Alternative Law Journal
Recent government announcements and media reports have indicated that unprecedented numbers of police, military and security personnel will be mobilised across wide areas of Sydney and other parts of the country during the 2000 Olympics and Paralympics.
About 4000 military personnel, equipped with armoured vehicles and Black Hawk helicopters, will be deployed for the Games, including all of Australia’s Special Forces. This force will be about the same size as the initial Interfet contingent sent to East Timor last year. In addition there will be thousands of New South Wales State police, hundreds of Federal Police, scores of intelligence officers, 30,000 private security guards and tens of thousands of government officials authorised to use policing powers. Security and intelligence agencies from other countries will also be active, including armed US and Israeli officers, and a United States naval battle fleet will be stationed off the coast.
Over the past 18 months, rehearsals have included day-time and night-time helicopter missions in the city and throughout the main Homebush Bay site, police–military searches of motor vehicles, the mock storming of jumbo jets, and the boarding of ships in Sydney Harbour. Sydney residents, and people travelling to and from the city, are already under police and intelligence surveillance.
There is good reason for concern that the security powers will be used to prevent political protests and other forms of legitimate dissent. Various groups have stated their intentions to stage demonstrations during the Games, highlighting issues such as:
• the enormous financial costs, corruption and profit-making associated with the Games;
• the social impact in terms of soaring rents, homelessness and budget cuts;
• broader causes, notably the continuing oppression of Aboriginal people.
Aboriginal activist Charles Perkins raised the prospect of protests when he told the BBC in early April that the Olympics would erupt into ‘burning cars and burning buildings’ in response to the Howard government’s handling of Aboriginal reconciliation and the stolen generation.
Security sources have told journalists that anger over the high prices and lack of availability of tickets may also lead to protests. In addition, there is evidence that new policing powers introduced for the Olympics are already being used to remove the homeless from central Sydney and near Games venues (Sun-Herald, 16 January 2000, p.1).
Olympic authorities, police chiefs and military officers have stated their determination to prevent the Games from being disrupted in any form. ‘A warning to anybody who wants to interfere with the Olympic Games: we will interfere with them’, Brigadier Philip McNamara, the commander of military Special Forces, told a luncheon gathering of current and former military officers on 29 February. ‘We are prepared to meet any challenge’ (Australian, 1 March 2000, p.1).
One senior police officer involved in Games security, Inspector David Darcy has warned that police may react violently to silent or non-violent protests in the lead-up to the Olympics. His threat came in a letter to the Olympic Impact Coalition, an organisation of groups campaigning against the social costs of the Olympics, in which Darcy insisted that police must be notified in advance of any protest actions (Sydney Morning Herald (SMH) 4 March 2000, p.8).
These authorities have specifically mentioned the need to protect the multi-billion dollar commercial interests of the sponsors, advertisers and authorised media outlets. ‘The intent is very clearly there to make sure there is as much legislative clout to protect the operations of the Games and the key stakeholders’, Olympic Co-ordination Authority Director-General David Richmond told a conference of Olympic sponsors on 29 February (SMH, 1 March 2000, p.1).
The Olympics security operation is setting three precedents — political, legal and constitutional — that have far-reaching implications for freedom of expression and other basic democratic rights, particularly the right to protest and freedom of assembly and movement:
• sweeping powers to prevent many types of activity and to search and remove people are being extended to public places across the Sydney metropolitan area — with these powers to be exercised not only by the police but also by various authorised persons, both public and private;
• preparations are being made for large-scale, peacetime use of the military against civilians in a domestic environment; and
• foreign military and security personnel will operate unilaterally in Sydney, with or without the cooperation of their Australian counterparts.
Officially, the primary reason given for this massive security operation is the need to shield the Games from terrorism. NSW police chief Peter Ryan, who is formally responsible for the security arrangements, has described the Sydney Olympics as ‘an almost irresistible magnet to terrorist groups’. Other security commanders, however, have told media sources that they rate the danger of terrorism as low. Moreover, in their joint media release announcing the deployment of military personnel, Defence Minister John Moore and Attorney-General Daryl Williams said there was ‘no specific threat of terrorism against the Sydney 2000 Games’.
