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Head, Michael --- "Calling Out the Troops - Disturbing Trends and Unanswered Questions" [2005] UNSWLawJl 33; (2005) 28(2) UNSW Law Journal 479

[*] Dr Michael Head, BJuris, LLB (Hons), Monash University; LLM, Columbia University; PhD, University of Western Sydney, is a senior lecturer in law at the University of Western Sydney. He can be contacted at <m.head@uws.edu.au>.

[1] Michael Head, ‘The Military Call-Out Legislation – Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review 273.

[2] Department of Defence, Statutory Review of PartIAAA of the Defence Act 1903 (Aid to Civilian Authorities), Australian Government, Canberra (2004) 2.

[3] Letter from Senator Robert Hill, Minister for Defence, to Michael Head, 4 August 2005 (copy on file with author).

[4] Department of Defence, above n 2.

[5] Michael Head, ‘Olympic Security: Police and Military Plans for the Sydney Olympics – A Cause for Concern’ (2000) 25 Alternative Law Journal 131.

[6] Senate Foreign Affairs, Defence and Trade Legislation Committee, Parliament of Australia, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 (2000), <http://www.aph.gov.au/senate/committee/fadt_ctte/completed_inquiries/1999-02/aidciv/report/report.pdf> at 8 September 2005; Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Alert Digest No 10 of 2000 (2000), <http://www.aph.gov.au/senate/committee/scrutiny/alerts/2000/d10.doc> .at 8 September 2005.

[7] Special Air Services (‘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 Defence Act 1903 (Cth): see David Lague, ‘Demand for Answeres on Crack Army Games Spies’, The Sydney Morning Herald (Sydney), 9 February 2001, 6.

[8] Head, above n 1.

[9] Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000, 18420 (Robert McClelland).

[10] Defence Act 1903 (Cth) s 51A.

[11] M Cherif Bassiouni, The Law of Dissent and Riots (1971).

[12] Defence Act 1903 (Cth) s 51T.

[13] Defence Act 1903 (Cth) s 51I.

[14] Defence Act 1903 (Cth) s 51I.

[15] Defence Act 1903 (Cth) ss 51O, 51P.

[16] Defence Act 1903 (Cth) s 51R.

[17] Defence Act 1903 (Cth) s 51R.

[18] Defence Act 1903 (Cth) s 51I(3).

[19] Above n 3.

[20] Elizabeth Ward, ‘Call out the Troops: An Examination of the Legal Basis for Australian Defence Force Involvement in “Non-Defence” Matters’ (Australian Parliamentary Research Paper No 8, Parliament of Australia, 1997) 19.

[21] 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.

[22] John Moore and Daryl Williams, ‘Further Safeguards for Defence Bill’ (Press Release, 23 August 2000), <http://www.minister. defence. gov.au//2000/22900.htm> at 8 September 2005.

[23] The Explanatory Memorandum states that s 5 1Y ‘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’: Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2003 (Cth) [59].

[24] Peter Brett and Louis Waller, Brett and Waller’s Criminal Law: Text and Cases (5th ed, 1983) 654.

[25] Head, above n 1.

[26] John Haldon Wootten, ‘Report of the Inquiry into the Death of David John Gundy’, in Commonwealth, Royal Commission into Aboriginal Deaths in Custody, National Report (1991) 282–3.

[27] 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.

[28] Hung Phun Lee, Emergency Powers (1984) 201.

[29] Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (1993).

[30] Sir Robert Mark, Report to the Minister for Administrative Services on the Organisation of Police Resources in the Commonwealth Area and Related Matters (1978) 16.

[31] Michael Head, ‘Whither the Refugee Convention? A New Perspective for the 21st Century’ (2002) 21 (May 2004) Mots Pluriels <http://www.arts.uwa.edu.au/MotsPluriels/MP2102mh.html> at 8 September 2005; Michael Head, ‘The High Court and the Tampa Refugees’ (2002) 11 Grifith Law Review 23.

[32] Michael Head, ‘Another Threat to Democratic Rights: ASIO Detentions Cloaked in Secrecy’ (2004) 29 Alternative Law Journal 127.

[33] Phillipe Sands, Lawless World: America and the Making and Breaking of Global Rules (2005).

[34] Tarcisius Tara Kabutaulaka, ‘Failed State’ and the War on Terror: Intervention in Solomon Islands, Asia Pacific Issues: Analysis from the East-West Centre No 72 (2004), <http://www.eastwestcenter.org/stored/pdfs/api072.pdf> at 8 September 2005.

[35] Migration Act 1958 (Cth) ss 189, 245.

[36] Ibid [35].

[37] Ibid.

