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Amid considerable public controversy, the Australian Labor Party combined with the Government of Prime Minister John Howard to pass military call-out legislation through both houses of the Commonwealth Parliament on 7 September 2000. Less than three months after it was first announced and introduced in the House of Representatives on 28 June, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) came into force on 12 September, when it received royal assent by the Governor-General.
Under the amended Defence Act 1903 (Cth) (the Act), the Federal Government now has the power to call out the armed forces on domestic soil against perceived threats to 'Commonwealth interests', with or without the agreement of a state government. Once deployed, military officers can order troops to open fire on civilians, as long as they determine that it is reasonably necessary to prevent death or serious injury. Soldiers will have greater powers than the police in some circumstances, including the right to shoot to kill someone escaping detention, search premises without warrants, detain people without formally arresting them, seal off areas and issue general orders to civilians.
As will be examined in some detail in this article, the legislation authorises the Prime Minister, the Defence Minister and the Attorney-General, or 'for reasons of urgency', one of these 'authorising ministers', to advise the Governor-General (the Commander-in-Chief of the armed forces under the Constitution) to call out military personnel to deal with 'domestic violence'. The term 'domestic violence' is somewhat of an anachronism. It does not correspond to the modern sense of the phrase, which refers to violence within homes or families. It is a vague expression, undefined legislatively or judicially, found in 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'.
Both the Government and the Labor Party proposed minor amendments in an effort to meet certain objections from some state governments and to head off public concern about the impact on civil liberties, but the legislation's essential content remained the same: to authorise the use of the military to deal with civilian disturbances, including political and industrial unrest. The very fact that such legislation has been introduced and passed suggests a bipartisan expectation in official political circles that, in the coming period, troops will be required to deal with such disturbances that the police forces cannot contain.
Until now, the deployment of troops within the country has been both politically contentious and clouded by legal uncertainties. In the words of one author, although Australia was established as a penal colony under military administration, 'with the passage of time, the evolution of the Australian political system ensured a clear distinction between military powers and civil powers'.[1] During the 19th century, martial law was declared several times to deal with riots and rebellions, but the last clear exception to the military-civil division of power occurred in 1891 when the Queensland Government used troops to help the police suppress a sheep shearers' strike.[2]
This division of power was enshrined in the Constitution at federation in 1901. The military power was handed to the Commonwealth under s 51(xxxi), the colonial defence forces were transferred to the Commonwealth by s 69, and under s 114 the states were forbidden to raise military or naval forces without the consent of the Commonwealth Parliament. Residual authority over domestic law and order remained in the hands of the states and their police forces.
The constitutional demarcation has, furthermore, become embedded in public consciousness. Domestic use of the armed forces has become widely regarded as conduct to be expected of a military or autocratic regime, not a democratic government. On the only occasion since federation that a Commonwealth government has called out the military in an urban situation — following a bomb blast outside a regional Commonwealth Heads of Government meeting at the Sydney Hilton Hotel in 1978 — the sight of armed soldiers patrolling highways and the streets of the New South Wales town of Bowral caused public consternation.[3]
Despite the historic importance of the issue, the legislation was initially introduced without any publicity. With the support of the Opposition, the Bill was first passed through the House of Representatives in a single day on 28 June 2000. Neither Defence Minister John Moore nor Attorney-General Daryl Williams issued a media statement announcing the Bill, and no reports appeared in the mass media. Just one day before the Bill was tabled, the Government launched a public discussion paper, Defence Review 2000, in preparation for a Defence White Paper. The document canvassed an expanded role for the military, but made no mention of the Bill.[4]
Both the Government and the Opposition declared that it was necessary to have the legislation in place before the Sydney Olympic Games. Speaking in the House of Representatives, Labor's shadow defence minister, Stephen Martin, referred to the Olympics as the 'catalyst' for the Bill.[5] He committed the Opposition to having the Bill passed before the Games. 'It is important that a spirit of bipartisanship be exhibited ... on something as important as this', he told the House.
In the brief debate, references were made on both sides of the House to the need to counter possible terrorism at the Olympics, where some 4,000 military personnel were deployed.[5] After expedited examinations by two Senate committees, whose recommendations for minor amendments were partially adopted,[6] the legislation was ultimately passed on the last day of sitting before the 15 September opening of the Games. Despite this haste, the Act was not invoked during the Olympics.[7]
The implications of the legislation go far beyond the Sydney Olympics. The Act effects a permanent shift in the military's role. In the words of shadow attorney-general Robert McClelland: 'These measures should not be seen as simply a short-term measure that can be sunsetted after the Olympics. They are in themselves important measures that are certainly required'.[8] The Government and the Opposition rejected amendments to insert a sunset clause that would revoke the legislation after the Games.
Despite the initial lack of publicity, some media outlets began to report on the legislation, partly because of material prepared by this author.[9] Newspapers received numerous letters protesting against the Bill, prompting a public statement from the government. In a joint news release on 23 August, Attorney-General Daryl Williams and Defence Minister John Moore asserted that the Bill did not change the conditions in which the armed forces could be called out: 'State, Territory and Commonwealth Governments have always had the power to request call out of the Defence Force in Australia in rare situations where police need help to deal with an extreme emergency'.[10]
In the final hours of the parliamentary debate, Labor's spokesmen, Mr Martin and Senator John Faulkner, made similar statements. Mr Martin condemned those who had opposed the Act 'under the guise of protecting civil liberties', adding that people had been 'fooled by inaccurate and misleading reporting and cheap and populist politics'.[11] He asserted that the legislation would not, in any way, add to the Government's power to call out the army. Instead, Mr Martin claimed, the Bill placed new restrictions on the use of the military.
These statements are contradicted by the legislation itself. It seeks to add both to the government's call-out powers and to the powers of military personnel once they are called out. It provides that the utilisation and powers of the armed forces under its provisions shall be additional to any other lawful use of the military. The amended s 51Y of the Act states that 'this Part does not affect any utilisation of the Defence Force that would be permitted or required, or any powers that the Defence Forces would have, if this Part were disregarded'.[12] Thus, the Act does not place new restrictions on the use of the military, but augments the government's previous call-out powers.
Furthermore, the purpose of the legislation is to overcome definite legal and constitutional limits and restrictions that have, combined with political considerations, provided real constraints on the use of the armed forces in civilian settings.
Thus, s 51A of the amended Act goes well beyond the previous s 51, which essentially mirrored s 119 of the Constitution. In the first place, the new section allows a military call-out where the three ministers are satisfied that domestic violence is occurring, 'or is likely to occur'. The latter phrase is an addition to s 119 and is therefore arguably unconstitutional.
Secondly, the new section extends the call-out power to the protection of 'Commonwealth interests', regardless of whether there is a request by any state or territory government. The new s 51A(3) provides that 'the Governor-General may make the order whether or not the Government of the State or the self-governing Territory request the making of the order'. This provision, in so far as it purports to permit a military intervention without the consent of a state, also arguably contravenes s 119, which requires state assent to the use of troops on state soil.
