(update of a Background Paper issued 5 September 1991)
Elizabeth Ward
Law & Bills Digest Group
Preface
Introduction
Legal Origins
Section 119 of the Constitution
Section 51 of the Defence Act
Australian Military Regulations and Air Force
Regulations
Commonwealth Acting to Protect its
Interests
Defence Instructions (General)
Assistance to the Civil Community DI(G) OPS 05-1
Aid to the Civil Power DI(G) OPS 01-2
Case Studies
Natural Disasters
Law Enforcement Activities under Commonwealth
Acts
Technical Assistance of a Minor Nature to
State Police Forces
General
Papua New Guinea Call-out 1970-71
Bowral Call-out 1978
RAAF Flights over South-West Tasmania 1983
Deployment of Troops at Nurrungar 1989
Industrial Disputes
1949 Coalminers' Strike
Intervention on the Waterfront at Bowen 1953
Qantas Strike 1971
Use of the RAAF during the 1989 Airline Pilots' Dispute
Conclusion on use of defence forces in
industrial situations
Troops In Civil Disturbances-Their Rights And
Liabilities
Conclusion
Endnotes
Appendix A: Situations in which the
Commonwealth has been approached by the States for defence force
aid to the civil power
Appendix B: Australian Military
Regulations, Part V Duties in aid of the Civil Power During
Domestic Violence
Appendix C: An examination of the legal
status of the Defence Instructions (General)
Appendix D: Categories of assistance to
the civil community (Instruction 8 Assistance to the Civil
Community
Appendix E: Examples of the kind of tasks
involved in aid to the civil power (Instruction 15 Aid to the Civil
Power Dl(G)s)
Appendix F: ADF assistance to State police
forces
Appendix G: Sections 30J and 30K Crimes
Act 1914
Governments from both sides of politics have ordered in the
military during industrial disputes. The most recent example was in
1989 when Labor Prime Minister Bob Hawke made airforce personnel
and aircraft available for use by commercial airlines after their
own fleets were grounded by the mass resignations of their pilots.
The pilots were pursuing a wage increase outside the industrial
relations system.
After a protracted dispute, the airlines triumphed, and the
pilots' union was grounded. The Government's intervention was
crucial to the outcome. Successes like this fuel calls from some
sectors of the community for the Government to use its military
muscle to buy into other difficult industrial disputes-particularly
those judged to be endangering national welfare.
On 15 August 1997, the Australian Financial Review
reported that the National Farmers Federation had urged the Howard
Coalition Government to consider, as an option, bringing in the
troops to speed up reform on the waterfront and keep the docks
operating during a strike. The Government was subsequently reported
to have drawn up detailed plans for handling any major waterfront
confrontation. However, the Prime Minister, Mr Howard categorically
ruled out sending in the troops. During an interview on 4 September
1997 with Kerry O'Brien, on ABC-TV's 7.30 Report, he
said:
I don't contemplate the use of the military in civilian
disputes. I've never advocated the use of troops. And the only
people who talk about troops on the wharfs, with respect are
journalists and my political opponents.
This paper, issued first in 1991 and now updated, examines the
limits on the Government's ability to use its defence forces where
no external threat is involved. It discusses constitutional and
administrative constraints and the way they have been reflected in
legislation. It examines defence force guidelines and canvasses
past examples of the way the defence forces have been used,
including for flood mitigation and minor matters beyond the
capacity of the police. It analyses eight specific incidents,
including four relating to industrial disputes, when the Government
of the day used the military.
This paper concludes that:
- there are legal difficulties inherent in nearly all uses of the
defence forces for 'non-defence' purposes
- successive Commonwealth Governments have used the defence
forces without prior consideration of the legal steps involved
- the defence forces have often responded to requests without
regard for their own operational instructions, and
- on a legal basis, the deployed troops are found to be largely
unprotected.
This paper argues that legislation is required to meet two
important needs:
- to protect soldiers acting on the request of Government in
'non-defence roles', and
- to spell out clearly how the forces should be used for
non-traditional purposes to ensure civil liberties are not unduly
infringed.
It is further argued that neither of these aims can be met by
administrative arrangements within the Department of Defence and
that care should be taken in the drafting to ensure disturbances
are resolved with minimum force, and not inflamed.
On a number of occasions and for a variety of reasons, the
Australian Defence Forces (ADF) have rendered assistance to the
civil community. This assistance may be provided on an ongoing
basis, such as the provision of technical help to State police
forces, frequently in connection with minor matters beyond the
expertise of the police. Sometimes the assistance involves
providing aircraft and crew for ceremonial fly-overs on festive
occasions or assisting State police in maintaining law and order.
On other occasions it has been argued that the ADF should be called
in to act as strike-breakers in a key industry.(1) The spectre of
Federal Government troops running essential services or maintaining
law and order in a State does not sit well with our developed
notions of democracy and the principle of the subjugation of the
military to the civil authority. In 1628 the Petition of Right made
it unconstitutional for the Crown to impose martial law on
civilians and in 1688 the Bill of Rights declared it illegal for
the Crown to raise or keep an army without parliamentary
consent.(2) The military/civil relationship was the subject of some
discussion by the High Court in the case Re Tracey: Ex parte
Ryan(3) where the Court examined the constitutionality of
provisions of defence disciplinary legislation which (in effect)
sought to remove the jurisdiction of the civil courts where a
soldier had committed a civil offence. Justices Brennan and Toohey
examined the history of the struggle of the civil authorities for
supremacy over the armed forces and observed in relation to naval
and military law:
The most important aspect of the discipline which that law was
intended to secure was the control of armed forces to ensure that
their existence as a permanent armed body under hierarchical
command should not threaten the peace and civil order of the
Realm.(4)
Johnston argues that the subjugation of the military to the
civil authority is a constitutional principle recognised in Section
68 of the Australian Constitution (the Constitution). Section 68,
which is discussed below, gives the control of the armed forces to
the Governor-General. Johnston raises the issue whether that
principle can be elevated to the status of an implied
constitutional limitation.(5)
Justice Hope observed:
Use of the military other than for external defence, is a
critical and controversial issue in the political life of a country
and the civil liberties of its citizens. 'An armed disciplined body
is in its essence dangerous to Liberty: undisciplined, it is
ruinous to Society'. Given that there must be a permanent Defence
Force, it is critical that it be employed only for proper purposes
and that it be subject to proper control.(6)
There was some unease in the community at the time of the Bowral
call-out (see discussion below) at the concept of armed troops
patrolling the streets and the picture of martial law this created.
The defence forces are referred to in the Constitution and
authority for their operation stems from that point. Any laws
regulating ADF activities must be consistent with that
constitutional authority. Under our Federal system the maintenance
of law and order is primarily the responsibility of the States. The
Constitution makes provision for Commonwealth assistance to the
States in the maintenance of law and order in limited circumstances
to be discussed below. Hitherto, nothing has gone drastically wrong
when the ADF has performed roles within the civilian community. But
what if something did go wrong on one of these occasions? What if a
civilian was killed by a member of the army in a law enforcement or
rescue operation? It seems important that the Government and the
ADF itself be aware of the precise legal authority for the
commitment of troops to a civil operation before that commitment
occurs. Separation of the civil from the military role occurred for
fundamental reasons which we value as a cornerstone of our society.
If there is to be contemporary discussion of a change to that
balance, then it is worth considering whether such a change can be
contemplated within the framework of our present legal structure.
The legal position of the troops themselves has also been largely
ignored. Could they be sued by the civilian population? Some
attention should also be focused on the perennial problem of a
clash of wills between the Commonwealth and the States. A State may
seek Commonwealth intervention and the Commonwealth decline or the
Commonwealth may seek to intervene in a State against the wishes of
the State Government. It is proposed to outline the legal bases for
using the ADF for non-defence purposes and then to examine a number
of occasions on which the troops have been used, discussing the
legal basis for their use in each case. The position of the troops
themselves will also be considered.
The author examines the relevant legal provisions starting with
the Constitution, then proceeds to the Defence Act 1903
(the Defence Act) and regulations made pursuant to it. The paper
also considers another legal basis for Commonwealth intervention
which is not explicitly spelt out in the Constitution, but which is
considered to be no less compelling. Finally, an area of so-called
'quasi law' will be examined.
As mentioned above, the Constitution makes some provision for
Commonwealth assistance to the States in the maintenance of law and
order. Section 119 of the Constitution provides as follows:
The Commonwealth shall protect every State against invasion and,
on the application of the Executive Government of the State,
against domestic violence.
Insofar as its secondary aspect is concerned, Section 119
requires first of all that a state of 'domestic violence' exists
and secondly there must be a request for assistance from the State
Government. Section 119 does not authorise unilateral action by the
Commonwealth Government. The need for the section is linked with
the fact that the States are unable to raise a military force
themselves (Section 114 of the Constitution).
The States called for Commonwealth assistance under Section 119
on several occasions earlier in the century and on each occasion
the Commonwealth refused.(7) Refusal was based on the
Commonwealth's independent assessment as to whether a state of
domestic violence existed. Although commentators agree that the
Commonwealth would be bound to give the assistance sought under
Section 119,(8) practice suggests that the Commonwealth will make
its own assessment in relation to the degree of unrest and that
mere allegation by a State will not invoke the section.
It has been suggested that in view of the Bowral call-out (see
below) and the mechanism that was used there, it is unlikely that
Section 119 will ever be invoked. Professor Blackshield has
argued:
Since almost any social controversy can nowadays be injected
with 'national security' implications, it would seem that a way has
been found of circumventing Section 119 and intervening in State
affairs whenever the Commonwealth chooses. In the long run, that
may be the significant new precedent created at Bowral.(9)
The operation of Section 119 is reflected in Section 51 of the
Defence Act which reads as follows:
51. Where the Governor of a State has proclaimed that domestic
violence exists therein, the Governor-General, upon the application
of the Executive Government of the State, may, by proclamation,
declare that domestic violence exists in that State, and may call
out the Permanent Forces and in the event of their numbers being
insufficient may also call out such of the Emergency Forces and the
Reserve Forces as may be necessary for the protection of that
State, and the services of the Forces so called out may be utilised
accordingly for the protection of that State against domestic
violence:
Provided always that the Emergency Forces or the Reserve
Forces shall not be called out or utilised in connection with an
industrial dispute. [emphasis added]
It has been suggested that Section 51 is unconstitutional to the
extent that it imposes a further requirement on top of Section 119
of the Constitution, i.e., the need for the State Governor to issue
a proclamation that domestic violence exists, before the assistance
envisaged in Section 119 can be rendered.(10) The author has some
sympathy for this view although it is equally possible to argue the
opposite view based on the approach that Section 51 merely sets out
one way of making an approach to the Commonwealth Government and
does not in fact preclude other approaches by the State. On this
view, Section 51 does not attempt to negate Section 119 of the
Constitution but merely sets out one way in which it can be
applied. It would be argued that Section 51 of the Defence Act
relies on Section 51(vi) (the defence power) and Section 51(xxxix)
(the incidental power) of the Constitution as a sensible means of
catering for the protection envisaged by Section 119. If however,
Section 51 of the Defence Act was interpreted as imposing an
absolute requirement for a proclamation by the State Governor as a
pre-requisite to Commonwealth intervention, then constitutional
invalidity seems inevitable.(11)
As indicated, the use of the forces in industrial disputes is
specifically mentioned in the proviso to Section 51 of the Defence
Act. Further reference is made to this in the discussion below in
relation to industrial disputes.
Further legislative attention to the use of troops for
non-defence purposes occurs in two sets of regulations:
Australian Military Regulations, Part V-Duties in Aid of the
Civil Power During Domestic Violence, (hereinafter referred to as
the AMRs) Regs 398-415 (made pursuant to the Defence Act
1903)(12)
Air Force Regulations, Part IX-Duties in Aid of Civil Power,
(hereinafter referred to as the AFRs) Regs 491-511 (made pursuant
to the Air Force Act 1923).
The two sets of regulations are similar and, as commentators
Brian Beddie and Sue Moss point out, derive from the common law as
it evolved in eighteenth century Britain.(13) The regulations
incorporate the notion that the civil power is paramount and they
apply the doctrine of minimum force.(14) The major requirement is
that a magistrate accompany the forces. The role of the magistrate
is to 'read the riot act' (AMR 407). If the magistrate concludes
that the police are unable to cope with the riot, then he is called
upon to request the commander of the military forces to take action
(AMR 408).
Reg 400 states that officers called out for the protection of a
State against domestic violence should ensure that the forces under
their command are not utilised unnecessarily or to an unnecessary
extent. Reg 404 provides that except in cases of great and sudden
emergency the troops must not take any action having been called
out, until a requisition in writing has been received from a civil
authority. The civil authority must arrange for a magistrate to
meet the forces and the magistrate must remain as near as possible
to the commander of the military forces (Regs 405 and 406). Reg 410
requires the commander of the forces to warn 'the people' that, if
the troops are ordered to fire, the fire will be effective.
Although the provisions of the AMR and AFR are directed at a
call-out to control domestic violence in a State, a provision is
included which requires the Part be applied as far as possible
where the troops are employed by the Commonwealth on its own
initiative, to protect its servants or property, or safeguard its
interest (AMR 415, AFR 511) (see discussion below with respect to
the Commonwealth's power to intervene on its own initiative).
Hope recommended a number of changes to the regulations to
remove some outmoded aspects of their operation and make them more
responsive to contemporary needs. As the Attorney-General of the
day, Senator Peter Durack, observed:
...Part V of the Australian Military Regulations and Part IX of
the Air Force Regulations are directed to a riot situation of a
kind more to be expected in 18th century England than in Australia
in the present day. By contrast these Regulations make no specific
provision for acts of violence by individuals or small groups of
persons, possibly armed with highly effective weapons.(15)
Sir Victor Windeyer suggested that the role of the magistrate
would be much more appropriately performed by a senior police
officer.(16) Hope's preference was that the more important contents
of the regulations be contained in a statute. None of these
recommendations arising from the Hope report has been
implemented.
Constitutional lawyers agree that the Commonwealth can use the
defence forces to enforce its laws and protect its interests and
property. The Commonwealth need not wait for a request from a
State. It intervenes not to protect the State, but to protect
itself. Political commentators Quick and Garran enunciated this
principle early in our Constitutional history:
If, however, domestic violence within a State is of such a
character as to interfere with the operations of the Federal
government, or with the rights and privileges of Federal
citizenship, the Federal government may clearly, without a summons
from the State, interfere to restore order. Thus if a riot in a
State interfered with the carriage of the Federal mails, or with
inter-state commerce, or with the right of an elector to record his
vote at Federal elections, the Federal Government could use all the
force at its disposal, not to protect the State, but to protect
itself. Were it otherwise the Federal Government would be dependent
on the Governments of the States for the effective exercise of its
powers.(17)
Justice Dixon cited this passage with approval in The King v
Sharkey.(18) The matter also came up for discussion in the
Communist Party case(19) where Justice Dixon adopted the
U.S. view that:
...it is within the necessary power of the Federal government to
protect its own existence and the unhindered play of its legitimate
activities. And to this end, it may provide for the punishment of
treason, the suppression of insurrection or rebellion and for the
putting-down of all individual or concerted attempts to obstruct or
interfere with the discharge of the proper business of
government...(20)
Justice Fullagar in the same case quoted with approval passages
from The King v Kidman(21) where Justice Isaacs spoke of
the Commonwealth as having 'an inherent right of
self-protection'.
The Commonwealth's inherent power to call out the troops on its
own initiative is based chiefly upon the executive power (Section
61 of the Constitution) but other powers which are also relevant
are Section 68 and the legislative powers contained in Sections
51(vi) and 51(xxxix) of the Constitution.(22) These sections are as
follows:
51. The Parliament shall, subject to this Constitution, have
power to make laws for the peace, order, and good government of the
Commonwealth with respect to:
...(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: ....
...(xxxix) Matters incidental to the execution of any power
vested by this Constitution in the Parliament or in either House
thereof, or in the Government of the Commonwealth, or in the
Federal Judicature, or in any department or officer of the
Commonwealth.
61. The executive power of the Commonwealth is vested in the
Queen and is exercisable by the Governor-General as the Queen's
representative, and extends to the execution and maintenance of
this Constitution, and of the laws of the Commonwealth. ....
68. The command in chief of the naval and military forces of the
Commonwealth is vested in the Governor-General as the Queen's
representative.
The Commonwealth's power to commit troops to protect its
interests, being chiefly an exercise of the executive power
described in Section 61, may vary depending on the extent to which
there is a relevant law to execute. The presence of relevant
legislative powers in the Constitution and laws made
pursuant to them ensures a fairly wide operation for the executive
power. The Commonwealth has no legislative power with respect to
law and order matters, crime generally or the control of civil
disruption. However, although the Commonwealth Parliament has no
legislative power with respect to crime, it does incidentally enact
various criminal provisions in areas of substantive law e.g.
Crimes Act 1914 provisions relating to sedition pursuant
to the external affairs power (Section 51 (xxix)), tax fraud
provisions under the Income Tax Assessment Act 1936
pursuant to the taxation power (Section 51(ii)) etc. In addition,
there is the incidental power itself (Section 51 (xxxix)) pursuant
to which the Parliament can legislate with respect to matters
incidental to the exercise of the executive power. As Lumb
indicates(23), this power extends to the enactment of legislation
which prohibits conduct directed against the Commonwealth. This
power supports provisions of the Crimes Act such as those dealing
with treason, treachery, sabotage, sedition and espionage (see
Sections 24, 24AA, 24AB and 24A). These provisions may also be
supported by the defence power (Section 51 (vi)) and other powers
such as the external affairs power (Section 51 (xxix)) (see
above).
