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MICHAEL HEAD[*]
After a perfunctory debate — lasting less than six hours in the Senate and House of Representatives — the Commonwealth Parliament passed the Defence (Aid to Civilian Authorities) Act 2006 (Cth) in February 2006, considerably enhancing the federal government’s powers to call out troops domestically. The bipartisan passage of the legislation, substantially amending the military call-out powers first enacted in 2000, has amplified the concerns that this author raised in 2000,[1] and again in 2005,[2] about the possibility of a government using the armed forces against civilians on domestic soil.
For the second time in just over five years, Labor joined hands with the Liberal–National Coalition to seize on an international sporting event — the March 2006 Commonwealth Games in Melbourne — as the excuse to enact military call-out powers. In 2000, the Sydney Olympic Games provided the pretext for legislation that overturned the basic political and legal principle — dating back to the overthrow of the absolute monarchy in Britain in the 17th century — against using the armed forces to suppress civilian disturbances.[3] Although the legislation preceded the terrorist outrages of September 11, 2001, references were made on both sides of Parliament to the need to counter possible terrorism at the Olympics.[4]
Despite producing no evidence of any specific terrorist threat, the government mobilised 4000 troops, including SAS commandos, for the 2000 Games. However, in the face of considerable opposition to the legislation, the government chose not to activate the provisions during the Olympics.[5] Nor has it invoked the laws since.[6] Nevertheless, the legislation has remained on the books, permitting the government to deploy troops on home soil whenever it alleges a threat to ‘Commonwealth interests’ or a danger of ‘domestic violence’ beyond the capacity of a State or Territory government. These sweeping and legally undefined terms could cover many forms of social and political unrest, including protests outside federal parliament, suburban clashes against police or industrial action.[7]
After the September 11 terrorist attacks in the US and the launching of by the Bush administration of the indefinite ‘war on terror,’ the Australian government argued that these requirements were too restrictive. In 2003 it commissioned a review by former military, police and public service chiefs to justify expanding the powers.[8] The review’s authors contended that, as a result of the terrorist events since September 11, ‘contemporary concepts of threat and national mechanisms for dealing with incidents go well beyond those reflected in the formulation, approval and enactment of the Part’.[9] Among other things, the Report stated that the Defence Act proved too limiting to be used at the Commonwealth Heads of Government Meeting, convened in Coolum, Queensland in 2002. Instead, ‘the call-out of the ADF was authorised directly under the executive authority of the Commonwealth’.[10]
Yet, the government waited until late 2005 before bringing forward the new legislation, presumably in order to do so on the grounds of having to move promptly to protect the Commonwealth Games. Without claiming any specific terrorist threat to the Games, the government announced that 2600 ADF personnel would be deployed for the event.[11] The ‘security contingent’ included an SAS Tactical Assault Group, Blackhawk helicopters and F/A 18 Hornet jet fighters, communications units and specialised teams to search venues and operate vehicle checkpoints. The ADF also supplied three military bands and ceremonial experts to train Games volunteers ‘in the conduct and protocols of flag and medal ceremonies’.
As explored later in this article, the amendments to the Defence Act 1903 (Cth) (‘the Act’) allow the Australian Defence Forces (ADF) to be called out far more easily and with unprecedented powers, including legally protected rights to kill people to protect ‘critical infrastructure,’ shoot down aircraft, sink ships, interrogate civilians and seize documents.
As the Bill was going through Parliament, the government and Labor agreed on two last-minute amendments that underscore the central thrust of the measures. One amendment extends the list of ‘authorising ministers’ who can call out the ADF to include the Deputy Prime Minister, Foreign Affairs Minister and Treasurer, as well as the Prime Minister, Defence Minister and Attorney General.[12] In a ‘sudden and extraordinary emergency’ the prime minister alone, or two other ‘authorising ministers’ acting together, can now give the order, which does not even need to be in writing — it can be made via a quick phone call. Moreover, the government can issue standing orders for the activation of the ADF whenever the chief of the armed forces deems it necessary.[13] These provisions give extraordinary powers to a handful of politicians and military officers to launch open-ended military mobilisations.