Section 51A(3) requires only that an authorising minister 'consult' the state or territory government before the Governor-General makes the order. Plainly, consultation does not mean assent. Moreover, under s 51A(3A), that proviso does not apply if the Governor-General is satisfied that 'for reasons of urgency, it is impracticable' to comply with it. Under s 51A(8A), an authorising minister must notify a state government that an order has been made but 'if this is not done, the validity of the making or revocation of the order is not affected'.
In seeking to by-pass s 119, as shall be discussed below, the legislation appears to rest on a combination of other Commonwealth constitutional powers — the defence, external affairs, incidentals, executive and Governor-General's powers — yet the Government has not specified upon which of these powers it is relying.
Beyond the constitutional issues, the legislation is an attempt to overcome a variety of serious legal problems. Under existing legislative provisions and the common law, if military personnel kill or maim individuals, damage private property or interfere with people's liberty, they could be charged with criminal offences, including murder or manslaughter, or face civil action. Moreover, as commentators have pointed out, soldiers could not necessarily rely on a defence of obeying superior orders.[13] In addition, military personnel lacked legislative powers to carry out searches, seizures and arrests. That is why, when troops were called out in 1974 to guard Darwin's petrol depots from looters after the destruction of Cyclone Tracy, General Stretton, the commander of the Natural Disaster Organisation, stipulated that troops not carry arms, that they be accompanied by a police officer and that the soldier's authority would stem from a citizen's duty under common law.[14]
The legislation confers such potentially far-reaching powers on the Government and the military, that the Australian Democrats' spokesperson, Senator Vicki Bourne, appealed to the Government to agree to Parliament being re-called within two days of a troop call-out.[15] This would allow Parliament to assume political responsibility for any such decision, she argued. Likewise, the Australian Greens' representative, Senator Bob Brown, warned that if troops had to be brought in because a situation was so grave that a state police force and its tactical response group were unable to handle the crisis, 'the country would be in pandemonium. This would be a situation beyond anything in our last 100 years of history ... surely, in that situation, the Parliament should be recalled'.
During the final two days of debate, the Government and the Labor Party together defeated a series of amendments from the minor parties to modify the call-out power. One measure would have required the military to obtain judicial warrants before searching homes. Another would have limited the right to shoot to kill a fleeing person, similar to a restriction placed upon the Australian Federal Police, and another would have allowed soldiers to claim conscientious objection to deployment against civilians.
A further amendment would have required the tabling in Parliament of the manuals and protocols that will apply to military interventions. This proposal was raised after Senator Brown read out extracts from the then current Australian Army Manual of Land Warfare. Section 543 of that manual instructed military personnel in how to cover up the killing or wounding of 'dissidents'. The section stated:
Dead and wounded dissidents, if identifiable, must be removed immediately by the police ... When being reported, dissident and own casualties are categorised merely as dead or wounded. To inhibit propaganda exploitation by the dissidents the cause of the casualties (for example, ‘shot') is not reported. A follow-up operation should be carried out to maintain the momentum of the dispersing crowd.[16]
Responding to Senator Brown, Special Minister of State Chris Ellison said the Army manual was 'under revision' and would be replaced with a new version once the Act was passed. He refused, however, to give any assurance that a similar clause would not appear in the rewritten document.
Various state governments objected to parts of the legislation because it overrides their police powers and may cause clashes between the military and the state-run police forces. In the New South Wales Government submission to the Senate Foreign Affairs, Defence and Trade Legislation Committee, the Director General of the New South Wales Cabinet Office stated that the legislation could lead to 'conflict between State police and Commonwealth Defence Forces' and might 'override the national anti-terrorist plan'. In the submission of the Victorian Department of Premier and Cabinet, Premier Bracks declared: 'Confusion and conflict could arise between state agencies and the Defence Force'.[17]
These concerns were reflected in several newspaper editorials and commentaries. 'The potential for State-Commonwealth conflict is obvious,' the Sydney Morning Herald editorialised on 18 August. 'For example, would the Federal Government have found it easier to use such a procedure to send troops in if it had thought the New South Wales Police were not up to the mark at the height of the 1998 waterfront dispute?' The use of troops in such politically-charged conditions — thousands of people joined picket lines during the 1998 waterfront strike — may provoke controversy, the newspaper warned. 'As a rule, the States and their police — who, after all, are better trained than troops for the job — are the ones to deal with civil disturbances'.[18]
Apart from providing for a state government to be 'consulted' before a call-out was ordered, the Government and the Opposition largely brushed these reservations aside. The final vote in the Senate was 46 to 10. When the legislation went back to the House of Representatives for one last vote, only two independent Members of Parliament were against its introduction.
The legislation challenges a political and legal tradition opposing the use of the military to suppress domestic unrest — a principle that dates back to the 17th century struggles against the absolutist monarchy in Britain. In the lead up to the English revolution of the 1640s, the 1628 Petition of Right demanded that Charles I remove the 'great companies of soldiers and mariners [who] have been dispersed into diverse counties of the realm ... against the laws and customs of this realm and to the great grievance and vexation of the people'. The Petition is regarded as making it unconstitutional for the Crown to impose martial law on civilians.[19] As a result of the 1688 settlement between the monarchy and the parliament, the Bill of Rights declared it illegal for the Crown to raise or keep an army without parliamentary consent.[20]
Doubt has surrounded the legal force of this taboo. Commenting on the public disquiet provoked by the 1978 Bowral call-out, Blackshield referred to a longstanding popular social tradition against the use of the armed forces within the realm in peacetime. 'But as soon as one asks whether this social tradition is reflected in any legal tradition that might be invoked as a constitutional restraint on the use of armed forces, one is plunged into an esoteric maze of uncertainties'.[21]
In spite of the critical issues at stake, relevant judicial comment has been rare. One exception occurred in the 1989 High Court case of Re Tracey; Ex parte Ryan,[22] which considered the constitutionality of military courts martial. Justices Brennan and Toohey reviewed the history of the struggle for civilian supremacy over the armed forces, and spoke of the common law's concern to ensure that the existence of the armed forces 'as a permanent armed body under hierarchical command should not threaten the peace and civil order of the Realm'.[23]
Given that the use of troops against civilians was not tested in Australia during the 20th century, the position is still regarded as based on the British law. By the early 19th century, the emergence of mass protests fuelled by the conditions of the Industrial Revolution caused the British authorities to resort to military suppression at times. In the 1832 case of R v Pinney[24] three officers were tried before a Grand Jury after riots in Bristol. Two officers who had refused to order the troops to fire without a magistrate's sanction were found guilty of neglect of duty, causing one to commit suicide. The third officer, who had fatally shot someone during the incident, was acquitted of manslaughter.