The external affairs power (Section 51 (xxix)) supports
anti-terrorist measures such as those contained in the Crimes
(Aviation) Act 1991 and the Crimes (Foreign Incursions and
Recruitment) Act 1978. Other legislation such as the
Australian Nuclear Science and Technology Act 1987 and the
Approved Defence Projects Protection Act 1947 (largely
based on the defence power (Section 51 (vi)) create nuclear
sabotage offences.
In given situations, the Commonwealth's executive power to
commit its troops may rely partially on other Section 51 powers.
The Bowral call-out (see discussion below) could be supported by
the external affairs power (Section 51 (xxix)) on the basis of
Australia's international obligations domestically enacted in the
Crimes (Internationally Protected Persons) Act 1976. The
provisions in Commonwealth legislation dealing with anti-Government
or terrorist crimes (referred to above) would support Commonwealth
action based on the executive power to intervene to protect its own
interests. Hope notes that the second limb of Section 51 (vi) could
be an important source of Commonwealth law-making power with
respect to law and order matters generally, and with respect to
terrorism in particular.(24)
Para 63(l)(f) appears to incorporate constitutional authority
for this Commonwealth initiated intervention into the Defence Act
in much the same way as Section 51 of that Act reflects the
elements of Section 119 of the Constitution. Para. 63(l)(f)
reads:
63(1) The Governor-General may-
...
(f) Subject to the provisions of this Act do all matters and
things deemed by him to be necessary or desirable for the efficient
defence and protection of the Commonwealth or of any State.
Para.63(l)(f), in combination with Sections 51 and 124 of the
Act (the latter being the general regulation making power in the
Act) provide the legal basis for making the AMRs dealing with
Section 119 conduct in domestic violence situations. As mentioned
above, a provision in both the AMRs and AFRs seeks to apply, 'as
far as possible', those Parts to the situation where the
Commonwealth intervenes to protect its own interests. These
provisions (AMR 415 and AFR 511) are worth noting since they are a
legislative reference to Commonwealth power to protect its own
interests. However, the regulations do not provide the source of
the power. This comes from the Constitution.
In 1923 there was a strike by members of the Victorian police
force. The Victorian Government approached the Commonwealth
Government with a request to use defence force personnel to
maintain law and order in Melbourne. The Commonwealth declined to
act unless the requirements of Section 119 of the Constitution and
those set out in the Defence Act were followed. However, the Acting
Prime Minister made arrangements for armed guards from the forces
to patrol and protect certain Commonwealth premises in Melbourne
including the General Post Office. This is an example of the
Commonwealth taking unilateral action within a State to protect its
own interests.
The Commonwealth's power to intervene to protect its interests
will be further discussed below in the context of specific case
studies.
There is a level of 'quasi-law' making relevant to this study.
By far the greatest procedural detail for using troops in a
'non-defence' capacity is laid down in administrative instructions
made pursuant to the Defence Act. The Act provides in Section
9A:
9A. (1) Subject to section 8, the Secretary and the Chief of the
Defence Force shall jointly have the administration of the Defence
Force except with respect to -
(a) matters falling within the command of the Defence Force by
the Chief of the Defence Force or the command of an arm of the
Defence Force by the service chief of that arm of the Defence
Force; or
(b) any other matter specified by the Minister.
(2) instructions issued by or with the authority of the
Secretary and the Chief of the Defence Force in pursuance of the
powers vested in them jointly by virtue of sub-section (1) shall be
known as Defence Instructions (General)
It has been suggested that instructions made pursuant to Section
9A are a form of delegated legislation.(25) There are two
approaches which could be used to determine the legal status of the
instructions. One approach involves drawing a clear distinction
between the attributes of administrative and legislative activity
and applying these to the present situation. A case which
exemplifies this approach is Gerah Imports Pty. Ltd. v.
Minister for Industry, Technology and Commerce.(26) The second
approach ignores the distinction between administration and law and
merely seeks to examine the empowering provision (i.e. in this case
Section 9A of the Defence Act) and see from the words of the
section itself the intended legal effect of the instructions. Using
this approach, administrative law expert, Peter Bayne argues that a
policy document can have some legal effect if there is legislative
authority for making the document.(27) An examination of Section 9A
would indicate that it was limited to regulating the internal
administration of the forces. The legal effect of this would be
that the instructions only affected people within the forces, and
not relationships with outsiders. Nonetheless, the argument runs,
the instructions would create legally binding obligations on the
ADF with respect to internal administrative matters. On this basis
the instructions would not affect how the Government aided the
civil power or assisted the civil community because these matters
fall outside internal administration of the Forces. The legal
effect is purely internal. Therefore some provisions in the
instructions which go beyond matters of administration (such as the
requirement for cost recovery in certain situations of assistance
to the civil community) would not be within the ambit of the
instructions because they are concerned with matters other than
those administrative matters envisaged by Section 9A. This approach
concludes that the instructions are of legal effect to the extent
that they deal with the administration of the Forces. The
instructions should be complied with by the ADF. This approach
would appear to be supported to some extent by advice from the
Attorney-General's Department tabled in Parliament.(28)
The first approach would in the author's view have a slightly
different result. In Appendix C the author concludes that a strict
application of the legislative versus administrative approach would
find that the instructions have no legal effect. Consequently
substantive requirements, for example that the Governor-General
issue an Order-in-Council before troops may be committed to protect
Commonwealth interests would, like all other provisions in the
instructions, have no legal effect. Thus, under both approaches,
the requirement for an Order-in-Council is not enforceable (at
least not by an outsider).
In some ways a finding that the instructions have no legal
effect is an uncomfortable result because the forces must still
comply with them, in much the same way as officers of the Social
Security Department are required to fulfil their duties in
accordance with the guidelines provided by the Social Security
manual. Although these guidelines are not law, officers who
continually exercised their statutory functions in a manner
inconsistent with the manual could find themselves subject to
disciplinary action under the Public Service Act 1922. In
Broadbridge v Stammers the Court considered a policy
manual:
The manual requires decisions upon many discretionary matters
and matters of judgment. It is not cast with the precision of a
statute. Clearly this is an area in which guidelines may be useful
and necessary. Much has to be left to the person selected as the
delegate to give effect to them. It is an administrative area where
one would expect that the delegate would have to direct his mind to
the matters laid down in the policy but where he would not be
bound, in the strict legal sense, by every word in the policy
manual. Rather one would expect he would be open to correction or
discipline by the Commission should he depart in material respects
from it: cf Minister for Industry and Commerce v East West
Trading Co Pty Ltd (1986) 10 FCR 264 at 269-270, 278-279;
Minister for Immigration and Ethnic Affairs v Conyngham
(1986) 11 FCR 528 at 540-542; Gunaleela v Minister for
Immigration and Ethnic Affairs 14 (1987) FCR 591; S Lee,
'Circular Arguments' (1985) 101 LQR 311; R Baldwin and J Houghton,
'Circular Arguments: The Status and Legitimacy of Administrative
Rules' (1986) Public Law 239.(29)
Thus, even the first approach which draws a clear distinction
between administration and law, (and may hold the instructions to
be administrative and not enforceable) would still result in an
obligation to comply because of disciplinary requirements outside
the instructions. In the case of the DI(G)s and the ADF, these
would arise under the Defence Force Discipline Act
1982.
Thus it could be argued that both approaches referred to above
would have the effect that the instructions must be complied with
by members of the ADF at least insofar as they cover matters of
administration. Both approaches would have the result that the
imposition of certain requirements such as that of cost recovery
was beyond the scope of the instructions.
The difference between the two approaches would be that the
first would find that none of the provisions of the instructions
have the force of law. Compliance with them by the ADF becomes a
necessity only because of disciplinary obligations existing
elsewhere. The second approach would hold the provisions in the
instructions dealing with matters of internal administration to be
legally binding on the ADF. From that would arise the obligation to
comply with them.
Whatever the precise legal status of the instructions, it is
important to see where these working rules fit in to the structure
of law already discussed. In the absence of other provisions
regulating the conduct of troops in non-defence situations, the
instructions might provide some authority for action. They have
played a role in efforts at challenging or legitimising some
controversial situations in which the forces have been used. These
situations are discussed in the case studies below. It has been
argued that the Secretary and Chief of the Defence Force have been
forced to make and rely on the relevant instructions to fill a gap
in the existing law.(30) Hope argued strongly in favour of putting
more of this material in the Act. One of the conclusions of this
paper is that the ADF has been placed in awkward positions by the
failure of the legislature to make specific provision outlining
procedures for using the forces in different situations. Another
reason for examining the instructions is that they are used to
distinguish different categories of aid which have different legal
bases in the context of the legal origins discussed above.
There are two Defence Instructions (General) governing aid to
the civil authorities:
- Defence Instructions (General) OPS 05-1 Defence Assistance to
the Civil Community Policy and Procedures. This is an unclassified
defence document, most recently amended on 12 February 1993.
- Defence Instructions (General) OPS 01-2 Defence Force Aid to
the Civil Power - Situations Other than Counter Terrorist
Operations - Policy and Procedures (tabled in the Senate 22 April
1983). This is a restricted document.
(The title of the second set of instructions suggests that there
must be a third set in existence governing counter terrorist
operations).
The existence of the instructions on assistance to the civil
community and aid to the civil power was revealed to the Government
in 1983 during debate on the propriety of the RAAF 'spy flights'
over Tasmania (see below). They were tabled in Parliament and have
been used extensively during Parliamentary debates, especially at
Estimates Committees, in attempts to embarrass the government.
The instructions on assistance to the civil community have since
been declassified and updates are available.
However, the instructions on aid to the civil power are still
classified. The author has therefore had to rely on the 1983 tabled
document. But it should be borne in mind that under the Act, the
instructions may be changed at any time. Bayne questions whether it
might be subject to publication requirements either under the
Statutory Rules Publication Act 1903 or pursuant to
section 9 of the Freedom of Information Act 1982.(31)
The instructions will be analysed, not for their procedural
requirements, but according to the types of assistance at which
they are aimed, and the legal basis for that.
Assistance to the Civil Community DI(G) OPS 05-1
This instruction draws the following distinction between the two
types of aid: 2. For the purposes of this instruction, these terms
are defined as follows:
a)Assistance to the Civil Community. Defence Force
assistance to the civil community (DFACC) is the provision of
Defence Force personnel, equipment, facilities or capabilities to
perform tasks which are primarily the responsibility of civil
authorities or organisations, and for which the civilian community
lacks the necessary equipment or resources. It includes assistance
in counter disaster training.
b)Aid to the Civil Power. Aid to the civil power is
Defence Force aid to either the Commonwealth or State Governments
and their civil authorities in their performance of law enforcement
tasks.
The instructions divide assistance to the civil community into
certain categories. These are set out at Appendix D.
These instructions cover emergency assistance in, e.g., natural
disasters like the huge RAAF transport effort following Cyclone
Tracy.
The instructions also cover such things as ceremonial fly-overs.
The important distinction between these instructions and those on
aid to the civil power is that assistance to the civil community is
not envisaged as ever requiring the use of force by ADF
personnel.
Aid to the Civil Power DI(G) OPS 01-2
Aid provided under these instructions relates to law enforcement
where the use of force by ADF personnel is a possibility. Three
types of aid are acknowledged in instruction 9:
a) An approach for aid to Commonwealth or Territory authorities
in their performance of law enforcement tasks. These may include
protection of the Commonwealth's interests eg the protection of
Commonwealth property, the enforcement of Commonwealth and
Territory laws and the protection of persons under their
provisions, the guarding of buildings and the search for criminals.
Where there is any likelihood that members of the Defence Force in
providing such aid may be involved in the use of force, aid may
only be provided when the element of the Defence Force involved has
been 'called out' in aid to the civil power by order of the
Governor-General in Council. The provisions of AMR Part V and AFR
Part IX are to be applied 'as far as possible.'
b) An approach for aid to State authorities in their performance
of law enforcement tasks under State laws e.g. in the search for
criminals. Again, where there is any likelihood that members of the
Defence Force in providing such aid may be involved in the use of
force, aid may be provided only when the 'call out' procedure of
Section 51 of the Defence Act, for the protection of a State
against 'domestic violence' has been implemented. The provisions of
AMR Part V and AFR Part IX are to be fully applied.
c) Approaches for aid to customs, fisheries and police forces in
performance of law enforcement tasks for the execution and
maintenance of certain statutes of the Commonwealth. Existing civil
coastal surveillance arrangements relate to this area (see
paragraph 10 below).
Category b) covers domestic violence in a State situation
(Section 119 of the Constitution and Section 51 of the Defence
Act). This category requires that the 'call-out' procedure of
Section 51 be complied with before aid is provided. As discussed
above, the Section 51 imposition of a requirement for a
Proclamation by the State Government is arguably
unconstitutional.
Para a) envisages circumstances where the Commonwealth uses the
troops to protect its own interests. Para a) requires a call-out by
an order of the Governor-General in Council. The constitutional
basis for the Commonwealth protecting its own interests is referred
to above. Once it is accepted that Section 61 and the other
provisions referred to provide the legal basis for the Commonwealth
using troops to protect its own interests, then any justification
for imposing a requirement for an order in council, must be found
in these sections. It is not possible to glean from the relevant
provisions nor from the Constitution as a whole a requirement for
an order in council. As Windeyer noted:
Some provisions of the Constitution refer to 'the
Governor-General in Council' - which section 63 stipulates is to be
construed as the Governor-General acting with the advice of the
Federal Executive Council: but other provisions refer simply to
'the Governor-General'. The distinction is significant. Section 68
states that 'The Commander in Chief of the naval and military
forces of the Commonwealth is vested in the Governor-General as the
Queen's representative' - not in the Governor-General in council.
It follows that orders by the Governor-General to the Defence
Force, including calling it out, are given by virtue of the
authority of command in chief. That does not mean that His
Excellency may act without ministerial advice. He must act on the
advice of a responsible minister; but not necessarily by an
Order-in-Council after a meeting of the Executive Council.(32)
Windeyer's view was that a direction from the Minister acting in
conjunction with the Chief of the Defence Force was sufficient
legal authority to invoke the use of the forces. Under Section 8 of
the Defence Act, the Minister has the general control and
administration of the Defence Force. The powers of command and
administration vested in the various ADF Chiefs by Sections 9 and
9A of the Act are to be exercised in accordance with any directions
of the Minister.
On either analysis of the legal effect of the instructions (see
above) the requirement for an order of the Governor-General in
council would impose an obligation to comply on ADF members. But in
the case of both analyses, it would not be a requirement which was
enforceable by anyone outside the ADF. It would not give rise to
any rights or obligations except as an internal administrative
matter.
Para. c) of instruction 9 covers on-going use of officers of the
ADF for specific law enforcement tasks under a group of
Commonwealth statutes. The major tasks here involve coastal
surveillance. Under Commonwealth Acts relating to customs,
fisheries and quarantine, for example, members of the ADF are
specifically authorised to exercise police type powers. The
instructions refer to this activity as flowing from Section 51(vi)
of the Constitution, the second leg of which refers to the control
of the forces to execute and maintain the laws of the
Commonwealth.
Instruction 15 sets out the different types of tasks which could
be involved in aid to the civil power. This Instruction is set out
at Appendix E.
It is proposed to study a number of situations where troops have
'aided' or 'assisted' the civil community and examine in each case
the legal basis for the assistance rendered. The first three
categories cover assistance of a general nature. They will be dealt
with only briefly. A range of specific incidents will then be
examined, first a general group and secondly those relating to
industrial disputes.
- natural disasters
- law enforcement activities under Commonwealth Acts
- technical assistance of a minor nature to State police
forces
- general
- Papua New Guinea call-out 1970-1971
- Bowral call-out 1978
- RAAF flights over SW Tasmania 1983
- deployment of troops at Nurrungar 1989
- industrial disputes
- 1949 coalminers' strike
- intervention on the waterfront at Bowen 1953
- Qantas strike 1971
- use of the RAAF during 1989 airline pilots' dispute
Assistance provided by the ADF in natural disasters for example
flood relief work to outback towns, falls within the DI(G)s on
assistance to the civil community. What is the legal basis for this
use of the forces?
It is tempting to argue that the constitutional authority for
aid to the civil community stems from a similar source to that
discussed by Windeyer and others in relation to aid to the civil
power in situations where the Commonwealth is protecting its
interests i.e. Sections 61, 68, 51(vi) and 51(xxxix). It could be
argued that these powers should justify defence force participation
in, e.g., natural disasters and ceremonial occasions. If this is
not the case, then it seems rather farcical that the Constitution
authorises use of the defence forces in civil situations where
force is likely, but not in civil situations where force is not
contemplated. However, the contrary argument would rely on the fact
that the executive power (Section 61) is in fact linked with the
maintenance and execution of Commonwealth laws (and the
Constitution) as is the defence power (Section 51 (vi)), and that
there is no relevant Commonwealth law to execute or maintain in the
case of natural disasters or ceremonial occasions.
Hope points out(33) that normally interference with a
Commonwealth interest would involve breach of a Commonwealth law.