The other late amendment permits the ministers to call out the ADF in the name of ‘preventing acts of violence’ against ‘critical infrastructure’, even if the relevant state or territory government does not agree to the intervention.[14] This means that the States and Territories, which control the police forces under the Constitution, can be overridden. There is no definition of ‘critical’, except that damage or disruption would ‘directly or indirectly endanger the life of, or cause serious injury to, other persons’.[15] ‘Infrastructure’ is defined broadly enough to cover a vast range of ordinary domestic facilities, such as roads, railways, buildings, sporting arenas, schools, universities, hospitals, telephone and power lines, dams and water pipelines, mass media outlets and computer networks.[16]
The Australian Greens sought to provide a parliamentary checking mechanism on the exercise of these powers, by proposing that any ADF call-out be followed by the recall of Parliament with the power to disallow the decision. Given the majorities enjoyed in Parliament by the Coalition and Labor parties, it was hardly likely that such disallowance motions would succeed. Yet, the proposal was dismissed by the government and Labor with no debate, except for brief statements by Greens leader Senator Bob Brown and Senator Andrew Bartlett from the Australian Democrats.[17]
A further disturbing reaction occurred when Senator Brown criticised the insertion of a ‘superior orders’ defence, which gives ADF personnel immunity from criminal prosecution when they follow apparently legal orders.[18] Brown opined that this provision effectively overturned the Nuremburg tribunals’ refusal to allow such a defence, and suggested that soldiers who killed people during a protest could plead that they were simply following orders.[19]
Brown became the subject of attack by virtually every speaker — government, Labor and Australian Democrat — in both the Senate and the House. Defence Minister Brendan Nelson accused him of likening Australian servicemen and women to Nazis, and declared that it was illegitimate to ‘situate Australia’s Defence Force personnel within such a dreadful and heinous period of Western history’.[20] Such denunciations can only serve to disparage and scandalise any questioning of the conditions under which troops may be dispatched to confront civilians and given orders to use lethal force. Yet, given the now-discredited fabrications about ‘weapons of mass destruction’ as the pretext for invading Iraq,[21] it is surely legitimate to ask whether the Howard government, or any future Labor government, would employ equally gross lies to justify sending in troops to crush domestic unrest.
This article briefly examines four key aspects of the amendments adopted in 2006. It is suggested that the changes to Part IIIAAA of the Act significantly enhance the government’s unilateral power to mobilise troops internally and give the military unprecedented domestic powers, including to interrogate civilians and seize documents, together with considerably wider and legally protected rights to use lethal force, that is, to ‘shoot to kill’.
While fundamentally overturning the centuries-old principle against the internal use of troops against civilians, the original call-out legislation passed in 2000 limited deployments to where the government alleged a threat to ‘Commonwealth interests’ or a danger of ‘domestic violence’ that was beyond the capacity of State or Territory police forces. Although ‘domestic violence’ — a term derived from s 119 of the Constitution — was nowhere defined legally, it was derived from American usage and meant to relate to intense political, industrial or social crises that imperilled the very existence of the state.[22] Adopted in the wake of the great strike struggles in Australia during the 1890s, which saw troops deployed against demonstrations with orders to shoot to kill strikers and their supporters,[23] the term could easily cover a general strike or widespread popular movement against a government.
However, as discussed below, the 2006 amendments permit the air force and navy, as well as the army, to be mobilised significantly more broadly and routinely to deal with lesser incidents, including any alleged act or danger of terrorism. Because of the extraordinarily wide definition of terrorism in the counter-terrorism legislation passed since 2001, which can cover many traditional forms of political protest, such as mass demonstrations, blockades and picket lines,[24] this could indeed permit the armed forces to be called out for political purposes.
Both politically and legally, the most far-reaching change in the legislation is the broadening of its scope beyond the defence of ‘Commonwealth interests’ and responses to threatened ‘domestic violence’. Non-defined or ill-defined concepts such as ‘mobile terrorism’, ‘critical infrastructure’, ‘aviation incidents’ and ‘offshore area incidents’ have been introduced, either in the legislation itself or in its Explanatory Memorandum, that have the potential to make resort to military powers much more likely and commonplace, as well as constitutionally invalid.
As noted above, the terms ‘Commonwealth interests’ and ‘domestic violence’, although defined by the legislation or the Constitution, at least have constitutional connotations and possible parameters. I have argued elsewhere that Part IIIAAA of the Act already exceeded federal legislative power, by going beyond s 119 of the Constitution by allowing troop deployments in a State without that government’s consent and by permitting call-outs in anticipation of domestic violence that is ‘likely to occur’ rather than where the threat has already arisen.[25] Nevertheless, the restriction of military mobilisations to protect ‘Commonwealth interests’ or respond to threatened ‘domestic violence’ preserved some federal–state and military–civil demarcations. The amended Act substantially sweeps these demarcations aside.