Some general principles were laid down by the 1893 English Report of the Select Committee on the Featherstone Riots. Two people were killed when an infantry Captain ordered soldiers to fire on striking coal miners and their supporters after a local magistrate had read the proclamation from the Riot Act 1714. The Committee exonerated the Captain and his troops, although it warned that 'officers and soldiers are under no special privileges and subject to no special responsibilities as regards this principle of the law'. The taking of life must be shown to be necessary and resort to military assistance must be the 'last expedient' of the civil authorities, but when such a call was made, 'to refuse such assistance is in law a misdemeanour'.[25]
In addition, notwithstanding the 1628 Petition of Right, British law was also prepared to support recourse to the even more far-reaching imposition of martial law if the very existence of the state were threatened by civil unrest. According to Halsbury, martial law applies 'when a state of actual war, or of insurrection, riot, or rebellion amounting to war, exists'.[26] Martial law has been somewhat loosely described as 'the right to use force against force within the realm in order to suppress civil disorder'.[27] This formulation could justify the most dictatorial measures.
Doubt exists as to the legal basis of martial law. It is said to be either an example of a common law right to employ force to repel force or, alternatively, a royal prerogative.[28] Despite this fundamental uncertainty, the Privy Council in the 1902 Marais case on appeal from the Cape Colony, extended the doctrine of martial law to apply even where the ordinary civilian courts were still sitting.[29]
There has been no recorded case of martial law in Australia since federation in 1901 but it was invoked several times during the 19th century to suppress convicts, Aborigines and workers.[30] In his work, Emergency Powers, Lee 'hazards a guess' that the power to resort to martial law continues in Australia as a creature of the common law. Remarkably, Lee considers that, while legislation is generally preferable, the doctrine of martial law should not be buried 'for in the face of an extraordinary crisis it may come in useful... it may be better to rely on a "shadowy, uncertain, precarious something" than nothing at all'.[31]
The great strike struggles of the 1890s did see troops mobilised against specific demonstrations and gatherings, with orders to shoot to kill strikers and their supporters. In one infamous incident, Colonel Tom Price issued the following instruction to a volunteer unit during the extended Australian maritime strike of 1890:
Men of the Mounted Rifles, one of your obligations imposes upon you the duty of resisting invasion by a foreign enemy, but you are also liable to be called upon to assist in preserving law and order in the colony...To do your work faintly would be a grave mistake. If it has to be done effectively you will each be supplied with 40 rounds of ammunition, leaden bullets, and if the order is given to fire, don’t let me see any rifle pointed in the air; fire low and lay them out so that the duty will not have to be performed again.[32]
The turmoil of the 1890s led to s 119 being inserted in the Constitution, to allow the military to be mobilised against an 'uncontrollable situation'.[33] The expression 'domestic violence' was borrowed from article IV of the United States Constitution, s 4 of which specifies that the United States shall protect each State, on the application of its legislature, against 'domestic violence'. The statutory embodiment of this provision in 10 USC § 331 (1964) uses the more specific term 'insurrection', suggesting that an extremely serious level of rebellion must be involved — one that threatens the very existence of a state government.[34]
In the early years of the 20th century, Australian state governments requested military intervention on at least six occasions, to deal with such anticipated incidents as 'general strike riot and bloodshed', 'disturbances', wharf strike 'violence', 'labour troubles' and the 1923 Victorian police strike. On each occasion, it seems, the Federal Government declined on the basis that the state police were capable of dealing with the threat (although troops were sent to guard federal buildings, including post offices, during the Victorian police strike).[35] Only one of those requests — by Queensland in 1912 — was formally made under s 119. Thus, s 119 has never been applied.
In general, the invoking of 'military aid to the civil power' has been a relatively rare event in Australia, confined, at least as far as is known publicly, to unarmed and peaceful use in national emergencies, such as floods, cyclones and earthquakes. With little publicity, however, the Defence Forces do frequently provide technical and other assistance to the state, federal and territory police forces, most commonly for explosives disposal and logistical support.[36]
Troops were mobilised to break strikes on several occasions during the 20th century, mostly by Labor governments. The Chifley Government sent in soldiers against the coal miners’ strike of 1949, the Fraser Government used the RAAF to ferry passengers during the 1981 Qantas strike and the Hawke Government mobilised the airforce against striking pilots in 1989. These operations provoked bitter recriminations and questions as to their legality.[37] In a lesser known case, the Menzies Liberal Government sent troops to break a wharf labourers' strike in Bowen, Queensland in 1953, but was forced to withdraw the soldiers after tensions involving strikers and state police, followed by a protest by the Queensland Government.[38]
On several occasions, soldiers were deployed for political purposes. In 1970-71, the Gorton Government called out troops to suppress secessionist agitation in Papua New Guinea, then an Australian colony. Since no state government request was involved, s 119 of the Constitution could not be invoked, nor could the defence power, since Papua New Guinea was regarded as Australian soil. It seems that on legal advice, the Defence Minister Malcolm Fraser insisted on the issuing of a secret Order-in-Council to authorise the call-out, but its constitutionality remains questionable.[39]
The gravest political crisis came in 1975, when the Governor-General Sir John Kerr secretly placed the armed forces on alert after dismissing the Whitlam government.[40] No troops were seen on the streets, however. In 1983, the Hawke Government authorised RAAF flights over Tasmania to photograph work being conducted by the Tasmanian Government in breach of Commonwealth regulations and in 1989, the same Government authorised the dispatch of troops to combat protesters at the Nurrungar joint Australian-United States military satellite base. Both deployments generated political controversy and legal uncertainty, particularly with regard to the potential use of soldiers to confront demonstrators outside the Nurrungar base perimeter.[41]
The most dramatic military deployment occurred in 1978 when Prime Minister Malcolm Fraser and the New South Wales Premier Neville Wran called out nearly 2,000 soldiers in Sydney and the New South Wales Southern Highlands town of Bowral after the explosion outside the Commonwealth Heads of Government Meeting at the Sydney Hilton.[42] The mass media and the federal and state governments declared that the 'age of terrorism' had arrived in Australia. Two ensuing reports by Justice Hope[43] and one by former London police chief Sir Robert Mark[44] recommended a significant boost to the powers of the Australian Security Intelligence Organisation (ASIO), the establishment of the Federal Police, wider domestic use of the army’s Special Air Services (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 the Australian Secret Intelligence Service (ASIS, the external intelligence service), the military and the federal and state police.[45]
The Government's response to the Hilton bombing raised significant legal questions. Two inter-related issues arose: (1) Were such interventions constitutional and, if so, what was their precise constitutional basis? (2) 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, namely the joint statement by the Prime Minister and the New South Wales Premier, and the Executive Order issued by the Governor-General Sir Zelman Cowen.[46]
In his statement to Parliament, Prime Minister Fraser stated that the New South Wales Premier had concurred with the call-out but had not requested it. He did not specifically refer to s 119 of the Constitution, or explain the precise legal basis for the call-out, instead stating:
The mechanism for the legal approach to the call-out was discussed with the Premier in two terms: In terms of a strict request from the State, and therefore in terms of aid to the civil power; or, secondly, in terms of the use of the Commonwealth's own authority and responsibility to protect people against possible acts of terrorism. For various reasons as I explained to the House I think yesterday, the second course was chosen, but the Premier had made it perfectly clear to me that if it was thought best to pursue it through the first mechanism, the Premier would certainly act in full cooperation.[47]
Three months later, after some speculation as to the legal basis for the Government's action, the Attorney-General Peter Durack confirmed that no recourse had been made to s 119 of the Constitution. This left several possibilities. One, asserted by Justice Hope in his 1979 Protective Security Review,[48] 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'.
