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Significance and potential issues of defence law reforms
A military law expert at ANU’s College of Law spoke to Lawyers Weekly about the government’s plan to reform defence law, the things under consideration, the potential negatives and the changes coming for defence lawyers.
Jess Feyder
Honorary Associate Professor David Letts at Australian National University’s College of Law commented on the government’s consultation paper that was released in March: Reforming Defence legislation to meet Australia’s strategic needs.
“In that sense, it needs to have a forward-looking focus.
“I think the release of the report has clearly identified that as part of the government’s plan.”
“There are changes in the operating environment for defence that need to be taken into account — the capabilities of the Australian Defence Force are changing,” explained Professor Letts.
“At this stage, the consultation period has opened, we haven’t yet seen the details of legislative amendment, it’s more a question of looking at the legislation itself, to see what elements of it need reforming.”
“Some of the elements at first flush might seem to be very outdated, even going back to 1903, yet, some might have continuing relevance in terms of modern operations,” stated Professor Letts.
“All needs to be properly looked at and assessed.”
Significant aspects of the paper
“The other thing about the review is that the review doesn’t encompass everything.
“It’s not an entire review of all pieces of legislation that affects the Defence Force — it’s focusing primarily on the Defence Act itself to make sure that it’s fit to support the purpose of the Defence Force,” noted Professor Letts.
Issues
Professor Letts continued: “It’s also interesting to note what things aren’t going to be assessed as part of the reform.”
“Some of the areas in the Defence Act that have been recently reviewed and amended, such as the assistance that’s provided to civil authorities and states and territories and the community under Part IIIAAA is not in the scope of the review, and one could question if that is appropriate.”
“On the flip side of that, there’s been an extensive review of Part IIIAAA, along with amendments made in the past few years, whereas for other parts of the Defence Act, that hasn’t happened,” explained Professor Letts.
Changes to be foreseen
“The reforms are not supposed to expand or change the role of defence,” noted Professor Letts.
“Having said that, recently, defence has been involved with response to floods, fires, and COVID-19, so we have seen an expanded use of the Defence Force in recent years.
“It’s used more frequently, and that’s now expected by both government and parts of the community.”
“When an incident like a natural disaster happens, one of the early questions that [are] asked by those who are immediately affected, as well as news organisations, is what support is the government going to provide it? When is the Defence Force coming?” highlighted Professor Letts.
“There’s an expectation.
“Now, that’s greater than what was previously the case, and if there are circumstances where a disaster has occurred, there is a sense that defence assets will be at least considered if not directly mobilised to assist with the response,” explained Professor Letts.
“Outside of Part IIIAAA, it may be useful to consider whether there’s a gap that needs to be filled in the defence sector to deal with that type of assistance.”
Work of defence lawyers
“The work of defence lawyers, like all lawyers, is never static,” noted Professor Letts.
If we look at artificial intelligence (AI), for example, look at defence-specific unmanned platforms, aerial platforms, maritime platforms, as well as unmanned platforms in the land environment, if you think back even 20 years ago, the types of platforms that we’re now seeing and the use of those platforms just weren’t contemplated before.
“This raises questions about what types of legal issues come out of the use of those types of platforms or of AI,” he noted.
“The introduction of new means and methods of warfare into the Australian Defence Force, such as the nuclear capability that Australia is pursuing for the Submarine Force, five years ago, that wouldn’t have been a focus at all for defence lawyers.”
