passed the Amendment Act, it also passed the National Emergency Declaration Act 2020. This Act allows the Governor-General, acting on the advice of the Prime Minister, to make a national emergency declaration.[27] The declaration empowers ministers to exercise limited emergency powers.[28] It would be prudent to at least link the use of s123AA to a declared national emergency, which would mean that the power to make the declaration would lie with the Governor-General on the advice of the Prime Minister, not with the Defence Minister or the CDF. It would also limit the operation of the ADF to the period of the emergency declaration.
While we may have confidence in the current CDF, the fact is that s123AA may empower the CDF to deploy the ADF to ‘assist the community’ to prepare for or respond to an undefined ‘natural disaster or other emergency’ [emphasis added].[29] This should be an anathema in any modern democracy.
There is an increasing expectation that the ADF will be used during domestic emergencies. This was evident during the Black Summer bushfires and during the COVID-19 pandemic. There is a real risk of legal liability for ADF personnel who, in good faith, interfere with property or personal liberty in order to perform their assigned tasks. However, state-based emergency services legislation and common law protections are unlikely to extend to ADF members who are engaged in the sorts of tasks that the ADF is asked to perform during an emergency.
While this issue of liability is evident, the response of the Commonwealth in the form of s123AA of the Defence Act goes further than required. Despite assurances from the Minister, the clear and unambiguous words of the section impose no limits. Members of the ADF face no criminal or civil liability if deployed on the Minister’s or the CDF’s determination that such a deployment is in the national interest to assist the community to deal with a natural disaster or other undefined emergency.
At a minimum, the protections provided by s123AA should be limited to cases where, as now, the ADF is responding to requests for assistance by the states or territories and its actions are consistent with the task assigned to the ADF by state incident controllers. Where the Commonwealth intends to deploy the ADF into Australian territory with the potential for the use of force, this should be limited to circumstances where there has been a declared national emergency.
Dr Michael Eburn is a barrister, Honorary Associate Professor at the ANU College of Law, and a leading expert on the law and emergency management. He has conducted research for the Bushfire and Natural Hazards Cooperative Research Centre and has consulted nationally and internationally on emergency management law. EMAIL michael.eburn@anu.edu.au.
[1] Royal Commission into National Natural Disaster Arrangements (Final report, 2020) [7.73]–[7.74].
[2] Ibid, rec 7.3.
[3] Rural Fires Act 1997 (NSW), s8(3)(b).
[4] See Emergencies Act 2004 (ACT), s198; Emergency Management Act 2013 (NT), s113; Disaster Management Act 2003 (Qld), s144; Emergency Management Act 1986 (Vic), s37.
[5] Emergency Management Act 2004 (SA), s32.
[6] Emergency Management Act 2006 (Tas), ss3 and 58.
[7] Emergency Management Act 2005 (WA), s100.
[8] Leishman v Thomas (1958) 75 WN(NSW) 173, 175.
[9] The King’s Prerogative in Saltpetre [1572] EngR 410; (1609) 77 ER 1294, 1295. See also, Mouse’s Case [1572] EngR 255; (1609) 77 ER 1341.
[10] Dehn v Attorney-General [1988] NZHC 418; [1988] 2 NZLR 564 (Tipping J), 580.
[11] Kuru v State of New South Wales [2008] HCA 26; (2008) 236 CLR 1 (Gleeson CJ, Gummow, Kirby and Hayne JJ), [40].
[12] Leishman v Thomas (1958) 75 WN (NSW) 173, 175.
[13] Defence Act 1903 (Cth) (Defence Act), s123AA(1).
[14] Ibid, s123AA(2).
[15] Ibid, s123AA(5).
[16] Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020, Replacement Explanatory Memorandum, [3].
[17] Ibid, [12].
[18] See for example Emergency Management Act 2013 (NT), s113.
[19] See Inspector Mayo-Ramsay (WorkCover Authority of NSW) v The Crown in the Right of the State of New South Wales (NSW Fire Brigades) [2006] NSWIRComm 356.
[20] K Elphick and D Watt, Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 (Bills Digest No. 15, 2020–2021) 4, <https://parlinfo.aph.gov.au/parlInfo/download/legislation/billsdgs/7585955/upload_binary/
7585955.pdf>.
[21] Ibid.
[22] Ibid, 4 and 18.
[23] Ibid, 4.
[24] M Eburn, Australia’s International Disaster Response: Laws Rules and Principles (PhD Thesis, Monash University, 2009).
[25] Emergency Management Act 2006 (Tas), ss3 and 58; Australian Fire and Emergency Services Authorities Council, Australian Inter-Agency Incident Management System, 4th ed, 2013.
[26] Commonwealth of Australia, Australian Government Disaster Response Plan (Plan, 2020), <https://www.homeaffairs.gov.au/emergency/files/plan-disaster-response.pdf>; Department of Defence, Defence Assistance to the Community Manual (Manual, 2020).
[27] National Emergency Declaration Act 2020 (Cth), s11.
[29] Defence Act, above note 13, s123AA(1)(b).
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/PrecedentAULA/2021/39.html