Chapter 7: Role of the Australian Defence Force

Summary

7.1 The primary role of the Australian Defence Force (ADF) is defending and protecting Australia. Although not its primary role, the ADF provides assistance, to the benefit of the nation, through its capabilities and resources during and after natural disasters. In some cases, ADF assistance is significant, such as during, and in the aftermath of, the 2019‑2020 bushfires.

7.2 There appears to be a lack of understanding about the role, capacity and capability of the ADF in relation to natural disasters. The ADF does not have the capacity or capability to fight bushfires. It does, however, have unique capabilities to provide ancillary support. Understanding of ADF capabilities and processes needs to be improved to ensure that it is used effectively.

7.3 The approach adopted by the ADF to respond to requests for assistance from states and territories after 7 January 2020, which included a devolved decision-making process, was more flexible and responsive than earlier in the season. Consideration should be given to adopting this approach for future natural disasters.

7.4 Processes for requesting ADF assistance require clarification – they should be clearer, making it easier for states to request the assistance of the ADF. However, states and territories remain primarily responsible for responding to and recovery from natural disaster.

7.5 The legal protections afforded to Defence personnel during assistance operations and administrative arrangements for the call-out of Reservists should be enhanced. We note steps are in train to do so.

Defence’s role in natural disasters

Public perceptions

7.6 Over the course of our inquiry a significant number of individuals, organisations, and government agencies identified the ADF, through its special capabilities or available resources, as a source of support in natural disasters. Over 340 public submissions (almost 20%) referred to the ADF. Many of those noted that the ADF has capacity and capabilities to assist in the response to, and immediate relief and recovery from, natural disasters and suggested that greater use be made of the ADF in responding to natural disasters. Some submissions noted the intangible role that the ADF plays, offering comfort to communities by its presence.

7.7 Generally, the public perception was that the ADF could assist in every aspect and was always readily available.

7.8 This is not, in fact, the case. Nor is it a reasonable expectation of the ADF.

ADF and Defence roles

7.9 The ADF and the Department of Defence (Defence) sit within the Australian Government Defence portfolio. The ADF is commanded by the Chief of the Defence Force (CDF) and is comprised of uniformed permanent and Reserve personnel from the Royal Australian Navy, the Australian Army and the Royal Australian Air Force. Defence is headed by the Secretary of the Department of Defence and staffed by Australian Public Service civilians.

7.10 The key priorities of the Defence Portfolio are to defend Australia and its national interests, protect and advance Australia’s strategic interests, and promote regional and global security and stability, as directed by government.

7.11 ADF personnel are deployed overseas, currently in areas such as Afghanistan, Iraq, and the Gulf region. ADF personnel are also involved in United Nations operations in Lebanon, Israel, South Sudan and Cyprus, and regularly participate in maritime operational activities in South-East Asia and further afield. [750]

7.12 In order to perform these roles, the ADF maintains significant military capability supported by comprehensive logistics support and employs advanced technology. These capabilities can be used in a broad range of circumstances, including warfighting, securing Australia’s maritime boundary, support to counterterrorism capabilities, search and rescue, and humanitarian assistance and disaster relief.

Enhanced medical team from HMAS Choules

Figure 27: Enhanced medical team from HMAS Choules [751]

7.13 In the natural disaster context, some ADF capabilities and resources have been, and continue to be, particularly useful in providing assistance to states and territories during the response to and recovery from natural disasters. These capabilities and resources include providing logistics, communications, transport by sea, land and air, and additional personnel. The ADF does not, however, have the capability or resources to fight bushfires and does not train to do so. While the ADF has some trained firefighters, these are for narrow purposes. For example, due to the remote work that naval personnel undertake, they must be able to fight a fire on a ship. [752] We discuss the ADF’s role in supporting aerial firefighting in Chapter 8: National aerial firefighting capabilities and arrangements.