But, he argues, not all Commonwealth interests are protected under
a Commonwealth statute. Some Commonwealth interests might be
protected by the common law or by a State law. Hope concludes that
the absence of a relevant statute would not preclude the use of all
available resources to protect a Commonwealth interest. If this is
the case with respect to the Commonwealth's ability to use force to
protect its legitimate interests, then the argument can equally be
made that there is no need to have an interest in statute form
before the Commonwealth can make available its troops in a peaceful
way, not involving the use of force, to protect a legitimate
national interest. It is arguable that the protection of a
Commonwealth interest is involved where the Commonwealth seeks to
rescue its subjects caught up in natural disasters which, depending
on their scale, can become national in scope. It is submitted that
the executive power in Section 61 is broad enough to support the
use of the national forces in national disasters or national
ceremonies. If the disasters or ceremonies are definitely more
regional than national, it can still be argued that since it is the
role of the Commonwealth to raise and maintain military forces, and
the States are specifically forbidden from doing so (Section 114),
then it is the duty of the Commonwealth to make the forces
available to perform the sort of tasks which they and only they are
capable of performing whether on account of training, equipment,
experience, or sheer weight of numbers. Section 61 is an important
basis of power especially when interpreted in the context of a
national implied power. In the course of his judgement in the
AAP case, Justice Mason expressed the view that the CSIRO
was a legitimate exercise of the executive power. He said:
But in my opinion there is to be deduced from the existence and
character of the Commonwealth as a national government and from the
presence of Sections 51(xxxix) and 61 a capacity to engage in
enterprises and activities peculiarly adapted to the government of
a nation and which cannot otherwise be carried on for the benefit
of the nation.(34)
In Davis v. The Commonwealth,(35) the High Court
discussed the content of Section 61 and held that the commemoration
of the Bicentenary fell squarely within the Commonwealth's
executive power. Chief Justice Mason, Justice Deane and Justice
Gaudron said:
Implicit in what we have just said is a rejection of any notion
that the character and status of the Commonwealth as the government
of the nation is relevant only in the ascertainment of the scope of
the executive power in the area of Australia's external relations.
In the legislative sphere the nature and status of the Commonwealth
as a polity has sustained legislation against subversive or
seditious conduct: Burns v. Ransley(73); R. v.
Sharkey(74); see the Communist Party Case(75). And
there was no suggestion in the judgements in the A.A.P.
Case(76) that the character and status of the Commonwealth as
a national government was not relevant in ascertaining the scope of
the executive power in its application domestically. Indeed, the
judgements in that case contradict the suggestion, the Australian
Assistance Plan being a domestic scheme.(36)
On the basis of the interpretation given to the executive power
in these and other cases, it seems likely that that power is the
substantial basis for Commonwealth commitment of troops to assist
in natural disasters.
This function, in relation to quarantine, customs, fisheries
etc. is discussed above. It is not proposed to discuss it further
except to observe that there are concerns in this area also, as to
the legal foundation for defence force involvement.(37)
There is a range of minor activities which could be categorised
in this way. For a list of examples see Appendix F.(38) It seems
clear that these types of functions (disposal of explosive devices,
provision of army facilities, equipment, accommodation and
training, etc.) would fall within the categories of aid described
at instruction 15 of the DI(G)s on aid to the civil power.(39) This
would appear to be the appropriate place since these are the
instructions which cover assistance of the nature of law
enforcement. Whilst it seems natural enough to provide this sort of
aid to the States pursuant to instruction 9 b (see text above), it
is difficult to find any Constitutional authority. Clearly they do
not fall within the domestic violence situation provided for in
Section 119. Nor could it be argued that the executive power of the
Commonwealth (Section 61) extends to the maintenance of
State laws (unless an argument could be made that the
preservation of State Constitutions ensured by Section 106 of the
Constitution provides sufficient basis for a broad interpretation
of Section 61 in the situations under discussion). Whilst Section
51(vi) obliges the Commonwealth to provide for the naval and
military defence of the States as well as the Commonwealth, its
second leg, naturally enough, only refers to the execution and
maintenance of the laws of the Commonwealth. There might be some
scope to raise an argument parallel with that offered above in
relation to the justification for ADF involvement in natural
disasters. The argument would adopt the line that there are some
functions 'peculiarly adapted to the government of the nation' and
that is why the ADF is able to perform tasks beyond the
capabilities of State police forces. However it is very difficult
to carry this argument over into the present area where the
functions the subject of ADF assistance are indisputably related to
State law enforcement. Perhaps the best that can be said is that
there would be little interest in challenging this low level sort
of assistance which operates to the benefit of all concerned
including the general community.
Papua New Guinea Call-out 1970-71
In Papua New Guinea in 1970-71, there was civil unrest on the
Gazelle Peninsula. At the time Papua New Guinea was a territory of
the Commonwealth of Australia. Since 1946, the territory had been
governed by agreement with the Trusteeship Council of the United
Nations. The local Administration requested assistance from the
Federal Government on several occasions believing that at any stage
the situation on the Gazelle Peninsula might no longer be within
the control of the local police. On 19 July 1970, an
Order-in-Council was signed by the Governor-General calling out
members of the Defence Force serving in Papua New Guinea. The Order
empowered the Administrator to requisition the three services
if the police lost or feared losing control of law and
order on the Gazelle Peninsula. Ministerial approval of the
requisitions was required but not necessarily before they were
issued. In September 1970, this was changed to require approval
before requisitioning the forces. The Order was not revoked until
the following April (1971) upon a change of Prime Minister. The
troops were never called in to assist the local police.
This situation was not one falling within Section 119 of the
Constitution and Section 51 of the Defence Act since the domestic
violence was occurring in a territory, not a State. The view of
Beddie and Moss is that since the situation did not come within the
above provisions, it was open to the Commonwealth Government to
devise whatever procedures it considered appropriate in order to
make assistance available.(40) In the end, the Government opted for
a formal call-out but the important difference between this and the
subsequent call-out at Bowral in 1978 was that in the case of PNG,
no proclamation by the Governor-General was made. Instead a secret
Order-in-Council was issued. A proclamation requires gazettal and
is therefore immediately public. Although the Prime Minister, Mr
Gorton, made a press statement announcing the Government's action,
the content of the Order-in-Council was not disclosed.
Since the situation was not one falling within the Constitution
and Defence Act provisions relating to domestic violence in a
State, the constitutional basis for intervention must be the
Commonwealth's need to protect its own interests, given that the
threat to law and order occurred in what was still technically
Commonwealth territory. It seems that in the lead up to the issue
of the Order-in-Council, the Minister for Defence, Mr Fraser, was
most concerned that the legal position be clear. According to
Beddie and Moss, Fraser refused to take action 'until the legal
considerations had been fulfilled and until Cabinet had been
consulted'.(41) It is difficult to speculate as to the legal
concerns being conveyed to the Government. Given the very touchy
political situation as Papua New Guinea moved towards independence
from Australia, it seems likely that some members of the Government
were scrupulous about doing the right thing legally, and therefore
very reluctant to sail the uncharted legal waters of defence force
aid to the civil power.
Conclusion: Commonwealth intervention to protect its own
interests.
Bowral Call-out 1978
In February 1978 a bomb exploded outside the Hilton Hotel in
Sydney, killing three people. At the time the hotel was host to the
Commonwealth Heads of Government Regional Meeting (CHOGRM). The
blast set off a security scare which ultimately saw an official
call-out of the army by the Governor-General.(42) The meeting
involved a visit to Bowral, south of Sydney. One thousand troops
were used as a security force both in Bowral itself and to
safeguard rail and road links between Bowral and Sydney. Most
delegates were in fact transported by helicopter in an unannounced
change of plans. Helicopter support was provided by RAAF
personnel.
Blackshield points out in his analysis of the Bowral
incident(43) that the Executive Council minute authorising the use
of troops raised more questions than it answered. The minute
recited no specific claim to legal validity on any precise
constitutional grounds and Blackshield regarded statements to the
media at the time as 'positively evasive as to the legal basis for
the action'.
The call-out was clearly not an exercise of Section 119 of the
Constitution because there was no application of the Executive
Government of the State. The call-out occurred with the concurrence
of the New South Wales Premier, Mr Wran, but did not follow a
specific request. The Prime Minister, Mr Fraser, said at the
time:
the mechanism for the legal approach to the call-out was
discussed with the Premier in two terms: In terms of a strict
request from the State, and therefore in terms of aid to the civil
power; or, secondly, in terms of the use of the Commonwealth's own
authority and responsibility to protect people against possible
acts of terrorism. For various reasons as I explained to the House
I think yesterday, the second course was chosen, but the Premier
had made it perfectly plain to me that if it was thought best to
pursue it through the first mechanism, the Premier would certainly
act in full co-operation.(44)
It seems that most commentators agree that this would not have
been an appropriate occasion to invoke Section 119 because it was
not a situation of 'domestic violence' within a State.(45) The
situation in fact falls much more comfortably into the Quick and
Garran category of protecting a Commonwealth interest. The
Commonwealth was hosting an international meeting to discuss
regional matters. Delegates were heads of state from other nations.
There existed a relevant Commonwealth Act implementing an
international Convention.(46) Thus Sections 61 and 68 of the
Constitution, Section 51(vi) and Section 51(xxix) (the external
affairs power, given Australia's international obligations), would
authorise the Government's use of troops at Bowral. It can be
argued that even without specific international obligations and
their enactment into Australian domestic law, the welfare of
visiting heads of state would be a matter of sufficient
international concern to ensure that the executive power (Section
61) had a sufficiently broad operation to justify the Bowral
call-out. Blackshield put it this way:
But, just as the 1971 legislation was clearly valid as an
exercise of Commonwealth legislative power over 'external affairs'
(Constitution Section 51(vi)), so the CHOGRM call-out was valid as
an exercise of the corresponding executive power. According to the
High Court of Australia, even apart from the express legislative
interest in 'external affairs', the Commonwealth's executive power
(formally 'exercisable by the Governor-General' under Section 61)
includes an amorphous and unexplored bundle of attributes of
sovereignty, 'inherent in the fact of nationhood and of
international personality', which 'come from the very formation of
the Commonwealth as a polity and its emergence as an international
State'. Whatever else these powers include, they certainly include
all the incidents of 'international status', and corollary powers
'as to international relations and affairs'. (see Barwick, C.J., in
Victoria v. Commonwealth & Hayden, (1975) 134
Commonwealth Law Reports 338, at 361 - 362, and in N.S.W. v.
Commonwealth, (1975) 8 Australian Law Reports 1, at 15 -
17.)(47)
Blackshield observes that at the time of the crisis the
Government did not rely on the specific constitutional sections
discussed above in justifying its actions. Instead it invoked a
much vaguer notion of national security or the inherent
'nationhood' power. As in many of the situations under
consideration, the Government did eventually get it right some time
after the event. In a letter to Sir Victor Windeyer seeking advice
in connection with the Protective Security Review being conducted
by Justice Hope, the Attorney-General of the day, Senator Peter
Durack, referred to the Quick and Garran category of the
Commonwealth protecting its own interests and claimed this as the
correct basis for the Bowral call-out.
The review was conducted at the instigation of the Government
following the Bowral call-out. It addressed a number of matters in
relation to the threat of terrorism and security arrangements. One
of the matters considered by Justice Hope was the use of the
Defence Force in aid of civilian authorities in the matter of
civilian security. There is no doubt that there was a level of
disquiet in the community at the spectre of armed troops patrolling
the streets of Bowral and the Government sought to have these
matters addressed by the inquiry. Justice Hope recommended a number
of changes to the Defence Act and to the regulations (AMRs and
AFRs) to clarify the call-out procedure and the rights and duties
of military personnel. As mentioned above these recommendations
were not implemented.
Conclusion: Commonwealth intervention to protect its own
interests.
RAAF Flights over South-West Tasmania 1983
In early April 1983, the Commonwealth Government used RAAF
aircraft to fly over Tasmania to photograph work being carried out
by the Tasmanian Government in contravention of Federal
regulations. The works related to the construction of the proposed
Franklin dam. The Commonwealth sought the information to support
its application for an injunction to prevent further damage to the
area.
There was much discussion in the Parliament(48) and at Senate
Estimates(49) of the legal basis for the 'spy flights' and the
operational instructions with which RAAF officers undertook the
assignment. Discussions at Senate Estimates revealed that neither
set of instructions was used and that the officer who instigated
the activity understood himself to be acting under Ministerial
directive. In the event it seems that what had occurred was a
request for assistance from another Commonwealth authority (the
Attorney-General's Department engaged in legal proceedings against
Tasmania) which had incidentally been cleared at Ministerial level.
The officer who set in train the assignment had no direction from
the Defence Minister and proceeded on the basis of a phone call
from an officer in the Attorney-General's Department. During the
course of that phone call, the RAAF officer was assured by the
officer from the Attorney-General's Department (a person unknown to
him) that the Defence Minister had approved the action.(50) It
seems that the request was made in writing at Ministerial level(51)
but it seems equally clear that the RAAF officer instigating the
action was not aware of this correspondence and believed himself,
without seeking any proof, to be acting on a direction from his
Minister.(52)
In the Parliamentary discussion which followed the 'spy flights'
(in the course of which the existence of both sets of DI(G)s was
revealed not only to the public but also to the Government
itself),(53) it became clear that this particular activity by the
RAAF could have come within both sets of instructions. Both sets of
instructions required procedures which were not complied with.
On the face of the DI(G)s on assistance to the civil community,
the 'spy flights' would probably come within Category 4 assistance
(see Appendix D). However the aid to the civil power DI(G)s also
provide a category of assistance which does not involve the use of
force, Category X (see Appendix E). The type of assistance provided
on this occasion would appear to fall within Category X1. As Beddie
points out, the 'spy flights' were a law enforcement exercise which
came within the aid to the civil power DI(G)s. Beddie highlights
the problem of this type of assistance falling into both
categories. The two sets of guidelines entail quite different
procedures and ADF members need to know which set they should
follow.
Whichever set of instructions is used, the legal basis for the
'spy flights' must be Sections 51(vi), 61 and 68 of the
Constitution in conjunction with Section 51 (xxix) (the external
affairs power). The Commonwealth was acting to protect its own
interests by taking preparatory steps to enforce a Commonwealth
law. That law sought to protect property in respect of which
Australia had significant obligations in the international
arena.(54)
The Attorney-General, Senator Gareth Evans, had this to say on
the question of the legality of the 'spy flights':
As to the legality of the flights in question, I satisfied
myself both before the flights took place, and certainly
subsequently, that there was no question whatsoever but that the
flights were legal. Indeed, in the last three or four days I have
had oral confirmation of that perception from the Solicitor-General
of Australia with whom I raised that question.
There are some legal uncertainties about the precise nature and
extent of the powers available to the military and the limitations
on those powers in the context of aid to the civilian power. There
is no question but that under section 61 of the Constitution and
with the legislative back-up of the Defence Act under section 51
(6), plus a whole mass of individual pieces of legislation and
Defence Force regulations and directions that bear upon this, the
flights in question were not only entirely within the range of
normal practice so far as the Royal Australian Air Force is
concerned but also unquestionably within the legality of the RAAF,
and indeed the military role.(55)
Conclusion: Commonwealth intervention to protect its own
interests.
Deployment of Troops at Nurrungar 1989
In early October 1989 the Minister for Defence called in the
troops to back-up the South Australian police officers in charge of
enforcing the law against demonstrators at the Nurrungar joint
defence facility. A newspaper report at the time referred to a
statement by a spokesman for the Minister, Mr Beazley:
The spokesman said there was no precedent in the use of troops
against a civilian demonstration. Troops normally only became
involved in civilian emergencies at the request of the local
authorities under what was known legally as aid to the civil
power.(56)
The South Australian Premier, Mr Bannon, was quoted as saying
that the Federal Government had not warned him that it was sending
troops to defend the base. However, he was not concerned as he
believed that the defence of the base was a Federal issue.(57) As
events transpired, ADF personnel did not come into contact with the
protesters who, it seems, were unaware of the presence of the
troops. If the troops had been needed to help control the
protesters, as must have been anticipated when they were rushed to
the base, then it seems most likely that the use of force would
have been involved. Four-hundred-and-ninety-two people were
arrested during the course of the five-day protest amidst sometimes
violent clashes with the police. Given that the protesters were
intent on breaching the security of the base, an effort in which
they succeeded, it is difficult to conceive how they could have
been restrained without the use of force. During Estimates
Committee, the following discussion occurred concerning the legal
basis for deployment of the troops at Nurrungar:
Senator NEWMAN - What was the legal basis in
which the 2 Cav. soldiers were deployed to Nurrungar?
Vice-Adm. Beaumont - The legal basis? That is a
military base and they were protecting it in that particular area;
it is a military establishment.
Senator NEWMAN - Yes, you say that Admiral, but
did you not consider the requirement of the Defence Act? The
Defence Act in section 51 talks about where domestic violence
exists and the call out of the forces. Was no advice taken as to
whether this fell within section 51?
Vice-Adm. Beaumont - Yes, certainly advice was
taken. We were quite careful when we looked at the legal situation.
We did not believe that it fell under this particular clause at
all. These were activities occurring on a military base, in a
restricted area in fact, on a military base.
Senator NEWMAN - A prohibited area, is it
not?
Vice-Adm. Beaumont - A prohibited area. That
section 51 is really designed to handle domestic violence of, I do
not know, insurrection in the street. That is the aid to civil
power component of it. In this particular case, because this is a
prohibited area, if the servicemen had already been in there there
would have been no problem-
Senator NEWMAN - Yes, exactly. Because they had
to be deployed there, did that give it any sort of a different
legal standing?
Vice-Adm. Beaumont - No.
Senator NEWMAN - You did take advice on that
specific point?
Vice-Adm. Beaumont - Yes.
Senator NEWMAN - So, the advice is that section
51 of the Defence Act was not appropriate in these particular
circumstances?
Vice-Adm. Beaumont - That is my understanding,
yes, Senator.
Senator NEWMAN - Right. So there was no
question of the Governor of the State proclaiming that domestic
violence existed and so the Governor-General did not come in and
proclaim that it existed either?
Vice-Adm. Beaumont - That is correct.
Senator NEWMAN - Okay. I refer to the Defence
Force aid to the civil power, policy and procedures. We have just
been talking about the policy and procedures for Defence Force
assistance for the civil community, which it did not act on when it
came to the airlines. Did you act on the Defence Force civil power
policies and procedures when it came to sending the troops to
Nurrungar?
