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2019-2020
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
DEFENCE LEGISLATION AMENDMENT (ENHANCEMENT OF DEFENCE FORCE
RESPONSE TO EMERGENCIES) BILL 2020
REPLACEMENT EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Defence, Senator the Hon Linda Reynolds CSC)
THIS MEMORANDUM REPLACES THE EXPLANATORY MEMORANDUM
PRESENTED TO THE HOUSE OF REPRESENTATIVES ON 3 SEPTEMBER 2020
DEFENCE LEGISLATION AMENDMENT (ENHANCEMENT OF DEFENCE
FORCE RESPONSE TO EMERGENCIES) BILL 2020
GENERAL OUTLINE
1. This Bill includes several measures that will enhance Defence's capacity to provide
assistance in relation to natural disasters and other emergencies. The Bill draws on the
lessons learnt from the 2019/20 bushfire disasters. The Bill also implements
Recommendation 7.3 of the Royal Commission into National Natural Disaster Arrangements,
providing appropriate protections from civil and criminal liability to Australian Defence
Force (ADF) members when conducting activities to prepare for, respond to and recover from
natural disasters.
2. The mechanism Defence uses for providing assistance in a natural disaster or other
emergency (not requiring the use of force) is the Defence Assistance to the Civil Community
(DACC) policy. For the avoidance of doubt, references in this Bill's provisions to assistance
in relation to a natural disaster or other emergency relate only to DACC and, as a
consequence, do not authorise the use of force or other coercive powers, beyond what is
available to any other member of the community (such as in self-defence). The legal
authority for DACC is, and will remain, the Commonwealth's executive power under section
61 of the Constitution. The measures in this Bill will enhance the ability to provide DACC
assistance by:
a. streamlining the process for calling out members of the ADF Reserves under
sections 28 and 29 of the Defence Act 1903 (the Act) (Schedule 1)
b. providing ADF members, other Defence personnel and members of foreign forces
with similar immunities to State and Territory emergency services personnel in
certain cases while performing duties to support civil emergency and disaster
preparedness, recovery and response (Schedule 2)
c. amending ADF superannuation legislation to ensure that Reserve members who
provide continuous full-time service following a call out under section 28 of the
Act are appropriately covered for superannuation and related benefits (Schedule
3).
3. 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, including ADF Reserves. The Bill also does not extend or
otherwise change the powers available to the ADF, including ADF Reserves, when providing
assistance. The Bill does not authorise the use of force or other coercive powers. ADF
members providing assistance in accordance with the DACC policy are not permitted to use
force, beyond what is available to any other member of the community (such as in self-
defence).
Schedule 1: Calling out the Reserves
4. The amendments in Schedule 1 will streamline and enhance the provisions enabling
call out of the Reserves (Reserve Call Out), including where the Reserve Call Out is in
response to a natural disaster or other emergency. In particular, the amendments will:
a. Enhance flexibility in how called out ADF Reserve members serve by:
i. removing references to continuous full-time service (CFTS)
ii. enabling the Chief of the Defence Fore (CDF) to determine how and
when they are required to serve.
b. Simplify the process for advising the Governor-General before making a Reserve
Call Out order.
c. Provide for Reserve Call Out orders to be made by notifiable instrument.
d. Extend Parts 8, 9 and 10 of the Defence Reserve Service (Protection) Act 2001 to
any service rendered by Reserves under a Reserve Call Out order and not just
CFTS.
e. Modernise the language in Part III of the Act.
f. Amend the CDF's delegation power in relation to Reserve Call Out to reflect the
other changes to the Act.
5. Reserve Call Out is a mechanism to require members of the ADF Reserve forces to
provide service, even though they have not volunteered. Ordinarily, members of the Reserves
are only required to render service at times they have agreed (volunteer service, see section
26 of the Act), or during specified training periods (training service, see section 25 of the
Act). This is in contrast to members of the Permanent forces, who have an ongoing obligation
to provide continuous full-time service, meaning they can be required by command to
perform duty at any time (regardless of their ordinary hours of work).
6. Use of Reserve Call Out increases the size of the available force, such as when
available full-time members or volunteers from the Reserves are not sufficient. It is a
mechanism that is used only in exceptional circumstances, and can only be used in the
circumstances outlined in subsection 28(3) of the Act. This includes circumstances involving
civil aid, humanitarian assistance, medical or civil emergency or disaster relief (paragraph
28(3)(g)). It was used for the first time for this purpose during the 2019/20 bushfire disasters.
