Hostname: page-component-745bb68f8f-cphqk Total loading time: 0 Render date: 2025-01-07T18:13:48.084Z Has data issue: false hasContentIssue false
  • English
  • Français

A Shield for the Tip of the Spear

Published online by Cambridge University Press:  01 January 2025

Samuel White Open the ORCID record for Samuel White [Opens in a new window]
Samuel White*
Affiliation:
M War Studies (UNSW), LLM (Hons I) (Melbourne), BA (Classics)/LLB (Hons) (UQ). Captain, Australian Army Legal Corps, currently posted to the Directorate of Operations and International Law
*
The author may be contacted at samuel.white@adelaide.edu.au.
Get access Rights & Permissions [Opens in a new window]

Abstract

The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, ‘this article addresses’ the key elements of the defence—what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members.

Type
Articles
Information
Federal Law Review , Volume 49 , Issue 2 , June 2021 , pp. 210 - 230
Copyright
Copyright © 2021 The Author(s)

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

The opinions and errors expressed herein are those solely of the author’s and do not reflect those of the Australian Defence Force nor the Department of Defence.

References

1. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) 303.

2. Metastasis relates to the Greek concept of obeying one’s father. See Aulus Gellius, Attic Nights (John C Rolfe trans, Harvard University Press, 1927) bk 2, ch 7.

3. See Appian, Civil Wars (Horace White trans, Macmillan & Co, 1899) bk 5, ch 5, s 43; Lucius Annaeus Seneca, Troades (Frank Miller trans, Harvard University Press, 1917) 290.

4. Rhetorica Ad Herennium (Harry Caplam trans, Harvard University Press, 1954) bk 3, ch 2, s 3.

5. Quintilian, Institutes of Oratory (Harold Edgeworth Butler trans, Harvard University Press, 1921) bk 3, ch 6, s 78.

6. On the topic more generally, see David Daube, The Defence of Superior Orders in Roman Law (Clarendon Press, 1956).

7. (1984) 156 CLR 532 (‘A v Hayden’). Whilst providing guidance, this case related to an ASIS training exercise rather than the exercise of powers under a call-out order.

8. Robert M Hope, Protective Security Review—Report of Mr Justice Hope, 15 May 1979 (Unclassified Version) (Parliamentary Paper No 397, May 1979) 18 (‘Hope Report’).

9. A v Hayden (n 7) 540.

10. Ibid 593.

11. Ibid 562.

12. Criminal Code Act 1995 (Cth) div 268.116; for Queensland, refer to Criminal Code 1899 (Qld) s 31; for Western Australia, refer to Criminal Code 1913 (WA) s 31; for Tasmania, refer to Criminal Code 1924 (Tas) s 38.

13. Samuel White, ‘A Soldier By Any Other Name: A Reappraisal of the Citizen in Uniform Doctrine in Light of Part IIIAAA of the Defence Act 1903’ (2019) 57(2) Military Law and Law of War Review 279.

14. Addendum to the Explanatory Memorandum, Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) 2 (emphasis added) (‘Addendum to the Explanatory Memorandum’).

15. Ibid 3.

16. Defence Act 1903 (Cth) s 31 (‘Defence Act’).

17. Ibid s 39(2).

18. Ibid s 40(1)(ii).

19. Ibid s 40(3).

20. Ibid ss 33(5)(d)(ii), 35(5)(d)(ii).

21. Ibid s 37(2).

22. Ibid ss 34(5)(d)(ii), 36(50(d)(ii).

23. Ibid s 33(1).

24. Ibid s 33(1)(a)(ii).

25. Addendum to the Explanatory Memorandum (n 14) 3.

26. See Michael Head, ‘Calling Out the Troops—Disturbing Trends and Unanswered Questions’ (2005) 28(2) UNSW Law Journal 479.

27. The welfare of the people is the paramount law.

28. Defence Act (n 16) s 33(1).

29. Ibid ss 38(2)–(3).

30. Ibid s 35(1).

31. Ibid ss 34(1), 36(1).

32. Niccolò Machiavelli, The Prince (W K Marriott trans, Penguin Publishing, 1952) 35.

33. Defence Act (n 16) s 51U(1)(a).

34. Ibid s 51U(3). If this is the case, then a written record of its particularity must be made and signed by the decision-maker(s) and the CDF, as per s 51U(3). Failure to comply with this requirement will not affect the validity of the order or declaration, by implication of s 51U(3).

