'Left and right of arc': The legal position of the Australian Defence force in domestic disaster response using the 2009 'Black Saturday' Victorian bushfires as a case study

Australian Journal of Emergency Management

Volumn 27, Issue 2, 2012, Pages 31-36

  Fetchik, Janine ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 84867843096     PISSN: 13241540     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (66)

1. Justice Hope, 'Protective Security Review' (Parliamentary Paper No. 397, Parliamentary Library, Parliament of Australia, 1979), 142 (quoting Edmund Burke, Works (Rivingt on, 1815), volume V, 17).
2. And indeed, Justice Hope's comment referred primarily to the use of ADF resources for protecting Commonwealth interests or states from domestic violence, following the 'Siege of Bowral' in 1974.
3. ADF involvement in disaster response can be traced back at least as far as the Hobart fires (1967) and Cyclone Tracy (1974) and has been seen more recently in response to the Victorian 'Black Saturday' bushfires (2009), the Queensland floods and Cyclone Yasi (2011).
4. For example: war and war-like operations are governed by the laws of war, as translated into domestic laws; border protection activities are guided by customs, immigration and fisheries laws; and counter-terrorism or domestic violence operations are regulated by Defence Act 1903 Pt IIIAAA.
5. The phrase 'left and right of arc' is used within the ADF to describe to the permissible area (or 'arc of fire') within which a soldier, sailor or airman may direct fire from his/her weapon. The phrase has idiomatically come to also refer more broadly to the direction that a commander gives to a subordinate in order to guide the manner in which the subordinate undertakes duties or tasks. Thus, the phrase idiomatically refers to the freedoms and limitations that apply to the conduct of a certain duty or task.
6. Constitution s 51(vi).
7. For example: for example Operation RESOLUTE, in which ADF assets support and enforce fisheries, customs and immigrations laws through the North-West maritime approaches; Operation OUTREACH, in which ADF assets supported the Northern Territory Emergency Response (also known as the 'NT intervention'); or the 'Army Aboriginal Community Assistance Program' in which the Army provided construction, health and training support to Indigenous communities across the country.
8. The situation is, of course, different for the Territories for which the Commonwealth has more extensive legislative powers under Constitution s 122.
9. For example: quarantine(s 51(ix)), astronomical and meteorological observations (s 51(viii)), lighthouses, lightships, beacons and buoys (s 51(vii)), and postal, telegraphic, telephonic and other like services(s 51(v)).
10. Noting that the 'external affairs' power allows the Parliament to legislate to give effect to treaties entered into by the executive regardless of whether the subject matter of the treaty is of an 'external' nature or would normally fall within the enumerated legislative heads of power. See: R v Burgess.
11. Ex Parte Henry (1936) 55 CLR 608.
12. R v Sharkey (1949) 79 CLR 121.
13. New South Wales v Commonwealth (1976) 135 CLR 337.
14. Koowarta v Bjelke-Petersen (1983-84) 153 CLR 168.
15. Commonwealth v Tasmania (1984-85) 158 CLR 1.
16. Polyukhovic v Commonwealth (1991) 172 CLR 501.
17. Horta v Commonwealth (1994) 68 ALJR 620.
18. Anne Twomey, 'Pushing the boundaries of executive power - Pape, the prerogative and nationhood powers' 34 Melbourne University Law Review 313, 316.
19. See also: Pape v Commissioner of Taxation (2009) 238 CLR 1, 126 (French CJ) ('Pape').
20. Michael Eburn, Emergency Law (The Federation Press, 3rd Edition, 2010), 101.
21. Twomey, above n 11, 325-6.
22. See also Burmah Oil Co (Burma Trading) Ltd v Lord Advocate [1965] AC 75.
23. R v Kidman (1915) 20 CLR 425, 440 (Isaacs J)6.
24. Twomey, above n 11, 333.