In particular, a large scale Reserve Call Out was conducted in January 2020, in response to
the rapidly worsening situation. All other assistance provided by ADF members in response
to natural disasters has been provided by full-time members or Reserve members who had
volunteered.
7. Defence's experience during January 2020 drew attention to ways in which the
Reserve Call Out provisions could be improved. These changes will mean there is greater
flexibility in implementing a Reserve Call Out, and provide greater consistency in the
treatment of Reserve members providing assistance during a disaster - whether they have
volunteered service or been called out.
8. The Bill does not change the circumstances listed in subsection 28(3) in which the
Reserves can be called out, or otherwise extend or change the Government's existing legal
authority to deploy the ADF, including the Reserves, during a natural disaster or other
emergency.
SCHEDULE 2 - IMMUNITY
9. ADF members, other Defence personnel and members of foreign forces performing
activities in support of disaster preparedness, response or recovery are not afforded
immunities from criminal or civil liability akin to those received by state and territory
emergency services personnel performing similar activities in good faith. This presents some
legal risk to those individuals.
10. The amendments in Schedule 2 insert a provision providing immunity, in certain
cases, from civil and criminal liability for ADF members, other Defence personnel, and
members of foreign forces who, in the good faith performance of duties, provide assistance in
the preparation for, response to and recovery from a natural disaster or other emergency.
11. The immunity provision is enlivened by a direction from the Minister that the ADF or
the Department is to provide such assistance, and in circumstances where the relevant duties
are being performed in relation to that assistance.
12. The immunity provision does not extend or otherwise change the powers available
when providing assistance. If an ADF member or other protected person performs duties that
are outside of the Commonwealth's legal authority to provide assistance, the immunity
provision will not protect them. For this reason, the immunity provision would not protect an
ADF member who used force or coercive powers while providing DACC assistance, as use
of force or coercive powers is not lawful in this context.
13. The immunity provision can be triggered in relation to assistance in the preparation
for, response to and recovery from a natural disaster or other emergency. 'Other emergency'
could encompass a wide range of situations, including a pandemic. Other examples could
include man-made disasters, such as a major accident or chemical spill, or recovery following
a security incident. The nature of emergencies means that it is not possible to exhaustively
determine all of the circumstances that might fall within the meaning of 'other emergency'.
Importantly, however, the immunity provision does not authorise the use of force of other
coercive powers, and would not authorise the use of the ADF to suppress a protest or
industrial dispute.
14. The immunity applies only to individuals, not to the Commonwealth. That is, if any
person suffers loss or damage as a result of assistance provided by the ADF or Defence, this
immunity provision would not prevent them from pursuing action against Commonwealth.
SCHEDULE 3 - SUPERANNUATION AND RELATED BENEFITS
15. Following the January 2020 Reserve Call Out, it was identified that there were some
legislative gaps relating to superannuation and other related benefits for Reserve members
providing service during a Reserve Call Out. Currently, Reserve members rendering
voluntary CFTS are liable for tax and receive superannuation benefits. Reserve members
rendering voluntary service other than CFTS (commonly referred to as 'Reserve days') do
not pay tax on their Reserve income, and do not receive superannuation benefits in respect of
that pay. However, under the existing legislation, Reserve members who render CFTS under
a call out order are required to pay tax in respect of their service, while also not being entitled
to superannuation and related benefits. This creates an undesirable outcome for members who
provide service during a Reserve Call Out.
16. To address this, Schedule 3 makes amendments to the Military Superannuation and
Benefits Act 1991, the Australian Defence Force Superannuation Act 2015, and the
Australian Defence Force Cover Act 2015 to ensure Reserve members rendering CFTS will
receive the same entitlement to superannuation and related benefits regardless of whether it
was voluntary CFTS or not. This means that Reserve members who render service during a
Reserve Call Out will receive the same superannuation and related benefits as Reserve
members who provide equivalent service voluntarily.
17. These amendments will operate retrospectively, applying from the date of the first
Reserve Call Out in November 2019. The retrospective operation of these provisions is
beneficial to Reserve members who provided service during the Reserve Call Outs in the
2019/2020 bushfire disasters, and does not have a detrimental effect on anyone.