Section 51CB permits the authorising ministers to designate any infrastructure in Australia or the Australian offshore area as ‘critical’. As noted above, both ‘infrastructure’ and ‘critical’ are defined in the most sweeping fashions. Moreover, use of the new scope is related to ‘acts of violence’ and thus not confined to a ‘terrorist’ threat. The Act does not define ‘acts of violence’, which may not be restricted to terrorist violence. It is open to a government to allege that planned political or industrial actions, or various forms of civil unrest, could involve violence. Indeed, the Act nowhere specifically refers to terrorism. The Explanatory Memorandum refers to ‘a terrorist threat or heightened alert relating to mass transit systems, mass gatherings (sporting events etc), critical infrastructure or other areas that may require protection’ [emphasis added].[26] In any case, as noted above, the definition of terrorism in the counter-terrorism legislation introduced since 2001 is wide enough to cover many customary forms of political and industrial activity.
Section 51IB provides that military call-outs to respond to such dangers remain confined by Part IIIAAA’s overall requirement of a threat to Commonwealth interests or of domestic violence, but the very specification of powers to protect critical infrastructure is likely to expand the interpretation of those concepts. Section 51IB permits the use of called-out military personnel to ‘prevent or put an end to, damage or disruption to the operation of the designated critical infrastructure’ or ‘prevent, or put an end to, acts of violence’. It enumerates specific powers, including to detain people, control movements, carry out evacuations, search people and seize things, as well as ‘anything incidental’ to these powers.
The Explanatory Memorandum’s reference to the ADF being used to deal with ‘a mobile terrorist incident and a range of threats to Australia’s security’[27] also raises significant questions. Although these phrases are not used in the amended Act, their presence in the Memorandum conveys an intention that the powers conferred on the ADF can be activated across jurisdictions in a broad context of responding to threats of terrorism or other forms of violence. To this end, s 51I(1) has added broad definitions of ‘location’ (includes any premise or place) and ‘thing’ (includes any means of transport, except an airborne aircraft) that will facilitate wide-ranging military operations. As with s 51IB relating to critical infrastructure, s 51I(1) also significantly expands the special powers of called-out personnel by authorising them generally to ‘prevent, or put an end to, acts of violence’. In addition, the section specifically empowers the ADF to (inter alia) detain people reasonably believed to have committed an offence, control the movement of persons or means of transport, and search persons or locations or things.
‘Aviation incidents’ are not defined by the Act. Indeed, the use of that heading in Schedule 3 of the Bill seems to be misleading because the relevant section, s 51AB, is not confined to aerial situations. Instead, as discussed below, it provides authorisation in advance for callouts in ‘specified circumstances’ identified by the authorising Ministers. The only connection to aircraft or aerial incidents is provided by s 51ST, which authorises measures against aircraft, up to and including destroying aircraft.
Under the legislation passed in 2000, a callout had to be ordered by the Governor-General in writing, acting on the advice of the authorising Ministers. Section 51CA now allows the Prime Minister or the two other authorising Ministers to issue a callout order if a ‘sudden and extraordinary emergency’ makes it not practicable for an order to be made by the Governor-General. Furthermore, an order does not need to be in writing, but can simply be noted in a written record (and failure to supply a copy of the record to the Governor-General and the Chief of the Defence Force does not affect the validity of the order).
In other words, authorisation for what used to be regarded as an extremely rare, exceptional and significant decision — to override the tradition against the domestic deployment of the armed forces — can now be made via a quick phone conversation. Section 51AB goes further, permitting the authorising Ministers to specify circumstances in which the Chief of the Defence Forces may utilise the ADF to protect Commonwealth interests against domestic violence. In effect, this provides for pre-programmed callouts, in which the ADF chief can deploy the military ‘for reasons of urgency’ without a specific order from the government. The section does not define the ‘specified circumstances,’ which are left to the authorising ministers to identify, nor does it require the ‘specified circumstances’ to be notified to the public.