Another possibility, canvassed by academic commentators, 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'. References have also been made to the Commonwealth's defence power (s 51(vi) of the Constitution), combined with the external affairs power (s 51(xxix)), and the incidental powers (s 51(xxxix)). Other possibilities mentioned have been an 'inherent self-protecting' power of the Commonwealth, 'inherent law and order powers' and the Crown's prerogative power over defence and military matters.[49]
A 1978 note in the Australian Law Journal observed that the Hilton bombing call-out had 'exposed gaps, inadequacies, and uncertainties in the legal and constitutional powers of Commonwealth and State enforcement agencies'.[50]
Despite this lack of constitutional clarity, no legislation was introduced to provide clear authority for military deployment. Quoting the 18th century conservative Edmund Burke, Justice Hope called for legislation, observing that:
Use of the military other than for external defence, is a critical and controversial issue in the political life of a country and the civil liberties of its citizens. 'An armed disciplined body is in its essence dangerous to Liberty; undisciplined, it is ruinous to Society'. Given that there must be a permanent Defence Force, it is critical that it be employed only for proper purposes and that it be subject to proper control.[51]
Aware of the political sensitivity of the issue, the Fraser Government did not legislate. Instead, the only relevant legislative instruments remained the Australian Military Regulations and internal Defence Instructions, not all of which have been made public. Part 5 of the Regulations, 'Duties in Aid of the Civil Power During Domestic Violence', provides that a magistrate must accompany the defence forces into an area and 'read the Riot Act' before the troops move in. This, as Members of Parliament discussed in the House of Representatives, is now regarded in official circles as an impossibly cumbersome procedure. The Defence Instructions (General) on Defence Force Aid to the Civil Power remain classified documents,[52] a highly unsatisfactory situation when the implications for civil liberties are great. Of equal concern is the fact that under the Act, the Instructions may be changed at any time without parliamentary or public scrutiny.[53]
Two decades after the 1978 call-out, and taking advantage of the Olympics, the Government has brought forward legislation that seeks to expand its military call-out power without addressing either the constitutional doubts or the civil liberties concerns. Just as the 1978 Hilton bombing became the occasion for claims that Australia had entered the 'age of terrorism', various police and military authorities claimed that the Olympics would be a 'magnet' for terrorists.[54] The nature of the legislation, however, makes it apparent that the authorities are preparing not simply for terrorism, but for wider civil unrest that the police forces prove unable to quell.
The amended Act allows the three authorising ministers to call out the military in three circumstances. Where the ministers are satisfied that domestic violence is occurring or is likely to occur, the armed forces can be used to: (1) protect Commonwealth interests, where a State or Territory is 'not, or is unlikely to be, able to protect' those interests;[55] (2) protect a State, where the State is not, or is unlikely to be, able to protect itself;[56] and (3) protect a self-governing Territory, where the Territory is not, or is unlikely to be, able to protect itself.[57] In the latter two cases, the government of the State or Territory must first make an application, but no such restriction applies to the first case.
In each instance, neither the Emergency Forces nor the Reserves Forces can be called out or used in connection with an industrial dispute. These provisions will not prevent a government using the regular armed forces against strikers or as strikebreakers, as happened in 1949, 1953, 1981 and 1989.[58]
Once deployed, the military forces will have wide-ranging powers that they currently do not have in civilian situations. Under s 51I, any member of the Defence Force will be able to:
Where these powers are exercised in connection with the recapture of a premises or means of transport, written authority for that recapture must first be obtained from an authorising minister, except where the member of the Defence Force 'believes on reasonable grounds that there is insufficient time to obtain the authorisation because a sudden and extraordinary emergency exists'.
If the three ministers declare a 'general security area' under s 51K these powers will be expanded to include personal searches, erection of barriers and stopping means of transport. If a 'designated area' is declared within a general security zone under s 51Q, the powers will increase further. The military will be able to halt and control all movements of traffic and people, issue directions to individuals and 'compel' people to comply with directions. No criteria are specified for the declaration of general security zones and designated areas, but the declaration of a general security area must be published and both Houses of Parliament must be notified and recalled within six days.
The most revealing measures are those contained in s 51T on the use of 'reasonable and necessary force'. Soldiers will be permitted to cause death or grievous bodily harm where they believe 'on reasonable grounds' that such action is necessary to protect the life of, or prevent serious injury to, another person — including the soldiers involved. Moreover, a person 'attempting to escape being detained by fleeing' may be killed or caused grievous bodily harm if they have been called on to surrender and a soldier believes on reasonable grounds that the person cannot be apprehended in any other way.
Confronted by public hostility to its earlier unconditional endorsement of the Act, the Labor Party moved an amendment forbidding troops to 'stop or restrict any protest, dissent, assembly or industrial action, except where there is a reasonable likelihood of the death of, or serious injury to, persons'. The Government added a final clause 'or serious damage to property', which Labor accepted.
The resulting s 51G opens the way for wide use of the call-out power. Likelihood of property damage can easily be alleged. As independent MP Peter Andren put it, 'a rock thrown through the front door of the Crown Casino [the venue of the 2000 World Economic Forum in Melbourne] could give rise to such a call-out'.[59] As for the likelihood of injury, that could be created by a police attack on demonstrators.
Another amendment, enshrined in s 51X, requires all members of Parliament to be sent a report of a military call-out within seven days of it ceasing, regardless of whether Parliament is sitting. It is difficult to imagine a more illusory form of parliamentary scrutiny. In effect, Parliament will only have the power to rubberstamp a military operation that has already taken place.
Section 51XA provides for an 'independent review' with members to be appointed by the Defence Minister, or alternatively, a parliamentary committee, to examine the use of the legislation within six months of any military call-out or, if there is no call-out, within three years of the commencement of the Act. These proposals also reduce parliamentary oversight to a postscript.
Doubts remain about the constitutional validity of the recent amendments to the Act, notwithstanding the fact that a number of authorities have taken a generous view of the Commonwealth's powers to call-out the military. I shall examine the possible constitutional bases for the legislation and critically review the positions taken by various authors. As noted above, in the discussion on the 1978 call-out, the relevant sections of the Constitution are ss 51(vi) (defence), 51(xxix) (external affairs), 51(xxxix) (incidental), 61 (executive), 68 (command of the military forces), and 119 (protection of states). Possibly combined with prerogative powers, some or all of these powers may give rise to an inherent power of self-protection or a 'nationhood' power.
Section 119 provides for the Commonwealth to protect a state, on the application of the state, 'against domestic violence'. Doubts may arise about the validity of the legislation, or its application, even if a state applies for protection, in anticipation of unrest. One immediate issue concerns the words 'or is likely to occur' in s 51A of the Act. On the face of it, these words go beyond s 119. Lee[60] has supported Blackshield[61] in asserting that a threat of domestic violence is sufficient to invoke s 119. In Blackshield's view, '[t]he key word is 'protect'; and obviously one can protect against threatened, as well as actual, aggressions'. This proposition is not self-evident. Lee makes the straightforward point that s 119 does not say, 'protect ... against the threat of domestic violence'.
