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Published online by Cambridge University Press: 24 January 2025
Our comprehension of the legal means and methods by which military forces are employed, controlled and — where considered necessary — immunised, is incomplete. Some questions are — in a jurisprudential sense — well settled, or at least evolving along a logical, comprehensible, and generally linear course. Thus the scope of the defence power under the Australian Constitution has, on the whole, been relatively consistently interpreted over time as an elastic power — expanding in time of large-scale conflict, contracting in time of profound peace, variably waxing and waning between these two poles in situations of uncertainty less than war but short of settled peace. There have certainly been some new developments in understanding the scope of the power — such as the High Court of Australia’s decision in Thomas v Mowbray (relating to the constitutional validity of the federal control order regime). In this case the majority held that components of the defence power are also exercisable through non-military organs such as the police. But on the whole, our understanding of the power has developed along conceptually and chronologically coherent and logical lines. Similarly, there is no question in the Australian context that this evolution has also been more generally coherent in terms of its interaction with related constitutional questions. Thus Thomas v Mowbray is, in many ways, a belated cross-referral allowing police and intelligence agencies to access authority under the defence power. This merely reflects and accompanies the long established principle that the military forces can likewise be used for law enforcement purposes — as confirmed in Li Chia Hsing v Rankin. It is perhaps justified to say that were we to apply a jus ad bellum / jus in bello approach (law of armed conflict based and thus formally inapplicable, but nevertheless useful) to the problem, the jus ad bellum issues — the when and why of use of military forces in law enforcement operations — are relatively settled, or at least evolving coherently and consistently with their history and precedent.
The views expressed in this article are those of the author, and should in no way be inferred as representing the views of any part of the Australian Government. Although most fortunate to have received much constructive feedback from a number of colleagues — most notably Cameron Moore (University of New England), Bruce Oswald (University of Melbourne), Chris Gallavin (University of Canterbury), and the two anonymous reviewers — all errors are mine alone.
1 Constitution s 51(vi): ‘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'. As Dixon J observed in Stenhouse v Coleman (1944) 69 CLR 457, 471, the defence power ‘involves the notion of purpose or object', rather than (as with most of the other heads of Commonwealth power) being characterised by subject matter. This elasticity — in relation to personal freedoms, for example — was well described by Brennan J in Polyukhovich v Commonwealth (1991) 172 CLR 501, 592–3: ‘In times of war, laws abridging the freedoms which the law assures to the Australian people are supported in order to ensure the survival of those freedoms in times of peace. In times of peace, abridging of those freedoms … cannot be supported unless the Court can perceive that the abridging of the freedom in question is proportionate to the defence interest to be served. What is necessary and appropriate for the defence of the Commonwealth in times of war is different from what is necessary or appropriate in times of peace'. This elasticity has been repeatedly re-affirmed by the High Court since its early establishment in Farey v Burvett (1916) 21 CLR 433, and was most recently restated in Thomas v Mowbray (2007) 233 CLR 307 — the ‘Jihad Jack’ control order case. See, eg, Gleeson CJ at 324 [7]; Gummow and Crennan JJ at 359–64 [132]–[48]; Kirby J at 384 [220]–[1] (affirming this elasticity, although he dissented as to the scope on the facts of this particular case); Hayne J at 449–60 [411]–[45], 475–8 [504]–[13]; Callinan J at 503-6 [582]–[90]; Heydon J at 511 [611].
2 (2007) 233 CLR 307.
3 Ibid. See, eg, Hayne J at 457 [437]: ‘It may be accepted that “naval and military defence” does point to kinds of threat with which the power is concerned. In particular, the reference to “naval and military defence” reveals that, as Dixon J said in the Communist Party Case, the central purpose of the legislative power is protection of the Commonwealth from external enemies. It by no means follows from this observation, however, that the only permitted subject matter of legislation made in reliance upon s 51(vi) is the provision for naval and military responses to such threats.’ See also Callinan J at 504 [588].
4 (1978) 141 CLR 182.
5 Greg Sheridan, ‘Our role in East Timor is long term', The Australian, 14 February 2008 <http://www.theaustralian.news.com.au/story/0,25197,23209044-25377,00.html> at 17 November 2009.
6 (1816) (Bayley J) in D R, Bentley (ed), Select Cases from the Twelve Judges’ Notebooks (1997) 114 (Notebook 4)Google Scholar.