Vice-Adm. Beaumont - We examined that quite
closely and we provided, in fact, specific instructions to the
contingent that went there. In essence, we observed that
particular-
Senator NEWMAN - Based on those policies and
procedures? What sort of instructions were given to the 2 Cav.
soldiers?
Vice-Adm. Beaumont - I do not have them
available but in principle it is minimum force. They were unarmed,
of course. These were a group put together fairly quickly and we
were quite careful to brief them on precisely what it was they
could and could not do, and how they should conduct themselves.
They were deployed inside the internal perimeter. In the event,
they did not come into contact with any demonstrators or protesters
but they were given quite explicit instruction about how they
should conduct themselves. I do not happen to have those available
now, but I can make them available.
Senator NEWMAN - I would like to know precisely
what the minimum force requirements were. Did they have the right
of arrest?
Vice-Adm. Beaumont - Just as anybody does in
those circumstances, yes.(58)
The Government's view on the legal basis for this deployment of
troops can be seen from the following answer to a Parliamentary
question:
Senator RICHARDSON - On 3 October Senator
Vallentine asked Senator Robert Ray as Minister representing the
Minister for Defence a question about the deployment of defence
force personnel to the joint defence facility at Nurrungar. Senator
Ray undertook to refer to the Minister for Defence a part of that
question which sought details of legislation and other documents
concerning the deployment. The Minister for Defence has provided
the following information in relation to the honourable senator's
question: No specific legislative authority is required for the
Government to assign tasks to the Defence Force. This is a normal
aspect of the executive power of government. However, it should be
borne in mind that, under section 8 of the Defence Act 1903, the
Defence Force is subject to the directions of the Minister for
Defence. Senator Vallentine also asked about legislative authority
for the activities of the Defence Force personnel deployed to
Nurrungar. Under section 23 of the Defence (Special Undertakings)
Act 1952, Defence Force personnel at Nurrungar were lawfully
entitled to arrest persons who entered the Nurrungar perimeter area
without permission and to hand arrested persons to the Federal or
State police. In fact, those powers were not exercised. In this
respect, it might be noted that, apart from the provisions of the
Defence (Special Undertakings) Act, members of the Defence Force
have always had the power, under section 82 of the Defence Act
1903, to arrest persons who trespass on defence
installations.(59)
The situation was not one which fell within Section 119 of the
Constitution and Section 51 of the Defence Act. While there may
have been a situation of domestic violence outside the
installation, the inside of the base could not be the scene of
domestic violence in a State since it is a Commonwealth place. On
the one hand it could be argued that no domestic violence occurred
until there was a breach of the law i.e. until the security of the
base had been breached. On the other hand, there is some force in
the argument that once the security of the base had been breached,
the matter ceased to be a matter for the South Australian police to
deal with and was therefore no longer, if it ever had been, a
situation of domestic violence. Whether or not domestic violence
existed, the situation clearly did not come within Section 119 of
the Constitution because there was no request for assistance from
the South Australian Government.
The deployment of troops at Nurrungar could be seen as falling
into the Quick and Garran category of the Commonwealth acting to
protect its own interests and property. No request from a State
Government is required. As argued above, no proclamation by the
Governor-General would be required. (However para 9 a of the DI(G)
on Aid to the Civil Power would require an order of the
Governor-General in Council in this situation.) As discussed above,
the legal basis for the Commonwealth acting to protect its own
interests draws mainly on the provisions of Sections 51(vi), 61 and
68 of the Constitution.
Alternatively, it could be argued that the Nurrungar deployment
is legally based on provisions of two pieces of defence
legislation. As stated by Senator Richardson in the Parliament,
Section 82 of the Defence Act gives a power of arrest to members of
the ADF in relation to people trespassing on military
establishments. Section 23 of the Defence (Special
Undertakings) Act 1952 gives a power of arrest in relation to
a person who is in the neighbourhood of a prohibited area and is
reasonably suspected of having committed, having attempted to
commit, or of being about to commit an offence against that Act.
Nurrungar is a prohibited area under the Act. Since these Acts are
based on the defence power (Section 51(vi)), the conclusion would
be that the ultimate authority for the deployment was Section
51(vi) of the Constitution, i.e., the activity was authorised by
legislation which was itself an exercise of the defence power. In
that analysis there would be no need to justify the event by
reference to other constitutional powers. It would not then be a
case of the Commonwealth acting to protect its interests but an
exercise of the defence power pure and simple.
According to the discussion at Estimates Committee, the ADF was
acting on advice that the situation was not one of Constitution
Section 119 domestic violence. Reading between the lines, it seems
that the ADF proceeded on the basis that it was merely acting
within existing defence legislation. Just because the troops were
not already on the base and had to be deployed there did not
transform the situation into a call-out (see Estimates Committee
discussion above). Even if the defence power is accepted as the
legal justification, there are some outstanding problems. The
Defence (Special Undertakings) Act 1952 operates to some
extent outside the relevant establishment (e.g. Section 23 enables
arrest 'in the neighbourhood of' a prohibited area). If the ADF can
legitimately operate pursuant to its legislation to a certain
extent outside military establishments (such would seem to be a
proper constitutional exercise of the defence power), then, for the
purposes of our study, where should the line be drawn between a
situation of domestic violence in a State and the enforcement of
Commonwealth defence legislation? Further confusion arises because
ADF personnel seemed to suggest at Estimates Committee that they
were operating under the DI(G)s on aid to the civil power. Since
the understanding was that there was no domestic violence
situation, the appropriate category for the operation would appear
to be para a.) of instruction 9 which requires an order of the
Governor-General in Council in a situation where the use of force
is likely. Although ADF personnel indicated that the instructions
were adhered to the extent of instructing deployed soldiers to use
minimum force, it would appear that no order of the
Governor-General was made as required by para 9a. of the
instructions.
As far as the legal position of the troops themselves is
concerned, it seems that they would take their powers from the
relevant pieces of legislation under which they were acting. There
is therefore a degree of certainty attached to their legal position
in this case which is absent from other situations where troops
clash with the civilian population (see discussion below). This
might change if the troops in such a situation were employed
outside the base. It would then be most unclear whether the troops
were involved in quelling domestic violence or were being called
upon to enforce defence legislation.
Conclusion: probably a case of enforcement of existing defence
legislation.
1949 Coalminers' Strike
During this dispute, troops were committed by the then Prime
Minister, Mr Chifley, to work the coal mines. No confrontation or
use of force was involved. On this occasion the troops were
performing the role of coal mine workers or strike-breakers.
This was clearly not a case of the Commonwealth being called
upon to protect the State from domestic violence on the request of
a State Government, as provided for in Section 119 of the
Constitution. Nor, in any direct sense was it a question of the
Commonwealth using its troops to protect its own property or
interests. Indirectly, Commonwealth interests could be said to have
been involved. Interstate trade was no doubt affected since:
... more than 500,000 wage and salary earners in the several
States were progressively thrown out of work. Reserves of coal had
been practically nil, and of alternative fuels scanty. Much of
heavy industry ground to a standstill. Electricity was sharply
rationed in at least three States. Domestic gas was rationed to an
hour a day in Melbourne and Sydney. Electric train and tram
services ran at skeleton strength.(60)
According to archival material examined by Beddie and Moss,(61)
the advice from the Vice Chief of General Staff on the legal
position for using the troops to operate the open-cut mines, was
that certain war-time regulations made under the National Security
Act could be used. The Government decided against this, perhaps
concerned at their use so long after the war was over. They were
repealed shortly afterwards.
The course subsequently followed was for the Secretary of the
Department of the Army to seek the consent of the Minister for the
Army to use troops during the general strike in the coal-mining
industry. Beddie and Moss note that the Government insisted that
the proviso to Section 51 of the Defence Act be complied with (i.e.
citizen forces not to be used) despite the fact that the troops
were not acting under Section 51. The other point is that the
Governments agreed the maintenance of law and order was the
responsibility of the New South Wales police.
Interestingly, the troops were not happy to be deprived of their
arms and had their way on this point. Despite initial anxiety on
the part of Commonwealth Ministers, it was agreed that the troops
would carry arms in their rail and road movements and would guard
their own camps. However, whilst operating the mines, they were
unarmed and under police protection.(62)
Further problems and disagreement between the State and
Commonwealth authorities arose over the serious issue of supplying
beer to the troops. Due to transport problems arising from the
strike, beer had almost run out in hotels in the Hunter Valley. The
army proposed to ship beer in from interstate, a move opposed by
the NSW Minister for Justice on the ground that there should be no
discrimination between the troops and the local inhabitants. The
NSW Minister relented in the face of vehement argument from the
Vice Chief of General Staff:
If beer is not to be provided in the camps we will be faced with
precisely the same situation that past history has taught us to
expect in that some troops will break camp and go into towns in
search of liquor. The Hunter River Valley is notorious for cheap
bad wines and the effect of these on the troops may well lead to
disturbances which it is highly desirable to avoid.(63)
Conclusion: It seems that this situation falls within the area
of Commonwealth intervention to protect its own interests. See
below: Conclusion on use of defence forces in industrial
situations.
Intervention on the Waterfront at Bowen 1953
This dispute arose over the failure of the Waterside Workers'
Federation (WWF) to fulfil its quota allowing new members to take
up work loading ships on the docks.(64) The union had announced
that it would fill the quota, but this was not immediately done. In
the meantime a fire at a sugar mill exacerbated the problem of
sugar storage. According to the Commonwealth Minister for Labour,
Mr Holt, the Queensland Labor Government had made representations
to the Commonwealth Government requesting it to take steps to
relieve the labour shortage in a number of Queensland ports. On the
day of the mill fire, Mr Holt said that the Acting Premier of
Queensland had contacted the Prime Minister to emphasise the
seriousness of the situation at Bowen.
Five days later the Commonwealth secretly flew 200 army troops
from Brisbane to Bowen. After it had made the arrangements, the
Commonwealth Government informed the Queensland Government, the
ACTU, and the WWF. Cabinet subsequently ratified the decision to
send troops. It seems that the decision was made by a handful of
Ministers, including Mr. Holt. The Commonwealth Government
apparently justified the situation on the basis that there was no
industrial dispute and the army was merely being used to overcome
the backlog of loading work, a situation which the waterside
workers argued made the Commonwealth's intervention all the more
difficult to justify.
Waterside workers in Bowen then ceased work, the WWF threatened
to bring out its members throughout Australia and the ACTU
condemned the Commonwealth's action. Railway workers subsequently
declared the wharf black and were supported by local meat and sugar
workers. The army then commandeered the goods yard railway and
troops turned their hand to shunting an engine. This incurred
threats of action by the Queensland branch of the Australian
Railways Union and brought a protest from the Queensland
Government. Two days later the Commonwealth Government attempted to
defuse the situation it had created by calling a meeting with all
the relevant trade unions. The Commonwealth agreed to immediately
withdraw its troops and the WWF reaffirmed its commitment to
increase the quota at Bowen.
The troops were moved under conditions of extreme secrecy which
Beddie and Moss argue were inappropriate in peacetime. The
Government emphasised wartime precedents for using defence forces
to load and unload urgently needed cargoes and equated those
wartime emergencies with the situation current at that time. The
official response from the WWF was that in wartime there had been a
shortage of labour and prior consultation with the WWF had always
occurred. During wartime there was a host of regulations governing
the use of the forces for civilian activities.(65) These
regulations were easily supportable under the Commonwealth's
defence power (Section 51 (vi)), which expands in times of actual
hostilities. By 1953 most wartime regulations would have been
repealed. The situation was clearly not one which fell within
Section 119 of the Constitution, as it would be difficult to argue
that there was any domestic violence at all at the time that the
troops were brought in. Nor, it seems, was there an official
request from the Executive Government of Queensland, although the
Commonwealth did attempt to present a picture of representations by
the State Government. What does this leave? The Commonwealth could
not be seen to be intervening to protect an essential service, a
sort of assistance to the civil community, firstly because the
industry could not be considered an essential service and secondly
because there were people available within the civil community to
perform the work and were doing so prior to Commonwealth
intervention. The only problem from the Commonwealth Government's
point of view was that the civil community was not performing the
job quickly enough.
The only other possible grounds for Commonwealth involvement
would be the Quick and Garran category of Commonwealth intervention
to protect its own interests. What Commonwealth interests or laws
were involved? No Commonwealth property seems to have been
involved. No Commonwealth industrial law was breached and the WWF
had agreed to comply with the Federal Government's ultimatum to
fill the quota at the port of Bowen. As discussed above, Hope's
view is that it is not necessary to have a breach of a Commonwealth
law in order to justify Commonwealth intervention to protect a
legitimate interest. Obviously it is easier to argue that a
Commonwealth interest was involved if there has been a breach of a
Commonwealth law. Could the Commonwealth's interest in overseas
trade (Section 51(i) of the Constitution) be argued as a possible
interest which the Commonwealth had a legitimate right to protect?
This question will be considered below.
Conclusion: Commonwealth intervening to protect its own
interests. See below: Conclusion on use of defence forces in
industrial situations.
Qantas Strike 1971
More than 2,200 air travellers held hostage by industrial
disputes in Australia and New Zealand for up to two weeks should be
back in their home countries by early this morning after the first
day of the massive 'Operation Anzac' airlift by military-transport
aircraft of the Royal Australian Air Force and the Royal New
Zealand Air Force.(66)
In the first days of March 1981, the RAAF was called on by the
Government to 'rescue' thousands of passengers 'stranded' in
Australia and New Zealand by airline industrial disputes in both
countries. The airlift was described as the biggest in Australia
since Cyclone Tracy. There was very little discussion of the
propriety of using the RAAF for this exercise. The Prime Minister,
Mr Fraser, was quoted saying that he hoped the passenger-rescue
operation would have the support of everyone including the trade
unions:
It is a rescue operation, and I emphasise that, he said. It is
not something that touches the strike situation at all because the
strike patently continues.
What the Australian Government is proposing in relation to the
stranded Australians and New Zealanders doesn't touch that
situation at all...(67)
Despite these sentiments, it was also reported that security
precautions were being stepped up at RAAF (and RNZAF) bases in case
of trouble with union pickets.(68)
Given the nature of the exercise including the complete absence
of any suggestion of force by those RAAF personnel involved in it,
it would be difficult to categorise it as anything other than aid
to the civil community. The Government was obviously keen to
describe the mission as a rescue operation. Whatever the
description, the assistance clearly falls much more comfortably
into the guidelines on assistance to the civil community than into
the categories of assistance described in the guidelines on aid to
the civil power.
Conclusion: Commonwealth intervening to protect its own
interests. See below: Conclusion on use of defence forces in
industrial situations.
Use of the RAAF during the 1989 Airline Pilots' Dispute
On this occasion the RAAF committed substantial equipment and
personnel over an extended time period.(69) The Government decided
to make available RAAF personnel and planes for use by the
commercial airlines. The airlines were unable to meet consumer
needs following mass resignations by airline pilots campaigning for
increased wages outside the industrial relations system.
This use of Commonwealth defence forces was clearly not a
situation of a State Government request for assistance to control
domestic violence. The provisions of Section 119 of the
Constitution and Section 51 of the Defence Act were not relevant.
Nor could it be said that it falls obviously into the Quick and
Garran category of the Commonwealth using its troops to protect its
own property and interests. In a question on notice to the Prime
Minister on 22 December 1989,(70) some aspects of the legal basis
for ADF involvement were raised.
From the Prime Minister's answer, it is clear that the
Government's view was that the circumstances fell within neither
set of DI(G)s. That is, the Government did not see the ADF
involvement as either aid to the civil power or assistance to the
civil community. In answer to the question, on what basis had he
involved the RAAF, the Prime Minister said:
..The use of the ADF for public purposes is a normal aspect of
the executive power of Government and is supported also by section
8 of the Defence Act which provides that the ADF is subject to the
directions of the Minister for Defence.
While Section 8 of the Defence Act gives the Minister a power of
direction over the forces, it is interesting to note that the CDF
operational instruction(71) relating to the use of the RAAF during
the airline pilots' dispute quotes the Prime Minister as having
directed that the RAAF provide air transport support to the
domestic civil airlines. Under the Act, it is the Minister for
Defence who has a power of direction, not the Prime Minister.
During Estimates Committee questioning, defence force personnel
were at pains to point out that the RAAF was operating under
neither set of instructions. They were referred to as self-imposed
administrative instructions.(72) Vice-Adm. Beaumont rejected
outright the applicability of the aid to the civil power
DI(G)s:
that relates to the ADF being called out. That is for use of
force, and that was not a factor...
Defence force officers at Senate Estimates said that they were
not operating under DI(G) on aid to the civil community because
that document was catered for the 'normal' situation:
Vice-Adm. Beaumont - This is a specific case.
That document is designed simply to cater for the normal situation.
If somebody wants a band somewhere, somebody wants a display at a
show - on that basis that document is produced. That document is
produced internally; it is to guide people in providing that sort
of information, most of which is provided down at the local
commander level. So in that sense it is a policy statement by the
Department.
Mr Ives - The procedures are there because
there are a whole range of possible situations that arise. They
arise frequently, and in many cases they arise regularly. The
objective was to provide a devolution of authority and to provide
guidance at various levels in the defence organisation to cope with
many of these recurring issues. They were developed within the
defence organisation over some period. They reflect in some areas
agreement with other departments about how we would operate, but
they are essentially a set of procedures to provide guidance in a
general range of cases. They are not the final prescription about
what the Government might wish or require the Defence Force to do
in some particular circumstance.