35. Ibid ss 51U(3)(a)–(b). This could allow, theoretically, for an expedited call-out in under five minutes.

36. Ibid s 51U(2)(a).

37. Ibid s 51U(2)(b).

38. Ibid s 51U(2)(c).

39. Ibid. In an era of rapidly changing political portfolios, the Minister for Home Affairs is defined in s 31 as the Minister who administers the Australian Federal Police Act 1979 (Cth).

40. Ibid ss 33(5)(c), 34(5)(c), 35(5)(c), 36(5)(c).

41. Ibid s 41.

42. Explanatory Memorandum, Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) 54 [297] (‘Explanatory Memorandum’).

43. Sebastian Beurich, ‘Commandos Ready for Anything’, Defence News (online, 19 July 2019) <https://news.defence.gov.au/capability/commandos-ready-anything>.

44. Inspector-General of the Australian Defence Force Report of Inquiry into Questions of Unlawful Conduct Concerning the Special Operations Task Group in Afghanistan (Inquiry Report, 19 November 2020) 119–22 (‘IGADF Inquiry into SOTG’).

45. Explanatory Memorandum (n 42) 60 [332].

46. Defence Act (n 16) s 51.

47. Explanatory Memorandum (n 42) 16 [68].

48. Defence Act (n 16) s 51A.

49. Ibid s 51D.

50. Explanatory Memorandum (n 42) 72 [406].

51. Defence Act (n 16) s 51H.

52. Ibid s 51F.

53. Ibid s 51H(2).

54. Explanatory Memorandum (n 42) 71 [398].

55. Australian Government Critical Infrastructure Centre, What is Critical Infrastructure Centre? (Fact Sheet) 1. This is mirrored by similar provisions in the Australia and New Zealand Counter-Terrorism Committee, National Counter-Terrorism Plan 4th edition (Intergovernmental Counter-Terrorism Plan, 2017) 32.

56. Defence Act (n 16) s 51H(1).

57. Ibid s 51H(6)–(7).

58. Ibid s 51H(5)(ii).

59. Ibid ss 33(5), 34(5), 35(5), 36(5).

60. Through the application of the criminal law of the Jervis Bay Territory: ibid s 51Y(1).

61. Ibid s 51Y(3).

62. Private R v Cowen [2020] HCA 31 [51] (Kiefel CJ, Bell and Keane JJ).

63. IGADF Inquiry into SOTG (n 44) 171.

64. The language in s 51Z is reflective of the same provision, namely s 51WB of the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006 (Cth).

65. Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth).

66. Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) 25 [172].

67. Criminal Code Act 1995 (Cth) div 268.116.

68. Rob McLaughlin, ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations—Is There a “Lawful Authority”?’ (2009) 37(3) Federal Law Review 441, 446.

69. Ibid 447.

70. See generally Simon Bronitt and Dale Stephens, ‘“Flying Under the Radar”—The Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments’ (2007) 7(2) Oxford University Commonwealth Law Journal 265.

71. Justinian, Digest of Justinian (Alan Watson trans, University of Pennsylvania Press, 1985) vol 4, Book XLIX, Title xvi.

72. Maurice Keen, Laws of Medieval War (Routledge, 1965).

73. As aptly summarised in Boyson v Chief of Army [2019] ADFDAT 2 [20] (Logan J).

74. Defence Regulation 2016 (Cth) sch 1.

75. Commission certificate from Sir Peter Cosgrove to Samuel Camden Duckett White, 16 September 2016.

76. Defence Force Discipline Act 1982 (Cth) s 3(1) (‘DFDA’).

77. (2013) FLR 31, 43 [74] (Tracey, Cowdroy and Logan JJ).

78. See Department of Defence, ADDP 00.1 Command and Control (Canberra, 2009) iii; see further the discussion of mission command and command responsibility in IGADF Inquiry into SOTG (n 44) 31.

79. (2018) 335 FLR 260.