7 HM Advocate v Sheppard [1941] JC 67.
8 Hajdamovitz v Attorney General (1944) 11 Palestine Law Reports 140. Both were markedly similar cases to R v Thomas in that they involved sentries shooting people — in Hajdamovitz, a Polish sentry in Palestine shooting a suspected arms black-marketeer he was guarding in a laundry, as the suspect attempted to escape; and in the Sheppard, in the UK, a soldier escorting a deserter back to his Regiment, shot and killed the prisoner as he attempted to escape at a railway station.
9 A V, Dicey, Introduction to the Study of the Law of Constitution (10th ed, 1959) 302–3Google Scholar fn 4. See R v Thomas (1816) (Bayley J) in D R, Bentley (ed), Select Cases from the Twelve Judges’ Notebooks (1997) 114 (Notebook 4)Google Scholar. This case concerned the murder conviction of a Naval sentry guarding HMS Achilles, then in the process of decommissioning. The sentry's orders were to keep ‘all Boats off except under Orders from the Officer on Deck or Boats with Officers in Uniform …’ He was provided with a musket, powder, and ball for the purpose. The sentry repeatedly warned an approaching boat to stay clear, but on ‘seeing the deceased nearly under the Ship he fired at him and killed him upon the spot'. The jury, under the judge's direction, found the sentry guilty of murder, but ‘they believed that the prisoner acted under the mistaken impression that it was his duty as Sentinel to fire as he did …’ The judge recommended mercy for the sentry on the basis of this belief.
10 This said, there are a very few published analyses of the human side of this uncertainty. In particular, see G J, Cartledge, The Soldiers’ Dilemma: When to Use Force in Australia — An Examination of the Laws which are Likely to Affect Australian Soldiers Operationally Deployed in Australia (1992)Google Scholar ch 3, [320]–[349].
11 R M, Hope, Protective Security Review Report (Unclassified Version) (1979) 168Google Scholar.
12 I will not deal in this paper with a number of other possible alternative defences: ‘sudden and extraordinary emergency’ (as a successor defence to the general concept of ‘necessity’); and the (questionable) possibility that the executive power, or Crown prerogative, still harbours some vestigial authorisation for State agents to use lethal force both outside of self-defence and separate from the prosecution of an armed conflict. Similarly, I will deal only tangentially with the possible alternative of ‘reasonably’ following orders that do not appear to be manifestly unlawful. On various aspects of use of the executive power when employing state agents on certain types of operations (including military forces in domestic law enforcement contexts), see A v Hayden (1984) 156 CLR 532; Ruddock v Vadarlis (2001) 110 FCR 491 (corrigenda issued 4 January 2002); Hope, above n 11; Parliament of Australia Research Paper 8 (1997–98), Call Out the Troops: An Examination of the Legal Basis for Australian Defence Force Involvement in ‘Non-Defence’ Matters, (Elizabeth Ward); John, Goldring, ‘The Impact of Statutes on the Royal Prerogative: Australasian Attitudes as to the Rule in Attorney-General v De Keyser's Royal Hotel Ltd.’ (1974) 48 Australian Law Journal 434Google Scholar; H V, Evatt, The Royal Prerogative: Commentary by Leslie Zines (1987)Google Scholar; Hoong, Phun Lee, Emergency Powers (1984)Google Scholar; Cameron, Moore, ‘''To Execute and Maintain the Laws of the Commonwealth“: The ADF and Internal Security — Some Old Issues with New Relevance’ (2005) 28 University of New South Wales Law Journal 523Google Scholar. On associated constitutional issues relating to the defence power (including comments on use of the military forces in domestic law enforcement related tasks), see White v Director of Military Prosecutions (2007) 231 CLR 570, 592 [37]–[38] (Gummow, Hayne and Crennan JJ), 621–625 [142] (Kirby J); Peter, W Johnston, ‘Re Tracey: Some Implications for the Military-Civil Authority Relationship’ (1990) 20 University of Western Australia Law Review 73Google Scholar; Michael, Head, ‘The Military Call-Out Legislation — Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review 273Google Scholar; Michael, Head, ‘Australia's Expanded Military Call Out Powers: Causes for Concern’ (2006) 3 University of New England Law Journal 125Google Scholar.
13 [1977] AC 105.
14 Criminal Code Act 1995 (Cth) s 10.4: ‘… to defend himself or herself or another person…’ It should be noted, however, that this unified approach to self-defence, indivisibly covering defence of both self and others, is not consistent through all common law jurisdictions. See, eg, Simon, Bronitt and Bernadette, McSherry, Principles of Criminal Law ( 2nd ed, 2005) 302–4Google Scholar.
