Hostname: page-component-745bb68f8f-l4dxg Total loading time: 0 Render date: 2025-02-04T20:44:58.780Z Has data issue: false hasContentIssue false
  • English
  • Français

The Military Call-Out Legislation - Some Legal and constitutional questions

Published online by Cambridge University Press:  24 January 2025

Michael Head
Michael Head*
Affiliation:
Law Faculty, University of Western Sydney
Get access Rights & Permissions [Opens in a new window]

Extract

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.

Type
Research Article
Information
Federal Law Review , Volume 29 , Issue 2 , June 2001 , pp. 273 - 294
Copyright
Copyright © 2001 The Australian National University

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

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.

References

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 31Google Scholar.

2 Ibid 31.

3 See Tom Molomby, , Spies, Bombs and the Path of Bliss (1986)Google Scholar, and Jenny Hocking, , Beyond Terrorism: The Developme of theAustralian Security State (1993)Google Scholar.

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).

6 See Michael Head, , 'Olympic Security: Police and military plans for the Sydney Olympics a cause for concern' (2000) 25 Alternative Law Journal 131CrossRefGoogle Scholar.

7 See Senate Foreign Affairs, Defence and Trade Legislation Committee, Defence LegislationAmendment (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).

8 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.

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

10 See, for example, Michael Head, , 'Australian government uses Sydney Olympics tostrengthen military powers' (2000)Google Scholar 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)Google Scholar 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 192CrossRefGoogle Scholar.

11 John Moore, Daryl Williams, , 'Further Safeguards for Defence Bill' (23 August 2000)Google Scholar Department of Defence <http://www.minister.defence.gov.au//2000/22900.htm>

12 Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000, 20511(Stephen Martin, MP, ALP).

13 The Explanatory Memorandum states that s 51Y ;makes it clear that the new process forcalling 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;.

14 Peter Brett, Peter Waller, , Brett and Waller's Criminal Law: Text and Cases (1983) 654Google Scholar.

15 Alan Stretton, , The Furious Days (1976) 82-83CrossRefGoogle Scholar.

16 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).

17 Quoted by Senator Brown, Commonwealth, Parliamentary Debates, Senate, 6 September 2000, 17398 (Bob Brown, Senator, Tasmania).

18 For these and other submissions, see above n 7.

19 Editorial, The Sydney Morning Herald, 18 August 2000.

20 See W S Holdsworth, , 'Martial Law Historically Considered' (1902) 18 Law Quarterly Review 117Google Scholar.

21 See Steven Greer, , 'Military Intervention in Civil Disturbances: The Legal Basis Reconsidered' [1983] Public Law 573Google Scholar.

22 AR Blackshield, , 'The Siege of Bowral — The Legal Issues' (1978) 4 Pacific Defence Reporter 6Google Scholar.

23 (1989) 166 CLR 518.

24 Ibid, 562.

25 (1832) St Tr (1891), N S Vol 3; 5 C ; P 254.

26 United Kingdom, Parl Papers Vol 17, (1893-94) 381.

27 Lord Hailsham, (ed), Halsbury;s Laws of England (4th ed, 1973-), vol 8(2), para 821Google Scholar.

28 Robert Heuston, , Essays in Constitutional Law (2nd ed, 1964) 152Google Scholar.

29 See, for example, Halsbury;s Laws of England, above n 27, para 821.

30 D F Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony [1902] AC 109.

31 See S D Lendrum, , 'The ;Corrong Massacre': Martial Law and the Aborigines at First Settlement' (1977) 6 Adelaide Law Review 26Google Scholar. 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 9Google Scholar.

32 H P Lee, , Emergency Powers (1984) 224Google Scholar. 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.'

33 Quoted in Brian McKinlay, , A Documentary History of the Australian Labor Movement, 1850-1975 (1979) 377Google Scholar. 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.

34 Blackshield, above n 22.

35 See generally M Cherif Bassiouni, , The Law of Dissent and Riots (1971)Google Scholar.

36 Lee, above n 32, 201.

37 See Call Out the Troops, above n 33, 42 - between January 1988 and September 1989, theAustralian Defence Force provided assistance to police forces on 1,518 occasions.

