The Greens have urged parliament not to pass laws fast-tracking the process to call out defence personnel and Reserves to deal with bushfire emergencies until constitutional issues are resolved.
The 2019-20 “Black Summer” bushfires were the first time Reserves have been “called out” to support defence assistance operations.
But there have been concerns raised about legal protections around the call out.
A bipartisan Senate committee has recommended new protections be passed by parliament, but noted in a report that there were outstanding constitutional matters.
The Greens Jordon Steele-John wrote in a dissenting report the fact that the committee had uncovered constitutional problems should give all senators pause for thought.
“There are significant constitutional ambiguities around the source of power that can be drawn upon to use ADF personnel in civil disaster situations which remain unanswered by this bill and, as stated previously, directly affect provisions of this bill,” he said.
He pointed to evidence from constitutional expert Anne Twomey who told the committee it was a “murky and unclear area”.
The committee’s majority report said the proposed laws were aimed at streamlining the procedure for calling out Reserves, providing defence personnel with legal immunities similar to fire fighters and protecting the civilian job conditions of reservists.
“The committee acknowledges that the measures contained in the bill do not change the government’s legal authority to deploy the ADF in response to natural disasters and other emergencies but just streamline the process for making them available.”
However, it noted people had raised concerns about “whether there is an adequate constitutional head of power for using the ADF to provide disaster relief and other non-law and order assistance to the states and territories”.
“The committee agrees it would be helpful for this issue to be clarified at some future point to maintain public confidence and strengthen the capacity to provide and regulate such assistance to the wider community. However, that is not the subject of this bill.”