[38] Ruddock v Vadarlis [2001] FCA 1329; (2001) 110 FCR 491.

[39] Transcript of proceedings, Vadarlis v Minister for Immigration and Multicultural Afairs (High Court of Australia, Gaudron, Gummow and Hayne JJ, 27 November 2001), <http://www.austlii.edu.au/cgibin/disp.pl/au/other/hca/transcripts/2001/M93/3.html?query=title+%28+%22vadarlis%22+%29> at 8 September 2005.

[40] Head, above n 31, 25.

[41] Senate Select Committee on A Certain Maritime Incident, Parliament of Australia, A Certain Maritime Incident (2002), <http://www.aph.gov.au/Senate/committee/maritime_incident_ctte/report/contents.htm> at 24 June 2005, 33.

[42] Ibid 62. See also Michael Head, Australian Election: The Howard Government’s Big Lie Unravels (2001) World Socialist Web Site <http://www.wsws.org/articles/2001/nov2001/refu-n10.shtml> at 24 June 2005.

[43] Jude McCulloch, Blue Army: Paramilitary Policing in Australia (2001) 1.

[44] Ibid 8.

[45] National Counter-Terrorism Committee, National Counter-Terrorism Plan, National Security Australia (2003), <http://www.nationalsecurity.gov.au/agd/www/NationalSecurityHome.nsf/Page/RWPCD8501294925DA06CA256D42001C1A4C?OpenDocument#legal> at 28 June 2005.

[46] National Counter-Terrorism Committee, above n 45, 14.

[47] Ibid 14.

[48] Ibid 14.

[49] Ibid 15.

[50] Ibid 98.

[51] Ibid 95.

[52] Ibid 98.

[53] Philip Ruddock, ‘Counter-Terrorism Exercise Begins in Melbourne’ (Press Release, 4 April 2005).

[54] For example, ‘Terror Training Exercise in Sydney CBD’, Sydney Morning Herald (Sydney), 17 June 2004, <http://www.smh.com.au/articles/2004/06/16/1087244980098.html?from=storylhs> at 17 June 2005.

[55] ABC Radio National, ‘Police Anti-Terrorism Exercise in Melbourne Suburb Frightens Residents’, The World Today, 13 April 2005, <http://www.abc.net.au/worldtoday/content/2005/s1344346.htm> at 17 June 2005.

[56] Sands, above n 33.

[57] Andrew Bacevich, American Empire: The Realities and Consequences of US Diplomacy (2002); Nick Beams, The Political Economy of American Militarism (2003) World Socialist Web Site <http://www.wsws.org/articles/2003/jul2003/nb1-j10.shtml> at 9 September 2005.

[58] Kabutaulaka, above n 34. See also Socialist Equality Party, Oppose Australia’s Colonial-Style Intervention in the Solomons (2003) <http://www.wsws.org/articles/2003/jul2003/solo-j03.shtml> at 17 June 2005

[59] ‘SAS ‘Killed Civilians’ in Bungled Op’ (2005) News.com.au <http://www.news.com.au/story/print/0,10119,15469257,00.html> at 29 June 2005. See also Peter Symonds, New Evidence Confirms Killings of Afghan Villagers by Australian Soldiers (2005) World Socialist Web Site <http://www.wsws.org/articles/2005/jun2005/sas-j03.shtml> at 29 June 2005.

[60] ‘SAS ‘Killed Civilians’ in Bungled Op’, above n 59.

[61] Department of Defence, Disarmament of Iraq – Operation Falconer: Frequent Questions, <http://www.defence.gov.au/opfalconer/faq.htm> at 24 June 2005.

[62] ‘Commander Backs Troops over Baghdad Shooting’, The Age (Melbourne), 28 February 2005, <http://www.theage.com.au/news/Iraq/Commander-backs-troops-over-Baghdad-shooting/2005/02/28/1109439483457.html> at 29 June 2005.

[63] Paul McGeogh, ‘The Raid that Went Wrong’, The Age (Melbourne), 18 June 2005, 1.

[64] Margo Kingston, ‘Was Australia Complicit in US War Crimes at Abu Ghraib?’, Sydney Morning Herald (Sydney), 2 June 2004, <http://www.smh.com.au/articles/2004/06/02/1086058911006.html> at 29 June 2005.

[65] ‘Peacekeepers Arrive in Solomons’, BBC News, 24 July 2003, <http://news.bbc.co.uk/1/hi/world/asiapacific/3091649.stm> at 24 June 2005.

[66] Department of Defence, Regional Assistance Mission to the Solomon Islands – Operation Anode: Frequent Questions <http://www.defence.gov.au/opanode/faq.htm> at 9 September 2005.