Yet, as will be discussed below, the pretext of terrorism is central to the legal basis for the security mobilisation, particularly the use of the military in a civilian context.
The New South Wales Labor government of Premier Bob Carr has now passed the Olympic Arrangements Act 2000 (NSW). It largely extends to all Olympic sites and public spaces in the city and harbour foreshore, the powers already given to the Olympic Co-ordination Authority under the Homebush Bay Operations Act 1999 (NSW) and the regulations made under that Act, which cover the main Games venue. That Act allows the Authority to appoint ‘authorised persons’ or ‘enforcement officers’ with powers exceeding those held by police.
Other Games-related measures introduced in late 1999 include the Security Industry (Olympic and Paralympic Games) Act 1999 (NSW) and the Sydney Harbour Foreshore Authority Regulation 1999 (NSW). (Together these measures will be referred to as the Olympics Security legislation.) Similar provisions are being enacted in other States that are hosting Olympic events. Moreover, in June 1998, the NSW government introduced the Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) (the Police and Public Safety Act) that empowers police officers to ‘move on’ or give other directions to people in public places.
The Olympic legislation goes far beyond the Police and Public Safety Act, which itself provides police with vague and wide-ranging powers, subject to minimal safeguards for civil liberties. Under the Police and Public Safety Act, police may give reasonable instructions to a person in a public place if that person’s behaviour or mere presence obstructs other people, constitutes harassment or intimidation of other people, or is causing or likely to cause fear to another person.
No such other person need actually be present — it is enough if they are nearby. The police need only form the opinion that the behaviour or presence would cause fear to a person of reasonable firmness (no such person need be present either). These measures do not specify or limit the directions that a police officer can give, except that they must be reasonable in the circumstances for the purpose of reducing or eliminating the obstruction, harassment, intimidation or fear. A person may refuse a police direction if they have a ‘reasonable excuse’ but, contrary to the principles of criminal law, the onus is on them to prove their excuse (s.28F(1), (2), (3), (6) and (8) of the amended Summary Offences Act 1988 (NSW).
Bare procedural safeguards are provided. In order to exercise their powers, police officers must identify themselves, give reasons for their directions and warn that a failure to comply will be an offence. A person commits an offence only if they fail to comply with a second warning. The NSW Ombudsman is required to monitor the Act’s operation (s.28F(4), (5), (6) and (7) of the amended Summary Offences Act and s.6 of the Police and Pubic Safety Act).
The Act also allows police to search a person and his or her personal effects in a public place if the police have reasonable grounds for suspecting that a person has custody of a dangerous implement (s.28A of the amended Summary Offences Act).
These powers give the police wide and highly discretionary powers to issue orders to people in public places. Police can use these powers to provoke resentment and resistance and then charge people with what is known as the ‘trifecta’ — abusive language, resisting arrest and assaulting or obstructing police in the course of their duties. There is already evidence of discriminatory and political use of these powers. The majority of people charged under the ‘move on’ provisions have been young, homeless, Aboriginal or sex workers (SMH, 21 December 1998).
The potential for such discrimination is greater under the Olympics Security legislation. Not even minimal procedural safeguards exist. None of the legislation specifies any qualifications or training for ‘authorised persons’ and ‘enforcement officers’. Unlike police, these appointees do not need to identify themselves. They may or may not be in any uniform; they will simply carry an ID card, to be shown on request. Furthermore, they need only give one warning — not two — before removing people. Yet they can wield powers exceeding those of the police. They may:
• use ‘reasonable force’ to remove people from a public place,
• prevent the distribution of any ‘advertising’ material,
• stop the use of any camera, recording or broadcasting equipment,
• ban anyone from areas under their control,
• search people and their possessions,
• demand names and addresses and proof of identity,
• photograph alleged offenders,
• seize property, and
• issue on-the-spot fines of up to $200. 