Defence force officers at the Estimates Committee hearings were
satisfied that the legal authority for their involvement was
direction by the Minister.(73)
Despite the non-application of the DI(G)s on aid to the civil
community, the type of assistance provided would appear to have
come within those guidelines. Senator Newman pressed officers for
an explanation as to why the assistance did not fall within
category 4 of those guidelines, but the question was not really
answered.(74) Despite the gymnastics officers performed in an
effort to explain why the guidelines were not being used, at the
very end of the discussion officers were asked 'Is the assistance
being provided under the aid to the civil power or assistance to
the civil community?' The answer was: 'assistance to the civil
community'. This would appear to be a correct assessment of the
type of assistance offered in this case. The assistance does not
fall within 9a), 9b), or 9c) of the DI(G)s on aid to the civil
power. It is not a law enforcement task. It is not a request for
assistance from a State. It is not a coastal surveillance activity
performed pursuant to a Commonwealth Act. It falls much more
comfortably into the guidelines relating to assistance to the civil
community. As discussed above the guidelines do not provide the
legal authority for this type of assistance. This must be seen as
the Commonwealth intervening to protect its own interests, legal
authority for which stems primarily from Sections 51(vi), 61 &
68 of the Constitution.
Conclusion: Commonwealth intervening to protect its own
interests. See discussion immediately following.
The use of the defence force in industrial situations must have
been contemplated by the drafters of Section 51 of the Defence Act
since the proviso to that section prohibits the use of the
Emergency and Reserve Forces in connection with an industrial
dispute. It would not have been necessary to make this exclusion if
it was beyond contemplation that the regular forces would be used
in connection with an industrial dispute.
Mention was made in the Introduction, of civil liberties
concerns where the distinction between the military and civil roles
has become blurred. This is of most concern where the defence
forces might be involved in the use of force against members of the
civilian population. In his report on the organisation of police
resources in the Commonwealth sphere, Sir Robert Mark referred to
this aspect as follows:
Military aid to the civil power can be an unnecessarily emotive
procedure in free societies, especially those in which it has
rarely been invoked. Emotion and unease arise almost entirely from
two factors. The first is the failure of governments to explain the
purpose for which military aid is, or ought to be, acceptable to
everyone as representing no threat to civil liberty. The second is
the lack of contingency planning which causes military aid to be
drawn from sources which even the general public can see are not
appropriate.(75)
It is submitted that the two causes referred to by Mark are
inter-related in the sense that both are attributable, in our
environment at least, to a combination of lack of clear legislative
guidance, a lack of appreciation on the part of successive
Governments of the correct legal jurisdiction and secret internal
operating instructions for the ADF. Mark's subsequent comments
touch on the use of military aid in the industrial sector:
In a free society, there is nothing improper in invoking
military aid to deal with emergencies or disasters, such as floods,
aircraft crashes, and so on. The public will also accept their
participation in the maintenance of essential services. In Great
Britain, for example, they have moved dustbins and manned fire
engines without objection by the trade unions. They lack the
numbers or the expertise to play a major role on the industrial
scene and not even the most eloquent radical can pretend that they
undermine the position of the trade unions or threaten civil
liberty when employed in that way.
The over-riding principle governing all such activity, however,
is that the troops should never, in any circumstances, be used to
confront political demonstrators or participants in industrial
disputes. Whatever logistical support they render, they must be
protected by police who alone must deal with any violence arising
from objection to their support.
Mark bases his analysis on a distinction between situations
where troops are being used purely to provide logistical support
and situations where they might be involved with a clash with
civilians, e.g., striking workers. There are several problems with
this analysis, especially in our Federal system. It is at this
point that the legal and political aspects of the situation merge
into one. If troops were to be used to break a strike, is it
realistic to assume that it will always be possible to isolate them
from situations where they might be called upon to defend
themselves? What if the cordon of State police protection is
breached by striking workers bent on sabotaging the efforts of the
troops? Whilst the legalities might dictate that the troops would
have the same right to self-defence as any citizen, the political
climate would have become very nasty. If the police protection
deteriorated considerably the ADF might be tempted to call in armed
troops to protect the forces providing 'logistical support'. Would
the State Government wish to call for assistance under Section 119?
If so, the legal situation is comparatively straightforward
(ignoring the fact that the Commonwealth contributed to the
domestic violence in the State). However, the State Government may
not approve of the Federal Government intervention. Or there may be
insufficient time to arrange the proclamations required by Section
119 of the Constitution and Section 51 of the Defence Act. In
either case, the Commonwealth might decide to go it alone without
State Government concurrence. On what legal basis could it do so?
The only possibility is that it would be acting to protect its own
interests. What legitimate interests does the Commonwealth have to
protect when it seeks to intervene at any point in an industrial
situation?
According to the Quick and Garran analysis, there would be an
obvious Commonwealth interest to protect if a Commonwealth
industrial law had been breached. However, take as an example
intervention on the waterfront. What if there was no breach of law
but merely a perception that the relevant union was not
implementing reforms fast enough? There may be some Commonwealth
interests relating to legislation based on the overseas trade and
commerce power (Section 51(i)) that could be affected by the
industrial situation even if only in a peripheral sense, e.g.,
customs matters. However, according to Hope's analysis discussed
above, the absence of a relevant Commonwealth statute would not
preclude protecting a legitimate Commonwealth interest. The
Commonwealth could indeed be said to have a legitimate interest in
overseas trade and commerce since this is one of the matters on
which it is able to make laws pursuant to Section 51(i) of the
Constitution. It is certainly arguable that on the basis of this
interest the scope of the Commonwealth's executive power (Section
61) would be sufficiently expansive to authorise (in conjunction
with other Constitutional provisions referred to above) unilateral
action by the Commonwealth. This action 1) might involve using
force by the defence force, and 2) could legitimately occur without
the agreement of the State Government. Hope said:
The execution and maintenance of the Constitution, to which
Section 61 of the Constitution extends the Executive power, must
include action to ensure that the exercise of its powers by the
Commonwealth is not interfered with, even though that interference
might not involve an offence under Commonwealth law; and the
Governor-General, with the necessary advice would be entitled to
take what steps are necessary to ensure that there is no such
interference, or if there has been such an interference, that it is
removed or stopped. If a minister had statutory authority to deploy
a resource, he might do likewise...(76)
Mark asserts the authority for using troops to run essential
services in Britain. Lee observes that this situation is
specifically provided for by statute in that country.(77) Lee goes
on to say that the absence of express statutory provision in
Australia does not preclude using troops in industrial situations.
But he offers no guidance on the legal or constitutional authority
for this. If, as suggested above, this author's analysis leads to
the conclusion that such intervention can only be traced to the
Commonwealth's power to intervene to protect its own interests,
then the limits of that power must depend by and large on the
content of the executive power, since that is the chief basis for
the Commonwealth intervening to protect its own interests. It is
submitted that the executive power would authorise the use of
troops if a Commonwealth law was breached because: 1) the control
of the armed forces would appear to be a matter within the
executive power,(78) 2) according to the words of Section 61, the
executive power extends to the maintenance of the laws of the
Commonwealth, 3) the executive power extends to the maintenance and
execution of the Constitution, which includes in Section 51(vi) a
power to make laws with respect to the control of the forces to
execute and maintain the laws of the Commonwealth (in this context
a power has been inserted into the Defence Act (para 63 (1)(f))
enabling the Governor-General to do all things necessary or
desirable to defend and protect the Commonwealth - see discussion
above under Commonwealth Acting to Protect its Interests).
What is the legal situation with respect to industrial disputes?
Any strike will at least involve a breach of the common law because
the contract with the employer has been broken. In this context
Hope's argument that some Commonwealth interests may not be
protected by Commonwealth law but instead by State law or the
common law is relevant. But a strike may also involve a breach of
Commonwealth statute law e.g. Sections 30J and 30K of the Crimes
Act 1914.(79) More importantly Section 45DB of the Trade Practices
Act has the effect of prohibiting primary boycotts where an
interference with, interstate or overseas trade and commerce is
involved. In these situations therefore, there is a much stronger
case for arguing that the executive power can support the
commitment of troops.
However, where there is no breach of the law, does the executive
power extend to sending in the troops? It was noted in Davis v.
The Commonwealth(80) that the executive power extends beyond
the express grants of legislative power set out in Section 51 of
the Constitution. Chief Justice Mason, Justice Deane and Justice
Gaudron said:
The scope of the executive power of the Commonwealth has often
been discussed but never defined. By Section 61 of the Constitution
it extends to the execution and maintenance of the Constitution. As
Mason J. observed in Barton v. The Commonwealth (66), the
power:
'extends to the execution and maintenance of the Constitution
and of the laws of the Commonwealth. It enables the Crown to
undertake all executive action which is appropriate to the position
of the Commonwealth under the Constitution and to the spheres of
responsibility vested in it by the Constitution.'
These responsibilities derived from the distribution of
legislative powers effected by the Constitution itself and from the
character and status of the Commonwealth as a national polity:
Victoria v. The Commonwealth and Hayden ('the A.A.P.
Case').(81)
In the AAP case,(82) various judges acknowledged that
the power was primarily limited to those areas on which the
Commonwealth has power to make laws, but that it is also
exercisable in respect of matters which are of concern to the
Commonwealth because of its character and status as a national
Government. Justice Mason said:
In the words of Section 61, the executive power of the
Commonwealth 'extends to the execution and maintenance of this
Constitution, and of the laws of the Commonwealth'. Although the
ambit of the power is not otherwise defined by Ch.II it is evident
that in scope it is not unlimited and that its content does not
reach beyond the area of responsibilities allocated to the
Commonwealth by the Constitution, responsibilities which are
ascertainable from the distribution of powers, more particularly
the distribution of legislative powers, effected by the
Constitution itself and the character and status of the
Commonwealth as a national government. The provisions of Section 61
taken in conjunction with the Federal character of the Constitution
and the distribution of powers between the Commonwealth and the
States make any other conclusion unacceptable. Moreover, it is a
view of the executive power which is confirmed by the past
decisions of this Court (see The Commonwealth v. Colonial
Combing, Spinning and Weaving Co. Ltd. ('the Wooltops Case')
(40); The Commonwealth v. Australian Commonwealth Shipping
Board(41)).
However, in ascertaining the potential scope of the power there
are several important considerations which need to be kept steadily
in mind. First, the incidental power contained in Section 51
(xxxix) taken in conjunction with other powers, notably Section 61
itself, adds a further dimension to what may be achieved by the
Commonwealth in the exercise of other specific powers. So in
Burns v. Ransley (42) and The King v. Sharkey
(43), Sections 24A, 24B, and 24D of the Crimes Act 1914 -
1946 (Cth) were held to be supported by the combination of Sections
51(xxxix) and 61. Secondly, the Commonwealth enjoys, apart from its
specific and enumerated powers, certain implied powers which stem
from its existence and its character as a polity (Australian
Communist Party v. The Commonwealth (44)). So far it has not
been suggested that the implied powers extend beyond the area of
internal security and protection of the State against disaffection
and subversion. But in my opinion there is to be deduced from the
existence and character of the Commonwealth as a national
government and from the presence of Sections 51 (xxxix) and 61 a
capacity to engage in enterprises and activities peculiarly adapted
to the government of a nation and which cannot otherwise be carried
on for the benefit of the nation.
It is in the exercise of this capacity that the Commonwealth has
established the Commonwealth Scientific and Industrial Research
Organisation to undertake scientific research on behalf of the
nation. The Science and Research Act 1951, as amended, is
an exercise of the power conferred by Section 51 (xxxix) and
Section 61 or perhaps of implied power. So also the Commonwealth
may expend money on inquiries, investigation and advocacy in
relation to matters affecting public health, notwithstanding the
absence of a specific legislative power other than quarantine - see
the Pharmaceutical Benefits Case (45). No doubt there are
other enterprises and activities appropriate to a national
government which may be undertaken by the Commonwealth on behalf of
the nation. The functions appropriate and adapted to a national
government will vary from time to time. As time unfolds, as
circumstances and conditions alter, it will transpire that
particular enterprises and activities will be undertaken if they
are to be undertaken at all, by the national government.
However, the executive power to engage in activities appropriate
to a national government, arising as it does from an implication
drawn from the Constitution and having no counterpart, apart from
the incidental power, in the expressed heads of legislative power,
is limited in scope. It would be inconsistent with the broad
division of responsibilities between the Commonwealth and the
States achieved by the distribution of legislative powers to
concede to this aspect of the executive power a wide operation
effecting a radical transformation in what has hitherto been
thought to be the Commonwealth's area of responsibility under the
Constitution, thereby enabling the Commonwealth to carry out within
Australia programmes standing outside the acknowledged heads of
legislative power merely because these programmes can be
conveniently formulated and administered by the national
government.(83)
On the basis of this authority, it could at least be argued that
the Commonwealth could use its executive power to send troops in as
strikebreakers if the industrial dispute or its consequences
touched on an area the Commonwealth has power over, e.g., overseas
trade and commerce, even if no laws affecting the dispute are yet
in existence. Reform on the waterfront affects overseas trade and
commerce but dissatisfaction with the pace of waterfront reform may
not be linked with a breach of law. In this context, those areas in
which the Commonwealth has power to make laws would not be limited
to an examination of Section 51 powers but would include
'enterprises and activities peculiarly adapted to the government of
a nation'.(84) In summary, the existence of a Section 51 power
(whether or not a relevant law has been made pursuant to it) would
seem to attract the potential operation of the executive power.
Such a finding, it is submitted, is within the limits that the
judges in the above cases were prepared to ascribe to Section
61.
On the other hand, it should be noted that all discussion on
this point has hitherto centred on the Commonwealth's power to
protect itself against violence. Is the situation different where
the Commonwealth sends in its defence forces to perform the work of
striking workers? Although it is argued above in the context of
natural disasters that it would seem ludicrous to argue in favour
of Commonwealth power in situations of force and against it in
situations where no force was contemplated, the correct
constitutional interpretation may have that result. When Justice
Dixon discussed the inherent power of self protection in the
Communist Party case, it was in the context of direct
attack which would interfere with the discharge of Government
business. And, as Blackshield notes, Chief Justice Barwick in the
AAP case, 'coupled his assertions of 'inherent' executive
power with emphatic insistence that mere Commonwealth 'interest' in
a matter is not enough to attract such a power'.(85) Chief Justice
Barwick used the example of the national economy which he
acknowledged was a matter of considerable interest and concern to
the Commonwealth Government. But this was not enough, he stated, to
bring the economy as a subject matter within Commonwealth power.
The argument is that the power only exists as a self preservation
power and therefore only authorises action against extreme
threats.
One possible outcome therefore is that the Commonwealth's power
to intervene to protect its own interests may be limited to a real
threat to the proper conduct of Government. Hitherto such threats
have focused on matters such as insurrection and terrorism. Most
industrial disputes would not fall into this class. Johnston draws
the distinction between the Commonwealth's power to protect itself
against serious threats to its existence as opposed to mere
interference with its interests. Although the Commonwealth's power
to intervene in the latter situation has been assumed by Windeyer,
Hope and others, Johnston points out there has been no definitive
judicial endorsement of that claim. Johnston proposes:
An alternative approach in determining when resort to the
Defence Force is constitutionally justifiable is to focus on the
gravity of the risk and the nature of the persons
engaged in breaking a Commonwealth law, instead of the
kind of Commonwealth interest entailed. No one would
quibble about calling in specialist military units to counter
terrorist assaults, for example. This comment is concerned,
however, with use of the armed services in normal operations, such
as apprehension of illegal foreign fishermen.(86)
It remains to be seen whether the High Court will limit the
Commonwealth's power to intervene to protect its interests to
situations where the very existence of the Commonwealth is
threatened. The comments of the Court in Re Tracey
concerning the subjugation of the military to the civilian
authority must be borne in mind (see Introduction). If the court
was to apply similar scruples when interpreting the Commonwealth's
power to intervene to protect its interests, the possibility of
using troops to intervene in industrial disputes could be confined
to much narrower circumstances than those canvassed above.
Leaving aside this speculative study as to the precise limits of
Section 61 of the Constitution, a number of other issues arise.
Commonwealth intervention through the commitment of troops as
strikebreakers could give rise to substantial problems in relation
to the legal position of the troops. This will be discussed below.
On top of that, the practical and political problems would be just
beginning. For example take the situation where a State Government
disagreed with a Federal Government decision to send in the troops.
The State Government might object right from the start or it might
initially agree, only to withdraw its support when conflict arose
between striking workers and the defence forces. And once the State
withdraws its support, it may well be unwilling to provide the
police protection which commentators would agree was axiomatic in
maintaining the correct military/civil separation. Once police
protection is unavailable, the troops must either be withdrawn
immediately or assume a direct confrontationist role with the
civilian community. While the latter may not give rise to an
illegal exercise of powers by the Federal Government, it does step
over the line of military involvement acceptable to the community,
given the traditional demarcation which has developed along with
our democratic system of Government. This is not a problem which
can be appreciated by examining the British perspective because in
Britain it is the same Government which commits the defence force
and also directs the activities of the police force. In Australia
therefore, because of our constitutional system with its split-up
of powers between the State and Commonwealth Governments, the
situation is more complex.
The above discussion fits the description of much of the Bowen
dispute. There, the Commonwealth fairly quickly withdrew its troops
once it became apparent that the Queensland Government and all the
major unions were opposed to its actions. As a one-off exercise, it
points to the practical difficulties of using Federal troops to
solve an industrial dispute in a State. While the use of troops to
break the 1949 coalminers' dispute may have been more successful,
there is perhaps even more reason for concern given that the troops
carried arms while protecting their camps, and while moving by rail
and road. If troops are armed, there is obviously greater potential
for disaster if a confrontation with the civilian community does
occur. The difficult legal situation faced by the soldier in such a
case is dealt with below.