7.14 While the ADF does not have capabilities or resources to fight bushfires, it does have capabilities to provide ancillary support. It can provide evacuation assistance, surveillance of fire fronts, and delivery of food and water to communities and farms, among other assistance. The ADF provides this support in accordance with the processes outlined in the Defence Assistance to the Civil Community (DACC) manual, described later in this chapter.

Evacuees are transported from Mallacoota, Victoria to awaiting ships as part of Operation Bushfire Assist 2019‑2020

Figure 28: Evacuees are transported from Mallacoota, Victoria to awaiting ships as part of Operation Bushfire Assist 2019‑2020 [753]

7.15 Consistent with this, the Department of the Prime Minister and Cabinet stated:

…while the ADF will often form the larger component of Commonwealth material support to crises response, it cannot always be relied or called upon, particularly in circumstances where it is fully engaged on its primary mission, or its resources are already mobilised to a disaster event elsewhere in Australia or overseas. [754]

7.16 The ADF has finite capacity and capability. The capacity and capability of the ADF to respond to natural disasters can be affected by its commitment to its priorities, both domestic and international. The ADF should not be seen as a first responder for natural disasters, nor relied on as such.

Role of the ADF in the 2019‑2020 bushfires

7.17 The ADF provided assistance across the period 6 September 2019 until 26 March 2020 in response to the 2019‑2020 bushfire season. This was known as Operation Bushfire Assist. [755] Assistance included logistics, bases for firefighting aircraft, catering, recovery efforts, engineering assistance, evacuation operations, search and rescue, and surveillance. [756] The ADF also drew on personnel and assets from overseas forces. For example, Papua New Guinea provided engineers who were deployed to Victoria to provide assistance. [757]

7.18 The ADF undertook over 1,500 tasks during Operation Bushfire Assist. Throughout the bushfire season, the ADF received requests for assistance from NSW, Victoria, Queensland, WA, SA, and the ACT. The significant assistance provided by the ADF is summarised in the table below. For example, the ADF provided 10 million litres of drinking water to assist with recovery efforts at Kangaroo Island in SA and Bega in NSW. [758]

Table 3: Defence assistance provided during Operation Bushfire Assist 2019‑2020 [759]

8,236 ADF members deployed (including 2,556 Reservists)
469 international military personnel
Over 4,850kms of road access provided and barriers cleared
Over 240kms of fire breaks cleared
10 million litres of drinking water provided
77,000 meals provided for civilians
Over 1,280kms fences repaired
527 evacuees accommodated
67 fixed-wing and rotary wing aircraft
3 maritime assets
65 heavy machinery units
3 water purification systems

7.19 Defence assistance spanned two distinct phases:

Phase 1 covered the period 6 September – 31 December 2019, and
Phase 2 commenced on the evening of 31 December 2019 and continued until 26 March 2020. [760]

7.20 During Phase 1, NSW, Victoria, and Queensland initially required local assistance. As conditions worsened, those states required more significant emergency assistance. [761] At a meeting of the National Crisis Committee (NCC) held on 11 November 2019, state and territory government representatives were advised that the Prime Minister had directed the ADF ‘to provide all the support that it can, within its capabilities’, and that the Chief of the Defence Force had ‘ordered that units respond locally and proactively to assist State authorities’. [762] We heard that the assistance provided by the ADF was of significant benefit to the states and local communities. [763]

7.21 Phase 2 [764] involved the provision of more direct emergency assistance by Defence. [765] This involved establishing an ADF Joint Task Force (JTF) to support NSW and the ACT, and one to support Victoria, on 1 January 2020. A JTF was also established on 4 January 2020 to support SA and Tasmania. [766]

7.22 The establishment of a JTF is not a new process – a JTF may be established under existing arrangements depending on the anticipated location, scale, complexity and duration of the requested support. It is a partnership model involving delegated authority.

