When the bushfire crises across South Australia, New South Wales and Victoria passes, there will be a plethora of reviews of the response of the Commonwealth and State Governments, and also the agencies involved in combatting the fires and providing disaster relief.

With the wisdom of hindsight, doubtless many mistakes will be identified, and recommendations made to prevent reoccurrence of those errors.

The starting point will be the Royal Commission that the Prime Minister has foreshadowed. Each and every state government and agency involved will similarly need to examine their performance over these dreadful few months, when more than a score of lives, and thousands of buildings have been lost, with millions of hectares burnt out by fires, not to mention the heartbreaking loss of wildlife.

A shining light during the current crisis has been the selfless and unstinting response of our professional and volunteer firefighters, and also the members of the Australian Defence Force (ADF) called in by the Commonwealth Government to provide assistance to the States in responding to the bushfires.

One of the issues that all governments will need to consider in the aftermath is remedying, in short order, the statutory basis upon which the ADF is authorised to provide assistance within Australia to the States in relation to civil emergencies, which do not involve domestic violence or terrorist activities.

There is no doubt that pursuant to section 61 of the Constitution, the Commonwealth has the power to enact legislation to authorise the provision of such assistance, but it is not apparent that the existing legislation (in the form of the Defence Act 1903 (Defence Act) and several State measures and also various vague implied powers under the Constitution) in fact provides this authority.

In deploying the ADF to assist in the bushfires, the Commonwealth government is operating at the outer limits of what is permitted by the Constitution.

In real terms, that has not provided any impediment to the resources of the ADF being made available to the States’ rescue and evacuation efforts on this occasion.

However, the position appears to be that there is a very real question as to whether the soldiers, sailors and airmen and airwomen deployed to assist in fighting the bushfires and evacuating victims enjoy complete immunity from civil liability, and even criminal prosecution, for conduct (under orders) which has miscarried, either inadvertently or negligently. In theory these individuals could be sued for damages.

Whilst the Defence Act deals adequately with the deployment of the ADF within Australia for the purposes of preventing ‘domestic violence’ (which in this case means the protection of States against invasion and domestic violence pursuant to section 119 of the Constitution) there are no analogue provisions in relation to civil emergencies not involving threats of violence.

There are established protocols for dealing with civil emergencies, responsibility for which rests mainly with the Department of Home Affairs. The process for coordination between the Federal and State Governments is described in the Australian Government Disaster Response Plan (COMDIS Plan) in conjunction with the Defence Department’s internal policy guide (Defence Assistance to the Civil Community Manual. But whilst essential, these protocols do not in themselves provide a legal basis for the involvement of regular force ADF members.

The position appears to be a little different in relation to ADF reservists. The recent call out of reservists at the request of the Governor General was effected pursuant to section 28 of the Defence Act which specifically provides that a call out order can be made in circumstances involving the provision of civil aid, humanitarian assistance, medical or civil emergency or disaster relief.

Ironically, reservists may be in a stronger position in terms of immunity from civil liability prosecution pursuant to States laws rather than regular ADF force members.

The only express protection in the Defence Act 1903 is section 123, which provides that a member of the ADF is not bound by any law of a State or Territory requiring that member to have a licence to use or have in his possession a vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth, or permission in the form of a licence or do anything in the course of his or her duties as a member of the defence force.

However, that protection is limited in that it would not necessarily in its terms render an ADF member immune from, for instance, a claim of negligence or trespass, for conduct in the course of a deployment to a civil emergency zone such as the bush fires. There are other laws and policies at State level that may provide some protection, but on the whole, the legislative framework for the deployment of ADF members in civil emergencies is a hotch-potch of Commonwealth and State statutes, implied powers and policies and no coherent statutory basis for such deployments can easily be derived.

One would hope that, in this calendar year, the gap in the law will be considered during the foreshadowed Royal Commission.