FactCheck Social Media

Defence law change won’t give foreign forces ‘complete’ immunity in Australia

2020-10-23 13:46:32

The Statement

A social media post claims a Bill before the federal parliament will allow the government to bring in foreign forces and control Australians with complete immunity.

The October 14 Facebook post features an image of Australian Prime Minister Scott Morrison and Foreign Affairs Minister Marise Payne with a claim beneath reading, “URGENT Foreign Armies can be brought onto Australian soil by a minister to control Australians with complete immunity from criminal or civil liability STOP THE BILL.”

The post also claims: “The federal Government are trying sneak this through. If you don’t want to be at the mercy of FOREIGN FORCES next ’emergency’ you must demand this component in the amendments of the Bill be stopped by tomorrow 5pm (Thursday 15th October 2020).”

The post urges readers to lodge a submission opposing the amendment and includes a template detailing the user’s opposition and concerns about the law change.

At the time of writing, the October 14 post has been viewed more than 53,000 times and shared more than 1800 times attracting more than 330 reactions and 170 comments.

A Facebook post
 A social media post claims a Bill will allow the government to bring in foreign armies to Australia. 

The Analysis

It’s true the Defence Bill provides some immunity to foreign forces when called on to help in case of emergencies.

However, the proposed laws do not allow for unfettered actions from foreign forces without any criminal or civil liabilities. Instead, it brings their immunity provisions into line with those granted to Australia’s state and territory emergency-services personnel, according to legal experts.

Australia experienced a raft of disasters in 2020, starting with devastating bushfires, followed by floods and the COVID-19 pandemic. Eight foreign nations provided military assistance during the 2019-20 bushfires, according to the Department of Defence.

The Defence Legislation Amendment (Enhancement of Defence Force Response to Emergencies) Bill 2020 was introduced into the House of Representatives on September 3.

If passed into law, the Bill would amend the Defence Act 1903 to streamline the process for calling out Australian Defence Force (ADF) Reserves, and provide them, other Defence personnel and foreign forces with similar immunities to state emergency personnel when called out to deal with civil emergencies and disasters, according to an explanatory memorandum on the Bill.

According to the Defence Assistance to the Civil Community Manual (see AL3, chapter 3), the Commonwealth government can already call on the ADF and foreign personnel to help in emergencies when “immediate action is necessary to save human life or alleviate suffering, prevent extensive loss of animal life, prevent widespread loss/damage to property or to prevent environmental damage, and when State/Territory resources are inadequate”.

The Bill was referred to the Senate Foreign Affairs Defence and Trade Legislation Committee on October 8 for inquiry. The committee is due to report back by November 4.

The post claims that if the Bill passed into law, a minister would be able to bring in foreign armies to “control Australians with complete immunity from criminal and civil liability”.

University of South Australia professor Jennifer McKay, an expert in environmental laws during times of conflict, told AAP FactCheck the post was alarmist and its claim of “complete immunity” is “too wide”.

“(Under the Bill), Defence personnel and members of foreign forces will have similar immunities to state and territory emergency services personnel,” Prof McKay said.

“Those immunities are generally that these people can damage private property in order to preserve life. They can’t kill people, but they can commandeer a truck or back burn on somebody’s land in order to protect the greater good.”

Professor Natalie Klein, an international law expert at UNSW Sydney, told AAP FactCheck in an email it is unlikely that foreign armies would be granted absolute immunity from civil or criminal jurisdiction.

“In relation to foreign armies, if anything, immunities would be accorded only in relation to conduct that is undertaken in the performance of official duties. That seems to be in line with the language in the Bill,” Prof Klein said.

“Typically, any atrocity, such as a war crime, would not be considered as performance of official duties.”

Under Section 123AA (1) of the Bill, a “protected person” is “not subject to any liability (whether civil or criminal) in respect of anything the protected person does or omits to do, in good faith, in the performance or purported performance of the protected person’s duties”.

The immunity condition only applies when the duties are carried out to assist either the ADF or Defence Department in preparing for or responding to a natural disaster or other emergency.

Prof McKay said if Defence or foreign forces acted in “bad faith in any way then they lose that immunity immediately”.

“They would be civilly liable just like the police would be if they were to hit you too hard or are unreasonable in what they do. It becomes an assault.”

A spokesperson for the Department of Defence told AAP FactCheck via email that the Bill would not expand on or change the government’s power to deploy the ADF or foreign forces in response to natural disasters and other emergencies.

Eight nations already provided military support to Australia, through the ADF, during the 2019-20 bushfire crisis, the spokesperson said.

“(The laws do not) authorise ADF members or others (including foreign forces) to use force or coercive powers against members of the Australian community,” they said.

However ADF members and foreign personnel who acted in good faith in the course of their duties – such as in the event of a member of the public being accidentally injured during assistance – would be afforded immunity, similar to that afforded to state and territory emergency responders.

“The Bill does not make the Commonwealth itself immune from prosecution,” the spokesperson said.

An soldier assisting with a clean-up after fires on Kangaroo Island.
 An Australian Army soldier clearing shed remains after bushfires in South Australia in February. 

The Verdict

The proposed Bill does not provide foreign forces “complete immunity from criminal or civil liability”, as claimed in the post.

Legal experts and the Defence Department told AAP FactCheck immunity for ADF and foreign defence personnel was limited to the same protection extended to state and territory emergency services. Foreign forces would lose this immunity if they acted in bad faith such as by committing a criminal offence. The department also said the laws do not authorise foreign forces to use coercive powers in Australia.

Partly False – Content that has some factual inaccuracies.

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