Nonetheless, Lee ultimately accepts Blackshield's assertion on the basis that s 119 also covers protection from invasion and such protection cannot wait until an invasion has already occurred. If a threat of domestic violence were not treated in the same manner as a threatened invasion, Lee argues, that would lead to an 'internal inconsistency' in the construction of s 119. This argument is also flawed. Section 119 does not speak of protection against the threat of invasion either. If an invasion is threatened, there is likely to be palpable evidence in the form of military preparations. In that sense, the invasion will be underway already. This may not be so in the case of domestic violence. Moreover, a government might be more tempted to use the mere possibility of a disturbance to justify military repression.
A more fundamental issue is whether the Federal Government can act to protect a state without a state application, that is, outside or in breach of the express precondition provided by s 119. According to the 1978 Australian Law Journal note referred to earlier, '[o]ne can read into s 119 the implication that the Commonwealth is at all times authorised to protect itself, as distinct from the States, against domestic violence'.[62] Precisely how that implication arises was not explained. On the contrary, s 119 expressly states that a military call-out must be requested by a State.
The external affairs powers may validate the legislation or its application where 'domestic violence' arises that threatens an aspect of foreign policy, diplomatic relations,[63] a commitment under an international treaty or persons whom the Australian Government is obliged to protect.[64] In the case of the 1978 call-out, the Hilton bomb blast affected a meeting of heads of government, who were defined as 'internationally protected persons' under the Prevention and Punishment of Crimes Against International Protected Persons Convention, which had been implemented by the Crimes (International Protected Persons) Act 1976 (Cth). This power would not apply, however, to a call-out where no such persons or foreign policy interests were involved.
The defence power's scope in relation to internal security has not been specifically considered by the High Court. Instead, in the words of the Australian Law Journal note, commentators have engaged in the 'not very satisfactory process of elastically stretching certain of the dicta of Judges' in the Australian Communist Party v Commonwealth[65] and Marcus Clark & Co Ltd v Commonwealth.[66]
According to s 51(vi), the Commonwealth Parliament may legislate with respect to: 'The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth'.
Most conjecture regarding internal security has focussed upon the second part of the section. The same Australian Law Journal note asserted that the words 'control of the forces to execute and maintain the laws of the Commonwealth' could extend 'to the preservation of general law and order so far as such order may be disturbed by general disobedience to the laws of the Commonwealth'.[67] Such a proposition is so broad that it could apply to any 'general' breach of a federal law, say, for example, an election boycott.
It is submitted that, given the clear federal-state demarcation drawn in the Constitution, the traditional distinction between military and police powers and the general principle of retaining the residual powers of the states, no such wide reading is warranted.
In his book Emergency Powers, Lee also takes a wide view of the defence power, although he does not consider the issue at length.[68] He notes that Justice Hope concluded that interference with a Commonwealth interest would generally involve a breach of a Commonwealth law, such as postal, crimes or electoral legislation, but also asserted that other valid Commonwealth interests might exist that are not protected by statute.[69]
Lee quotes Dixon J’s dictum from the 1949 sedition case, R v Sharkey,[70] where Dixon J cited Quick and Garran’s annotated Constitution of the Australian Commonwealth as follows:
The maintenance of order in a State is primarily the concern of the State, for which the police powers of the State are ordinarily adequate. But even if the State is unable to cope with domestic violence, the Federal Government has no right to intervene, for the protection of the State or its citizens, unless called upon by the State Executive. If, however, domestic violence within a State is of such a character as to interfere with the operations of the Federal Government, or with the rights and privileges of federal citizenship, the Federal Government may clearly, without a summons from the State, interfere to restore order. Thus if a riot in a State interfered with the carriage of the federal mails, or with interstate commerce, or with the right of an elector to record his vote at federal elections, the Federal Government could use all the force at its disposal, not to protect the State, but to protect itself. Were it otherwise, the Federal Government would be dependent on the Government of the State for the effective exercise of its powers.[71]
Several points must be made about this passage. Firstly, before quoting it, Dixon J made the following observation:
Just as 'none of' the enumerated subjects with respect to which the Parliament may make laws 'relate to that general control over the liberty of the subject which must be shown to be transferred if it is to be regarded as vested in the Commonwealth' (Attorney-General for the Commonwealth v Colonial Sugar Refining Co. Ltd. (1914) AC, at p 255; [1913] UKPCHCA 4; 17 CLR 644, at p 654), so none of such subjects relate to public order, to the control of what is written, spoken or published, to the limits upon freedom of expression, to the maintenance of the King's peace or to social order. Section 119 of the Constitution provides that the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. The reference to invasion explains the words 'and of the several States' in s 51 (vi), the defence power. But what is important is the fact that, except on the application of the Executive Government of the State, it is not within the province of the Commonwealth to protect the State against domestic violence. The comments made by Quick & Garran in Constitution of the Australian Commonwealth bring out clearly the distinction between matters affecting internal order and matters, which though in one aspect affecting internal order, concern the functions or operations of the Federal Government.[72]
Thus, Dixon J cited Quick and Garran to emphasise that the Commonwealth had no specific power to interfere with individual liberty, regulate public order, limit freedom of expression, uphold civil peace or maintain social stability — these being matters reserved for the States. The power of the Commonwealth would only extend to protecting the functions or operations of the national government.
By seeking to authorise a military call-out to protect 'Commonwealth interests', without defining or limiting these interests, the recent amendments to the Act may well exceed this power by intruding into the very realms delineated by Dixon J.
After citing Quick and Garran, Dixon J also emphasised that the incidental power (the express form of which is found in s 51(xxxix) of the Constitution)[73] could not be utilised to alter the federal-state demarcation. He stated:
The power to legislate with respect to incidental matters has always been applied flexibly and liberally, as it must in a Constitution, but it cannot authorize legislation upon matters which are prima facie within the province of the States upon grounds of a connection with Federal affairs that is only tenuous, vague, fanciful or remote.[74]
I suggest that two inter-related conclusions follow. Firstly, a military call-out will only be valid in the event of interference with a clear, specific and identifiable Commonwealth function under the Constitution. Secondly, the incidental power cannot be used to intrude into the arena of domestic policing, which is clearly within the province of the States.
Section 61 vests the executive power in the monarch, exercisable by the Governor-General and s 68 specifically vests the command of the naval and military forces of the Commonwealth in the royal representative, the Governor-General. Lee asserts, somewhat tentatively, that '[a] reading of s 61 and s 68 would suggest some legal basis to justify the assertion that the power to invoke military aid unilaterally is also an attribute of the executive power'.[75]
Lee also argues that s 61 encompasses a judicially-recognised royal prerogative, referring to two Privy Council cases. In Chandler v Director of Public Prosecutions,[76] Lord Hodson stated: 'The Crown has, and this is not disputed, the right as head of State to decide in peace and war the disposition of its armed forces'. In Burmah Oil Co Ltd v Lord Advocate,[77] Lord Reid said: 'There is no doubt that control of the armed forces has been left to the prerogative ... subject to the power of Parliament to withhold supply and refuse to continue legislation essential for the maintenance of a standing army'.