There will have wide scope for exercising these powers. Under the regulations, it is an offence for anyone to:
• walk or drive a vehicle in any area blocked off by barriers,
• use ‘indecent, obscene, insulting or threatening language’,
• behave in ‘an offensive or indecent’ manner,
• cause ‘serious alarm or affront’ to any person by disorderly conduct,
• obstruct a person,
• fail to comply with a reasonable request or direction by an authorised person in order to secure ‘good order and management’ of locations,
• cause ‘annoyance or inconvenience’,
• collect or attempt to collect money,
• use facilities for sleeping overnight,
• rise or use any skateboard, roller skates, inline skates or similar equipment,
• possess liquor or be intoxicated (in the opinion of an authorised person), or
• sell or hire goods or services. 
Where the location involved is a ‘sportsground’ (including spectator areas), the enforcement officers and police can go further: they can remove people without giving any warning or first requesting them to leave.
In part, these powers and offences are aimed at street vendors and ticket scalpers, whose activities could threaten Games profits. But they are also designed to deal with protests and other forms of social and political unrest. This can be seen by comparing the Olympics Security legislation with the Police and Public Safety Act and the Summary Offences Act 1988 (NSW).
First, the Police and Public Safety Act specifies that the police cannot give ‘move on’ or other directions in relation to an ‘apparently genuine’ protest or demonstration, or procession or organised assembly (s.28G amended Summary Offences Act). No such restriction applies under the Olympics Security legislation.
Secondly, Part 4 of the Summary Offences Act provides for the Commissioner of Police to authorise public assemblies and processions. There is no duty to seek authorisation of a public assembly, nor is it an offence to participate in an unauthorised assembly. Authorisation simply offers immunity from prosecution for obstructing traffic or unlawful assembly. Before refusing authorisation, the Police Commissioner must consult the organisers and obtain a court order (ss.23, 24 and 25 of the Summary Offences Act).
By contrast, cl.5(2) of the Sydney Harbour Foreshore Authority Regulation makes it an offence to participate or conduct a public assembly in the Sydney Harbour Foreshore that is not authorised by the Authority. The Authority does not have to consult the organisers or seek a court order before prohibiting an assembly. Unlike the Police Commissioner, it can also set days, times and conditions and charge fees for the organisers and participants.
No such banning powers are provided for in the Homebush Bay Operations Act and Regulation, but the legislation’s public order offences and removal powers could be used by enforcement officers and the police to stop protests and remove protesters.
Among the public places affected will be Bondi Beach, where beach volleyball will be played; Darling Harbour foreshore, where various events are scheduled; Sydney Harbour, the venue for yachting; Centennial Park, Randwick and Bankstown, where road cycling will be held; and the Nepean River at Penrith, where canoeing and rowing will take place.
It is not clear whether private security guards can exercise the powers created by the Olympics Security legislation. That may depend on the type of licence they hold. The Security Industry (Olympic and Paralympic Games) Act 1999 creates special Olympic security licences, authorising the licensee to carry on security duties consisting of ‘patrolling, protecting, watching or guarding property, and using security equipment’ (s.5(2)). This appears to be narrower than s.4(a) of the Security Industry Act, which defines security activities to include ‘acting as bodyguard, crowd control or bouncers’.
Three legal and civil liberties groups, the NSW Law Society, the Council for Civil Liberties and the Public Interest Advocacy Centre (PIAC), have opposed aspects of the new laws. PIAC has issued a briefing paper that reviews the legislation’s content, expresses concerns for the impact on the right to assemble and protest, and calls for a clarification of who will be ‘authorised persons’ under the legislation.
Law Society president John North has accused the government of having a ‘deep-seated fear [that] there might be backlashes from protests and other things’. He urged the government to confine the powers to defined venues and to police and trained security officers, arguing that the wider operation could backfire by fuelling resentment against the Games.
Despite the breadth of these policing powers, international, federal and State authorities are preparing for disorder that the police, security guards and other ‘enforcement officers’ cannot control. In a joint media release of 16 March 2000, Defence Minister Moore and Attorney-General Williams identified two main areas of military involvement: ‘security tasks’ and ‘general support’ to the NSW police.
For a cost of $71 million, defence personnel would be involved in operational searches of venues and vehicles, bomb searches and disposal, naval explosives clearance, driving, ceremonial activities and ‘managing venues in the areas of logistics, communications and transport’. The latter phrase is noticeably vague.