15 On the similar UK contextual appreciation applicable in Bosnia in 1994, see Peter, Rowe, ‘The United Nations Rules of Engagement and the British Soldier in Bosnia’ (1994) 43 International and Comparative Law Quarterly 946, 954Google Scholar.
16 [2008] 1 AC 153 (13 June 2007).
17 [2006] EWCA Civ 327; and in the House of Lords, R (Al-Jedda) v Secretary of State for Defence [2008] 1 AC 332 (12 Dec 2007).
18 Amnesty International Canada v Chief of Defence Staff for the Canadian Forces [2008] FC 336; and Amnesty International Canada v Chief of Defence Staff for the Canadian Forces [2008] FC 162. On 17 February 2009, Amnesty International Canada and the British Civil Liberties Association applied to the Supreme Court of Canada for leave to appeal the Federal Court of Appeal's 17 December 2008 decision. Leave was denied.
19 See the line of Australian, UK, and Canadian cases which analysed and drew upon each other — both with approval and in dissent — including (Australia) R v McKay [1957] VR 560; R v Howe (1958) 100 CLR 448; Viro v R (1978) 141 CLR 88; Zecevic v Director of Public Prosecutions (Victoria) (1987) 162 CLR 645; (UK) Palmer v The Queen [1971] AC 814; A-G's Reference [1977] AC 105; and R v Clegg [1995] 1 All ER 334; (Canada) R v Barilla [1944] 4 DLR 344; R v Gee (1983) 139 DLR (3d) 587; and Brisson v R (1983) 139 DLR (3d) 685.
20 ‘Opinion of Sir Victor Windeyer, KBE, CB, DSO on Certain Questions Concerning the Position of Members of the Defence Force when Called Out to Aid the Civil Power’ (13 November 1978) Appendix 9 to the Hope Protective Security Review Report (1979).
21 Dicey, above n 9, 285.
22 Ibid 286. It should be noted, however, that Dicey's strict insistence on this principle led him to the conclusion, essentially, that the (then) Riot Act could allow use of lethal force, but only because the statute permitted — that is, there was a clear statutory authority — not because of a pre-existing Crown prerogative (at 290). In this context, Dicey (at 304–6) approvingly quotes Stephen J's analysis in the Report of the Committee Appointed to Inquire into the Circumstances Connected with the Disturbances at Featherstone on 7th of September 1893 (1893) (Lord Bowen, Sir Albert Rollit, and R B Haldane).
23 Dicey, above n 9, 287.
24 Peter, Rowe, Defence: The Legal Implications — Military Law and the Laws of War (1st ed, 1987) 39Google Scholar.
25 (1989) 166 CLR 518, 546.
26 For further discussion of the legal issues surrounding use of military forces in UK ‘home’ affairs, see Steven, C Greer, ‘Military Intervention in Civil Disturbances: The Legal Basis Reconsidered’ (1983) Public Law 573Google Scholar (especially on civil decision-making authority, the statute versus prerogative debate, and the legal history of the assertion of an independent military ‘duty’ to intervene); Rowe, above n 24 (especially ch 4, where he discusses military powers and liabilities in relation to public disorder, the supposed ‘duty to intervene', and use of weapons); Peter, Rowe, The Impact of Human Rights Law on Armed Forces (2006)Google Scholar; and Anthony, Babington, Military Intervention in Britain: from the Gordon Riots to the Gibraltar Incident (1990)Google Scholar (a good general history). For related discussions on the evolution (and possible future) of parliamentary control of UK military forces, see B S, Markesinis, ‘The Royal Prerogative Re-Visited’ (1973) 32 Cambridge Law Journal 287, 299–307Google Scholar (on the interrelationship of statute and prerogative); UK Ministry of Justice, The Governance of Britain — War Powers and Treaties: Limiting Executive Powers, Consultation Paper CP26/07, published 25 October 2007 [33]–[37] (on the current constitutional position), [96]–[110] (on options for more formal regularisation of parliamentary control over deployments). More generally, see Oren Gross and Fionnuala Ni Aolain, Law in Times of Crisis: Emergency Powers in Theory and Practice (2006).
27 A-G's Reference [1977] AC 105, 136 (Lord Diplock).
28 The majority of the Court of Criminal Appeal in Northern Ireland, in considering the Reference, had similarly concluded that the issue should be left to the trier of fact — Attorney-General for Northern Ireland's Reference (No 1 of 1975) [1976] NI 169. Lord Justice McGonigal registered a strong dissent, being particularly concerned that this could sanction the shooting of people who run away after challenge from security forces simply because they were suspected of being members of the IRA: ‘Does that mean that the man who is a known sympathiser but not a member of the Provisional IRA may also be shot and killed if he runs away because in the future his sympathies may crystallise and he may become a card-carrying member and be required for questioning or arrest?’ (at 192).