FINANCIAL IMPACT STATEMENT
18. This Bill has no significant financial impact on Commonwealth expenditure or
revenue.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Defence Legislation Amendment (Enhancement of Defence Force Response to
Emergencies) Bill 2020
1. This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny)
Act 2011.
Overview of the Bill
2. This Bill includes several measures that will enhance Defence's capacity to provide
assistance in relation to natural disasters and other emergencies. The mechanism Defence
uses for providing assistance in a natural disaster or other emergency (not requiring the use of
force) is the Defence Assistance to the Civil Community (DACC) policy. The measures in
this Bill will enhance the ability to provide DACC assistance by:
a. streamlining the process for calling out members of the ADF Reserves under
sections 28 and 29 of the Defence Act 1903 (the Act) (Schedule 1)
b. providing ADF members, other Defence personnel and members of foreign forces
with similar immunities to State and Territory emergency services personnel in
certain cases while performing duties to support civil emergency and disaster
preparedness, recovery and response (Schedule 2)
c. amending ADF superannuation legislation to ensure that Reserve members who
provide continuous full-time service following a call out under section 28 of the
Act are appropriately covered for superannuation and related benefits (Schedule
3).
3. The Bill does not extend or otherwise change the Government's authority to deploy
the ADF in response to a natural disaster or other emergency. It does not extend or otherwise
change the powers available to ADF members and others who are providing assistance in a
natural disaster or other emergency. The Bill does not authorise the use of force or other
coercive powers.
Human rights implications
4. This Bill engages the following human rights: Article 14, ICCPR, the right to a fair
trial and fair hearing rights.
5. The immunity provision in the Bill will prevent people who suffer loss or damage as a
result of certain assistance provided in good faith by the ADF and Defence from seeking
compensation from individual ADF members and other protected persons. However, the Bill
does not affect the ability to pursue action against the Commonwealth. The substantive right
to compensation in this circumstance is therefore unchanged.
6. This Bill promotes the following human rights: Article 7, ICESCR, the right to just
and favourable conditions of work.
7. The amendments in the Bill will ensure that ADF Reserve members who render
service as a result of a call out order by the Governor-General receive the same conditions of
service as Reserve members who volunteer for service. This includes extending
superannuation and related benefits to Reserve members who are called out for continuous
full-time service (CFTS). At present, superannuation and related benefits are only paid to
Reserve members who volunteer for CFTS, not members who provide CFTS following under
a call out order.
8. The Bill also provides additional protections to ADF members and other defence
personnel who are providing assistance in certain circumstances in a natural disaster or other
emergency. The new provision will give these protected persons immunity from civil and
criminal liability for good faith actions in the course of their duties. Immunity in these
circumstances is analogous to provisions in State and Territory legislation for emergency
services personnel performing similar functions.
Conclusion
9. This Bill is compatible with human rights because it promotes and advances the right
to just and favourable conditions of work, and, to the extent it engages the right to a fair trial
and fair hearing rights, does not substantively reduce the ability to obtain compensation.
DEFENCE LEGISLATION AMENDMENT (ENHANCEMENT OF DEFENCE
FORCE RESPONSE TO EMERGENCIES) BILL 2020
NOTES ON CLAUSES
1 Short title
1. This clause provides for the short title of the Act to be the Defence Legislation
Amendment (Enhancement of Defence Force Response to Emergencies) Act 2020.
2 Commencement
2. This clause provides for the Act to commence on the day after it receives royal assent.
3 Schedules
3. This clause provides that that legislation that is specified in a Schedule to this Act is
amended or repealed as set out in the applicable items in the Schedule concerned, and any
other item in a Schedule to this Act has effect according to its terms.
SCHEDULE 1 - CALLING OUT THE RESERVES
4. This Schedule makes amendments to the Defence Act 1903 (the Act), streamlining the
process for calling out the ADF Reserves and giving greater flexibility in how Reserve
members are to give service during a call out. It also makes amendments to the Defence
Reserve Service (Protection) Act 2001, reflecting the changes to the call out provisions in the
Act.
5. Reserve Call Out is a two-step process. First, the Governor-General must make a call
out order under section 28 of the Act, calling out some or all of the Reserves. Secondly, the
Chief of the Defence Force (CDF) must specify the period during which a called out member
is bound to render service under section 29. The Act currently specifies that Reserve
members who are subject to a Reserve Call Out are liable to render continuous full-time
service (CFTS). The amendments in this part will make changes to both steps in the Reserve
Call Out process, and will remove references to CFTS.