It is remarkable that, some three centuries after the struggle for parliamentary and civilian supremacy over the British monarchy — and in a political system that professes to be democratic — the power of the government to call out the military is said to rest on vestiges of regal authority.
Moreover, there is the problem, as Lee acknowledges, that these Privy Council cases relate to unitary systems of government. Under the Australian Constitution, the prerogative power must be 'divided' along federal-state lines. Lee argues that because s 114 of the Constitution forbids the States from raising or maintaining any naval or military force without the consent of the Commonwealth Parliament, 'the Crown' in the military context can only mean the federal executive power. But how is the prerogative divided when a State request is required under s 119?
Furthermore, even if it is now accepted that the executive power extends beyond the express grant of legislative power set out in s 51 of the Constitution,[78] in a critical passage in Victoria v Commonwealth & Hayden ('AAP Case'),[79] Mason J pointed out that the scope of the executive power was not unlimited:
In the words of s. 61, the executive power of the Commonwealth 'extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth'. Although the ambit of the power is not otherwise defined by Ch. II it is evident that in scope it is not unlimited and that its content does not reach beyond the area of responsibilities allocated to the Commonwealth by the Constitution, responsibilities which are ascertainable from the distribution of powers, more particularly the distribution of legislative powers, effected by the Constitution itself and the character and status of the Commonwealth as a national government. The provisions of s. 61 taken in conjunction with the federal character of the Constitution and the distribution of powers between the Commonwealth and the States make any other conclusion unacceptable. Moreover, it is a view of the executive power which is confirmed by the past decisions of this Court (see The Commonwealth v. Colonial Combing, Spinning and Weaving Co. Ltd. ('the Wooltops Case'); The Commonwealth v. Australian Commonwealth Shipping Board).
In the AAP Case[80] and New South Wales v Commonwealth,[81] Barwick CJ sought to present the royal prerogative in modern clothing by referring to sovereignty that is 'inherent in the fact of nationhood and of international personality' and derives from 'the very formation of the Commonwealth as a polity and its emergence as an international State'.
Mason J stated that the incidental power could add a 'further dimension' and that the Commonwealth enjoyed certain implied powers but cautioned that these implied powers did not extend beyond 'internal security and protection of the State against disaffection and subversion':
However, in ascertaining the potential scope of the power there are several important considerations which need to be kept steadily in mind. First, the incidental power contained in s. 51 (xxxix.) taken in conjunction with other powers, notably s. 61 itself, adds a further dimension to what may be achieved by the Commonwealth in the exercise of other specific powers. So in Burns v. Ransley and The King v. Sharkey, ss. 24A, 24B and 24D of the Crimes Act 1914-1946 (Cth) were held to be supported by the combination of ss. 51 (xxxix.) and 61. Secondly, the Commonwealth enjoys, apart from its specific and enumerated powers, certain implied powers which stem from its existence and its character as a polity (Australian Communist Party v. The Commonwealth). So far it has not been suggested that the implied powers extend beyond the area of internal security and protection of the State against disaffection and subversion. But in my opinion there is to be deduced from the existence and character of the Commonwealth as a national government and from the presence of ss. 51 (xxxix.) and 61 a capacity to engage in enterprises and activities peculiarly adapted to the government of a nation and which cannot otherwise be carried on for the benefit of the nation.
In the context of arguably beneficial Commonwealth activity such as scientific research and public health, Mason J suggested a flexible approach to the functions considered to be constitutionally appropriate for a national government, but again cautioned against an interpretation that would radically transform federal-state relations:
However, the executive power to engage in activities appropriate to a national government, arising as it does from an implication drawn from the Constitution and having no counterpart, apart from the incidental power, in the expressed heads of legislative power, is limited in scope. It would be inconsistent with the broad division of responsibilities between the Commonwealth and the States achieved by the distribution of legislative powers to concede to this aspect of the executive power a wide operation effecting a radical transformation in what has hitherto been thought to be the Commonwealth's area of responsibility under the Constitution, thereby enabling the Commonwealth to carry out within Australia programs standing outside the acknowledged heads of legislative power merely because these programs can be conveniently formulated and administered by the national government.
These considerations weigh all the more heavily in the context of any infringement on democratic rights such as free speech, and the freedom to assemble and protest.
Commenting on the Bowral call-out, Blackshield concluded that the Government invoked this 'nationhood' principle to rely upon a vague notion of national security. 'Since almost any social controversy can nowadays be injected with "national security" implications, it would seem that a way has been found of circumventing Section 119 and intervening in State affairs whenever the Commonwealth chooses'.[82] The arbitrariness and potential breadth of such assertions of 'national security' presents real dangers to civil liberties and democratic rights.
Using Mason J's dictum as a guide, a 1997-98 Parliamentary Library Research Paper[83] reviewed the history of military call-outs in Australia, including the 1949 coalminers' strike; the 1953 Bowen waterfront stoppage; the 1971 Qantas strike; the 1978 Hilton bombing; the 1989 airline pilots' strike and the 1989 deployment of troops against anti-war protestors at the Nurrungar military base. With the possible exception of the 1953 Bowen confrontation, it concluded that the operations were valid as protecting essential Commonwealth interests, even if the constitutional grounds were not made clear at the time.
Lane has suggested the conclusion that 'there is also an inherent self-protecting power in the Federal Government, as there is in any sovereign state', and therefore 'the Government could use the armed forces to maintain law and order and the running of the government'.[84] This proposition would not even require an infringement of a federal law to justify a troop call-out.[85]
Dixon J’s comments in the Communist Party Case 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.[86]
Even applying this test, however, it is questionable whether an incident — say a protest or a bomb scare — at the Sydney Olympic Games would have in fact endangered or obstructed either the 'execution and maintenance of the Constitution' or 'the discharge of the proper business of government'.[87]
In Re Tracey; Ex parte Ryan,[88] Brennan and Toohey JJ reaffirmed the principle that a law may be declared invalid if its scope or application potentially exceeds the Constitution:
The submission was colourfully put on behalf of the Commonwealth that if the Parliament has power to cast the legislative net, the fact that the net catches more fish than the Parliament is entitled to take is irrelevant. The answer to this submission lies in the true scope of the principle on which it is founded. The principle is applicable when the Court is engaged in characterizing a law. Such an examination involves the operation of the law in the circumstances to which it applies. If the law is found to comprehend cases which have no connection with the subject-matter, that is a factor which affects the character attributed to the law. To adopt the fishing metaphor, the power to cast the legislative net depends on the mesh of the net.[89]
In the case of the military call-out legislation, it is submitted that the net has been cast too wide, with the mesh designed to catch cases that have no sufficient connection with the inherent functions of the Commonwealth. Both Dixon J in the Communist Party Case and Barwick CJ in the AAP Case, spoke in terms of self-protection or self-preservation of the Commonwealth, not mere interference with its interests. As Johnston has observed, there is no definite judicial endorsement of the claim that the Commonwealth's power can extend beyond protecting itself against serious threats to its existence.[90]
If the Act survives constitutional challenge, doubts will remain about aspects of the criminal and civil liability of military personnel in some circumstances, particularly if a state government or its police force have differences with the military call-out, leading to a lack of cooperation. Despite the wide powers that the Act grants to military personnel, it is not clear that the Act covers every instance in which an officer or soldier might otherwise be exposed to criminal liability or civil actions for assault, battery or false imprisonment. The Act itself does not specifically purport to provide a blanket legal protection, nor does it follow Justice Hope's recommendation that military personnel on call-out be granted the legal status of police officers.