Furthermore, using the ADF in industrial disputes is contrary to
established mechanisms for solving them. Late last year, the
Workplace Relations Act 1996 was enacted, relying on a
basket of powers, including the conciliation and arbitration power
in section 51(xxxv) of the Constitution. The Act places much
greater emphasis than hitherto on allowing the parties themselves
to solve a dispute without outside interference from the Government
or the Industrial Relations Commission (although the commission
does retain a role). If the Government were to send in the troops
during a dispute, it may be portrayed as contrary to the philosophy
underpinning its own approach to industrial relations.
Australia is a party to a number of ILO Conventions some of
which allow workers to advance their interests through industrial
action including strikes.(87) The dominant view of the effect of
these Conventions is inconsistent with committing troops. If such
commitment prevented industrial organisations from promoting the
legitimate interests of their members, Australia would arguably be
in breach of its international obligations.
Beddie and Moss observe the comparative lack of discussion of
situations of industrial disruption in the general debate on aid to
the civil power. They advocate greater discussion of the procedures
by which such intervention should occur partly because they feel
that inevitably it will occur again, but they also see it as
desirable for a different reason:
On the non-Labor side of politics, it is quite widely assumed
that many strikes could be relatively easily and swiftly settled by
the intervention of the Defence Force. Discussion of the great
difficulties connected with the use of armed forces in industrial
disputes would strengthen the understanding that they should be so
used only on the rarest of occasions.(88)
Earlier, Beddie and Moss referred to some of these difficulties
as follows:
There are, of course, good reasons why the use of the armed
services in, or 'in connexion with', industrial disputes should be
approached with great caution. The use of the services for this
purpose could easily be destructive of essential freedoms. Indeed,
in many instances, their use would be ineffective if it were not
accompanied by authoritarian measures designed to compel unionists
to return to work. This is partly so because the range of
industrial activities that the services can carry out for any
length of time is very limited. The 1949 coal strike in New South
Wales showed that, even under the most favourable political
conditions, servicemen could undertake industrial work only with
limited success and only by placing great strain on their services
(in that case, particularly the Army). In addition, the use of the
Defence Force in industrial disputes could easily destroy its
relationships with the civil community and so threaten its
existence as an effective organization for the defence of the
nation against external enemies.(89)
Indifference to careful legal thinking was manifest throughout
the CHOGRM call-out, but nowhere more than in the government's
cavalier disregard for the legal position of army
personnel...(90)
Blackshield's conclusion in relation to the Bowral situation was
that the troops there were either acting in a military capacity or
as private citizens. Their position was not, he argued, to be
equated with that of the police. If they were acting as private
citizens then their powers were those of a private citizen, e.g., a
power of arrest in certain circumstances. Whichever situation
applied, Blackshield argued, the legal position of the troops was
not satisfactory. If their legal rights and duties were determined
by their military status, this was unsatisfactory because the
military regulations by and large did not provide any guidance.(91)
And if the soldiers were in the position of private citizens, this
was not satisfactory because statutory provisions for citizen
powers of arrest differ from State to State.
The dilemma for soldiers is that their involvement in aiding the
civil power may require them to perform such tasks as search and
seizure. If there is no legal authority, then this would render
them liable to actions for assault, battery or false imprisonment
from private citizens. In a more serious example, if a soldier
killed another person in the course of quelling a civil
disturbance, he or she could be charged with murder. Brett and
Waller describe the situation as follows:
The hardship upon soldiers is, that if a soldier kills a man in
obedience to his officer's orders, the question whether what was
done was more than was reasonably necessary to quell civil
disturbance has to be decided by a jury, probably on a trial of
murder. Whereas, if he disobeys his officer's orders to fire
because he regards them as unlawful, the question whether they were
unlawful as having commanded something not reasonably necessary
would have to be decided by a court-martial upon the trial of the
soldier for disobeying orders, and for obvious reasons the jury and
the court-martial are likely to take different views as to the
reasonable necessity and therefore as to the lawfulness of such an
order.(92)
These sorts of problems were another concern for many observers
at the time of the Bowral call-out. Some months after the event the
soldier's dilemma was described as follows:
There was more public concern over the role of the Defence Force
during the Bowral 'siege' than over the constitutional authority
for its call-out. First, there was the ambiguity concerning
servicemen's powers in relation to civilian suspects. Could
servicemen exercise powers of arrest beyond those available to the
ordinary citizen? It was claimed that the force had acted without
being supplied with precise guidelines in that connection, except
to shoot back if shot at. Clearly members of the Force could act
against those actually obstructing them in the performance of their
duties. Could they however legally block access to a public road
being a matter normally within the province of State police powers?
Presumably, by implication, there was a power to arrest persons
attempting to commit or actually committing a crime connected with
the three preambular purposes specified in the Governor-General's
call-out order (see ante), and a right to use reasonable force to
prevent any such crime being committed. Mr. Justice Hope will
doubtless consider whether the subject should be covered in some
form of legislative or regulatory code. Second, there was the lack
of any precise policy, let alone rules, governing the mutual
responsibilities inter se of the Defence Force and the police in
the common task of preserving security in the Bowral area. It may
be recalled that this constituted one of the areas referred to Mr.
Justice Hope for examination; namely area (f),'the relationship
between the Defence Force and civilian authorities in the matter of
civilian security'. Over and above all other relevant aspects there
is the question of affording servicemen legal protection against
liability to civilians for acts performed when assisting the police
in civil emergencies.(93)
Justice Hope discussed the question of whether a soldier who was
sued for damages or charged with a criminal offence may rely on the
defence of superior orders. He felt that the legal position had not
been satisfactorily resolved. Three Australian States which have
Criminal Codes have provided that a soldier can rely on the orders
of a superior officer unless the command is manifestly unlawful.
The position in the common law States seems less clear. In these
jurisdictions it may be difficult to establish the necessary
mens rea (mental element) for an offence, if an officer
believed honestly that the order he was obeying was lawful. This
may not be an immense source of consolation for soldiers put on
trial for merely, in their view, carrying out their duties. Section
14 of the Defence Force Discipline Act 1982 makes
provision for this situation in relation to the conduct of trials
for 'service offences':
14. A person is not liable to be convicted of a service offence
by reason of an act or omission that:
(a) was in execution of the law; or
(b) was in obedience to:
(i) a lawful order; or
(ii) an unlawful order that the person did not know, and could
not reasonably be expected to have known, was unlawful.
By section 61 of the Act, a service offence includes any act or
omission which would be an offence in Jervis Bay. This is an
attempt to bring all general law offences within the range of
disciplinary breaches punishable under the Act. This provision was
considered by the High Court in Re Tracey; ex parte
Ryan(94). Three out of seven judges (Chief Justice Mason and
Justices Wilson and Dawson) held that Section 61 was a valid
exercise of the defence power (Section 51(vi) of the Constitution).
Two judges considered that this went beyond the limits of Section
51(vi) (Justices Deane and Gaudron). And the two remaining judges
(Justices Brennan and Toohey) were of the view that a member of the
Forces could be tried by a service tribunal for an offence against
civil law if, in the circumstances of the particular case, the
proceedings were necessary to maintain or enforce service
discipline. Given the break-up of findings by the Court, the
outcome must be represented by the views of Justices Brennan and
Toohey. The result of their findings when combined with those of
Chief Justice Mason and Justices Wilson and Dawson, is that general
law offences will sometimes come within the range of service
offences punishable under the Act, depending on whether or not the
proceedings are required to enforce service discipline.
Subsections 190 (3) and (5) of the Act sought further to ensure
that once a person had been tried for a 'service offence' by a
service tribunal, then that person was not liable to be tried by a
civil court for a civil court offence which was substantially the
same offence. Five members of the High Court held these provisions
invalid as exceeding the power to make laws with respect to the
defence of the Commonwealth. The Court pointed to the historic
position of the soldier: a soldier does not cease to be a citizen,
but remains liable to the ordinary criminal law. Military law has a
restricted range of operation and is additional to rather than
replacement for the civil law when it comes to the rights and
duties of the soldier.(95) Discussion also concerned Section 106 of
the Constitution (which preserves the operation of State
Constitutions) and the fact that State courts are an essential
branch of the Government of a State.
The outcome of the case therefore is that the Act cannot protect
the soldier from facing proceedings in a civil court. The Section
14 defence of superior orders will only protect the soldier in
military proceedings. In proceedings in a civil court the soldier
will need to rely on the legal position outlined above, i.e., in
some States the common law will apply, in other States the criminal
law has provided a specific statutory defence in relation to
reliance on superior orders.
Justice Hope recommended that the Defence Act be amended to give
soldiers aiding the civil power the powers of police. This has not
been implemented. In the meantime, reliance on superior orders may
be a defence depending on the circumstances. And, according to the
principles of common law, the use of excessive force would expose
the soldier to a criminal charge. The principle of the use of
minimum force is at least incorporated into the DI(G)s on aid to
the civil power.(96)
The question must be asked: is it a satisfactory state of
affairs for soldiers to face the possibility of private actions and
criminal charges arising from their obedience to the commands of
superior officers in the sorts of situations under discussion where
there is little or no law regulating the circumstances and
therefore no way for the soldiers to assess the lawfulness or
otherwise of their superior officer's commands?
The uncertainties of the soldier's position serve to highlight
the legal difficulties inherent in nearly all uses of defence
forces for 'non-defence' purposes. Experience has shown first that
successive Commonwealth Governments are quite happy to call on the
forces, with little or no prior consideration of the legal basis
for their involvement. They make up their minds after the event
under what constitutional or legal basis they were operating.
Secondly, the ADF has often responded with total disregard for its
own operational instructions. As discussed above, the precise legal
status of these instructions is open to argument, but no matter
what the outcome of that debate, it is submitted that the ADF is
under an obligation to comply with the instructions. Some sympathy
must be extended to the ADF which, it is submitted, has had to make
these instructions to fill a void in the law. In making them, the
ADF has invoked mechanisms which it can be argued are above the
requirements of the law, e.g. the requirement of an order of the
Governor-General in Council where the troops are used to protect a
Commonwealth interest and the use of force is likely (instruction
9a. DI(G)s on aid to the civil power). Internal instructions are
hardly the place for laying down such substantive requirements.
Such provision, if it is to be made, would be more appropriately
made within a legal structure after parliamentary debate.
Another interesting point to note is that the case studies
clearly reveal that the mechanism provided for in Section 119 of
the Constitution has been of little practical importance. It seems
that future controversial deployments of the defence forces will
turn on the interpretation of the Commonwealth's inherent power of
self protection and thus depend largely on the High Court's view of
the limits of Section 61 of the Constitution.
It seems that there are two major needs which are not met by the
present system. The soldier's position needs to be protected. And
the community needs to have some idea of the legal structure for
ADF use outside traditional defence purposes in order to be sure
that civil liberties are not breached. If there is to be some
formalising of these positions, an Act of Parliament is the
appropriate place for this to occur. Neither of these aims can be
achieved through administrative arrangements within the Defence
Department. At the same time, any such law should be drafted
carefully to ensure it did not open up new areas for the use of
troops in 'non-defence' situations. It would, for example, be
unwise to attempt to enumerate the situations in which the
Commonwealth could intervene to protect its own interests. Such an
attempt would no doubt be widely drafted and, far from easing civil
liberties concerns, would serve only to enflame them.
- 'Army Could Be Used on Waterfront: Hewson',
Australian, 21 March 1991.
- For an examination of the history of the subjugation of the
military to the State within the British system, see Steven C.
Greer, 'Military Intervention in Civil Disturbances: The Legal
Basis Reconsidered', (1983) Public Law, p. 573.
- (1989) 166 CLR 518.
- ibid., p. 562. This case is discussed further under the
heading: Troops in Civil Disturbances-Their Rights and
Liabilities.
- Peter W. Johnston, 'Re Tracey: Some Implications for the
Military-Civil Authority Relationship', Western Australia Law
Review, vol. 20, no.1, June 1990, p. 73.
- R. M. Hope, 'Protective Security Review', Parliamentary
Paper No. 397/1979, p. 142, quoting Edmund Burke.
- For a list of these occasions see H. P. Lee, Emergency
Powers, Law Book Co., Sydney, 1984, p. 201. This material is
set out at Appendix A.
See also: 'Protection of Australian States against domestic
violence (Section 119 of the Constitution)', Australian Law
Journal, 52, July 1978: p. 350.
- See, for example, Hope, op. cit., para. 10.25.
- A. R. Blackshield, 'The Siege of Bowral-the Legal Issues',
Pacific Defence Reporter, March 1978, p. 6. See discussion
below in relation to Bowral call-out.
See also comment at Australian Law Journal, 52, July
1978: p. 350 where the point is made that the only requests made by
the States to the Commonwealth for protection against domestic
violence were made in the period between 1916 and 1928. The note
concludes that the course adopted at Bowral:
...of the Commonwealth acting on its own authority and
responsibility, but with the concurrence of the State Government,
in aid of the State police (see Australian Law Journal,
52, 298), may well become established as the most flexible course
to be adopted, thereby by-passing Section 119 with its specific
requirement of a formal application from the particular State
Government concerned.
- See, for example, B. D. Beddie, 'Aid to the Civil Power', paper
presented to conference of the Australasian Study Group on Armed
Forces and Society on Law, Change and the Services, R.M.C.
Duntroon, 24 June 1983, University of New South Wales, Faculty of
Military Studies, Department of Government.
- It is the author's personal view that it is undesirable for
legislation on its face to impose a requirement which is in fact
not a requirement at all.
- The AMRs are set out at Appendix B. They are broadly similar to
the AFRs.
- Brian D. Beddie and Sue Moss, 'Some Aspects of Aid to the Civil
Power in Australia', Occasional Monograph No.2, Department
of Government, Faculty of Military Studies, University of New South
Wales, Canberra, 1982.
- See AMR 409. The doctrine of minimum force prohibits the use of
force which is greater than necessary to control the situation. If
this force is exceeded, then the notion of excessive defence comes
into play. A soldier could be charged under the provisions of the
criminal law for the use of excessive force (see discussion below
relating to the rights and liabilities of soldiers).
- Hope, op. cit., Appendix 8.
- Opinion of Sir Victor Windeyer, K.B.E., C.B., D.S.O., on
'Certain Questions Concerning the Position of Members of the
Defence Force When Called Out to Aid the Civil Power', Appendix 9
to Hope, op. cit.
- J. Quick and R. R. Garran, The Annotated Constitution of
the Australian Commonwealth, Angus & Robertson, Sydney,
1901, p. 964.
See also Opinions of Attorneys-General of the Commonwealth
of Australia, vol. 2 1914-23, no. 1021, p. 599.
- (1949) 79 CLR 121 at 151.
- Australian Communist Party v The Commonwealth, (1951)
83 CLR 1.
- ibid., p. 188, quoting Black's American Constitutional
Law, 1910, 2nd edn., p. 210.
- (1915) 20 CLR 425.
- See, for example: Hope, op. cit., ch. 3 (especially p.
28) and p. 146; Windeyer, Appendix 9 to Hope, op. cit; Lee op.
cit., pp. 205-6; R. D. Lumb, The Constitution of the
Commonwealth of Australia Annotated, Butterworths, Sydney,
1986, p. 106.
- ibid., pp. 201-2. See also p. 117.
- Hope, op. cit., para. 3.16.
- See letter to the editor, Australian Law Journal, 63,
Sept. 1989: 651.
See also letter of advice from Attorney-General's Department
tabled in the Senate on 29 November 1989 by Sen. Jocelyn Newman.
Sen. Newman argued that the advice supported the proposition that
the DI(G)s had 'the force of law under the Defence Act' although
the question addressed in the advice was not so much whether the
DI(G)s were law, but whether, on the interpretation of the specific
DI(G)s in that case, their content evinced an intention to impose
an obligation.
- (1987) 17 FCR 1.
- P. Bayne, 'Policy guidelines and the law - some intersections',
Australian Law Journal, 65 (10) October 1991:
607-610.
- op.cit., footnote 25.
- (1987) 16 FCR 296 at 300.
- Beddie, op. cit., p. 67.
- Bayne, op. cit.
- Windeyer, Appendix 9 to Hope, op. cit., pp.
280-281.
- Hope, op. cit., para. 10.32 ff.
- Victoria v The Commonwealth (1975) 134 CLR 338 at
397.
- (1988) 166 CLR 79.
- ibid., at 94.
- See, for example, 1) W.R. Edeson, The Effect of Australian
Maritime Legislation and Legal Constraints on Enforcement, paper
delivered at the Eighth RAN Legal Conference, 19 January 1983.
2) Anthony Bergin, 'Some Legal Aspects of Defence Force
Planning', paper delivered to Conference on the Civil
Infrastructure in the Defence of Australia: Assets and
Vulnerabilities, Strategic and Defence Studies Centre, Research
School of Pacific Studies, Australian National University, 28
November - 2 December 1983.
3) Johnston, op. cit.
- Parliamentary Question No 2034, House of Representatives
Hansard, 25 October 1989, p. 1895.
- See Appendix E.
- Beddie and Moss, op. cit., p. 59.
- op. cit., p. 55.
- The order was made on 13 February 1978 (Commonwealth of
Australia Gazette No S 30, 14 February 1978) and revoked on 20
February 1978 (Commonwealth of Australia Gazette No S 33, 20
February 1978).
- Blackshield, op. cit.
- House of Representatives Hansard, 23 February 1978, p.
159.
- See, for example, Blackshield, op. cit., at p. 7.
- The Crimes (Internationally Protected Persons) Act
1976 implements in Australia the Convention on the Protection
and Punishment of Crimes against Internationally Protected Persons
including Diplomatic Agents.
- Blackshield, op. cit., p. 7. The reference to the
power over 'external affairs' should read '(Constitution Section
51(xxix))' and the word 'policy' in the quote from Chief Justice
Barwick in Victoria v. Commonwealth & Hayden should
read 'polity'. The 1971 legislation referred to by Blackshield is
the Public Order (Protection of Persons and Property) Act
1971 which operates to protect diplomatic or special missions
in Australia.