[67] Head, above n 1, 286–93.

[68] For an exploration of these issues in the context of the anti-terrorism legislation introduced in 2003–04, see Joo-Cheong Tham, ‘Possible Constitutional Objections to the Powers to Ban “Terrorist” Organisations’ [2004] UNSWLawJl 31; (2004) 27 University of New South Wales Law Journal 482; Greg Carne, ‘Detaining Questions or Compromising Constitutionality? The ASIO Legislation Amendment (Terrorism) Act 2003 (Cth)’ [2004] UNSWLawJl 32; (2004) 27 University of New South Wales Law Journal 524.

[69] Carne, above n 68.

[70] See also Nicholas O’Neill, Simon Rice and Roger Douglas, Retreat from Injustice, Human Rights Law in Australia (2nd ed, 2004) 252–4.

[71] McCulloch, above n 43, 17–3 1.

[72] Ibid 9.

[73] The United Kingdom Government’s Bloody Sunday Inquiry documents and findings can be read at its web site: <http://www.bloody-sunday-inquiry.org.uk/> at 17 June 2005. The Inquiry’s report was due in mid-2005.

[74] [1977] AC 105.

[75] Ibid 136–7.

[76] [1995] UKHL 1; [1995] 1 AC 482.

[77] Ibid 497–8 (emphasis omitted).

[78] The same position that the Australian High Court reverted to in Zecevic v Director of Public Prosecutions (Victoria) [1987] HCA 26; (1987) 162 CLR 645, overturning R v Howe [1958] HCA 38; (1958) 100 CLR 448 and Viro v The Queen (1978) 141 CLR 88.

[79] [1995] UKHL 1; [1995] 1 AC 482, 491.

[80] McCulloch, above n 43, 177.

[81] Ibid 178.

[82] Ibid.

[83] Ibid 182.

[84] Ibid 183.

[85] Commonwealth, Parliamentary Debates, Senate, 6 September 2000, 17398 (Bob Brown).

[86] Above n 3.

[87] Defence Force Discipline Act 1982 (Cth) s 27; Australian Defence Force Discipline Act 1982 Manual 4– 33.

[88] Australian Defence Force Discipline Act 1982 Manual 4–33.

[89] Defence Force Discipline Act 1982 (Cth) s 27; Australian Defence Force Discipline Act 1982 Manual 4– 33.

[90] Defence Force Discipline Act 1982 (Cth) s 14.

[91] Rhonda M Wheate and Nial J Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’ (2003) 160 Australian Defence Force Journal 20, 21. This study, based on a small survey of officer cadets being trained at the Australian Defence Force Academy, found that a ‘perhaps surprising percentage of respondents’ reported that they could not presume orders were lawful: ibid.

[92] Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518.

[93] R v Thomas, Judges’ Note Books, Crown Cases Reserved 1757-1845; M & S 448.

[94] [1984] HCA 67; (1984) 156 CLR 532.

[95] [1994] UKPC 2; [1995] 1 AC 111.

[96] A v Hayden [1984] HCA 67; (1984) 156 CLR 532, [5]. Justices Mason, Deane and Brennan made similarly emphatic statements.

[97] Commonwealth, Royal Commission on Australia’s Security and Intelligence Agencies, Report on the Sheraton Hotel Incident (1984), 18.

[98] A v Hadyen [1984] HCA 67; (1984) 156 CLR 532, [2].

[99] Ibid [6] (Brennan J).

[100] Ibid [3] (Murphy J).

[101] Ibid [18] (Gibbs CJ).

[102] Ibid [1] (Mason J).

[103] Ibid [8] (Brennan J).

[104] Peter Grabosky, Wayward Governance: Illegality and its Control in the Public Sector (1989) ch 8.

[105] A v Hayden [1984] HCA 67; (1984) 156 CLR 532 [16].

[106] Ibid [19].

[107] [1982] HCA 78; (1982) 154 CLR 25.

[108] Ibid 57.

[109] Ibid 60.

[110] Ibid 61 (emphasis added).

[111] Ibid.

[112] Ibid 76.

[113] Ibid.

[114] (1984) 154 CLR 412.

[115] Ibid 456.

[116] [1964] AC 763.

[117] Ibid 796.

[118] Ibid 107.

[119] [1985] 1 AC 374.

[120] Department of Defence, above n 2, attachment 5.

[121] Ibid 12–13.

[122] Ibid 4.

[123] Ibid 5.

[124] Ibid 8.

[125] Ibid 10.

[126] Ibid 11.

[127] Ibid 12.

[128] Ibid 13.

[129] Wootten, above n 26, 282–3.