Head, Michael --- "The Military Call-out Legislation - some Legal and Constitutional Questions" [2001] FedLawRw 12; (2001) 29(2) Federal Law Review 273
[*] 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 —
- for the purpose of safeguarding the national and international interests of the Commonwealth of Australia;
- for giving effect to the obligations of the Commonwealth of Australia in relation to the protection of internationally protected persons; and
- for other purposes related to those matters, to call out the Defence Forces for and in relation to those purposes'.
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.