In so far as the Act purports to expand the military call-out power beyond the common law, the traditional canons of statutory interpretation provide that a court should presume that the Act is not intended to deprive members of the public of their civil liberties.
Moreover, there is the issue of military commanders or individual soldiers whose actions breach the provisions of the Act. Many of the powers exercisable under the Act are subject to 'reasonable grounds' provisions. In addition, under s 51S members of the Defence Force exercising powers under the legislation must wear uniform and identification.
Section 51W provides that:
If, before, during or after exercising power under Division 2 or 3 or this Division, a member of the Defence Force fails to comply with any obligation imposed under any of those Divisions that relates to the exercise of the power, the member is not, or is taken not to have been, entitled to exercise the power.
The dilemma identified by Brett and Waller may still therefore arise:
The hardship upon soldiers is, that if a soldier kills a man in obedience to his officer's orders, the question whether what was done was more than was reasonably necessary to quell civil disturbance has to be decided by a jury, probably on a trial of murder. Whereas, if he disobeys his officer's orders to fire because he regards them as unlawful, the question where they were unlawful as having commanded something not reasonably necessary would have to be decided by a court-martial upon the trial of a soldier for disobeying orders, and for obvious reasons the jury and the court-martial are likely to take different views as to the reasonable necessity and therefore as to the lawfulness of such an order.[91]
Since Re Tracey, it has been reasonably clear that the defence power cannot be used to exempt military personnel from the general criminal and civil law for conduct for which they have already been tried for a 'service offence' under military law.[92] Five members of the High Court in that case held invalid provisions of the Defence Force Discipline Act 1982 (Cth) that sought to do so, insisting that, after reviewing the history, a soldier remains a citizen and liable to the ordinary criminal law.
In conclusion, the Act, as amended in 2000, provides even less certainty and protection for civil liberties than the previous obscure mixture of common law, delegated legislation and constitutional doctrine. However unsatisfactory the old legal morass, some underlying common law constraints on military power survived. The only thing made more certain by this legislation is that politicians of both major parties have combined to seek to expand military power. Whether that bid has been successful remains to be seen.
[*] B Juris, LLB (Monash), LLM (Columbia), Coordinator, Community Law Program, Law Faculty, University of Western Sydney. Some aspects of this article are drawn from earlier reports published by the author on the World Socialist Web Site (www.wsws.org), see below n 10.
[1] Christopher Doogan, 'Defence Powers Under the Constitution: Use of Troops in Aid of State Police Forces — Suppression of Terrorist Activities' (1981) 31 Defence Force Journal 31.
[2] Ibid 31.
[3] See Tom Molomby, Spies, Bombs and the Path of Bliss (1986), and Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (1993).
[4] See Defence 2000 — Our Future Defence Force, (2000) Department of Defence, <http://whitepaper.defence.gov.au> [accessed 27 June 2000].
[5] Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000, 18413 (Stephen Martin, MP, ALP).
[5] See Michael Head, 'Olympic Security: Police and military plans for the Sydney Olympics — a cause for concern' (2000) 25 Alternative Law Journal 131.
[6] See Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 (2000), The Parliament of the Commonwealth of Australia, <http://www.aph.gov.au/senate/committee/submissions/fadt_civbill.htm> and Senate Standing Committee for the Scrutiny of Bills, Alert Digest No 10 of 2000, (16 August 2000).
[7] It has since been revealed, however, that elite SAS personnel were deployed undercover in plain clothes, assisting the New South Wales police to monitor crowds during the Olympics, without approval by the Defence Minister or federal Cabinet. Cabinet's National Security Committee subsequently approved the deployment, without any reference to the Act. See The Sydney Morning Herald, 9 February 2001, 6.
[8] Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000, 18420 (Robert McClelland, MP, ALP).
[9] See, for example, Michael Head, 'Australian government uses Sydney Olympics to strengthen military powers' (2000) World Socialist Web Site <http://www.wsws.org/articles/2000/aug2000/olym-a05_prn.shtml> Michael Head, 'Australian government seeks to push through revamped military call-out bill' (2000) World Socialist Web Site <http://www.wsws.org./articles/2000/aug2000/milit-a29_prn.shtml> Michael Head, 'Sydney Olympics used as 'catalyst' for permanent military powers over civilian unrest' (2000) 25 Alternative Law Journal 192.
[10] John Moore and Daryl Williams, 'Further Safeguards for Defence Bill' (23 August 2000) Department of Defence <http://www.minister.defence.gov.au//2000/22900.htm>
[11] Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000, 20511 (Stephen Martin, MP, ALP).
[12] The Explanatory Memorandum states that s 51Y 'makes it clear that the new process for calling out members of the Defence Force does not in any way detract from the use of the Defence Force that would be permitted or required under any powers that the Defence Force would have if the new Part were not in place'.
[13] Peter Brett and Peter Waller, Brett and Waller's Criminal Law: Text and Cases (1983) 654.
[14] Alan Stretton, The Furious Days (1976) 82-83.
[15] For these debates, see Commonwealth, Parliamentary Debates, Senate, 6 September 2000, 17389 (Vicki Bourne, Senator, NSW), and Commonwealth, Parliamentary Debates, Senate, 7 September 2000, 17536 (Vicki Bourne, Senator).
[16] Quoted by Senator Brown, Commonwealth, Parliamentary Debates, Senate, 6 September 2000, 17398 (Bob Brown, Senator, Tasmania).
[17] For these and other submissions, see above n 7.
[18] Editorial, The Sydney Morning Herald, 18 August 2000.
[19] See W S Holdsworth, 'Martial Law Historically Considered' (1902) 18 Law Quarterly Review 117.
[20] See Steven Greer, 'Military Intervention in Civil Disturbances: The Legal Basis Reconsidered' [1983] Public Law 573.
[21] AR Blackshield, 'The Siege of Bowral — The Legal Issues' (1978) 4 Pacific Defence Reporter 6.
[22] [1989] HCA 12; (1989) 166 CLR 518.
[23] Ibid, 562.
[24] (1832) St Tr (1891), N S Vol 3; [1832] EngR 305; 5 C & P 254.
[25] United Kingdom, Parl Papers Vol 17, (1893-94) 381.
[26] Lord Hailsham (ed), Halsbury's Laws of England (4th ed, 1973–), vol 8(2), para 821.
[27] Robert Heuston, Essays in Constitutional Law (2nd ed, 1964) 152.
[28] See, for example, Halsbury's Laws of England, above n 27, para 821.
[29] D F Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony [1902] AC 109.