In his 29 February luncheon address to the Royal United Service Institution, Brigadier McNamara said the bulk of the military’s Special Forces, including the Special Air Service Regiment (SAS), would be on 24-hour, 10-minute notice at four sites in Sydney from mid-August until after the Paralympics. Such is the size of the Olympic deployment that only one army brigade will be left available for other military purposes.
The military operations could be far-flung. McNamara indicated that the armed forces had identified 115 places across Sydney, as well as Games-related venues in other parts of the country, as possible sites for ‘terrorism’. McNamara commands the operation, codenamed Operation Gold, reporting to the newly-appointed head of land command, Major-General Peter Cosgrove, who recently led the Interfet occupation of East Timor.
Special procedures will allow for troops to be called in at several minutes notice, by-passing the previous arrangements adopted in the wake of the 1978 bombing of the Sydney Hilton Hotel for the State government, which has constitutional responsibility for the police, and the federal government, which has constitutional jurisdiction over defence, to agree on the domestic use of the armed forces.
Until now the invoking of ‘military aid to the civil power’ has been a rare event in Australia, confined, at least as far as is known publicly, to national emergencies, such as floods, cyclones and earthquakes, or acute political crises. The last political emergency came in 1975, when the Governor-General Sir John Kerr secretly placed the armed forces on alert after dismissing the Whitlam government. No troops were seen on the streets, however.
‘Terrorism’ has been invoked once before as the basis for military involvement. In 1978 Prime Minister Malcolm Fraser and NSW Premier Neville Wran called out nearly 2000 soldiers in Sydney and the NSW Southern Highlands town of Bowral after a bomb exploded outside a Commonwealth Heads of Government Meeting at the Sydney Hilton. It was the first use of Australian troops this century against civilians on domestic soil. Previously, troops had been used for more specific functions, as police officers in the 1923 Victorian police strike and as strike-breakers in the 1949 coal miners’ strike (a role echoed in the use of the air force in the 1989 pilots strike).
To those who have closely examined the circumstances surrounding the Hilton bombing, including lawyer Tom Molomby and academic Jenny Hocking, it had all the hallmarks of being staged by the Australian Security Intelligence Organisation (ASIO) and the NSW Police Special Branch to provide the pretext for a security build-up. Twice, police framed-up political activists, notably Tim Anderson, for the bombing, but the convictions were later set aside by government pardon or overturned on appeal. To this day, the bombing remains officially unsolved.
Yet, as a result of the bomb blast, the mass media and the federal and State governments immediately declared that the ‘age of terrorism’ had arrived in Australia. Two ensuing reports by Justice Hope and one by former London police chief Sir Robert Mark recommended a significant boost to ASIO’s powers, the establishment of the Federal Police, the formation of the army’s SAS, and the creation of ‘anti-terrorist’ and SWAT-style squads in every State police force.
In addition, Crisis Policy Centres were set up to facilitate the provision of ‘military aid to the civil power’. They are police-military nerve centres, run by the Protective Security Co-ordination Centre (PSCC), which includes representatives of the Prime Minister’s National Security Council, the Office of National Assessments, ASIO and ASIS (the external intelligence service), the military and the federal and State police. The PSCC will coordinate military and intelligence operations during the Olympics.
The military response to the Hilton bombing raised serious legal questions. Two inter-related issues arose:
• were such interventions constitutional and, if so, what was their precise constitutional basis?
• what were the powers and rules of engagement of the military personnel and the rights of civilians in relation to the military?
Neither question was addressed in the two formal documents ordering the military intervention — a joint statement by the Prime Minister, Malcolm Fraser, and the NSW Premier, Neville Wran, and an Executive Order issued by the Governor-General Zelman Cowen.
Only after three months of legal confusion and uncertainty did the Attorney-General Peter Durack indicate that no recourse had been made to s.119 of the Constitution, which provides that ‘the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State protect such State against domestic violence’.
This left two possibilities. One, asserted by Justice Hope in his 1979 Protective Security Review, commissioned by the Fraser government, was that the Governor-General acted under s.68 of the Constitution, which states, without qualification, that: ‘The commander-in-chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative’.