- See, for example, Senate Hansard, 21 April 1983, pp.
26-7 and 36, Senate Hansard, 5 May 1983, pp. 249-50, 255-6
and 257-8, Senate Hansard, 26 May 1983, pp. 865, 909-11,
958-62.
- See Hansard, Senate Estimates Committee E, 12 May
1983, pp. 140-5 and 154 ff.
- ibid., p. 154.
- Joint Statement By the Attorney-General and the Minister for
Defence, 'Flights Over South-West Tasmania', tabled in the Senate
21 April 1983.
- Senate Estimates Committee E, 12 May 1983, op. cit., p.
154.
- Once the Government was informed of the existence of these
particular DI(G)s, they were tabled in Parliament. Those on aid to
the civil power were tabled in the Senate on 22 April 1983 and
those on assistance to the civil community were tabled in the
Senate on 5 May 1983.
- The region where the dam was to be built was a property listed
pursuant to the Convention for the Protection of the World Cultural
and Natural Heritage.
- Senate Hansard, 21 April 1983, p. 36.
- 'Nurrungar clashes spark security review', Australian,
2 October 1989.
- ibid.
- Proceedings at Senate Estimates Committee D, 10 October 1989,
p. D256-7.
- Senate Hansard, 25 October 1989, p. 2195.
- L.F. Crisp, Ben Chifley, Longmans, Croydon, Vic.,
1961, p. 362.
- Beddie and Moss, op. cit., p. 42.
- Beddie and Moss, op. cit., p. 46.
- Beddie and Moss, op. cit., p. 46, quoting Rowell, Vice
Chief of the General Staff.
- The following analysis of the situation at Bowen relies on the
work of Beddie and Moss, op. cit., p. 48.
- See the discussion above relating to the 1949 coalminers'
dispute.
- '2,200 People Flying Home in Hercules', Canberra
Times, 2 March 1981.
- 'RAAF Called In', Canberra Times, 1 March 1981.
- See Canberra Times report, 1 March 1981.
- See answer to Parliamentary Question No.1358, Senate
Hansard, 9 May 1990.
- Parliamentary Question No. 2071, House of Representatives
Hansard, 22 December 1989, p. 3579.
- CDF Operational Instruction 8/89, 23 August 1989.
- . Senate Estimates Committee D, 10 October 1989, p. D247.
- ibid. at pp. D248, D249, D250. 'Mr Ives ... As I have pointed
out before, the DI(G) was set up to provide guidance for day-to-day
operations at various levels in the organisation and certainly does
not preclude other kinds of arrangements which the Government and
the Minister might seek to have put in place.'
- ibid. at p. D252.
- Report to the Minister for Administrative Services on the
Organisation of Police Resources in the Commonwealth Area,
AGPS, Canberra, 1978. This report was also commissioned as a result
of the Bowral call-out.
- Hope, op. cit., p. 152.
- Lee, op. cit., p. 208.
- Lee, op. cit. p. 206, footnote 36 observes:
It is submitted that Section 61 encompasses a
judicially-recognised prerogative. 'The disposition, armament and
direction of the defence forces of the State', said Viscount
Radcliffe in Chandler v. Director of Public Prosecutions
[1964] A.C. 763, 'are matters decided upon by the Crown and are
within its jurisdiction as the executive power of the States.' Lord
Hodson in the same case said: 'The Crown has, and this is not
disputed, the right as head of the State to decide in peace and war
the disposition of its armed forces...' (Id., p.800.) In 1965, Lord
Reid in Burmah Oil Co. Ltd. v. Lord Advocate [1965] A.C.
75, after citing Chandler v. Director of Prosecutions
declared: 'There is no doubt that control of the armed forces has
been left to the prerogative . . . subject to the power of
Parliament to withhold supply and refuse to continue legislation
essential for the maintenance of a standing army . . .' (Id.,
p.100). Although these cases relate to a unitary system it is
submitted that the Federal system in Australia does not detract
from the persuasive force of these authorities. As the States are
prohibited by Section 114 of the Commonwealth Constitution from
raising or maintaining any naval or military force without the
consent of the Commonwealth Parliament there is no problem of a
'division' of the prerogative between the States and the
Commonwealth. In consequence 'the Crown' referred to in the cases
can when these cases are invoked in the Australian context be
construed as referring to the Crown in right of the Commonwealth.
The exercise of this prerogative in right of the Commonwealth is
circumscribed to the extent that a State request is required when
there is domestic violence in the State concerned. See also
China Navigation Co. v. Attorney-General [1932] 2 K.B.
197.
- These sections are set out at Appendix G.
- (1988) 166 CLR 79.
- ibid., at 92-3.
- Victoria v the Commonwealth (1975) 134 CLR 338.
- ibid., pp. 396-8.
- Mason J. in the AAP case, ibid., p. 397.
- Blackshield, op. cit., p. 7.
- Johnston, op. cit., p. 79.
- See: ILO Convention 87 Freedom of Association and Protection of
the Right to Organise 1948; ILO Convention 98 Right to Organise and
Collective Bargaining 1949.
- Beddie and Moss, op. cit., p. 79.
- ibid., p. 78.
- Blackshield, op. cit., p. 10.
- Blackshield's view is that Part V of the AMRs is clearly linked
to the Section 119 'domestic violence' situation and that they were
just not appropriate in a situation where the whole legal structure
had been shifted away from the Section 119 mechanism. See p. 9 of
his article.
- Peter Brett and Louis Waller, Brett and Waller's Criminal
Law: Text and Cases, Butterworths, Sydney, 1983, p. 654.
- 'Legal and constitutional problems of protective security
arrangements in Australia', Australian Law Journal, 52,
July 1978, 296 at 299.
- (1988-1989) 166 CLR 518.
- See discussion at p. 576 of the case.
- See para.11 of the DI(G)s.
MILITARY AID TO THE CIVIL POWER IN AUSTRALIA
On 15 September 1971, Mr. William McMahon, the then Prime
Minister presented an answer in Parliament to a query by Mr.
Whitlam, the then Leader of the Opposition, whether the Executive
Government of a State has ever made an application under s. 119 of
the Commonwealth Constitution to protect the State against domestic
violence. The answer stated that 'a detailed search of the
Commonwealth Archives' has ascertained that there had been a number
of occasions on which the Commonwealth had received requests from
States for assistance in time of civil unrest.
In none of these requests was a specific reference made to s.
119 of the Constitution. These are the only requests for which
records have been located -
- In 1916, the Tasmanian Government requested the assistance of
troops from the Commonwealth to put down expected disturbances on
the occasion of a referendum.
- In 1919, the Governor of Western Australia forwarded to the
Governor-General a request from the Western Australian Premier for
Commonwealth assistance to control expected violence during a wharf
strike.
- In 1921, the Premier of Western Australia telegraphed the
Acting Prime Minister requesting him to 'instruct permanent force
to be sent to Perth and be made available to maintain order' in the
event that the Western Australian Police were unable to do so
during 'labour troubles'.
- In 1923, during a police strike, the Premier of Victoria, in a
letter to the Acting Prime Minister, requested the Commonwealth
Government to 'arrange for troops to parade the City and take
positions' at specified locations, as a 'precautionary measure
designed to make an impression and to have a strong force of men
available at suitable points ready for instant use if the situation
should demand their being called upon in the regular manner'.
- In 1928, the Premier of South Australia requested the
Commonwealth to issue ammunition to the South Australian Police
Commissioner for use in case of absolute necessity during a strike.
At about the same time, the Premier also made a request for
military equipment.(1)
It is submitted that the detailed search had not been
comprehensive. In fact there had actually been an instance when an
application was made under s. 119.(2) This application was made by
the Queensland government in 1912 to the following effect:
In consequence of general strike riot and bloodshed are imminent
in Brisbane. State Police are not able to preserve order. Firearms
have been used to prevent arrests of a man guilty of riotous
conduct. Executive Government of State requests that you direct
steps to be taken immediately to protect the State against domestic
violence in terms of s. 119 of Commonwealth of Australia
Constitution Act.
As the situation is extremely grave my Ministers urge immediate
action.
On the advice of the Federal government the Governor-General
sent the following reply:
That whilst the Commonwealth Government is quite prepared to
fulfil its obligations to the States if ever the occasion should
arise, they do not admit the right of any State to call for their
assistance under circumstances which are proper to be dealt with by
the Police Forces of the States. The condition of affairs existing
in Queensland does not in the opinion of my Ministers warrant the
request of the Executive Government of Queensland contained in Your
Excellency's message being complied with.
________________________________
- See 'Protection of Australian States against domestic violence
(s. 119 of the Constitution)' 52 A LJ. 350 at 351.
- Parliamentary Papers. 1912, No.16. See also: Report of
the Royal Commission on the Constitution (Commonwealth of
Australia, 1929) 124; B. D. Beddie and S. Moss, Some Aspects of
Aid to the Civil Power in Australia, Occasional Monograph No.
2, Department of Government, Faculty of Military Studies,
University of New South Wales, 1982.
Extract from Lee, Emergency Powers, p.201.
Definition of 'magistrate'
398. In this Part, unless the contrary
intention appears, the word 'magistrate' refers to a person having
jurisdiction in which, under this Part, he is to act, and means
-
- in relation to the State of Queensland, the sheriff or under
sheriff, or justice of the peace, and if within a municipality,
alternatively, the mayor thereof (Criminal Code, section
64);
- in relation to the State of New South Wales, a justice of the
peace, the sheriff or under sheriff, and if within a city or town
corporate, alternatively, the mayor or other head officer of the
city or town (1 Geo. I., St. 2 C.5);
- in relation to the State of Victoria a justice of the peace
(Unlawful Assemblies and Processions Act 1915, section
6);
- in relation to the State of South Australia, a special
magistrate, a justice of the peace, the sheriff or the mayor of the
city of Adelaide, and if within a corporate town, alternatively,
the Mayor thereof (Criminal Law Consolidation Act 1876,
section 300);
- in relation to the State of Western Australia, the sheriff or
under sheriff or a justice of the peace, and if within a
municipality, alternatively, the mayor thereof (Criminal Code 1913,
No. 28, section 65);
- in relation to the State of Tasmania, the sheriff or a justice
of the peace (Criminal Code, section 76(1);
- in relation to the Northern Territory, a special magistrate or
a justice of the peace or the sheriff, and if within a corporate
town, alternatively, the mayor thereof (Criminal Law
Consolidation Act 1876, of South Australia, Section 300;
Northern Territory Acceptance Act 1910, Section 7;
Northern Territory (Administration) Act 1910-1931, Section
5; Sheriff Ordinance 1911; Justice Ordinance 1928-1931,
Section 10); and
- in relation to the Australian Capital Territory (including the
Territory accepted by Australia in pursuance of the Jervis Bay
Territory Acceptance Act 1915), the Sheriff of the Territory
appointed under the Australian Capital Territory Supreme Court
Act 1933-1956, a stipendiary or special magistrate appointed
under the Court of Petty Sessions Ordinance 1930-1953 or a
Justice of the Peace of the Territory.
Responsibility of officers
400. (1) Officers called out for the protection
of a State against domestic violence shall be responsible for
ensuring that the forces under their command are not utilized
unnecessarily or to an unnecessary extent.
(2) The responsibility for deciding as to the strength and
composition of any military forces to be utilized for the
suppression of domestic violence, even within a State, shall lie on
the Military Authorities. Whenever possible sufficient officers
shall be included to ensure that an officer will be available to
command each body that may be required to operate separately; and
whenever possible an officer shall be detailed to command each
body.
(3) If a civil official indicated what force is required, his
opinion shall not be regarded as conclusive, but shall be taken
into consideration in estimating the force necessary.
Requisition of civil authorities
404. (1) Except in cases of great and sudden
emergency, such as are mentioned in regulation 414 an officer in
command of military forces which have been called out for the
protection against domestic violence shall not order out, or take
out, any of his forces for the purposes of aiding in the
suppression of a riot, the maintenance of public peace, or the
execution of the law, or assisting the civil power in case of an
expected riot, without a requisition, in writing, or by telegram or
similar means, of a civil authority.
(4) on arrival at the place to which the forces are dispatched,
the commander shall, subject to the obligation of the common law,
exercise his discretion as to the necessity for intervention of the
forces under his command
Magistrate to be present
405. (1) The commander of military forces about
to be utilized for protection against domestic violence shall
require the civil authority on whose requisition the forces are to
be utilized to arrange for a magistrate to meet the forces, either
at the place where they are stationed, or at some place on the way
to the scene of the riot, or apprehended riot.
(2) In the event of the forces being divided so as to act in
different places, one magistrate should accompany each part of the
forces.
(3) When there are present with any one body of forces, more
magistrates than one, only one shall act with the commander of that
body.
Disposition of troops and position of magistrate
406. (1) The commander of military forces
utilized for protection against domestic violence shall consult
with the magistrate who accompanies the forces, and with the senior
police officer present, and decide as to the disposition of the
forces.
(4) The magistrate shall accompany the forces, and remain as
near as he can to the commander.
Proclamation under Acts relating to riots
407. (1) If a disturbance amounts to a riot in
which 12 or more persons are engaged, it is the duty of the
magistrate, if both he and military forces engaged in protection
against domestic violence are present, to read, or in the State of
Victoria, read or repeat, or (except in the State of Victoria)
cause to be read in a loud voice, if circumstances permit, and it
has not already been done, the proclamation authorized by the law
in force where the riot occurs, and to call upon everybody present
to assist in the suppression of the riot.
(2) Before the proclamation is read, the alarm should, if
possible, be sounded on a bugle, or some similar action to be taken
so as to call attention to what is about to be done, and the
magistrate shall go amongst the rioters, or as near as he can
safely come to them and command, or cause to be commanded, in a
loud voice that silence be kept while the proclamation is made.
(3) The form of proclamation, which shall be strictly adhered
to, follows:-
- In the State of Queensland.-'Our Sovereign Lord the King
charges and commands all persons here assembled immediately to
disperse themselves, and peacefully to depart to their habitations
or to their lawful business, or they will be guilty of a crime, and
will be liable to be imprisoned and kept to hard labour for life.
God save the King!'
- In the State of New South Wales.-'Our Sovereign Lord the King
chargeth and commandeth all persons being assembled immediately to
disperse themselves, and peacefully to depart to their habitations,
or to their lawful business, upon the pains contained in the Act
made in the first year of King George the First for preventing
tumultuous and riotous assemblies. God save the King!"
- In the State of Victoria.-'Our Sovereign Lord the King doth
strictly charge and command all manner of persons here assembled
immediately to disperse themselves and peacefully to depart to
their own homes. God save the King!'
- In the State of South Australia.-'Our Sovereign Lord the King
chargeth and commandeth all persons being assembled immediately to
disperse themselves and peacefully to depart to their habitations
or to their lawful business. God save the King!'
- In the State of Western Australia.-'Our Sovereign Lord the King
charges and commands all persons here assembled immediately to
disperse themselves, and peacefully to depart to their habitations
or to their lawful business, or they will be guilty of a crime, and
will be liable to be imprisoned and kept in hard labour for
fourteen years. God save the King!'
- In the State of Tasmania.-'Our Sovereign Lord the King charges
and commands all you persons here assembled immediately to disperse
yourselves, and peacefully to depart to your habitations or to your
lawful business, failing which you will be guilty of a crime, and
will be liable to be imprisoned. God save the King!'
- In the Northern Territory.- As in the State of South Australia;
and
- In the Australian Capital Territory.- As in the State of New
South Wales.
Request by magistrate to take action
408. (1) If the magistrate who accompanies a
body of military forces utilised for the suppression of domestic
violence concludes that the police are unable to cope with a riot,
and that the situation demands the active interference of the
military forces, then whether the proclamation mentioned in
regulation 407 has or has not been read or repeated, it is his duty
to request the commander of the body of military forces to take
action.
(2) The request should be make distinctly, and, if possible, in
writing, although, if given orally, it will be sufficient.
Execution of request of magistrate
409. (1) When requested by the magistrate to
take action, it is the duty of the commander of the body of the
military forces to take such military steps as, in his opinion, the
situation demand.
(2) In taking any steps, the commander shall have absolute
discretion as to the action to be taken, and as to the arms,
including firearms, which the military forces under his command
shall use, and as to the orders he shall give, including the order
to fire; but the magistrate and the commander are severally
responsible for anything done, or ordered to be done, by them
respectively, which is not justified by the circumstances of the
case.
(3) If the commander of the body of military forces thinks it
unnecessary to take immediate action, it is not obligatory upon him
to do so, and he shall not continue action longer than he thinks
absolutely necessary.
(4) All commands to the military forces present shall be given
by the commander of those forces.
(5) The troops shall not, on any account, fire except by word of
command of the commander, or a subordinate commander authorized by
him.
(6) The commander, if it becomes necessary to order the troops
to fire, shall exercise a humane discretion in deciding both the
number of rounds to be fired and the objects to be aimed at.
Warning that fire will be effective
410. The commander of military forces engaged
in the suppression of a riot, or the enforcement of the law, should
always take the most effectual method, in conjunction with the
magistrate, for explaining beforehand to the people that, in the
event of the troops being ordered to fire, the fire will be
effective.
Magistrate and troops to remain on scene
413. When a body of military forces has been
engaged in the suppression of a riot or the enforcement of the law,
the magistrate and the military forces shall both remain at the
place of disturbance until the magistrate and the commander decide
that the military forces may be withdrawn.
General power of OC in cases of immediate and pressing
danger
414. (1) The foregoing provisions of this Part
with reference to utilization of military forces called out for
protection against domestic violence apply to cases in which those
forces are utilized in consequence of a requisition of the civil
authorities.