[30] See S D Lendrum, 'The 'Corrong Massacre': Martial Law and the Aborigines at First Settlement' [1977] AdelLawRw 2; (1977) 6 Adelaide Law Review 26. See also Victor Windeyer, 'Certain Questions Concerning the Position of Members of the Defence Force When Called Out to Aid the Civil Power' in Robert Hope, Protective Security Review Report (1979) Appendix 9.
[31] H P Lee, Emergency Powers (1984) 224. The quoted words are taken from R v Nelson and Brand (1867) F Cockburn Sp Rep 86, where Cockburn CJ stated: 'Martial law when applied to the civilian is no law at all, but a shadowy, uncertain, precarious something, depending entirely on the conscience, or rather on the despotic and arbitrary will of those who administer it.'
[32] Quoted in Brian McKinlay, A Documentary History of the Australian Labor Movement, 1850-1975 (1979) 377. Such instructions — to 'fire low and lay them out' — are still mirrored in the Australian Military Regulations. Regulation 421(6) specifies that: 'Care shall be taken to fire only upon those who can be seen to be implicated in the disturbance'. Lee, above n 32, 242. Regulation 410 requires the commander of the forces to warn those present that, if the troops are ordered to fire, the fire will be effective. Call Out the Troops: an examination of the legal basis for Australian Defence Force involvement in 'non-defence' matters, Australian Parliamentary Research Paper 8 (1997-98) 5.
[33] Blackshield, above n 22.
[34] See generally M Cherif Bassiouni, The Law of Dissent and Riots (1971).
[35] Lee, above n 32, 201.
[36] See Call Out the Troops, above n 33, 42 — between January 1988 and September 1989, the Australian Defence Force provided assistance to police forces on 1,518 occasions.
[37] Ibid 19.
[38] See Call Out the Troops, ibid 19.
[39] Ibid 13. See also B D Beddie and Stanley Moss, 'Some Aspects of Aid to the Civil Power in Australia' (1982) Occasional Monograph No 2 (University of New South Wales Dept of Government) 55.
[40] See 'The Canberra Coup', Workers News (1976).
[41] See Call Out the Troops, above n 33, 14 -18.
[42] See above n 4.
[43] Robert Hope, The Royal Commission on Intelligence and Security, Reports I, II, III, IV (1977); Robert Hope, Protective Security Review Report (1979) and Appendix 9 to that report, Windeyer, above n 31.
[44] Robert Mark, Report to the Minister for Administrative Services on the organisation of police resources in the Commonwealth area and other related matters (1978).
[45] Mike Halliday, 'Crisis Policy Centres' (12, 19, 26 January 1980) Workers News Parts I, II, III. See also Hocking, above n 3, 177.
[46] For these documents, and general discussion, see Hocking, above n 3.
[47] Commonwealth, Parliamentary Debates, House of Representatives, 23 February 1978, 159 (Malcolm Fraser, Prime Minister).
[48] Hope, Protective Security Review Report, above n 44.
[49] See 'Current Topics: Legal and constitutional problems of protective security arrangements in Australia' (1978) 52 Australian Law Journal 296, and P H Lane, An Introduction to the Australian Constitution (1974) 77.
[50] (1978) 52 Australian Law Journal 296. Nevertheless, the author found sufficient constitutional support for the operation in the preamble to the Order of the Governor-General calling out the troops:
'Whereas I am satisfied, by reason of terrorist activities and related violence that have occurred in the State of New South Wales, that it is necessary —
To rely upon such a preamble seems dubious in the light of the Communist Party Case (Australian Communist Party v Commonwealth [1951] HCA 5; (1951) 83 CLR 1). The High Court ruled unconstitutional an attempt by the Federal Government to outlaw the Communist Party, rejecting the Menzies Government's attempt to make its legislation valid by invoking various heads of power in a preamble to its legislation.
[51] Hope, Protective Security Review, above n 44, 142.
[52] Call Out the Troops, above n 33.
[53] Bayne has questioned whether the Instructions might be subject to publication requirements under the Statutory Rules Publication Act 1903 (Cth) or be covered by s 9 of the Freedom of Information Act 1982 (Cth) — see Peter Bayne, 'Policy guidelines and the law: some intersections' (1991) 65 Australian Law Journal 607.
[54] See my earlier article, above n 10.
[55] Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) s 51A.
[56] Ibid s 51B.
[57] Ibid s 51C.
[58] See above pp 6-9.
[59] Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000, 18447 (Peter Andren, Independent MP).
[60] Lee, above n 32, 204.
[61] Blackshield, above n 22, 6.
[62] (1978) 52 Australian Law Journal 296, 298.
[63] R v Sharkey [1949] HCA 46; (1949) 79 CLR 121.
[64] Commonwealth v Tasmania [1983] HCA 21; (1983) 158 CLR 1.
[65] [1951] HCA 5; (1951) 83 CLR 1 ('Communist Party Case').
[66] [1952] HCA 50; (1952) 87 CLR 177.
[67] (1978) 52 Australian Law Journal 296, 298.
[68] Lee, above n 32.
[69] See Hope, Protective Security Review, above n 44, 151.
[70] [1949] HCA 46; (1949) 79 CLR 121.
[71] [1949] HCA 46; (1949) 79 CLR 121, 151.
[72] [1949] HCA 46; (1949) 79 CLR 121, 151
[73] For the implied form of the power see Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55, 77.
[74] [1949] HCA 46; (1949) 79 CLR 121, 151. See also Richard Lumb, The Constitution of the Commonwealth of Australia Annotated (1986) 210-2, where it is argued that the incidental power extends to the enactment of legislation that prohibits conduct directed against the Commonwealth, such as treason, treachery, sabotage, sedition and espionage.
[75] Lee, above n 32, 206.
[76] [1964] AC 763, 800.
[77] [1964] UKHL 6; [1965] AC 75, 100.
[78] See, for example, Mason CJ, Deane and Gaudron JJ in Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79, 92-3.
[79] [1975] HCA 52; (1975) 134 CLR 338
[80] Ibid 361-2.
[81] [1902] VicLawRp 94; (1975) 8 ALR 1, 15-17.
[82] Blackshield, above n 22, 6.
[83] Call Out the Troops, above n 33.
[84] From P H Lane, An Introduction to the Australian Constitution (1974) 77.
[85] Justice Hope in his Protective Security Review, above n 44, 27-30, also supported the notion of an inherent executive power of self-protection, as did Isaacs J in The King v Kidman [1915] HCA 58; (1915) 20 CLR 425, an opinion quoted with approval by Fullagar J in the Communist Party Case [1951] HCA 5; (1951) 83 CLR 1, 259.
[86] [1951] HCA 5; (1951) 83 CLR 1, 188, citing Black's American Constitutional Law (2nd ed, 1910). See also Doogan, above n 1, 33.
[87] See generally Hocking, above n 3.
[88] [1989] HCA 12; (1989) 166 CLR 518.
[89] Ibid 568.
[90] Peter Johnston, 'Re Tracey: Some Implications for the Military-Civil Authority Relationship' (1990) 20 Western Australia Law Review 73, 79.
[91] Brett and Waller, above n 14, 654.
[92] See Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518.
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