The other possibility, canvassed by academic authorities, is that the federal government exercised its executive power, also formally exercisable by the Governor-General, under s.61 of the Constitution to ensure the ‘execution and maintenance of this Constitution, and of the laws of the Commonwealth’.
On both counts, Dixon J’s comments in Australian Communist Party v Commonwealth  HCA 5; (1951) 83 CLR 1 are regarded as providing the relevant principle:
It is within the necessary power of the federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason, the suppression of insurrection or rebellion and for the putting down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government.
In order to apply this dictum to the Hilton operation, however, it was necessary to accept the official explanation that the bombing was an act of ‘terrorism’ and therefore an essential threat to the Commonwealth. According to this view, a critical distinction exists between ‘terrorism’ and other forms of violence, including political violence, which should properly be dealt with by the police forces.
Against this view, Justice Windeyer, who provided advice to Justice Hope’s Protective Security Review, argued strenuously against defining ‘terrorism’ as a particular crime distinct from other violent crimes. In any case, it is questionable whether the incident did in fact endanger or obstruct either the ‘execution and maintenance of the Constitution’ or ‘the discharge of the proper business of government’.
That doubt applies equally to the military’s involvement in the Olympics security operation. And the other unresolved question, that of the powers of military personnel over civilians, also remains. May soldiers, for example, shoot to kill alleged terrorists? Can military authorities impose forms of martial law? Are civilians obliged to follow their orders?
In case it is thought that these are idle questions, the Protective Security Review included a lengthy discussion on the imposition of martial law. Justice Hope said martial law would prevail automatically if there were an insurrection, riot or rebellion considered to amount to war.
Regardless of the extensive police and military arrangements for the Olympics, both the US and Israel will have their own security and military forces on hand. A US aircraft carrier, probably the USS Abraham Lincoln, will cruise in international waters near Sydney, accompanied by a destroyer and submarine. Helicopter-borne soldiers and Navy Seals will be equipped to respond to any ‘terrorists’. FBI officers are already in Sydney and were to be joined by military liaison officers this year. US officials and Israeli security personnel will be permitted to carry guns. Little else is known about the likely Israeli presence, but media reports and complaints from local MPs indicate that ASIO officers have been visiting members of Sydney’s Arab and Islamic communities to question them about their attitudes toward a Palestinian suggestion of an Arab boycott of the Games.
US President Bill Clinton was planning to attend the Olympics, but withdrew in March, citing security and logistical problems. Other international political leaders are believed to be still coming, heightening the security sensitivity. Moreover, there are particular concerns about the US Olympic team. Australian Defence Force Director-General of Military Support for the Olympics, Brigadier Adrian D’Hage, told the Brisbane Courier-Mail there would be close cooperation with the US because ‘obviously the security of the US Olympic team is one we give special attention to because of the US place in the world’.
Under international law, the US and Israeli governments would probably have to obtain permission from Prime Minister John Howard before deploying their forces on Australian soil. What legal authority or immunity from civil and criminal liability such personnel would have may depend on the precise agreements between the governments. But an Australian government source told the Brisbane Courier-Mail last December: ‘The reality is the US will act alone if necessary. We should be prepared to act together, but if United States’ interests or people are threatened, the world’s policeman will go it alone.’
Perhaps this view reflects a new doctrine of national sovereignty in the light of the US-NATO bombing of Yugoslavia last year. It should be noted, however, that in the 1970s and 1980s both the US and Israel asserted the right to intervene unilaterally to rescue hostages or protect their nationals in Cambodia, Iran and Uganda. A UN Security Council debate on the Entebbe raid was inconclusive as to its legality. Later, the 1984 and 1989 US invasions of Grenada and Panama were partly justified by the protection of US citizens.
Just as claims of ‘terrorism’ provided the justification for the last security build-up following the Hilton bombing, there are signs that ‘terrorist’ scares will be used to accustom public opinion to a large-scale police–military presence during the Games. In early March, a Turkish immigrant worker from Sydney’s west was arrested and charged with threatening to destroy planes carrying athletes from the US, France, Britain and Israel to the Olympics. The week before, Australian intelligence agencies suddenly informed the media that they had identified groups linked to Saudi millionaire Osama bin Laden as a threat to the Games. Both stories were afforded front-page treatment.