29 A-G's Reference [1977] AC 105, 136 (Lord Diplock).
30 Ibid.
31 Ibid.
32 Ibid 138 (emphasis added).
33 Ibid (emphasis added).
34 Farrell v Secretary of State for Defence [1980] 1 All ER 166. This case involved a civil action relating to the killing of three men who ran away, after challenge by UK soldiers, during a planned operation to foil what a tip-off had alleged would be an IRA bombing operation at a bank. When the three men were challenged by soldiers, who were concealed on the roof of a building across the road, they ran off. The soldiers then shot them as they were running away. For comment on Farrell as a ‘missed opportunity’ to both clarify the legal position and reassert the required legal control of military operations, see Greer, ‘Legal Control of Military Operations — A Missed Opportunity’ (1980) 31 Northern Ireland Legal Quarterly 151Google Scholar; and CP, Walker, ‘Shooting to Kill — Some of the Issues in Farrell v Secretary of State for Defence’ (1980) 43 Modern Law Review 591Google Scholar. Greer succinctly summed up the reason that Farrell was widely perceived to have been this ‘missed opportunity': ‘[T]he extraordinary conditions in Northern Ireland surely require more precision in the law relating to the use of deadly force’ (at 152). See also Colin, Greenwood, ‘The Evil Choice’ [1975] Criminal Law Review 4Google Scholar; and J E, Stannard, ‘Lethal Force in Self-Defence’ (1980) 31 Northern Ireland Legal Quarterly 173Google Scholar. Stannard discusses R v Bohan and another [1979] 5 NIJB (4 July 1979) (the ‘Boyle Case’ after the victim, John Boyle). This case concerned the killing of a young man at a graveyard arms cache in Northern Ireland, where the defence of self-defence was successfully pleaded by the two soldiers involved. In this case the soldiers, waiting in observation of the cache, claimed that the young man had picked up the weapon and was turning towards them, and that they shot him in the (mistaken) belief that he was about to shoot at them. Stannard, citing Greenwood, argued that self-defence should not be considered in such cases: ‘The police, or any other branch of the security forces for that matter, do not act to save themselves. Their aim is to prevent crime. Where they find it necessary to kill in the course of their duty, any defence of justification should be based fairly and squarely where it belongs, which is on s 3 of the Criminal Law Act (Northern Ireland) 1967’ (at 176). Greenwood's argument was that self-defence ‘should never be considered [in] any attempt to justify the use of firearms, or of any lesser degree of force, by the police’ (at 7). However, it is submitted that this argument was based upon a premise that is no longer applicable — that the right of ‘private self-defence’ contained a pre-requisite duty to retreat.
35 See, eg, Stephen, Livingstone, ‘The House of Lords and the Northern Ireland Conflict’ (1994) 57 Modern Law Review 333, 334, 337–8Google Scholar; Brice, Dickson, ‘The House of Lords and the Northern Ireland Conflict — A Sequel’ (2006) 69 Modern Law Review 383Google Scholar, 384, 388; Colm, Campbell and Ita, Connolly, ‘A Model for the ‘War Against Terrorism'? Military Intervention in Northern Ireland and the 1970 Falls Curfew’ (2003) 30 Journal of Law and Society 341Google Scholar, 370. For detailed analysis of the issues surrounding Criminal Law Act (Northern Ireland) 1967 (NI) c 18, s 3, see Rowe, above n 24, 49–54.
36 Livingstone, above n 35, 337–8. Similarly, in 1994, Rowe was also of the view that ‘a soldier may use force reasonable in the circumstances to protect himself or those for whom he has responsibility’ was what Criminal Law Act (Northern Ireland) 1967 (NI) c 18, s 3(2) protected — see Rowe, ‘The United Nations Rules of Engagement and the British Soldier in Bosnia', above n 15, 954.
37 Dickson, above n 35, 388. Dickson argues, however, that the cases between 1994 and 2005 indicate that the ‘Lords are deciding cases in accordance with the rule of law, rather than with government preferences’ at 415. There were two cases during that time frame where the House of Lords dealt with the use of lethal force by UK Forces: R v Clegg [1995] 1 All ER 334, and Re McKerr [2004] 1 WLR 807.