7.23 In Phase 2 the ADF provided increased support to state and territory firefighting efforts, such as providing additional aircraft and logistical support. It also provided immediate relief and recovery support. [767]

Call-out of the Reserves

7.24 The Reserves are a surge component of the ADF and give the ADF the ability to scale up its forces. [768]

7.25 On 4 January 2020, in response to the extreme bushfire events, the Governor‑General, on advice from the Minister for Defence, authorised the compulsory call-out of ADF Reserves ‘to provide emergency functions to support and enable firefighters and emergency services’ initially to NSW, Victoria, and SA. [769]

Box 7.1 Evacuation of Mallacoota

Figure 29: People being evacuated on HMAS Choules [770]

As the 2019‑2020 bushfires burnt properties in Mallacoota in Victoria, around 4000 people were forced to shelter on the Mallacoota foreshore. Evacuation by road was not possible because road access to the town was completely cut-off.

HMAS Choules (pictured above) and MV Sycamore were able to assist Victoria with the evacuation of more than 1,100 people from Mallacoota, including the elderly, children, and pets. Some evacuees who required more immediate care were evacuated by aircraft. [771] Emergency Management Victoria described the evacuation of people from Mallacoota by air and by sea as part of the largest maritime evacuation of Australian citizens in a natural disaster.

7.26 This order was the first time that a call-out of the Reserves had been authorised under the Defence Act 1903. The effect of the call-out order was that Reserve forces, who usually provide service to the ADF on a voluntary basis, were obliged to provide full-time service for the duration of the call-out order. Defence conducted a preliminary call-out exercise in November-December 2019 to test the call-out process, given it had not been undertaken before, and in anticipation of requests for assistance. [772]

Other assistance provided by Defence

7.27 The ADF has, on request from states and territories, previously provided a range of assistance in the response to and recovery from natural disasters. For example, in the 2018-19 financial year, Defence provided significant emergency and non-emergency assistance in the response to and recovery from floods, cyclones and bushfires:

around 3,000 ADF members contributed to JTFs which assisted recovery operations in North Queensland after significant flooding in February 2019
in March 2019, approximately 200 ADF members assisted evacuation and recovery operations in the NT in the wake of Tropical Cyclone Trevor, and
support to firefighting efforts in Victoria, Queensland, WA and, Tasmania, such as providing temporary accommodation for up to 300 people.

7.28 ADF assistance has likewise included, over the last decade, a broad range of assistance in response to significant natural disasters across the nation, including but not limited to:

Operation Vic. Fire Assist, including logistics and emergency sleeping arrangements in Victoria (2008-2009)
Operations Queensland Flood Assist and Yasi Assist, and assistance in response to Victorian floods (2010‑2011)
flood relief in NSW, Queensland and Victoria (2011-2012), and
flood and fire relief in NSW, Queensland, WA and Victoria (2012‑2013).

Awareness of ADF role and capabilities

7.29 Notwithstanding the prominent role that the ADF has played in significant natural disaster responses, some governments and organisations, particularly local governments and some fire and emergency service agencies, told us that they did not have a good appreciation of what the ADF can do, how to request ADF assistance or, at times, how to interact with the ADF once it was deployed. [773] For example, Blue Mountains City Council noted that, while the ADF personnel who were deployed ‘were highly adaptable and committed to their tasking’, there was an overall lack of clarity at the local level about what capabilities the ADF had and what specifically they could do to assist local residents. They described the resulting engagement between council and the ADF as being akin to arrangements of ‘…spontaneous volunteers’. [774]

7.30 During the 2019‑2020 bushfires, the DACC manual was not publicly available, which may have contributed to the limited understanding. This manual sets out the process for requesting ADF assistance. A revised version of the DACC manual – dated 11 August 2020 – has since been published on the Defence website. [775] We welcome this development.

Importance of planning

7.31 Local governments and recovery coordinators, in particular, expressed a desire for greater cooperation, integration and understanding of the role and capabilities of the ADF.

7.32 Positive experiences of ADF involvement were generally associated with a good understanding of ADF capabilities and inclusion of the ADF in local planning. The Queensland Inspector-General Emergency Management noted a seamless contribution between the ADF and relevant authorities in the Canungra area during the bushfires – the ADF’s Kokoda Barracks is located in Canungra in south-east Queensland. [776] The Queensland Fire and Emergency Services shared this view, noting the strong connections between local disaster management groups and the ADF where the ADF has a local presence.