Closer scrutiny suggests a twofold agenda. In the first place, the security operation is designed to silence those planning to protest during the Games and generally intimidate youth and ordinary people. Secondly, it will set an expanded legal precedent and provide extensive practice for the future use of ‘military aid to the civil power’ in the event of rising social tensions of the type revealed by the planned Olympic protests.
[*] Michael Head teaches law at the University of Western Sydney
 Sydney Daily Telegraph, 6 March 2000, p.4. See also Joint Media Release, Defence Minister John Moore and Attorney-General Daryl Williams, 16 March 2000 <minister.defence.gov.au/2000/05100.html>
 Brisbane Courier-Mail, 14 December 1999 <<www.archive.news. com.au/news_content/bcm/4304764.htm>>.
 ABC News Online ‘Aussie troops in preparation for Olympics’, 9 March 2000 Sydney Morning Herald, 30 November 1999.
 Ninemsn news 11 April 2000 <news.ninemsn.com.au/01_national/ story_18074.asp>.
 Sydney Morning Herald, 22 September 1999 <www.smh.com.au/olympics/country/19990922/A15597-1999Sep22.html>.
 Sun-Herald, 16 January 2000, p.1. See also Age, 2 March 2000 (www.theage.com.au/news/20000302/A49093-2000Mar1.html).
 See ref 1.
 Homebush Bay Operations Act 1999 (NSW), ss.3, 6, 11, 17, 25 and 31 and Schedule 3 (Homebush Bay Operations Regulations 1999).
 See ref 8, Schedule 3.
 See also Hunt J in Commissioner of Police v Allen (1984) 14 A.Crim.R 244 at 254-55.
 Public Interest Advocacy Centre, Olympics Liberty and Security Issues, a briefing paper, Sydney, February 2000.
 Sydney Morning Herald, 4 March 2000, p.13.
 The Canberra Coup, Workers News, Sydney, 1976.
 Molomby, T., Spies, Bombs and the Path of Bliss, Potoroo Press, 1986, and Hocking, J., Beyond Terrorism, The Development of the Australian Security State, Allen & Unwin, 1993.
 Hope, R., The Royal Commission on Intelligence and Security, Reports I, II, III, IV, AGPS, Canberra 1977; Hope, R., Protective Security Review Report, AGPS, 1979.
 Mark, R., Report on the Organisation of Police Resources in the Commonwealth Area, AGPS, 1978.
 Molomby, T., above.
 Halliday, M., ‘Crisis Policy Centres’, Parts I, II, III, Workers News, 12, 19, 26 January 1980.
 For these documents, and general discussion, see Hocking, ref 14, above.
 Doogan, C., ‘Defence Powers Under the Constitution’, (1981) Defence Force Journal at 33; Blackshield, A., ‘The Siege of Bowral: the Legal Issues’, (1978) 9 Pacific Defence Reporter at 7; Lane, P., ‘Legal and Constitutional Problems of Protective Security Arrangements in Australia’, (1978) 52 Australian Law Journal 298.
 Windeyer, V., Opinion on Certain Questions Concerning the Position of Members of the Armed Forces When Called Out to Aid the Civil Power, in Hope, Protective Security Review Report, Appendix 9.
 See generally Hocking, ref 14, above.
 Sydney Sun-Herald, 30 April 2000.
 Courier-Mail, 17 March 2000.
 See the Military and Paramilitary Activities case (Nicaragua v United States) ICJ Reports (1984), 169 and (1986), 14; and see, for example, Agreement between the Government of the Commonwealth of Australia and the Government of the United States of America concerning the Status of United States Forces in Australia, and Protocol (Canberra, 9 May 1963) <http://www.austlii.edu.au/au/ other/dfat/treaties/1963/10.html> .
 Shaw, M., International Law, Cambridge University Press, 1997, 4th edn, pp.791-3.
 See, for example, Sydney Morning Herald, 8 March 2000, p.1, Age, 2 March 2000, p.1.