38 R v Clegg [1995] 1 All ER 334 (House of Lords).
39 Ibid 338. In the House of Lords, Lord Lloyd of Berwick approved that the Court of Appeal of Northern Ireland had determined that even if the Criminal Law Act (Northern Ireland) 1967 (NI) c 18, s 3 defence of ‘reasonableness’ had been raised (which it was not at the trial at first instance), it would have failed as ‘any tribunal of fact would have been bound to find that the force used was unreasonable’ (at 338). Indeed, in commenting upon the Rules of Engagement (ROE) ‘Yellow Card’ employed by Private Clegg, Lord Lloyd noted that in the Court of Appeal of Northern Ireland, Hutton LCJ had recommended that the card be redrafted as it was capable of giving the impression that it was lawful to open fire against a person ‘if you know that he has just killed or injured any person by such means [weapon, explosive device, or deliberately driving a vehicle at a person] and he does not surrender if challenged and there is no other way to make an arrest', irrespective of the ‘injury’ caused by ‘deliberately driving a vehicle at a person’ (at 338-9). The court was clearly concerned that the orders apparently extended to authorising the use of firearms even after the infliction of minor injury.
40 Dickson, above n 35, 390.
41 Ibid. See, eg, R v Clegg [1995] 1 All ER 334, 343 (Lord Lloyd), in disagreeing with Lord Diplock's view: ‘I do not think it possible to say that a person who uses excessive force in preventing crime is always, or even generally, less culpable than a person who uses excessive force in self-defence; and even if excessive force in preventing crime were in general less culpable, it would not be practicable to draw a distinction between the two defences, since they so often overlap. Take, for example, the facts of the present case. The trial judge held that Pte Clegg's first three shots might have been fired in defence of Pte Aindow. But he could equally well have held that they were fired in the prevention of crime, namely to prevent Pte Aindow's death being caused by dangerous driving’ (emphasis added). This reasoning clearly indicates that even use of lethal force in ‘prevention of crime’ in such situations where there is an apprehension of imminent harm is actually characterisable as an exercise of the right of self-defence of another.
42 (1816) (Bayley J) in D R, Bentley (ed), Select Cases from the Twelve Judges’ Notebooks (1997) 114 (Notebook 4)Google Scholar.
43 R v Clegg [1995] 1 All ER 334, 344 (Lord Lloyd). Lord Lloyd was of the view that the Court of Appeal had been well entitled to apply the Criminal Law Act (Northern Ireland) 1967 (NI) c 18, s 3 such that ‘the use of lethal force to kill or wound the driver of the car in order to arrest him was, in the circumstances, so grossly disproportionate to the mischief to be averted as to deprive him’ of the defence (at 344–5).
44 A v Hayden (1984) 156 CLR 532. See, eg, Gibbs CJ, at 540: ‘It is fundamental to our legal system that the executive has no power to authorize a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer'; Mason J, at 550: ‘It is possible that the promise was given, and the arrangements for the training exercise made, in the belief that executive orders would provide sufficient legal authority or justification for what was done. … For the future, the point needs to be made loudly and clearly, that if counter-espionage activities involve breaches of the law they are liable to attract the consequences that ordinarily flow from breaches of the law’ (emphasis added); Murphy J, at 562: ‘The executive power of the Commonwealth must be exercised in accordance with the Constitution and the laws of the Commonwealth. The Governor-General, the federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land… I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads’ (emphasis added); Brennan J, at 580: ‘The incapacity of the executive government to dispense its servants from obedience to laws made by Parliament is the cornerstone of a parliamentary democracy. … The principle, as expressed in the Act of Settlement, is that all officers and ministers ought to serve the Crown according to the laws. It is expressed more appropriately for the present case by Griffith CJ in Clough v Leahy (1904) 2 CLR 139, 155–6: “If an act is unlawful — forbidden by law — a person who does it can claim no protection by saying that he acted under the authority of the Crown”. This is no obsolete rule; the principle is fundamental to our law, though it seems sometimes forgotten when executive governments or their agencies are fettered or frustrated by laws which affect the fulfilment of their policies.'
