Call Out the Troops: an examination of the legal basis for Australian Defence Force involvement in 'non-defence' matters


Research Paper 8 1997-98

(update of a Background Paper issued 5 September 1991)

Elizabeth Ward
Law & Bills Digest Group

Contents

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

Preface

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.

Introduction

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.

Legal Origins

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.

Section 119 of the Constitution

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)

Section 51 of the Defence Act

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.

Australian Military Regulations and Air Force Regulations

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.

Commonwealth Acting to Protect its Interests

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.

Defence Instructions (General)

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.

Case Studies

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.

  1. natural disasters
  2. law enforcement activities under Commonwealth Acts
  3. technical assistance of a minor nature to State police forces
  4. general
    • Papua New Guinea call-out 1970-1971
    • Bowral call-out 1978
    • RAAF flights over SW Tasmania 1983
    • deployment of troops at Nurrungar 1989
  5. industrial disputes
    • 1949 coalminers' strike
    • intervention on the waterfront at Bowen 1953
    • Qantas strike 1971
    • use of the RAAF during 1989 airline pilots' dispute

Natural Disasters

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.

Law Enforcement Activities under Commonwealth Acts

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)

Technical Assistance of a Minor Nature to State Police Forces

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.

General

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.

Industrial Disputes

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.

Conclusion on use of defence forces in industrial situations

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)

Troops In Civil Disturbances-Their Rights And Liabilities

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?

Conclusion

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.

Endnotes

  1. 'Army Could Be Used on Waterfront: Hewson', Australian, 21 March 1991.
  2. 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.
  3. (1989) 166 CLR 518.
  4. ibid., p. 562. This case is discussed further under the heading: Troops in Civil Disturbances-Their Rights and Liabilities.
  5. 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.
  6. R. M. Hope, 'Protective Security Review', Parliamentary Paper No. 397/1979, p. 142, quoting Edmund Burke.
  7. 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.

  8. See, for example, Hope, op. cit., para. 10.25.
  9. 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.

  10. 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.
  11. 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.
  12. The AMRs are set out at Appendix B. They are broadly similar to the AFRs.
  13. 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.
  14. 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).
  15. Hope, op. cit., Appendix 8.
  16. 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.
  17. 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.

  18. (1949) 79 CLR 121 at 151.
  19. Australian Communist Party v The Commonwealth, (1951) 83 CLR 1.
  20. ibid., p. 188, quoting Black's American Constitutional Law, 1910, 2nd edn., p. 210.
  21. (1915) 20 CLR 425.
  22. 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.
  23. ibid., pp. 201-2. See also p. 117.
  24. Hope, op. cit., para. 3.16.
  25. 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.

  26. (1987) 17 FCR 1.
  27. P. Bayne, 'Policy guidelines and the law - some intersections', Australian Law Journal, 65 (10) October 1991: 607-610.
  28. op.cit., footnote 25.
  29. (1987) 16 FCR 296 at 300.
  30. Beddie, op. cit., p. 67.
  31. Bayne, op. cit.
  32. Windeyer, Appendix 9 to Hope, op. cit., pp. 280-281.
  33. Hope, op. cit., para. 10.32 ff.
  34. Victoria v The Commonwealth (1975) 134 CLR 338 at 397.
  35. (1988) 166 CLR 79.
  36. ibid., at 94.
  37. 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.

  38. Parliamentary Question No 2034, House of Representatives Hansard, 25 October 1989, p. 1895.
  39. See Appendix E.
  40. Beddie and Moss, op. cit., p. 59.
  41. op. cit., p. 55.
  42. 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).
  43. Blackshield, op. cit.
  44. House of Representatives Hansard, 23 February 1978, p. 159.
  45. See, for example, Blackshield, op. cit., at p. 7.
  46. 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.
  47. 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.
  48. 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.
  49. See Hansard, Senate Estimates Committee E, 12 May 1983, pp. 140-5 and 154 ff.
  50. ibid., p. 154.
  51. Joint Statement By the Attorney-General and the Minister for Defence, 'Flights Over South-West Tasmania', tabled in the Senate 21 April 1983.
  52. Senate Estimates Committee E, 12 May 1983, op. cit., p. 154.
  53. 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.
  54. 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.
  55. Senate Hansard, 21 April 1983, p. 36.
  56. 'Nurrungar clashes spark security review', Australian, 2 October 1989.
  57. ibid.
  58. Proceedings at Senate Estimates Committee D, 10 October 1989, p. D256-7.
  59. Senate Hansard, 25 October 1989, p. 2195.
  60. L.F. Crisp, Ben Chifley, Longmans, Croydon, Vic., 1961, p. 362.
  61. Beddie and Moss, op. cit., p. 42.
  62. Beddie and Moss, op. cit., p. 46.
  63. Beddie and Moss, op. cit., p. 46, quoting Rowell, Vice Chief of the General Staff.
  64. The following analysis of the situation at Bowen relies on the work of Beddie and Moss, op. cit., p. 48.
  65. See the discussion above relating to the 1949 coalminers' dispute.
  66. '2,200 People Flying Home in Hercules', Canberra Times, 2 March 1981.
  67. 'RAAF Called In', Canberra Times, 1 March 1981.
  68. See Canberra Times report, 1 March 1981.
  69. See answer to Parliamentary Question No.1358, Senate Hansard, 9 May 1990.
  70. Parliamentary Question No. 2071, House of Representatives Hansard, 22 December 1989, p. 3579.
  71. CDF Operational Instruction 8/89, 23 August 1989.
  72. . Senate Estimates Committee D, 10 October 1989, p. D247.
  73. 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.'
  74. ibid. at p. D252.
  75. 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.
  76. Hope, op. cit., p. 152.
  77. Lee, op. cit., p. 208.
  78. 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.