6. These amendments do not change the circumstance in which the Reserves can be
called out under subsection 28(3) of the Act, and does not extend or otherwise change the
authority for the Government to deploy the ADF, including the ADF Reserves, in response to
a natural disaster or other emergency.
Part 1 - Amendments
Item 1
7. This item repeals and replaces paragraph 24(c) of the Act. Section 24 outlines the
situations in which a member of the Reserves is bound to render continuous full-time service.
Paragraph 24(c) currently states that members who are called out under Division 3 of Part III
(i.e. subject to Reserve Call Out) or Division 1 of Part IV (which deals with liability to serve
in the ADF in time of war) are liable to render CFTS. The new paragraphs reflect the removal
of references to CFTS in relation to Reserve Call Out. The effect of new paragraph 24(c)
provides that a Reserve member who is subject to a Reserve Call Out is only bound to render
CFTS if their period of service is specified by the CDF to be a period of CFTS. Otherwise,
the substance of section 24 remains unchanged.
Item 2
8. This item repeals and replaces subsections section 28(1) and (2).
9. New subsection 28(1) provides for the Governor-General to make an order calling out
some or all of the Reserves for service (a call out order). The new provision no longer
specifies that service under a call out order is CFTS.
10. The new provision also replaces the requirement for the call out order to be published
in the Gazette. Instead, call out orders will be notifiable instruments. This modernises the
language used in these provisions, and also means that provisions relating to registration,
commencement, amendment and revocation of notifiable instruments in the Legislation Act
2003 and Acts Interpretation Act 1901 will apply to a call out order.
Item 3
11. This item repeals and replaces subsection 28(4), which provides for how the
Governor-General is to receive advice before making a call out order.
12. New subsection 28(4) provides that in making or revoking a call out order, the
Governor-General is to act on the advice of the Minister. New subsection 28(4A) provides
that the Minister must consult the Prime Minister before giving advice to the Governor-
General to make or revoke a call out order.
13. Previously, the Governor-General was required to act on the advice of the Executive
Council, unless the Minister considered that, for reasons of urgency, the Governor-General
should act on the advice of the Minister. This change is to ensure that, in the event a Reserve
Call Out is required, it can be implemented without delay. In practice, the majority of
situations in which a call out order would be considered are urgent situations.
Item 4
14. This item repeals subsections 28(5), (6) and (7), which provide for when a call out
order commences and when a revocation takes effect. As a call out order will now be made
by notifiable instrument, relevant provisions in the Legislation Act 2003 and Acts
Interpretation Act 1901 will provide for the commencement and revocation of call out orders.
Item 5
15. This item amends the heading for section 29 to reflect the language that will now be
used in section 29.
Item 6
16. This item amends subsection 29(1), which currently provides that a Reserve member
covered by a call out order is bound to render CFTS for the period specified in writing by the
CDF.
17. New subsection 29(1) will provide that a Reserve member covered by a call out order
is bound to render service for the period or periods specified in writing by the CDF. This
gives CDF more flexibility in how to use Reserve members covered by a call out order. For
example, the CDF may specify that a Reserve member is to render service during a single
period or multiple periods while the call out order is in effect. This amendment also removes
the requirement that the period specified be a period of CFTS, meaning that the service
provided by Reserve members covered by a call out order can be better tailored to the
particular circumstances.
Item 7
18. This item repeals subsections 29(2), (3), (4) and (5), replacing them with new
subsections 29(2) and (3). Current subsection 29(2) provides that the period specified by the
CDF in subsection 29(1) must start on the day the call out order takes effect. This
requirement proved unworkable during the January 2020 Reserve Call Out - the CDF needs
flexibility to specify periods that start on a later day. Further, current subsection 29(4), which
provides that the specification of a period did not prevent the specification of further periods,
created ambiguity as to whether periods specified by the CDF under subsection 29(1) needed
to start on the day the call out order took effect, or not. These two subsections have not been
replaced. The ability to specify multiple periods of service under a call out order is now
included in subsection 29(1), which allows the CDF to specify a period or periods.
19. New subsection 29(2) has the same effect as existing subsection 29(3), confirming
that the CDF cannot specify a period of service that extends beyond the end of the call out
order.