45 Yip Chiu-cheung v R [1994] 2 All ER 924, 928. In this case, the appellant had met with ‘N’ in Thailand and arranged for N to carry five kg of heroin from Hong Kong to Australia. N was a US DEA agent (Phillip Needham), and authorities in Hong Kong and Australia had agreed to the operation in the hope of breaking the drug ring of which the appellant was a member. The plan was not carried through, but the appellant was arrested in Hong Kong and convicted of conspiracy with N to traffic in heroin. He appealed to the Privy Council claiming that N (as a state agent acting on state orders) could not be a co-conspirator, and therefore there was no conspiracy. The Privy Council, citing A v Hayden (1984) held: ‘There was no general defence of superior orders or of Crown or Executive fiat in English or Hong Kong criminal law and the Executive had no power to authorise a breach of the law’ (at 925) (headnote). As N intended to traffic in heroin, the fact that he would not be prosecuted did not mean that there was no offence with the requisite mens rea (of N), and thus there was indeed a conspiracy. The Privy Council distinguished this situation from that described by Lord Bridge in R v Anderson [1985] 2 All ER 961, 965, which related to there being no mens rea in state agents who ‘pretend to join a conspiracy in order to gain information about the plans of the criminals, with no intention of taking any part in the planned crime but rather with the intention of providing information that will frustrate it’ (Lord Griffiths, 928). In Yip Chiu-cheung, however, the plan was to actually export the heroin, even though the plan was not ultimately carried through. Lord Griffiths, was clear on this point: ‘Neither the police, nor customs, nor any other member of the executive have any power to alter the terms of the Ordinance forbidding the export of heroin, and the fact that they may turn a blind eye when the heroin is exported does not prevent it from being a criminal offence’ (at 928).
46 Carol, Harlow, ‘Self-Defence: Public Right or Private Privilege’ [1974] Criminal Law Review 528, 529Google Scholar.
47 See, eg, R v Julien [1969] 2 All ER 856, 858 (Widgery LJ): For a person to claim the right of self-defence, ‘what is necessary is that he should demonstrate by his actions that he does not want to fight. He must demonstrate that he is prepared to temporise and disengage and perhaps to make some physical withdrawal’ cited with approval in R v McInnes [1971] 1 WLR 1600, 1607-8 (Edmund Davies LJ).
48 Greenwood, above n 34, 6–7.
49 Hajdamovitz (1944) 11 Palestine Law Reports 140.
50 Ibid 143.
51 A Polish officer, in the presence of the accused (Hajdamovitz) had told the detained suspects that ‘if you try to escape arms will be used'.
52 (1876) 6 Palestine Law Reports 44 cited in Hajdamovitz (1944) 11 Palestine Law Reports 140, 145–6.
53 Hajdamovitz (1944) 11 Palestine Law Reports 140, 145–6.
54 Ibid 149.
55 Ibid 150–1.
56 Ibid 145–6.
57 See, eg, A-G's Reference [1977] AC 105, 133 (Lord Diplock): ‘as to whether the conduct of the accused fell short of the standard to be expected of the reasonable man it does not seem to me that a decision on that issue can ever be a point of law.'
58 Ibid 139 (Lord Diplock).
59 (1816) (Bayley J) in D R, Bentley (ed), Select Cases from the Twelve Judges’ Notebooks (1997) 114 (Notebook 4)Google Scholar.
60 A-G's Reference [1977] AC 105, 113.
61 Ibid 137 (Lord Diplock) (emphasis added).
62 Hajdamovitz (1944) 11 Palestine Law Reports 140, 145 (emphasis added).
63 Ibid.
64 It is interesting, however, that in Hajdamovitz (1944) 11 Palestine Law Reports 140, the Court allowed itself a concluding observation to the effect that they were ‘sure that it is unnecessary to state the fact that the appellant may (we express no opinion on the matter) have been fortunate to escape a conviction of murder on one set of facts …’ (at 151).
65 Sheppard (1941) JC 67, 68.
66 Ibid 67.
67 Ibid 72.
68 Ibid 70.
69 Ibid 71.
70 Ibid 72, quoting Baron Hume, Commentaries on the Law of Scotland Respecting Crimes (1844) 205.
71 Ibid 72.
72 Ibid 72, quoting Baron Hume, Commentaries on the Law of Scotland Respecting Crimes (1844) 205. Baron Hume, rightly, felt that he could not define the ‘precise boundaries’ of the privilege, but he did feel secure enough to lay out one fundamental principle:
This, however, in a general way, the judgments of the Court enable me to say, that an invasion with mortal weapons … or an actual and immediate danger of death, is not necessary to entitle a soldier to use the arms which the State has given him; and therefore given him, that he and his duty may be secure, and in no danger of surprise, or material hinderance (at 205) cited in Sheppard [1941] JC 67, 72.
73 Ibid 72.
74 A-G's Reference [1977] AC 105, 139.
75 Opinion of Sir Victor Windeyer, in Hope, above n 20, [46]–[47].
76 Under the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 2889 (entered into force 3 September 1953) ('European Convention on Human Rights and Fundamental Freedoms’), the use of lethal force must be an ‘absolute necessity', which in turn requires a determination of whether the use of force was ‘strictly proportionate', and an assessment of the planning and organisation of the operation, of training, communications, and tactical procedures, of legal and policy safeguards, and so on.