7.33 This sentiment was shared by other local governments that have Defence bases or establishments within their jurisdiction. [777] Townsville is a major hub for Defence bases and the ADF’s presence in North Queensland. The Queensland Inspector-General of Emergency Management’s 2019 Monsoon Trough and Rainfall Review noted that the ADF was an advisory member on the Townsville local disaster management group and that ‘the ability for service [personnel] and their families to interact within the community of Townsville was an important aspect in planning.’ [778]

7.34 Shoalhaven City Council in NSW told us that, by virtue of the proximity of ADF bases in Jervis Bay, there is an ADF representative on the Shoalhaven Local Emergency Management Committee. The Shoalhaven City Council acknowledged the value of having local ADF representatives on local emergency management committees. [779]

7.35 We note, however, that not all local government areas have the benefit of an ADF presence. This may mean that those local governments have a less developed understanding of the capacity and capability of the ADF as they may have less frequent engagement with it.

7.36 During the 2019‑2020 bushfires, there was noticeable benefit when state emergency responders, local emergency management committees, and the ADF were involved in local decision-making, and resource prioritisation, and decisions were able to be made locally. This was particularly noted by Ms Prendergast of Resilience NSW:

…once they embedded with us from 6 January, we saw the power of us being partners and working together at every level, from state, regional and local with ADF and the call-up and the prioritisation was so much easier and efficient. [780]

7.37 Greater interaction and understanding, including in planning processes, will likely produce better relationships and understanding of the ADF’s role. [781]

7.38 There should be greater representation by the ADF in state, territory and local government exercises, briefings, and planning for natural disasters.

7.39 Revisions to the ADF’s arrangements to facilitate the creation of ongoing relationships with state and territory emergency management services and police are likely to further assist. Defence has told us that the ‘Brigades under 2^nd Division Headquarters have a permanent posture in all states and territories, except the NT, which enables the development of relationships with state and territory emergency management authorities’. [782] The recent assignment of responsibility to the 2^nd Division of the Australian Army to plan, prepare and support the ADF response to national domestic emergencies is welcome, and should facilitate better readiness to perform DACC tasks nationally.

7.40 In discharging their responsibility for responding to and recovering from natural disasters, it falls to state and territory governments to request ADF assistance where required. As such, they should be primarily responsible for building a greater understanding of the role and capabilities of the ADF within their fire and emergency service agencies and local governments.

7.41 Emergency Management Australia (EMA) in the Department of Home Affairs is responsible for managing requests for significant emergency assistance and emergency recovery assistance. Increased liaison by Defence with states’ and territories’ emergency management agencies should be conducted in collaboration with EMA to help ensure that local governments receive whole of system advice on the role and capabilities of the ADF and processes for requesting its assistance.

7.42 Defence, through EMA, should undertake increased liaison with state and territory governments to enhance their awareness of the ADF’s role, capability and operations in responding to and recovering from a natural disaster.

Recommendation 7.1 Improve understanding of Australian Defence Force capabilities

State and territory governments should take steps to ensure that there is better interaction, planning and ongoing understanding of Australian Defence Force capabilities and processes by state and territory fire and emergency service agencies and local governments.

Current processes for obtaining ADF assistance

7.43 Except in circumstances where a state or territory government is incapacitated, the Australian Government is currently authorised to provide ADF assistance in response to natural disasters only if requested by a state, territory, or local government. A request must be made in accordance with the DACC manual and the Australian Government Disaster Response Plan (COMDISPLAN). [783]

7.44 COMDISPLAN outlines the coordination arrangements for the provision of non-financial assistance from the Australian Government in the event of a disaster or emergency within Australia or its territories.