38 Ibid 19.

39 See Call Out the Troops, ibid 19.

40 Ibid 13. See also B D Beddie, 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) 55Google Scholar.

41 See ;The Canberra Coup;, Workers News (1976).

42 See Call Out the Troops, above n 33, 14 -18.

43 See above n 4.

44 Robert Hope, , The Royal Commission on Intelligence and Security, Reports I, II, III, IV (1977)Google Scholar; Robert Hope, , Protective Security Review Report (1979)Google Scholar and Appendix 9 to that report, Windeyer, above n 31.

45 Robert Mark, , Report to the Minister for Administrative Services on the organisation of police resources in the Commonwealth area and other related matters (1978)Google Scholar.

46 Mike Halliday, , 'Crisis Policy Centres' (12, 19, 26 January 1980) Workers News Parts I, II, III. See also Hocking, above n 3, 177Google Scholar.

47 For these documents, and general discussion, see Hocking, above n 3.

48 Commonwealth, Parliamentary Debates, House of Representatives, 23 February 1978, 159(Malcolm Fraser, Prime Minister).

49 Hope, , Protective Security Review Report, above n 44Google Scholar.

50 See ;Current Topics: Legal and constitutional problems of protective security arrangementsin Australia; (1978) 52 Australian Law Journal 296, and P H Lane, , An Introduction to the Australian Constitution (1974) 77Google Scholar.

51 (1978) 52 Australian Law Journal 296. Nevertheless, the author found sufficient constitutionalsupport 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

52 Hope, , Protective Security Review, above n 44, 142Google Scholar.

53 Call Out the Troops, above n 33.

54 Bayne has questioned whether the Instructions might be subject to publicationrequirements 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 607Google Scholar.

55 See my earlier article, above n 10.

56 Defence Legislation Amendment (Aid to Civilian Authorities) Act 2000 (Cth) s 51A.

57 Ibid s 51B.

58 Ibid s 51C.

59 See above pp 6-9.

60 Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000, 18447 (Peter Andren, Independent MP).

61 Lee, above n 32, 204.

62 Blackshield, above n 22, 6.

63 (1978) 52 Australian Law Journal 296, 298.

64 R v Sharkey (1949) 79 CLR 121.

65 Commonwealth v Tasmania (1983) 158 CLR 1.

66 (1951) 83 CLR 1 ('Communist Party Case').

67 (1952) 87 CLR 177.

68 (1978) 52 Australian Law Journal 296, 298.

69 Lee, above n 32.

70 See Hope, , Protective Security Review, above n 44, 151Google Scholar.

71 (1949) 79 CLR 121.

72 (1949) 79 CLR 121, 151.

73 (1949) 79 CLR 121, 151

74 For the implied form of the power see Grannall v Marrickville Margarine Pty Ltd (1955) 93CLR 55, 77.

75 (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.

76 Lee, above n 32, 206.

77 [1964] AC 763, 800.

78 [1965] AC 75, 100.

79 See, for example, Mason CJ, , Deane, Gaudron JJ, in Davis v The Commonwealth (1988) 166 CLR 79, 92-3Google Scholar.

80 (1975) 134 CLR 338

81 Ibid 361-2.

82 (1975) 8 ALR 1, 15-17.

83 Blackshield, above n 22, 6.

84 Call Out the Troops, above n 33.

85 From P H Lane, , An Introduction to the Australian Constitution (1974) 77Google Scholar.

86 Justice Hope in his Protective Security Review, above n 44, 27-30, also supported the notionof an inherent executive power of self-protection, as did Isaacs J in The King v Kidman (1915) 20 CLR 425, an opinion quoted with approval by Fullagar J in the Communist Party Case (1951) 83 CLR 1, 259.

87 (1951) 83 CLR 1, 188, citing Black;s American Constitutional Law (2nd ed, 1910). See alsoDoogan, above n 1, 33.

88 See generally Hocking, above n 3.

89 (1989) 166 CLR 518.

90 Ibid 568.

91 Peter Johnston, , 'Re Tracey: Some Implications for the Military-Civil Authority Relationship' (1990) 20 Western Australia Law Review 73, 79Google Scholar.

92 Brett and Waller, above n 14, 654.

93 See Re Tracey; Ex parte Ryan (1989) 166 CLR 518.