77 (2005) VII Eur Court HR 1.
78 Adopted on 7 September 1990 by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders.
79 (1996) 324 Eur Court HR (ser A).
80 (2001) Appn No 24746/94 (Judgment 4 May 2001, finalised version 4 August 2001) [87]–[91] (on the UN Basic Firearms Principles, and UN guidelines on investigation of extra-judicial killings), [110]–[111] (on self-defence).
81 (2001) III Eur Court HR 475, 509-10 (on the UN Basic Firearms Principles, and UN guidelines on investigation of extra-judicial killings) 518-19 (self-defence), 523-4 (on the criminal trial and acquittal of the three Royal Ulster Constabulary ('RUC’) police officers in relation to the killing). The Jordan and McKerr ECtHR judgments were part of a series of decisions on UK security operations in Northern Ireland, all delivered on the same day (4 May 2001). The other cases were Shanaghan v United Kingdom (2001) Appn No 37715/97 (Judgment 4 May 2001, finalised version 4 August 2001) and Kelly v United Kingdom (2001) Appn No 30054/96 (Judgment 4 May 2001, finalised version 4 August 2001).
82 Kelly v United Kingdom (2001) Appn No 30054/96 (Judgment 4 May 2001, finalised version 4 August 2001) [47].
83 (2001) Appn No 30054/96 (Judgment 4 May 2001, finalised version 4 August 2001).
84 Ibid [99] (emphasis added).
85 Ibid [44].
86 Ibid [11]–[25]. For specific details on individual situations of apprehended imminent harm see [19], [21], [23].
87 Nachova (2005) VII Eur Court HR 1. See also ‘Recent Cases’ (2006) 119 Harvard Law Review 1907.
88 Nachova (2005) VII Eur Court HR 1, 9-13.
89 Ibid 26 (emphasis added). The ECtHR referred approvingly to its 1996 decision in McCann (1996) 325 Eur Court HR (ser A) 45–6, 56–62. In this case, the ECtHR was focused more specifically on the relationship of art 2(2) to the planning and organisation of domestic security operations insofar as they ‘in effect, rendered inevitable the use of lethal force’ (at 59). See also Aytekin v Turkey (1998) VII Eur Court HR 2807; Makaratzis v Greece (2004) XI Eur Court HR 195, 231 (in this case the ECtHR roundly criticised the archaic relevant law (dating to WW II) and the chaotic Greek Police response to what began as a traffic incident and ended with serious gunshot wounds); and Bubbins v United Kingdom (2005) II Eur Court HR 169, where the Court held that a siege which ended abruptly and tragically with the death of the hostage-taker had not violated art 2; that the Police (in Bedford) had engaged in appropriate planning and control given the short notice and quickly progressing nature of the incident; and that UK domestic law and training was adequate.
90 McShane v United Kingdom (2002) Appn No 43290/98 (Judgment 28 May 2002, finalised 28 August 2002).
91 Ibid [99]–[105].
92 Stewart v United Kingdom (1984)Appn No 10044/82 (Decision 10 July 1984).
93 Ibid 163–6.
94 Ibid 171.
95 Ibid 171 (emphasis added).
96 Criminal Code Act 1995 (Cth) s 10.4.
97 Criminal Code Act 1995 (Cth) s 10.5.
98 Criminal Code Act 1995 (Cth) s 10.5. See also Revised Explanatory Memorandum, Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 2000 (Cth) [13]. The example used to demonstrate the envisaged ambit of the defence of lawful authority was that of where a ‘law enforcement officer is authorized by law to physically restrain a person and does so within the scope of his or her authority, then the officer cannot be charged for harming that person’ (emphasis added). The essential point, as expressed in the Revised Explanatory Memorandum, is as follows: ‘The main thing to keep in mind here is that the defence will not apply if there is no clear justification or excuse provided for by or under another law of the Commonwealth’ at [13].
99 Crimes Act 1914 (Cth) s 3ZC(1): ‘A person must not, in the course of arresting another person for an offence, use more force, or subject the other person to greater indignity, than is necessary and reasonable to make the arrest or to prevent the escape of the other person after the arrest'.