In addition to the broad array of powers created by the 2000 legislation, the amended Act grants the ADF a range of extraordinary new powers in various circumstances. They include to use lethal force (s 51T(2A)), shoot down planes (s 51ST), sink ships (s 51SE), interrogate people and command the handing over of documents (s 51SO), search people and premises (s 51SK) and seize things (s 51SG). Many of these powers exceed those held by police officers, notwithstanding the expansion of police powers by the anti-terrorism legislation adopted by the federal, State and Territory Parliaments in late 2005. The only prerequisite for their use — that ADF personnel consider them ‘reasonable and necessary’ — provides no real safeguard against misuse or overuse, even if tempered by the stronger proportionality test, unsuccessfully suggested by the Senate Legal and Constitutional Committee, to require soldiers to take the ‘least restrictive means’ to achieve their purpose.[28]
The military’s ‘shoot to kill’ powers have been extended beyond the original Act — which allowed for lethal force to protect people from death or injury — to the protection of physical assets. The relevant part of s 51T now reads:
(2A) Despite subsection (1), in exercising powers under Division 2A, a member of the Defence Force must not, in using force against a person:
(a) do anything that is likely to cause the death of, or grievous bodily harm to, the person unless the member believes on reasonable grounds that doing that thing is necessary to:
(i) protect the life of, or to prevent serious injury to, another person (including the member); or
(ii) protect, against the threat concerned, the designated critical infrastructure in respect of which the powers are being exercised; or
(b) subject the person to greater indignity than is reasonable and necessary in the circumstances.
The new subsection 51T(2A)(a)(ii) could justify shooting people to stop a threatened disruption of any facility, even without any alleged direct danger to human life. Lethal force can now be used to protect facilities or property on the basis of political judgments about their importance, not to the preservation of human life, but national security. As discussed in an earlier article, the lessons of history, including from British military operations in Northern Ireland, demonstrate that even powers to shoot to kill in order to protect life can be abused to justify fatal shootings of unarmed people.[29]
These dangers have been further illustrated by the death of Jean Charles de Menezes, the 27-year-old Brazilian man shot by London police at a tube station on 22 July 2005, after terrorist bombings in the city. He was shot eight times, of which seven shots were to the head. After the killing, police officials gave out false information suggesting that the victim looked like a suicide bomber, was wearing a suspicious-looking overcoat on a hot day, and had tried to run away after he was challenged by police. Far from vaulting a ticket barrier and running down an escalator, he walked at a normal pace and picked up a newspaper. The police held him down and shot him after he was peacefully seated on a train.[30]
The potential for abuse of the call-out powers has been increased by amendments to the Act overturning the common law’s rejection of a general defence of superior orders[31] and also providing expanded legal immunities from prosecution for ADF personnel. The common law knew no general defence of superior orders, as emphasised by the High Court in A v Hayden (No 2).[32] Murphy J stated:
In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders.[33]
This principle has been reiterated in Britain by the House of Lords in R v Clegg[34] and by the Privy Council in Yip Chiu-Cheung v The Queen.[35]
Superior orders defences have traditionally been confined to armed conflicts.[36] The Defence Force Discipline Act 1982 (Cth) (‘DFDA’) and explanatory Australian Defence Force Discipline Act 1982 Manual provide that only lawful commands need to be obeyed.[37] These instruments are heavily tilted toward obedience. Thus, ‘a person given an order requiring the performance of a military duty may infer it to be lawful and disobeys it at peril’.[38] Disobedience of a lawful command is punishable by up to two years imprisonment.[39] It is a defence to any offence under the DFDA that an act or omission was performed in obedience to ‘an unlawful order that the person did not know, and could not reasonably be expected to have known, was unlawful’.[40]
Under s 51WB of the Defence Act, it is now a defence to a criminal act done, or purported to be done, by an ADF member under the call-out provisions that (a) the act was done under an order of a superior, (b) the member was under a legal obligation to obey the order, (c) the order was not manifestly unlawful, (d) there was no reason to believe that the circumstances had changed materially since the order was given, (e) there was no reason to believe that the order was based on a mistake as to a material fact and (f) the action taken was reasonable and necessary to give effect to the order.
This ‘manifestly unlawful’ defence is arguably wider than the DFDA defence. The Explanatory Memorandum states that on occasion, military service ‘will require unhesitating compliance with orders’.[41] It also states: ‘As matters currently stand, an ADF member prosecuted for a crime will have a defence if they can show they acted under lawful authority’.[42] In other words, the defence has been extended to cover unlawful superior orders that are not ‘manifestly unlawful’. This shift in the law opens up dangers that military personnel can kill, maim or seriously violate the rights of civilians with impunity.
Another new provision of the Act, s 51WA, removes ADF personnel from the jurisdiction of State and Territory criminal law and gives the Commonwealth Director of Public Prosecutions exclusive coverage of all prosecutions arising from acts done in a military call-out. Barring State and Territory prosecutors from instituting proceedings against ADF members who may act illegally during a call-out is a further serious abrogation of citizens’ rights to be protected from criminal actions by the military. This is especially so, given that the Commonwealth DPP may come under acute political and media pressure not to prosecute.
