The federal government has introduced a new bill which, if passed, would help normalise the use of defence forces in a civilian context.
Specifically, the Defence Legislation Amendment (Enhancement of Defence Force response to Emergencies) Bill, 2020 would give the Australian Defence Force (ADF) Reserves and foreign defence forces immunity from civil or criminal prosecution for action arising from their involvement in emergency duties.
It was introduced on September 3, but seems to have flown under the radar.
It is aimed, it says, at streamlining the process for calling out members of the ADF Reserves.
Sounds innocuous. But is it? “Emergencies” are undefined. Could they include industrial actions or large scale climate change protest actions?
On January 4, in response to the federal defence minister Linda Reynolds, Governor General David Hurley agreed to make a special order to “call out” the ADF to assist in the catastrophic fires that were sweeping the east coast.
Neither the Constitution or the Defence Act 1903 authorises the federal government to take control of an emergency response, or move “from responding to assistance requests from states to actively leading elements of the bushfire response”. While the federal government may not like this, it was most likely aimed at ensuring that states’ rights were not compromised.
The new bill has not received a lot of media attention. However, human rights lawyer Kellie Tranter said in September that “there are a number of elements that are concerning and will impact on civil liberties”.
In her briefing paper she said that the bill not only fails to properly define “other emergencies”, it also: “delegates too much responsibility for the call out to a single minister; permits foreign armies and police forces to be called in; does not restrict the use of force for defence forces and extends an unreasonable level of immunity for the defence force from criminal and civil penalties.
“Defence forces used in a civilian context should not be normalised”, she said.
“Freedom of Information requests show that Defence is planning towards extreme climate change impacts, raising concerns that the government is preparing for a militarised response to climate breakdown. The government should be investing in civilian capacities to manage future disaster and climate impacts.”
This bill enables foreign military forces and foreign police to be used in emergencies; and with immunity from prosecution and the assistance that they are providing is at the discretions of the minister.
Bush fire assistance is one emergency which might be justified. But could certain so-called “disruptive” industrial actions or “disruptive” mass climate change protests be considered “emergencies” too?
These are legitimate actions for citizens to take. But being confronted or suppressed by the ADF or Reserves would not be a legitimate use of these forces in a healthy democracy.
The use of foreign military forces and foreign police to assist in “emergencies” is of great concern.
Surely, with appropriate resources and organisation, we are capable of addressing emergencies without the need for foreign troops or foreign police.
And we certainly don’t want foreign forces confronting and suppressing legitimate protest actions by citizens.
In addition, the bill provides immunity from civil or criminal prosecution for the defence forces, including foreign military, public servants or an authorised person, for their actions in these “emergencies”.
Tranter said it is not “inconceivable” to see “the normalisation of military forces on the streets responding to public order issues that should be dealt with by police, for example protests.
Worryingly too, she said that while “the explanatory note states assistance is limited to that of ‘not using force’, that does not appear in the legislation”.
Tranter said that the bill extends “a very large immunity for ADF personnel” from civil and criminal liability as long as their acts are done in “good faith” — a very low and imprecise bar especially given the looseness of the term “other emergencies”.
This bill must be closely examined by civil rights and constitutional law experts to ensure our civil and democratic rights are not under threat or sovereignty compromised. And the use of any foreign army or militarized police force should not be allowed.
[Bevan Ramsden and Pip Hinman are long-time peace activists. Ramsden is a member of Independent and Peaceful Australia Network and Hinman is a member of Sydney Stop the War Coalition.]