20. New subsection 29(3) has the same effect as existing subsection 29(5), confirming
that the existence of a Reserve Call Out would not change any other obligation on an ADF
member to render service. For example, if a Reserve member had volunteered for CFTS
under section 26 of the Act, they would still be required to render this service even if a
Reserve Call Out was in effect.
Item 8
21. This item amends paragraph 120A(3D)(b), which provides that the CDF may delegate
the power to specify a period of service under subsection 29(1) to an officer. The amendment
removes the reference to CFTS, reflecting the changes in subsection 29(1).
Items 9 to 17
22. These items amend the Defence Reserve Service (Protection) Act 2001 (Reserve
Service Protection Act). The Reserve Service Protection Act provides a range of employment
and other protections to Reserve members. Many of the protections, including the
employment and education protections in Parts 5 to 7, apply in relation to any service
provided by a Reserve member. However, the financial and bankruptcy protections in Parts 8
and 9 only apply to a Reserve member who is rendering CFTS under a call out order, or
CFTS that is operational service. Similarly, the loans and guarantees in Part 10 are only
available to Reserve members rendering CFTS under a call out order.
23. The amendments to the Act in this Schedule mean that a Reserve member who is
rendering service under a call out order will not necessarily be rendering CFTS. The
amendments to the Reserve Service Protection Act mean that Parts 8, 9 and 10 will apply to
all Reserve members who render service under a call out order, regardless of whether that
service is CFTS. This ensures that Reserve members who are subject to a Reserve Call Out
will continue to receive the same protections under the Reserve Service Protection Act,
notwithstanding the amendments in this Schedule to provide greater flexibility in how
Reserve members serve under a call out order.
Part 2 - Application provisions
Item 18 - Application of amendments
24. This item provides that the amendments in Schedule 1 apply in relation to a call out
order made on or after the Schedule commences (which will be the day after royal assent). In
the unlikely event a Reserve Call Out is underway at the time Schedule 1 commences, the old
provisions will continue in relation to that Reserve Call Out until the call out order is
revoked.
SCHEDULE 2 - IMMUNITY
25. This Schedule inserts a new provision in the Act to give ADF members, other defence
personnel and foreign armed forces immunity from civil and criminal suit in relation to
actions done in good faith performance of their duties, where the duties are in relation to
certain assistance provided in the context of a natural disaster or other emergency.
26. 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.
27. Importantly, the granting of immunity would not be automatic and would be
contingent upon the issuing of a direction by the Minister to enliven the immunity. This
provides an important check on the proposed immunities. Moreover, any participation by
foreign military or police forces in any domestic civil emergency would remain contingent
upon the receipt and acceptance of an appropriate offer by the Commonwealth, as is normal
practice. As such, the Bill in no way provides for the automatic participation of foreign forces
in domestic civil emergencies. Extension of the proposed immunities to foreign forces would
likewise not be automatic and be contingent upon the issuing of a direction by the Minister.
Item 1
28. This item inserts a new definition in subsection 4 of the Act, defining 'protected
person' by reference to new subsection 123AA(3).
Items 2 and 3
29. These items amend the delegation power in section 120A of the Act. New subsection
123AA(4) provides for the Secretary or the CDF to authorise a Commonwealth employee or
member of a foreign armed force to provide relevant assistance under new subsection
123AA(1). This has the effect of these individuals becoming a 'protected person' for the
purposes of subsection 123AA(1).
30. Item 2 inserts a new paragraph to enable the CDF to delegate the power in subsection
123AA(4) to an ADF member at or above the rank of Commodore (for an officer in the
Navy), Brigadier (for an officer in the Army), or Air Commodore (for an officer in the Air
Force).
31. Item 3 inserts a new subsection to enable the Secretary to delegate the power in
subsection 123AA(4) to an SES employee in the Department.
Item 4
32. Item 4 inserts new section 123AA, which is the substantive immunity provision.
33. New subsection 123AA(1) outlines the content of the immunity, and when it is
available.
a. The immunity applies to a 'protected person', which is defined in subsection
123AA(3). The immunity does not apply to the Commonwealth.
b. The provision provides immunity from any liability, whether civil or criminal.