7.45 The DACC manual outlines the types of assistance Defence can provide, and the thresholds to make requests for assistance. The DACC manual recognises the responsibilities of state and territory governments and their role in seeking assistance from Defence. [784]

7.46 DACC is divided into two classes: emergency and non-emergency responses, each with three categories. We have focused on DACC arrangements for emergency assistance, that is, DACC 1-3, being most directly relevant to natural disaster response and recovery.

**Table 4: DACC categories 1-3 [785]**
DACC category	Process	Approving authorities	Cost recovery
DACC 1: local emergency assistance	Requests are usually made by local, state or territory governments directly to the Senior Australian Defence Force Officer (SADFO) or Defence.	SADFO, Unit Commander, or designated JTF or DACC Commander	No cost recovery, but may accept payment if offered.
DACC 2: significant emergency assistance	Requests are usually made by local, state or territory governments to EMA which will, in turn, liaise with Defence.	CDF or delegate	No cost recovery, but may accept payment if offered.
DACC 3: emergency recovery assistance	Requests are usually made by local, state or territory governments to EMA which will, in turn, liaise with Defence.	CDF or delegate	Direct cost recovery, unless a cost waiver, or variation is approved.

7.47 Defence resources are intended to be used primarily for national defence. For this reason, before DACC is provided, it must be requested by states and territories, and the resources must be available for commitment.

7.48 The decision to provide DACC and commit Defence assets to DACC ‘will depend on each circumstance and is to be made in full consideration of prevailing operational, fiscal and policy considerations [by Defence]’. [786]

7.49 The DACC framework supports the provision of emergency assistance, but does not extend to the use of force by the ADF. Force includes the restriction of freedom of movement of the civil community, whether there is physical contact or not.

7.50 The current threshold for making a request for assistance under the COMDISPLAN and DACC are set out in the table below.

**Table 5: Thresholds for assistance**
Source	Threshold
COMDISPLAN, paragraph 1.4.6	‘Before a request is made under COMDISPLAN a jurisdiction must have exhausted all government, community, and commercial options to prove that effect’ (emphasis added).
COMDISPLAN, paragraph 2.3	‘…when the total resources (government, community and commercial) of an affected jurisdiction cannot reasonably cope with the needs of the situation the nominated official can seek non-financial assistance from the Australian Government’ (emphasis added).
DACC manual, Part A, Annex 1A, definition of ‘emergency assistance’	‘…Where the scale of the emergency or disaster exceeds or exhausts the response capacity and capabilities of the state or territory (government, community and/or commercial) or where resources cannot be mobilised in sufficient time, they may seek Australian Government non-financial assistance, including from Defence’ (emphasis added).

7.51 As outlined in Table 5, these thresholds are internally inconsistent. We heard that this has given rise to a different understanding by states and territories of the thresholds. This is discussed in more detail further below.

Use of DACC process during 2019‑2020 bushfires

7.52 Defence managed its coordination, response and contribution during Phase 1 of its assistance in response to the 2019‑2020 bushfires in a manner that closely reflected the framework then provided for in COMDISPLAN and the DACC manual. As Defence explained:

Request for assistance – Phase 1 (6 September 2019 – 31 December 2019)

During this phase, the states (QLD, NSW and then VIC) submitted requests for assistance for individual tasks through EMA. Initially, state government emergency management authorities sought local (DACC 1) emergency assistance directly from Defence for local ADF commander approval under the DACC manual.

As bushfire conditions worsened and state and territory governments required more significant emergency assistance, they submitted requests (DACC 2) to EMA who worked with Defence (Military Strategic Commitments (MSC) to determine appropriate support. MSC initiated and coordinated the response by Defence.

Once a request for assistance was approved by CDF, The Chief of Joint Operations (CJOPS) was directed to execute the task via a CDF Task Order [787]

7.53 Defence adopted a different approach for Phase 2. [788] On 7 January 2020, recognising the worsening situation, and evolving threat, Defence devolved decision-making on requests for assistance to the respective commanders of the JTFs. The JTF commanders and their staff worked directly with state and territory government representatives and emergency services coordinators to respond to requests. [789] We heard that these arrangements streamlined decision-making and resulted in timely decisions and support to communities impacted by the bushfires. [790]

7.54 The process adopted in Phase 2 supported faster ADF assistance to states and territories than the process in Phase 1. This better enabled those states and territories to respond to, and recover from, the 2019‑2020 bushfires.

