'The Defence Act 1903 (Cth): A Guide for Responding to Australia's Large-Scale Domestic Emergencies' by Zoe Lipsis in (2022) 45(2) Melbourne University Law Review comments
Drawing upon the Australian 2019–20 bushfire season and the COVID-19 pandemic, this article examines case studies highlighting the legislative impact of the increased domestic deployment of the Australian Defence Force (‘ADF’). Leveraging compa rable provisions from an analogous statutory regime, namely pt IIIAAA of the Defence Act 1903 (Cth), it considers how existing legislative provisions can provide guidance for the development of a statutory framework to govern future deployment of the ADF in response to Australia’s large-scale domestic emergencies.
Lippis states
Encapsulating the tension between the civil–military divide, the domestic utilisation of the Australian Defence Force (‘ADF’) has been a ‘critical and controversial issue’ since Federation. With increased calls for the domestic deployment of the ADF, as a result of regional instability, terrorism, and natural disasters, debate has been reignited regarding the use of the military for purposes outside their traditional external defence role. The catastrophic bushfire season of summer 2019–20 reinstated the domestic utilisation of the ADF on the national political agenda.4 As the Morrison government unilaterally mobilised the military to provide support to civilian agencies,5 scrutiny of the military’s internal role intensified. Furthermore, the arrival of the COVID-19 pandemic on Australian shores in January 20206 prompted additional questions surrounding the ADF’s domestic role. For the second time in 2020, ADF members were deployed across Australia, this time to assist civilian agencies as they battled an insurmountable global public health emergency.
Drawing upon these case studies, this article will examine the impact of legislation upon the increased domestic deployment of the ADF. Leveraging upon comparable provisions from an analogous statutory regime, namely pt IIIAAA of the Defence Act 1903 (Cth) (‘Defence Act’),8 it will consider how existing legislative provisions provide guidance for the development of a statutory framework to govern future internal deployment of the ADF during large-scale domestic emergencies.
The article will commence by examining, in Part II, the ADF’s recent role in response to domestic crises, most particularly the Australian 2019–20 bushfire season and the COVID-19 pandemic. It will proceed in Part III to consider the existing legal basis for the domestic deployment of the military for disaster relief activities, including the Defence Assistance to the Civil Community (‘DACC’) policy framework. Following an analysis of the benefits of a legislative regime to govern ADF domestic operations, the article will examine in Part IV how pt IIIAAA of the Defence Act can provide guidance for the creation of a comparable Commonwealth legal framework for the domestic deployment of the ADF during large-scale disaster relief activities. The final section of the article, Part V, will recommend legislative provisions for inclusion within a new statutory regime, based upon an analysis of analogous provisions within pt IIIAAA. It will propose that while the DACC policy regime has served Australia well to date, the anticipated increase in requests for ADF domestic assistance warrants serious consideration as to whether a legislative framework is required to underpin such operations in the future. The article will conclude by proposing that existing provisions of the Defence Act provide significant guidance for the development of a Commonwealth statutory regime to govern future ADF assistance during large-scale domestic emergencies.