This is analogous with the immunity available to emergency services in some
States and Territories.
c. The immunity only applies in relation to a protected person's actions (or
omissions), that are done in good faith in the performance (or purported
performance) of their duties. The immunity does not apply in relation to actions
that are not done in good faith, or which are clearly outside the protected person's
duties. Further, the immunity does not apply in relation to actions that are not
legally authorised. The mechanism Defence uses for providing assistance in a
natural disaster or other emergency (not requiring the use of force) is the Defence
Assistance to the Civil Community (DACC) policy. The legal authority for
DACC is, and will remain, the Commonwealth's executive power under section
61 of the Constitution. The use of force or coercive powers is not legally
permitted when providing DACC assistance (except to the extent any member of
the community can use force, such as in self-defence), so the immunity provision
would not protect an ADF member or other protected person using force or
coercive powers.
d. Not all duties provided by a protected person are covered. In order to attract the
immunity, the duties must be in respect of assistance that is:
i. By or on behalf of the ADF or the Department of Defence (new
paragraph 123AA(1)(a)). The immunity is applicable only in relation
to assistance provided by the ADF or Defence, and does not extend to
assistance provided by the Commonwealth more generally.
ii. Provided to the Commonwealth, a State or Territory, an authority or
agency of one of those Governments, or members of the community
(new paragraph 123AA(1)(a). In this context, members of the
community could include individuals, organisations or businesses.
iii. 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 (new paragraph 123AA(1)(b)). The immunity
only applies in the context of assistance given in relation to natural
disaster or other emergency - not to assistance that might be provided
in other contexts.
iv. Provided at the direction of the Minister under subsection 123AA(2)
(new paragraph 123AA(3)). Unless the Minister has given such a
direction, the immunity does not apply.
34. The assistance must be provided in the context of a natural disaster or 'other
emergency'. 'Other emergency' could include a wide range of circumstances, including a
pandemic. It is not possible to exhaustively determine all of the circumstances that might
constitute an 'other emergency' in this context. However, it is important to note that the
immunity provision does not authorise the use of the ADF to use force or other coercive
powers to suppress protests, industrial disputes or civil dissent.
35. New subsection 123AA(2) provides for the Minister to direct, in writing, the
provision of assistance in relation to a natural disaster or emergency. Without a direction
under this subsection, the immunity does not apply. This subsection operates as a trigger for
the immunity provision only, and the authority for the Minister to direct the ADF and
Defence to provide assistance remains the executive power. Subsection 123AA(2) does not
extend or otherwise change the circumstances in which the Minister may direct the ADF and
Defence to provide assistance.
36. The Minister may make a direction under subsection 123AA(2) to trigger the
immunity provision in one or both of two circumstances:
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.
The 2019/2020 bushfire disasters and the 2020 COVID-19 pandemic would
clearly be within the scope of this provision, as would assistance provided in
relation to the Black Saturday bushfires in Victoria in 2009 and the Townsville
floods in 2019.
b. The assistance is necessary for the protection of Commonwealth agencies,
Commonwealth personnel or Commonwealth property. This could cover
situations such as where part of the defence estate was threatened by an imminent
or occurring natural disaster or emergency.
37. New subsection 123AA(3) defines 'protected person'. It includes members of the
ADF (which includes both Permanent and Reserve members), APS employees in the
Department, and people authorised under subsection (4) to perform duties in respect of the
assistance being provided. Given how integrated the ADF is with APS and other defence
personnel, especially in relation to some capabilities, it is desirable to extend the immunity
beyond ADF members. While ADF members will form the largest group providing assistance
of the sort outlined in section 123AA, other parts of the defence workforce may be providing
that assistance in some cases.
38. New subsection 123AA(4) describes the people who can be included in the third
category of 'protected person'. These are people, or classes of people, who are authorised by
the CDF or Secretary to perform duties in respect of the provision of assistance mentioned in
subsection 123AA(1). To be authorised under this subsection, the person must be either:
a. A Commonwealth employee. APS employees in the Department are already
included in the definition of 'protected person', so do not need to be separately
authorised under this subsection.
b. A member of the naval, military or air force of a foreign country, or a member of
a foreign police force. Inclusion of foreign forces in this provision enables
members of those forces to be given the same immunity as ADF members when
they have come to Australia to provide assistance in a natural disaster or other
emergency, or are already embedded with ADF units.
39. New subsection 123AA(5) provides for the Minister to delegate the power to make a
direction under subsection (2) to the Chief of the Defence Force or the Secretary. New
subsection 123AA(6) states that the delegate must comply with any written directions of the
Minister when exercising that power.