80. Ibid. See in particular at 271–2.

81. Defence Act (n 16) sch 1.

82. Other relevant considerations include ibid s 51Z(2)(d)–(e).

83. Rhonda M Wheate and Nial J Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’ (2003) 160(1) Australian Defence Force Journal 20.

84. Ibid 29.

85. Ibid 25.

86. Ibid 29.

87. See Dr John Shay, Achilles in Vietnam (Scribner, 1994) for a medically trained classicist’s overview of the ancient and modern effects of combat on soldiers.

88. DFDA (n 76) ss 27, 29.

89. Head (n 26) 499, quoting Australian Defence Force Discipline Act 1982 Manual, 4–33.

90. See Matthew Groves, ‘The Civilianisation of Australian Military Law’ (2005) 28(2) UNSW Law Journal 364, 371.

91. See generally Justice John Logan, ‘Military Court Systems: Can They Still Be Justified in This Age?’ (Speech, Commonwealth Magistrate and Judges Association Triennial Conference, 10 September 2018).

92. The latter of which acts as an aggravating factor when charging soldiers: DFDA (n 76) sch 3. A recent decision of the High Court of Australia—Private R v Cowen [2020] HCA 31—makes clear that merely being military personnel is sufficient for military jurisdiction to be conferred (‘the service status test’). Such a position, whilst not directly relevant to the defence of superior orders under Part IIIAAA, simply reinforces that ADF members are not simply citizens in uniform, but hold a separate legal status.

93. David Fraser, And We Shall Shock Them: A History of the British Army in World War Two (Hodder & Stoughton, 1983) 41, 99; see equally Niccolo Machiavelli, The Prince (Penguin Publishing, 2002) 38–41 when Fabrizio comments to Cosimo: ‘discipline drives away fear from men, lack of discipline makes the bold act foolishly…for a courageous army is not so because the men in it are courageous, but because the ranks are well disciplined’.

94. Cameron Moore, Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force (ANU Press, 1st ed, 2017) 125. The DFDA s 14 provides a defence of superior orders for military offences. It would not extend to a civilian jurisdiction.

95. For Queensland, refer to Criminal Code 1899 (Qld) s 31.

96. Journals of the Legislative Council of Queensland VOL XLVII (pt 1) CA 89-1897, 16.

97. (1866) 4 F & F 763, 790.

98. As used by Justice Brereton in IGADF Inquiry into SOTG (n 44) 110.

99. United States v Jones, 36 Fed Cas 653 (No 15494) (CCD Pa 1813).

100. Stanley Yeo, ‘Mistakenly Obeying Unlawful Superior Orders’ (1993) 5(1) Bond Law Review 1, 7.

101. R v Smith (1900) 17 SC 561.

102. Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (Oxford University Press, 2nd ed, 2012) 27.

103. Natalia M Restivo, ‘The Defence of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England’ (Graduate Student Papers No 18, Cornell Law School, 9 December 2006) 4.

104. Michael Head, Calling Out the Troops (The Federation Press, 2009) 171 argues that the inclusion of ‘manifestly unlawful’ is ‘arguably a retreat from the standards applied post-World War II Nuremburg trials’.

105. DFDA (n 76) s 11.

106. Yeo (n 100) 9.

107. Or Bassok, ‘Missing in Action: The Human Eye’ in Fabbrini Federico, and Jackson C Vicki (eds) Constitutionalism Across Borders in the Struggle Against Terrorism (Edward Elgar Publishers, 2016) 283.

108. Attorney General of the Government of Israel v Eichmann, 36 IRL 5 (District Court of Jerusalem, 1961) 257–8. This case must be distinguished on the basis that it addressed the defence of superior orders in the context of war crimes during an international armed conflict (World War II), thus lex specialis applied.

109. Attorney General of the Government of Israel v Eichmann, 36 IRL 5 (District Court of Jerusalem, 1961) 257–8. This case must be distinguished on the basis that it addressed the defence of superior orders in the context of war crimes during an international armed conflict.

110. McCall v McDowell, 15 F Cas 1235, 1241 (D Cal, 1867).

111. Gary Solis, ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’ (1999) 15(2) American University International Law Review 481, 520.