25. Simply put, it is intrinsically within the Commonwealth's interest as a polity to ensure the continued stable functioning of each state or territory. Therefore, if a state or territory indicates that it lacks the resources to cope with a disaster (and thus implicitly indicates that there may be, if the disaster is not appropriately addressed, a risk to its continued stable functioning) the Commonwealth has a clear self-protection interest in assisting that state or territory.
26. (2009) 238 CLR 1.
27. (2009) 238 CLR 1.
28. With the exception of Defence Act 1903 s 50D, which allows the Governor General to order ADF reservists to render compulsory service in certain circumstances including situations involving "civil aid, humanitarian assistance, medical or civil emergency or disaster relief" either domestically or abroad.
29. Australian Government Department of Defence, Defending Australia in the Asia Pacific Century: Force 2030 (Defence White Paper 2009) (2009) 13.
30. Australian Government Department of Defence, Defence 2000: Our Future Defence Force (Defence White Paper 2000) (2000) xi-xii.
31. The phrase 'left and right of arc' is used within the ADF to describe to the permissible area (or 'arc of fire') within which a soldier, sailor or airman may direct fire from his/her weapon. The phrase has idiomatically come to also refer more broadly to the direction that a commander gives to a subordinate in order to guide the manner in which the subordinate undertakes duties or tasks. Thus, the phrase idiomatically refers to the freedoms and limitations that apply to the conduct of a certain duty or task.
32. Victoria, 2009 Victorian Bushfires Royal Commission, Interim Report (2009) Chapter 11, 284.
33. Defence Reserves Association, 'Joint Task Force 662 - Operation VIC FIRES ASSIST' The Australian Reservist (2009) 16, 16.
34. All reservists who were part of JTF 662 rendered service voluntarily, that is, they were not 'called out' compulsorily by the Governor General.
35. Defence Reserves Association, above n 26, 16.
36. For further details about the ADF's activities contributing to the emergency response to the Black Saturday fires see: Australian Government Department of Defence, Defence Annual Report 2008-09 (Volume 1) (2009), 135-137.
37. For an illustrative example see the comments of Sapper Brooke Bishop in Defence Reserves Association, above, n 26, 17.
38. For discussion as to why such legislation is important, see: Eburn, above n 12, 100-102.
39. Civil Law (Wrongs) Act 2002 (ACT) s 5.
40. Civil Liability Act 2002 (NSW) part 2.
41. Personal Injuries (Liabilities and Damages) Act 2003 (NT) s 8.
42. Law Reform Act 1995 (QLD) part 5.
43. Civil Liability Act 1936 (SA) s 74.
44. Wrongs Act 1958 (Vic) s 31B.
45. Civil Liability Act 2002 (WA) part 1D.
46. The term 'employer' is used in the absence of a more suitable term, noting that ADF members serve 'at the pleasure of the Crown' and therefore the relationship between an ADF member and the Commonwealth is not one that can be described as employer/employee. See Defence (Personnel) Regulations 2002 reg 117.
47. Emergency Act 2004 (ACT), ss 34, 150C, 160A.
48. Fire and Emergency Services Act 2005 (SA) ss 42, 97, 118.
49. Emergency Management Act 2004 (SA) s 25.
50. Disaster Management Act 2003 (Qld) ss 77, 107, 112.
51. Public Safety Preservation Act 1986 (Qld) s 8.
52. Disaster Act 1982 (NT) s 37.
53. Emergency Act 2004 (ACT), s 198.
54. Fire and Emergency Services Act 2005 (SA) s 127.
55. Emergency Management Act 2004 (SA) s 32.
56. Disaster Management Act 2003 (Qld) s 144.
57. Public Safety Preservation Act 1986 (Qld) s 47.
58. Disaster Act 1982 (NT) s 42.
59. Country Fire Authority Act 1958 (Vic) s 30.
60. Provided a delegation of this authority has been made by the Chief Officer in accordance with Country Fire Authority Act 1958 (Vic) s 28(1).
61. Country Fire Authority Act 1958 (Vic) s 30(b)(ii).
62. Country Fire Authority Act 1958 (Vic) s 95(1).
63. Country Fire Authority Act 1958 (Vic) s 92.
64. Attorney-General's Department (Cth), Australian Government Disaster Response Plan (COMDISPLAN) (2008), 13: deployed assets remain the responsibility of the parent agency.
65. DI(G) OPS 5-1 (2004) 23.
66. Country Fire Authority Act 1958 (Vic) s 93.