40. New subsection 123AA(7) confirms that a direction made by the Minister (or a
delegate) under subsection (2) is not a legislative instrument. This provision is included to
assist readers, as a direction under subsection (2) is not a legislative instrument within the
meaning of subsection 8(1) of the Legislation Act 2003. This is because directions under
subsection (2) do not determine or alter the law, only determine the particular circumstances
in which the immunity in subsection 123AA(1) will apply.
41. New subsection 123AA(8) confirms that the existence of section 123AA does not
prevent assistance being provided by or on behalf of the ADF or the Department in
circumstances where the Minister has not provided a direction under subsection (2). This is to
make absolutely clear that the insertion of this immunity provision does not affect the range
of assistance that can be provided by the ADF or the Department, including in response to
natural disasters and other emergencies.
SCHEDULE 3 - SUPERANNUATION AND RELATED BENEFITS
42. Existing legislation for ADF superannuation only provides superannuation benefits to
Reserve members who have volunteered for continuous full-time service. Reserve members
who provide continuous full-time service (CFTS) following a call out order under section 28
of the Act are not, at present, entitled to superannuation and related benefits. This Schedule
amends the Australian Defence Force Cover Act 2015 (ADF Cover Act), the Australian
Defence Force Superannuation Act 2015 (ADF Super Act) and the Military Superannuation
and Benefits Act 1991 (MSB Act) so that Reserve members who are subject to a call out
order receive the same superannuation benefits as Reserve members who provide service
voluntarily.
43. These amendments will be applied retrospectively, so that Reserve members who
were subject to call out orders in the 2019 / 2020 bushfires are eligible to receive
superannuation payments in relation to that service.
Part 1 - Amendments
Items 1 and 3
44. These items amend the definition of 'continuous full-time Reservist' in the ADF
Cover Act and ADF Super Act. The ADF Super Act provides for the provision of
superannuation to certain ADF members, including Reserve members providing CFTS. The
ADF Cover Act provides death and invalidity benefits for serving ADF Super members
(replacing the ordinary insurance products provided by superannuation funds, but which
aren't provided to ADF members). The existing definition of 'continuous full-time Reservist'
only includes Reserve members who volunteer for CFTS under section 26 of the Act. The
new definition removes the requirement to volunteer, ensuring that Reserve members
rendering CFTS under a call out order will receive the same benefits as a Reserve member
who volunteers. That is, there will be no difference in benefits for Reserve members who
volunteer and Reserve members who are called out.
Items 2 and 4
45. These items repeal the definition of 'defence service' in the ADF Cover Act and ADF
Super Act. This term was used in the previous definition of 'continuous full-time Reservist',
but is no longer needed in the new definitions.
Item 5
46. This item makes a consequential amendment to section 13(b) of the ADF Super Act.
Section 13 provides arrangements for Reserve members who had volunteered for CFTS at the
time the ADF Super Act commenced in 2016. This amendment preserves the existing
position for Reserve members who were rendering CFTS at the commencement date in 2016.
Items 6 and 7
47. These items amend sections 6 and 7 of the MSB Act to extend the definition of who is
a member of the Military Superannuation and Benefits Scheme (MSBS). Under the amended
definition of 'member' in section 6, Reserve members rendering CFTS for any reason
(including under a call out order) are members. The exclusion in section 7(2)(b)(ii) is
similarly amended.
Part 2 - Application provisions
Item 8 - Application of amendments - definition of continuous full-time Reservist
48. This item gives the amendments to the definition of 'continuous full-time Reservist'
in the ADF Super Act and ADF Cover Act a retrospective effect, applying to any CFTS
rendered by a called out Reserve member on or after 28 November 2019. Retrospective
application of these amendments ensures that Reserve members who were called out during
the 2019/2020 bushfire disasters were eligible for superannuation and related benefits. The
retrospective application of these amendments has a beneficial effect on those members, and
does not disadvantage any person.
Item 9 - Application of amendments - membership of Superannuation Scheme
49. This item gives the amendments to the membership of MSBS in the MSB Act a
retrospective effect, applying to any CFTS rendered by a called out Reserve member on or
after 28 November 2019. Retrospective application of these amendments ensures that
Reserve members who were called out during the 2019/2020 bushfire disasters were eligible
for superannuation and related benefits. The retrospective application of these amendments
has a beneficial effect on those members, and does not disadvantage any person.
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