7.55 Authority to approve tasks under authorised DACC assistance should be devolved to ADF Joint Task Force commanders in certain prescribed circumstances, including natural disasters, such as occurred in 2020 during the bushfire season.

Improvements to existing arrangements for obtaining ADF assistance

7.56 The existing processes for use of the ADF under COMDISPLAN and DACC are dependent on a state or territory requesting assistance. This recognises that states and territories are responsible for the response to, and recovery from, natural disasters. The use of the ADF should remain dependent on a request from a state or territory, except in the limited circumstances proposed in Chapter 5: Declaration of national emergency.

7.57 The arrangements for the utilisation of ADF resources in natural disasters should not promote reliance or dependence on the ADF. The ADF has broader responsibilities to protect the nation. Reliance or dependence on the ADF could lead to poor outcomes if the ADF was not able to assist because of other significant or competing priorities.

7.58 Nevertheless, we note that in some states there was an apparent reluctance to seek ADF assistance, or delay in seeking assistance. We also heard of the desirability of facilitating ADF assistance when it was required and the ADF was available. We heard that there was some uncertainty about the thresholds that must be met before seeking the assistance of the ADF. The reluctance or delay may have been due, at least in part, to the apparent confusion on the thresholds for request.

7.59 This uncertainty is perhaps not surprising – the COMDISPLAN and DACC thresholds are, as set out previously, expressed differently. Moreover, they were in turn interpreted differently by states and territories, even by those who had previously requested support. For example, NSW stated that from their experience, they had ‘to demonstrate complete exhaustion of state resources and civilian resources before we can contemplate a request through to the Commonwealth.’ [791] Tasmania and WA approached the question of exhaustion by reference to potential, rather than in present, absolute terms. Chief Officer Arnol, Tasmanian Department of Fire and Emergency Services, noted:

Sometimes it’s a matter of timeliness as here, Commissioner, because if we said we need to get something in place in a certain time, and private enterprise is going to take five weeks, whilst it might be available, it is not something that we can do readily, like in emergency. So in that term, we term that as we’ve exhausted it. [792]

7.60 Similarly, we heard that the ACT Emergency Services Agency focused on practicality in determining whether to seek Commonwealth assistance:

We very quickly identified in the ACT that concurrent activity would be the key to establishing a more defensive stance to the bushfire threat, which included ensuring that our firebreaks, our fire trails, and our defensive posture was consistent. … We had already assessed that we would exhaust all of the civilian plant available here in the ACT, and so noting that the ADF had clearly articulated an availability of resources, in particular engineers, we put in a very early request through the Defence Aid to the Civil Community, through well-rehearsed for protocols through Defence and EMA Australia, and we were very fortunate to be allocated significant resources.

The Defence came and assisted us with preparation work with our threat to the west of the ACT, well before the Orroral fire started…So Defence were engaged very early before there was even a fire within the ACT. [793]

7.61 State and territory agencies expressed an interest in simplifying the COMDISPLAN and DACC thresholds to allow earlier and more flexible assistance to be provided by the ADF. Examples include:

Queensland Fire and Emergency Services:The DACC criteria could be adjusted to allow more agile use of the ADF capability, such as by removing the need for local resources to be exhausted before ADF assets are deployed. In some circumstances, ADF assets may be more appropriate, and this should be determined by the state in liaison with ADF and could be bolstered with joint planning preseason. [794]
South Australian Country Fire Service:Changes are required to the provisions of COMDISPLAN to enable the planned request for Commonwealth, and in particular ADF resources, to support an emergency operation at a level less than the current threshold. DACC processes could be streamlined and simplified, to provide clearer and simpler ‘rules of engagement’ for emergencies with the potential to quickly overwhelm a state or territory’s capability and capacity. [795]
Commissioner Klemm, Western Australia Fire and Emergency Services:Change the requirement to have exhausted all government, community, and commercial options before a request is made. [796]

