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‘Lack of clarity’: Laws to be changed to deploy the ADF domestically

Currently there is nothing in the Defence Act allowing for the callout of ADF members in cases of natural disasters or public health emergencies. During the bushfires and coronavirus crisis, the government has been relying on the states to request its assistance under the Defence Assistance to the Civil Community arrangements, but there is no federal law laying out the roles and responsibilities of troops under these agreements.

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Federal laws only allow the Commonwealth to deploy the ADF within Australia for incidents of “domestic violence” such as terrorist attacks.

Under the changes, the law would be amended so the military could be called out to “national emergencies and disasters”, which would cover events such as bushfires, floods and pandemics.

The callout would occur only if the Prime Minister, Defence Minister and Attorney-General agreed a state or territory was not able to protect the Commonwealth or itself against the threat.

Military law expert David Letts said the nation had been reliant on the use of the executive power in the Constitution – a broad, undefined power – to deploy the ADF during the bushfires and coronavirus crisis.

Associate Professor Letts, director of the Australian National University’s Centre for Military and Security Law, said the Defence Act could be broadened to cover incidents such as natural disasters and public health emergencies.

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“With COVID-19, you now have ADF members who are deployed, particularly in Victoria and along the state borders, with what seems to be a lack of clarity as to precisely what legal power they have over fellow Australian citizens, other than being present and wearing a uniform and asking for information from people.”

“It’s all fine as long as things go smoothly. My concern is what happens when you get to a situation where the military is present with law enforcement people and where someone has tried to do a runner? What are the ADF member’s powers in that instance? Is there any legal obligation to assist the law enforcement officials?” he said.

The government wants to make the changes to the Defence Act ahead of this summer, but it will await the findings of the Royal Commission into National Natural Disaster Arrangements, which is due to hand down its report on October 28, before making the changes.

Other changes that will streamline the callout powers for ADF reserves will be put to Parliament earlier.

Prime Minister Scott Morrison said in January he had been “very conscious of testing the limits of constitutionally defined roles and responsibilities this bushfire season”.

“I believe, however, there is now a clear community expectation that the Commonwealth should have the ability to respond in times of national emergencies and disasters, particularly through deployment of our defence forces in circumstances where the life and property of Australians have been assessed to be under threat,” he said.

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