  79. These sections are set out at Appendix G.
  80. (1988) 166 CLR 79.
  81. ibid., at 92-3.
  82. Victoria v the Commonwealth (1975) 134 CLR 338.
  83. ibid., pp. 396-8.
  84. Mason J. in the AAP case, ibid., p. 397.
  85. Blackshield, op. cit., p. 7.
  86. Johnston, op. cit., p. 79.
  87. 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.
  88. Beddie and Moss, op. cit., p. 79.
  89. ibid., p. 78.
  90. Blackshield, op. cit., p. 10.
  91. 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.
  92. Peter Brett and Louis Waller, Brett and Waller's Criminal Law: Text and Cases, Butterworths, Sydney, 1983, p. 654.
  93. 'Legal and constitutional problems of protective security arrangements in Australia', Australian Law Journal, 52, July 1978, 296 at 299.
  94. (1988-1989) 166 CLR 518.
  95. See discussion at p. 576 of the case.
  96. See para.11 of the DI(G)s.

Appendix A: Situations in which the Commonwealth has been approached by the States for defence force aid to the civil power

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 -

  1. In 1916, the Tasmanian Government requested the assistance of troops from the Commonwealth to put down expected disturbances on the occasion of a referendum.
  2. 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.
  3. 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'.
  4. 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'.
  5. 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.

________________________________

  1. See 'Protection of Australian States against domestic violence (s. 119 of the Constitution)' 52 A LJ. 350 at 351.
  2. 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.

Appendix B: Australian Military Regulations, Part V Duties in aid of the Civil Power During Domestic Violence

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 -

  1. 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);
  2. 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);
  3. in relation to the State of Victoria a justice of the peace (Unlawful Assemblies and Processions Act 1915, section 6);
  4. 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);
  5. 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);
  6. in relation to the State of Tasmania, the sheriff or a justice of the peace (Criminal Code, section 76(1);
  7. 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
  8. 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:-

  1. 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!'
  2. 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!"
  3. 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!'
  4. 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!'
  5. 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!'
  6. 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!'
  7. In the Northern Territory.- As in the State of South Australia; and
  8. 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.

Appendix C: An examination of the legal status of the Defence Instructions (General)

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:

  1. 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)

  2. 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.

  3. 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.
  4. 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:

  1. 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)).
  2. 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.
  3. 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.
  4. 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
  5. 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.

  6. 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'.

_________________________________

  1. 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.

  2. Report of the Commitee on Ministers' Powers, Cmd. 4060 (1932).
  3. D. Pearce, Delegated Legislation, p.l
  4. The Commonwealth v Grunseit (1943) 67 C.L.R. 58 at 82.
  5. (1988) 84 AL.R. 615 at 633.
  6. Pearce, op. cit., pp.1-2 (emphasis added).
  7. 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).

    Appendix D: Categories of assistance to the civil community (Instruction 8 Assistance to the Civil Community

    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).

    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)

    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:

    1. explosive ordinance disposal (EOD);
    2. surveillance (including helicopter or light aircraft assistance);
    3. search for hidden materials (including use of Service personnel, equipment and/or dogs);
    4. communications and control facilities;
    5. interpreters;
    6. intelligence; and
    7. building damage assessment.

    (2) CATEGORY X2.Category X2 is administrative support to the civil power by the provision of:

    1. transport;
    2. accommodation;
    3. food and cooking;
    4. medical support;
    5. equipment; and
    6. 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.

    Appendix F: ADF assistance to State police forces

    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:

    1. 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.
    2. 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.
    3. 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.
    4. 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:

    1. Since January 1988, the Australian Defence Force (ADF) has been requested to provide assistance to State, Territory and Federal police forces on 1521 occasions.
    2. 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:
      1. Only three requests for assistance were refused.
      2. 56% of all the requests dealt with the disposal of Improvised Explosive Devices/Explosive Ordinance Devices (IED/EOD).
      3. 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.

      4. Navy were not requested on any occasion to provide assistance.
      5. of the 23 requests received by the RAAF, 22 involved the provision of one or more aircraft.
    3. I am advised that there is no record of any complaint received from the public arising from ADF assistance to police forces.
    4. No administrative or legal action has been taken against the ADF or a police force where ADF assistance was provided to a police force.

    Appendix G: Sections 30J and 30K Crimes Act 1914

    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:

    1. 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
    2. 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:

    1. obstructs or hinders the provision of any public service by the Commonwealth or by any Department or public authority under the Commonwealth;
    2. 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;
    3. 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:
    4. obstructs or hinders the transport of goods or the conveyance of passengers in trade or commerce with other countries or among the States:
    5. 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
    6. 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.

 

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