7.62 The COMDISPLAN and the DACC manual should not create confusion in obtaining ADF assistance. In particular, waiting until a state or territory has exhausted all government, community, and commercial options risks delaying the provision of ADF support. This can result in a state or territory being unable to respond to or recover from a natural disaster, risking further escalation of the disaster and endangering lives. The ADF should be able to be requested where it is likely that a state or territory’s capacity will be overwhelmed. On one view, this is already the case – but it is far from clear. This approach needs to be clearly outlined in the COMDISPLAN and the DACC manual so that there is no confusion. We recommended in Chapter 3: National coordination arrangements that the Australian Government should revise the COMDISPLAN thresholds to provide that a request for assistance, including Defence assistance, is able to be made by a state or territory government when:

it has exhausted, or is ‘likely to exhaust’, all government, community and commercial resources
it cannot mobilise its own resources (or community and commercial resources) in time, or
the Australian Government has a capability that the state or territory does not have.

7.63 The Australian Government has indicated that it will work with states and territories to update the COMDISPLAN to take into account new structural arrangements that have been introduced to respond to COVID-19, including the National Cabinet and the National Coordination Mechanism. [797] The COMDISPLAN and the DACC manual should be reviewed together to clarify consistent thresholds for activation.

7.64 These thresholds should be made consistent regardless of whether a declaration of a state of national emergency is made. If a declaration is made, we suggest that a JTF model could be adopted to provide assistance to states and territories, similar to that used in Phase 2 of Operation Bushfire Assist.

Recommendation 7.2 Review of Defence Assistance to the Civil Community manual

The Australian Government should review the content of the Defence Assistance to the Civil Community manual to ensure consistency of language and application with a revised COMDISPLAN.

Legal basis for DACC

7.65 DACC is undertaken in accordance with the Australian Government’s executive power; it is not legislated. [798] We have considered whether the DACC process should be underpinned by legislation to provide additional clarity and certainty.

7.66 Defence considers that the current non-legislative DACC arrangements have been ‘largely effective for many years, allowing frequent adjustments to DACC policy to adapt to changing requirements.’ [799] Defence has also indicated that the benefits ‘of legislating for DACC would be marginal, and disproportionate to the risks of doing so.’ [800]

7.67 Generally, legislation should only be introduced for matters that require legislation to give them effect; [801] it is not normally used for processes that can otherwise operate without legislation. DACC is provided by the Australian Government by, and with the consent of, states and territories. Legislation typically provides greater certainty of authority – necessarily however, in its prescriptiveness, legislation generally limits flexibility. In the context of DACC, legislated arrangements are likely to limit flexibility and agility in response – and it is these characteristics of DACC assistance that are most valuable in responding to natural disasters.

7.68 DACC process need not be specified in legislation. It has worked effectively without legislation and provides flexibility to the ADF in assisting states and territories to respond to natural disasters. Uncertainty in the future of natural disasters requires flexibility – there could be adverse, unintended consequences in restricting the timeliness, adaptability, and flexibility of the DACC process.

Financial considerations relevant to ADF assistance

7.69 Assistance from the ADF has the potential to involve significant financial costs. Defence indicated that the cost incurred as part of Operation Bushfire Assist 2019‑2020 was approximately $68.6 million. [802]

7.70 The DACC manual provides that recovery of the costs incurred by the ADF will not be sought where assistance has been provided under the local and significant emergency assistance DACC categories 1 and 2 (unless agreed otherwise before the provision of assistance). [803] Recovery of costs will be sought, however, where assistance has been provided under the emergency recovery assistance DACC category 3, unless a waiver is approved.