(2) In extraordinary cases of immediate and pressing danger
which, in the opinion of a commander of a body of military forces
which has been called out for protection against domestic violence,
demands his immediate interference, the commander shall take such
action as he thinks necessary, although he has not received any
requisition from a civil official, or direction from a magistrate,
whether the absence of such a requisition or direction is due to a
magistrate not being present, or to any other cause.
Application of this Part when forces employed by Australia on
its own initiative
415. The provisions of the Part shall be
applied as far as possible in the employment of military forces by
Australia on its own initiative, for the protection of its servants
or property, or the safeguarding of its interests.
The Instructions are referred to in section 9A of the Defence
Act. The question which arises is whether the reference to the
Instructions in that section amounts to an authority for the
Secretary and Chief of Defence Force Staff to make a form of
delegated legislation.
Comment has been made(1) on the increasing number and type of
instruments made pursuant to Acts, whether they be regulations,
rules, by-laws, orders, guidelines, manuals, instruments,
determinations, instructions etc. Some are clearly law in the form
of delegated legislation. Some are clearly executive
(administrative) actions. Across the field between the two extremes
is a graduation of actions bearing characteristics of both a
legislative and executive nature. This 'grey' area has become known
as 'quasi law'. At the legislative end of the spectrum, review of
the exercise of powers occurs in the Commonwealth sphere by the the
operation of the tabling requirement and by the Senate Committees
on Scrutiny of Bills and Regulations and Ordinances. At the
administrative end of the spectrum, review might occur by the
Administrative Appeals Tribunal or pursuant to the
Administrative Decisions (Judicial Review) Act 1977.
What factors determine an action as administrative or
legislative?
It seems that the name or description of the instrument is not
conclusive one way or the other. Some considerations which are
relevant to determining the nature of the exercise of power are as
follows:
- In 1932 the Donoughmore Committee(2) attempted to draw
distinctions between legislative, administrative and judicial
functions. In the definition of the Committee, the legislative
function involved formulation of rules of general application.
These rules did not make reference to particular cases. The
administrative function on the other hand involved the performance
of particular acts, or issuance of particular orders, or the making
of decisions which applied the general rules set out in the
legislation to particular cases.
Pearce refers to the Donoughmore Committee and acknowledges that
the distinction cannot always be clearly drawn. He suggests it as a
useful starting point:
If the committee's description of legislative activity is used,
one can define delegated legislation as instruments that lay down
general rules of conduct affecting the community at large which
have been made by a body expressly authorised so to act by an Act
of parliament(3)
- The establishment of rights, duties, obligations.
The High Court examined this issue in Grunseit's case(4).
Latham C.J. said:
The general distinction between legislation and the execution of
legislation is that legislation determines the content of a law as
a rule of conduct or a declaration as to power, right or duty,
whereas executive authority applies the law in particular
cases.
Latham C.J. quotes with approval a U.S. case where it was
said:
The true distinction, therefore, is between the delegation of
power to make the law, which necessarily involves a discretion as
to what it shall be, and conferring an authority or discretion as
to its execution, to be exercised under and in pursuance of the
law.
- The extent to which the action applies to classes of people. An
action which applies to a particular group of people has the nature
of an administrative character, but this is not conclusive (see the
discussion in Qld Medical Laboratory v Blewett (5)). An
action which applies across the field, affecting the public at
large tends to indicate a legislative exercise.
- Whether there is a tabling and disallowance requirement similar
to that provided by section 48 of the Acts Interpretation Act for
regulations. This is an indication of a delegation of legislative
power since the Parliament shows by the disallowance requirement
that it wishes to retain some control over the power it has
delegated. However, again it is not conclusive. Sometimes, purely
administrative orders are required to be tabled.
In the end, it is submitted that the question must be determined
by an examination of the empowering statute. Did the Parliament
evince an intention to delegate its legislative function?
The Present Situation
There is no tabling requirement in the Act for the Instructions.
Moreover, they are clearly only intended to apply to a specific
group (the armed forces) rather than to the community at large.
They do not affect the conduct of members of the general community.
The next question then, is whether the Parliament intended to
confer on the two officers a power to create rights, duties or
obligations.
Sub-section 9A(1) and (2) read as follows:
9A. (1) Subject to section 8, the Secretary and the Chief of the
Defence Force shall jointly have the administration of the Defence
Force except with respect to -
(a) matters falling within the command of the Defence Force by the
Chief of the Defence Force or the command of an arm of the Defence
Force by the service chief of that arm of the Defence Force;
or
(b) any other matter specified by the Minister.
(2) Instructions issued by or with the authority of the
Secretary and the Chief of the Defence Force in pursuance of the
powers vested in them jointly by virtue of sub-section (1) shall be
known as Defence Instructions (General)...
It seems that sub-section 9A(2) in fact authorises the issue of
Instructions, rather than being a reference to Instructions issued
independently of the section. But did the Parliament intend those
Instructions to deal with matters whereby rights, duties and
obligations are created? Or, on the other hand, are the
Instructions intended to deal with matters of administration? It is
submitted that the latter is the case. The Instructions are
intended to be an internal working document, which guide officers
as to the administration of the law, but do not in themselves
create rights, duties or obligations enforceable at law. An
examination of the Act as a whole points to this conclusion for the
following reasons:
- Section 9A was inserted into the Defence Act in 1975, when the
defence forces were amalgamated to form one Department. One of the
purposes of the section was to outline the hierarchy of Defence
Force Instructions and provide that the DI(General) prevailed over
DI(Navy), DI(Army) and DI(Air Force) (sub-section 9A(4)).
- Section 9A sits in Part II of the Defence Act which is titled
Administration. Sub-section 9A(2) refers to the Instructions
'issued by or with the authority of the Secretary and the Chief of
Defence Force Staff in pursuance of the powers vested in them
jointly by virtue of subsection (1)'. The powers vested in them by
sub-section (1) are administrative, so this would suggest that
Instructions issued pursuant to those powers were administrative
rather than legislative powers.
- Section 8 of the Act provides, inter alia, that the powers
vested in the Secretary and CDF by virtue of section 9A are to be
exercised in accordance with directions of the Minister. If section
9A was interpreted as giving to the two officers a law making
function, then section 8 would have the result of giving the
Minister power to make directions overriding the law. This would be
a strange result.
- Section 124 of the Act (the regulation making power) contains
an extensive delegation of law making power. It is submitted that
provision would have been made in that section if it was intended
that the Instructions have force of law
- Pearce would require Parliament to make express provision to
delegate its law making function:
If the committee's description of legislative activity is used,
one can define delegated legislation as instruments that lay down
general rules of conduct affecting the community at large which
have been made by a body expressly authorized so to act by an Act
of Parliament(6)
It is just not possible to infer from the wording of s.9A a
Parliamentary intention to delegate its power to legislate.
- If the Instructions were law, then the requirement to comply
with them could amount to a severe restriction on the ability to
administer the Department. As a matter of statutory interpretation,
it is submitted that if the administration of the Department was to
be hamstrung by not being able to operate outside its own
Instructions, then Parliament would have provided for this more
expressly. It is not possible to imply this limitation on the
administrative power given to the Secretary and CDF in sub-section
9A(1).
It seems that the ADF view is that the DI(G)s are indeed
administrative in nature. During discussions at Estimates
Committee, ADF officers referred to the Instructions as 'a policy
statement by the Department' and 'self-imposed instructions within
the Department of Defence' and 'essentially a set of procedures to
provide guidance in a general range of cases'.
_________________________________
- See, for example, Second Conference of Australian Delegated
Legislation Committees, 26 - 28 April 1982. Report and
Transcript of Proceedings and Conference Papers, Senate Procedure
Office, October 1989.
See also Hotop, Principles of Australian Administrative
Law, at p.139: quoting Scott, L.J. in Blackpool
Corporation v Locker [1948] 1 KB 349 at 361, 362:
'The modern extent of sub-delegated legislation is almost
boundless: and it seems to me vital to the whole English theory of
the liberty of the subject, that the affected person should be able
at any time to ascertain what legislation affecting his rights has
been passed under sub-delegated powers.'
Similar considerations apply to what have been collectively
described as administrative quasi-legislation'(69) - that is, the
rules, instructions, guidelines, codes of practice and precedents
adopted by administrative bodies for the purpose of administering
particular statutes or schemes for which they are responsible. This
body of 'internal law' is usually contained in departmental
circulars, manuals or memoranda - for example, the departmental
manuals, circulars and directions issued by the Australian
Departments of Social Security and Taxation regarding the exercise
of particular discretionary powers conferred by the social security
and taxation legislation. This 'quasi legislation' is clearly
legislative in character in that it is of general application, but
it is distinguishable from sub-delegated legislation in that it may
be made without express legislative authority. Furthermore, it does
not have the status or force of law,(70) although, as has been
pointed out,(71) it may acquire vitality and strength over the
years by passing into departmental practice and text books and by
being consistently acted upon in departmental decision-making.
- Report of the Commitee on Ministers' Powers, Cmd. 4060
(1932).
- D. Pearce, Delegated Legislation, p.l
- The Commonwealth v Grunseit (1943) 67 C.L.R. 58 at 82.
- (1988) 84 AL.R. 615 at 633.
- Pearce, op. cit., pp.1-2 (emphasis added).
- See Senate Hansard, Estimates Committee D, 10 October
1989, at p. D247 - 9.
__________________________
69. See (1944) 60 L.Q.R. 125 (Megarry).
70. Bnstol District Council v. Clark (1975) 1 W.L.R. 1443; De Falco
v. Crawley Borough Council (1980) Q.B. 460 at 478, 482; R. v.
Police Complaints Board; Ex parte Madden (1983) X W.L.R.
71. Coleshill & District Investment Co. Ltd v. Minister of
Housing and Local Government (1969) 1 W.L.R. 746 at 765 (per Lord
Wilberforce).
CATEGORIES OF ASSISTANCE
25. The six Categories of DACC are summarised in the following
paragraphs. Detailed information and procedures are provided at
Annexes B-G.
Counter Disaster and Emergency Assistance
26. Category 1. Category 1 DACC (Annex B) is
emergency assistance for a specific task(s) provided by a Local
Commander/Administrator, from within his own resources, in
localised emergency situations when immediate
action is necessary to save human life, alleviate suffering,
prevent extensive loss of animal life or prevent widespread
loss/damage to property.
27. Category 2. Category 2 DACC (Annex C) is
emergency assistance, beyond that provided under Category 1, in a
more extensive or continuing disaster where action is necessary to
save human life or alleviate suffering, prevent extensive loss of
animal life or prevent loss/damage to property, and when
State/Territory resources are inadequate.
28. Category 3. Category 3 DACC (Annex D) is
assistance associated with a civil emergency or disaster recovery,
which is not directly related to the saving of life or
property.
Non-emergency Assistance
29. Category 4. Category 4 DACC (Annex E) is
non-emergency assistance provided to other Government departments
or authorities, to the States or Territories, Local Government or
other authorities or organisations, commercial enterprises,
non-profit organisations, or individuals or bodies in the general
community.
30. Category 5. Category 5 DACC (Annex F) is
non-emergency assistance of a minor nature excluding flying tasks,
provided to local organisations and which is within the capacity of
a Local Commander/Administrator's resources and authority.
31. Category 6. Category 6 DACC (Annex G) is
support to civil authorities in the performance of non-emergency
law enforcement related tasks where there is no likelihood that
Defence personnel will be required to use force.
32. In addition to the general DACC tasks identified above,
specific tasks are addressed in detail as follows:
a. Special Aeromedical Evacuation - Category 1, 2 or 4 DACC
(Annex H).
b. Defence Participation in Tattoos, Displays and other Public
Spectacles - Category 4 or 5 DACC (Annex I).
c. Participation by Service Bands in DACC Activities - Category 4
or 5 DACC (Annex J).
15. Aid to the civil power in situations other than
counter-terrorist operations in divided into the following
authorised categories:
a. CATEGORY X Category X is supporting the civil power
and examples of possible tasks are:
(1) CATEGORY X1. Category X1 is special technical
assistance by the provision of:
- explosive ordinance disposal (EOD);
- surveillance (including helicopter or light aircraft
assistance);
- search for hidden materials (including use of Service
personnel, equipment and/or dogs);
- communications and control facilities;
- interpreters;
- intelligence; and
- building damage assessment.
(2) CATEGORY X2.Category X2 is administrative
support to the civil power by the provision of:
- transport;
- accommodation;
- food and cooking;
- medical support;
- equipment; and
- administrative personnel.
b. CATEGORY Y. Category Y is complementing the civil
power and examples of possible tasks (which may require the use of
force and which will be undertaken in company with police) are:
(1) cordon;
(2) area and/or building search (including searches for criminal
suspects using Service personnel, equipment and/or dogs);
(3) control of public movement; and
(4) picketing and guarding.
Extract from the WEEKLY HOUSE HANSARD Database
Date: 25 October 1989 Page: 1895
ANSWERS TO QUESTIONS
Australian Defence Force: Assistance to Police Forces
Australian Defence Force: Assistance to Police Forces (Question
No. 2034)
Mr Carlton asked the Minister for Defence, upon notice, on 4
September 1989:
- on how many occasions in the last two years has the Australian
Defence Force (ADF) been requested by State, Territory or Federal
police forces to provide technical or other assistance to any of
those forces.
- Have any of the requests referred to in part (1) been met with
assistance; if so, (a) how many and (b) what are the details of the
assistance in each case.
- Have any complaints from the public arisen as a result of ADF
assistance to police forces; if so, (a) what are the details of the
complaints and (b) what action has been taken to investigate
them.
- Has any administrative or legal action been taken against
either the ADF or a police forces where the ADF has provided
assistance to a police force; if so, what are the details.
Mr Beazley-The answer to the Honourable
Member's question is as follows:
- Since January 1988, the Australian Defence Force (ADF) has been
requested to provide assistance to State, Territory and Federal
police forces on 1521 occasions.
- In response to these requests, assistance was provided on 1518
occasions. Due to the very large number of tasks that eventuated,
it would not be practical to provide details of the assistance in
each case. A summary of the origin of the requests and the source
of the assistance provided is shown in tabular form attached. The
following summaries can be made:
- Only three requests for assistance were refused.
- 56% of all the requests dealt with the disposal of Improvised
Explosive Devices/Explosive Ordinance Devices (IED/EOD).
- Placed in order of the number of requests received, the
remainder can be grouped into the following categories:
(i) Use of Army weapons ranges,
(ii) Use of Army facilities such as classrooms and obstacle
course,
(iii) Conduct of training courses and lectures,
(iv) Provision of accommodation,
(v) Personnel for minor operations, and
(vi) Repair of weapons and equipment.
- Navy were not requested on any occasion to provide
assistance.
- of the 23 requests received by the RAAF, 22 involved the
provision of one or more aircraft.
- I am advised that there is no record of any complaint received
from the public arising from ADF assistance to police forces.
- No administrative or legal action has been taken against the
ADF or a police force where ADF assistance was provided to a police
force.
Industrial disturbances, lock-outs and strikes
30J. (1) If at any time the Governor-General is of opinion that
there exists in Australia a serious industrial disturbance
prejudicing or threatening trade or commerce with other countries
or among the States, he may make a Proclamation to that effect,
which Proclamation shall be and remain in operation for the
purposes of this section until it is revoked.
(2) Any person who, during the operation of such Proclamation,
takes part in or continues, or incites to, urges, aids or
encourages the taking part in, or continuance of, a lock-out or
strike:
- in relation to employment in or in connexion with the transport
of goods or the conveyance of passengers in trade or commerce with
other countries of among the States; or
- in relation to employment in, or in connexion with, the
provision of any public service by the Commonwealth or by any
Department or public authority under the Commonwealth;
shall be guilty of an offence, and shall be liable on conviction
to imprisonment for any period not exceeding one year.
(3) For the purposes of this section:
'employee' includes any person whose usual
occupation is as an employee;
'employer' includes any person whose usual
occupation is as an employer;
'lock-out' includes the closing of a place or part
of a place of employment, if the closing is unreasonable, and the
total or partial refusal of employers, acting in combination, to
give work, if the refusal is unreasonable, or the total or partial
suspension of work by an employer, if the suspension is
unreasonable, with a view to compel his employees, or to aid
another employer in compelling his employees, to accept any term or
condition of employment;
'strike' includes the total or partial cessation
of work by employees, acting in combination, if the cessation is
unreasonable, as a means of enforcing compliance with demands made
by them or by other employees on employers, and the total or
partial refusal of employees, acting in combination, to accept
work, if the refusal is unreasonable, and also includes job
control.
Obstructing or hindering the Performance of services
30K. Whoever, by violence to the person or
property of another person, or by spoken or written threat or
intimidation of any kind to whomsoever directed, or, without
reasonable cause or excuse, by boycott or threat of boycott of
person or property:
- obstructs or hinders the provision of any public service by the
Commonwealth or by any Department or public authority under the
Commonwealth;
- compels or induces any person employed in or in connexion with
the provision of any public service by the Commonwealth or by any
Department or public authority under the Commonwealth to surrender
or depart from his employment;
- prevents any person from offering or accepting employment in or
in connexion with the provision of any public service by the
Commonwealth or by any Department or public authority under the
Commonwealth:
- obstructs or hinders the transport of goods or the conveyance
of passengers in trade or commerce with other countries or among
the States:
- compels or induces any person employed in or in connexion with
the transport of goods or the conveyance of passengers in trade or
commerce with other countries or among the States to surrender or
depart from his employment; or
- prevents any person from offering or accepting employment in or
in connexion with the transport of goods or the conveyance of
passengers in trade or commerce with other countries or among the
States:
shall be guilty of an offence.
Penalty: Imprisonment for 1 year.