Prosecutions may be further hampered by the dropping of the previous requirement that ADF members be identified on their uniform by surname when called-out. Section 51S(1)(b) now permits military personnel to wear combinations of numbers and letters of the alphabet. Members of the public will therefore have no independent means of identifying soldiers or officers who violate their rights. Ordinary citizens face another danger. They may be confronted by armed troops and subjected to their operations and commands without even knowing that a call-out has been ordered. Under the previous provisions, where a ‘general security area’ was declared or an area ‘designated’ for the application of special powers, that fact had to be broadcast on radio or television. Sections 51K(2)(2AA) and 51Q(4) now provide exemptions from that requirement where the authorising ministers declare that such publicity would prejudice an operation.
[*] MICHAEL HEAD teaches law at the University
of Western Sydney.
© 2006 Michael Head
email: m.head@uws.edu.au
[1] Michael Head, ‘The Military Call-Out Legislation — Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review 273 (Head (2001)).
[2] Michael Head, ‘Calling Out the Troops — Disturbing Trends and Unanswered Questions’ [2005] UNSWLawJl 33; (2005) 28 UNSWLJ 479 (Head (2005)).
[3] Head, above n 1, 278–84.
[4] Ibid 274–8.
[5] Ibid 274–5.
[6] Head, above n 2, 479.
[7] Head, above n 1, 281.
[8] Department of Defence, Statutory Review of Part IIIAAA of the Defence Act 1903 (Aid to Civilian Authorities), Australian Government, Canberra (2004).
[9] Ibid 5.
[10] Ibid 8.
[11] Defence Media Release, ‘ADF “ready” to support the Commonwealth Games’, 16 February 2006.
[12] Defence Act 1903 (Cth) (‘Defence Act’) s 51CA(2).
[14] Ibid s 51CB (5).
[15] Ibid s 51CB(2).
[17] Commonwealth, Parliamentary Debates, Senate, 8 February 2006, 23–4.
[18] Discussed later in this article.
[19] Commonwealth, Parliamentary Debates, Senate, 8 February 2006, 18.
[20] Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2006, 55.
[21] Michael Head, ‘Orwell’s Nineteen Eighty-Four 20 years on: “The war on terrorism”, “doublethink” and “Big Brother”’ (2005) 30 Alternative Law Journal 208.
[22] Head, above n 1, 281.
[23] Ibid, 280.
[24] Michael Head, ‘Counter-Terrorism Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights’ [2002] MelbULawRw 34; (2002) 26 Melbourne University Law Review 666.
[25] Ibid, 286–7.
[26] Explanatory Memorandum, 12.
[27] Ibid, 2.
[28] Senate Legal and Constitutional Legislation Committee, Parliament of Australia, Canberra, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005, 27–31.
[29] Head, above n 2, 494–7.
[30] ‘Police changed Menezes log’, The Australian (Sydney), 31 January 2006 <http://www.theaustralian.news.com.au/common/story_page/0,5744,17990357%255E2703,00.html> at 9 February 2006; C Marsden, ‘Britain: Report into death of Jean Charles de Menezes handed to Crown Prosecution Service’ World Socialist Web Site, 21 January 2006 <http://www.wsws.org/articles/2006/jan2006/mene-j21.shtml> at 9 May 2006.
[31] Head, above n 2, 498–501.
[32] [1984] HCA 67; (1984) 156 CLR 532.
[33] A v Hayden [1984] HCA 67; (1984) 156 CLR 532, [5]. Justices Mason, Deane and Brennan made similarly emphatic statements.
[34] [1995] UKHL 1; [1995] 1 AC 482.
[35] [1994] UKPC 2; [1995] 1 AC 111. Note, however, that a defence of superior orders may negate mens rea: see Dinstein, The Defence of Superior Orders at International Law, Sijthoff, 1965, 76–91.
[36] Senate Report, above n 28, 21, referring to Faculty of Law, University of New South Wales, Submission 10, 2.
[37] Defence Force Discipline Act 1982 (Cth) s 27; Australian Defence Force Discipline Act 1982 Manual, 4–33.
[38] Australian Defence Force Discipline Act 1982 Manual, 4–33.
[39] Defence Force Discipline Act 1982 (Cth) s 27; Australian Defence Force Discipline Act 1982 Manual, 4–33.
[40] Defence Force Discipline Act 1982 (Cth) s 14.
[41] Explanatory Memorandum 25.
[42] Ibid, 26.
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