7.71 Part of the costs incurred by Defence as part of Operation Bushfire Assist related to DACC 3 tasks. [804] The Minister for Defence, Senator the Hon. Linda Reynolds CSC, authorised cost-waivers for tasks for the period 1 January – 31 March 2020. [805] Before 31 December 2019, there was some cost recovery, mainly related to the provision of fuel. [806] Cost-waivers allow states and territories to focus their financial efforts on other disaster response and recovery aspects. However, states and territories should not rely on a cost waiver being issued – they will need to pay for ADF assistance in the event that a cost-waiver is not authorised.

7.72 Care also needs to be taken to ensure that the use of the ADF does not take business away from local tradespeople and businesses (such as petrol stations), as this may compound the effect of the disaster. We heard that while DACC category 3 assistance was welcomed by the states, some expressed concern about the effect that use of the ADF might have on local businesses, contractors, and tradespeople. [807]

Legal protections for ADF assistance

7.73 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. [808]

7.74 Immunity provisions, such as those provided in state and territory legislation, give protection from civil or criminal liability and authorise acts or omissions that would otherwise be a tort or a crime. Nevertheless, conferring immunities can limit individual rights and requires careful justification. [809]

7.75 Defence told us that both individual ADF personnel and members of foreign forces providing assistance were exposed to some legal risk in the course of Operation Bushfire Assist 2019‑2020, including exposure to criminal or civil liability, such as for trespass or damage to property. [810]

7.76 We also note that immunities (of various degrees) are available to Defence Force counterparts overseas when undertaking similar natural disaster relief and response operations in their own country. [811]

7.77 Defence has advised that recent legislation introduced into the Australian Parliament – the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 – will, if passed, provide ADF members and authorised foreign force members with additional legal protections insofar as it will:

…provide immunity to protected persons from civil and criminal liability in relation to acts or omissions done in the good faith performance of their duties, in the course of providing certain assistance to prepare for, during, or in recovery from natural disasters and other emergencies. [812]

7.78 The need for such an immunity arises because it would be undesirable if response and recovery actions were not undertaken due to concerns about potential liability. The protections proposed in the Bill would only apply where the Minister (or a delegate) has directed, in writing, the provision of assistance in relation to a natural disaster or emergency. The Minister must be satisfied that:

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 Defence Department’s special capabilities or available resources, to provide the assistance, and/or
the assistance is necessary for the protection of Commonwealth agencies, Commonwealth personnel, or Commonwealth property.

7.79 The Australian Government should also consider whether appropriate immunities are in place if it introduces a regime for the making of a declaration of a state of national emergency – see Chapter 5: Declaration of national emergency.

Recommendation 7.3 Legal protections for Australian Defence Force members

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.

Call-out of the ADF Reserves

7.80 As noted above, on 4 January 2020, the Australian Government invoked the compulsory call-out of the ADF Reserves (section 28 of the Defence Act 1903 (Cth)), in preparation for and response to the evolving bushfire crisis. This mechanism increased the size of the force available as it required members of the ADF Reserves to provide service even though they had not volunteered (ordinarily they are only required to provide services where they have agreed). Although this was the first compulsory call-out of the Reserves, ADF Reservists are nonetheless routinely employed, together with ADF full-time personnel, during natural disasters. [813]

7.81 Defence identified to us a series of challenges with mobilising the required Reserve personnel. This included the existing requirement for the call-out of ADF Reserve members only on continuous full time service, and the need to exclude certain categories of members from the order (for example, where those members were involved with the civilian state or territory emergency or medical response). It has advised that the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 seeks to address these challenges.

7.82 The legislative structure for the call-out of the ADF Reserve force should allow the right personnel to be called out quickly without impacting on critical non-ADF functions, such as emergency services. To the extent that this is not possible, consideration should be given to amendments that allow greater flexibility in specifying the Reservists who are subject to the call-out order.

7.83 The Australian Government should consider amendments to the Defence Act 1903 to provide more flexible call-out options for the ADF Reserve force for use in national natural disasters where the scale and situation warrants call-out of the Reserves.

7.84 We acknowledge that the Australian Government has introduced the Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020, which seeks to achieve this outcome.

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