112. In 1474, Peter von Hagenback was tried for perpetrating a reign of terror in the name of his liege, Duke Charles of Burgundy. He raised in his defence that he was operating under the orders of superior; it was held that ordering rape was manifestly unlawful. See Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol 2, The Law of Armed Conflict ( Sweet & Maxwell Ltd, 1968) 462.

113. Some migration matters have addressed the concept of the defence of superior orders, although obtusely: see W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618; SHLB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 254; VWYJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 658; SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 (‘SRYYY’); SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759. Often the cases arise from individuals being ineligible for protection under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1F(a). None appear to have directly engaged with the concept of manifestly unlawful—SRYYY (n 111) [132]–[134] would appear nearly to be the closest. There is however clear support for Canadian case law—R v Finta [1994] 1 SCR 701, that in turn reaffirms the view of manifestly unlawful under Eichmann.

114. As is the case within the duty of a director of a corporation to act in good faith: see Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] (2008) 39 WAR 1.

115. Hall v Brooklands Auto-Racing Club [1933] 1 KB 205, 224 (Greer LJ).

116. Defence Act (n 16) s 51N.

117. Hope Report (n 8) app 9, 295.

118. Jude McCulloch, Blue Army: Paramilitary Policing in Australia (Melbourne University Press, 2001) 183.

119. Michael W Duckett White, Australian Offshore Laws (The Federation Press, 2nd ed, 2009) 121.

120. HM Advocate v Sheppard [1941] JC 67, 72 (Lord Robertson) who held ‘justice requires a higher allowance of his forwardness in maintaining his service, whatsoever it is for the time; and they are withal a warning to everyone, not to molest or meddle with him therein.’

121. Australian Army, Royal Australian Infantry Corps (Web Page, 19 December 2016) <https://www.army.gov.au/our-people/organisation-structure/army-corps/royal-australian-infantry-corps>.

122. HM Advocate v Sheppard [1941] JC 67, 72 (Lord Robertson).

123. William Terrill and Eugene Paoline III, ‘Examining Less Lethal Force Policy and the Force Continuum: Results From a National Use-of-Force Study’ (2013) 16(1) Police Quarterly 38.

124. Ibid 41.

125. Ibid.

126. Simon Bronitt, ‘Rethinking Police Use of Force: Linking Law Reform with Policy and Practice’ (2012) 36(2) Criminal Law Journal 71, 72.

127. Australian Federal Police, Commissioner’s Order 3 2017 s 5.5; issued pursuant to Australian Federal Police Regulations 1979 (Cth) reg 33.

128. Bronitt (n 126) 73.

129. Australian Federal Police Act 1979 (Cth) s 14B(2).

130. Adapted from Paul Sieghart, ‘Harmless Weapons: A Threat to Liberty?’ (1978) 77(1) New Scientist 840, 841 who wrote that ‘the job of the soldier is to kill the Queen’s enemies in war-time; that of the policeman to protect the Queen’s subjects in peacetime’.

131. David Grossman, On Killing (Little, Brown & Company, 1995) 254.

132. Katherine Ziesing, ‘Robotics Enlisted to Sharpen Soldiers’ Skills’ The Australian (Canberra, 3 March 2017) 30.

133. Ibid.

134. [1995] 1 AC 482 (‘Clegg’).

135. Criminal Law Act (Northern Ireland) 1967 s 3(1).

136. Clegg (n 134) 489 (Lord Lloyd).

137. Ibid 500 (Lord Lloyd).

138. Ibid 497 (Lord Lloyd), quoting Attorney-General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105, 137 (Lord Diplock).

139. Ibid 498 (Lord Lloyd).

140. Defence Act (n 16) s 51Z(2)(d).

141. Ibid s 51Z(2)(e).

142. See, eg, Criminal Code 1899 (Qld) s 31; Criminal Code 1913 (WA) s 31; Criminal Code 1924 (Tas) s 38.

143. Peter Rowe, ‘The Soldier as a Citizen in Uniform: A Reappraisal’ (2007) 7 New Zealand Armed Forces Law Review 1, 14.

144. Colin Greenwood, ‘The Evil Choice’ [1975] Criminal Law Review 4, 6–7.