100 See, eg, Crimes Act 1914 (Cth) s 3W (power of arrest without warrant).
101 Crimes Act 1914 (Cth) s 3ZC(2)(a). Section 3ZC(2)(b), relating to use of force in arrest of a person attempting to escape arrest by fleeing, requires — in addition to the requirement that such use of force be ‘necessary to protect life or to prevent serious injury to another person (including the constable)’ — that ‘the person has, if practicable, been called on to surrender and the constable believes on reasonable grounds that the person cannot be apprehended in any other manner.’ Importantly, the reference to ‘constable’ enlivens the definition of ‘constable’ in Crimes Act 1914 (Cth) s 3 ('constable means a member or special member of the Australian Federal Police or a member of the police force or police service of a State or Territory’). Under the Australian Federal Police Act 1979 (Cth) s 40E, the Commissioner may appoint special members, and these members have, during the period of their appointment, inter alia, ‘any powers and duties that are expressly conferred or imposed on special members under a provision of this Act or of any other Act …’ — thus enlivening for such special members the powers under Crimes Act 1914 (Cth) s 3ZC. Australian Protective Service Officers also enjoy the same powers via the Australian Federal Police Act 1979 (Cth) ss 14A, 14B.
102 Migration Act 1958 (Cth) s 245F(9B)/Customs Act 1901 (Cth) s 185(3AB). These provisions provide that:
Proceedings, whether civil or criminal, may not be instituted or continued, in respect of any action taken under subsection (9A)/(3AA) [the power to move people], against the Commonwealth, an officer or any person assisting an officer if the officer or person who took the action acted in good faith and used no more force than was authorised by subsection (10)/(3B) [use of necessary and reasonable force].
103 Customs Act 1901 (Cth) s 185(3D) (emphasis added).
104 Fisheries Management Act 1991 (Cth) s 87J.
105 Fisheries Management Act 1991 (Cth) s 90:
An officer or a person assisting an officer in the exercise of powers under this Act or the regulations, is not liable to an action, suit or proceeding for or in respect of anything done in good faith or omitted to be done in good faith in the exercise or purported exercise of any power conferred by this Act or the regulations.
106 Defence Act 1903 (Cth) pt IIIAAA — Utilisation of Defence Force to protect Commonwealth interests and States and self-governing Territories. For some general comments on the ‘original’ (2000) pt IIIAAA — which was focused primarily on land-based anti-terrorism operations — see Head, ‘The Military Call-Out Legislation — Some Legal and Constitutional Questions', above n 12. For his more recent comments on the ‘new’ Part IIIAAA, see Head, ‘Australia's Expanded Military Call Out Powers: Causes for Concern', above n 12, 137–8 on the use of lethal force.
107 Defence Act 1903 (Cth) ss 51A, 51AA, 51B, 51C, 51CB, 51D, on orders and designation.
108 Defence Act 1903 (Cth) s 51IB(a).
109 Defence Act 1903 (Cth) s 51T(1).
110 Defence Act 1903 (Cth) s 51T(2).
111 Defence Act 1903 (Cth) s 51T(2A)(ii).
112 Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) [78].
113 Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) [77] (emphasis added).
114 Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) [82]. The examples cited in the Explanatory Memorandum include ‘damage or destruction to pipelines that supply gas and power to hospitals, or damage or destruction to power plants that could reasonably be said to indirectly endanger life or cause serious injury’ at [85].
115 It is important to note, however, that the critical statement at [77] of the Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) — ‘Within the current Commonwealth, State and Territory criminal law frameworks, force can only be used if an attack against infrastructure is likely to cause immediate death or serious injury to persons (such as the inhabitants of infrastructure targeted for attack)’ — does not neatly square with the assertion in Commonwealth Attorney-General's Department, The Commonwealth Criminal Code: A Guide for Practitioners (2002) <http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~GuideforPractitioners.pdf/$file/GuideforPractitioners.pdf> at 1 October 2009 — in relation to the fundamentally separate defence of ‘sudden and extraordinary emergency’ (Criminal Code Act 1995 (Cth) s 10.3) — that both this defence, and the defence of ‘duress’ (s 10.2), are general defences ‘available even to a charge of murder or attempted murder’ (at 225, 227).
116 In Walker, above n 34, 593, quoting R, Evelegh, Peace-keeping in a Democratic Society (1976) 77Google Scholar. Sir Victor Windeyer, in Hope above n 20, [59], made a similar comment at the conclusion of his 1978 opinion: ‘[I]t is important to remember that the Regulations and Instructions are not addressed to lawyers. They are there for the guidance of officers of the Defence Force in the discharge of a duty that is responsible and serious and may be distasteful. Regulations governing it should be clearly, briefly and simply stated'.
