Bills Digest No. 13  2000-01 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000


Numerical Index | Alphabetical Index

WARNING:
This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.

CONTENTS

Passage History
Purpose
Background
Main Provisions
Concluding Comments
Endnotes
Contact Officer & Copyright Details

Passage History

Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000

Date Introduced: 28 June 2000

House: House of Representatives

Portfolio: Defence

Commencement: Royal Assent.

Purpose

To establish a regime for the use of Defence Forces to protect the States and self-governing Territories and Commonwealth interests from 'domestic violence', expanding upon a more limited existing regime in the Defence Act 1903.

Background

Hilton Bombing

On 13 February 1978 a bomb exploded at the Sydney Hilton Hotel. The explosion occurred in the early morning prior to a Commonwealth Heads of Government Regional Meeting. Shortly afterwards the New South Wales Police requested Army to assist and the explosive ordinance disposal team arrived within 2 hours. By mid-morning the Prime Minister and the New South Wales Premier had considered Army assistance and by mid-afternoon an emergency Cabinet meeting agreed to provide troops to help secure the removal of the meeting to Bowral. Late on the same day the Governor General issued an Order calling out the Defence Force (ADF) for the purposes of 'safeguarding the national and international interests of the Commonwealth of Australia', 'giving effect to the obligations of the Commonwealth of Australia in relation to the protection of internationally protected persons'(1) and for 'other purposes related to those matters'.(2)

In March 1978 the Commonwealth Government appointed Justice Hope to conduct a review of protective security. One of the terms of reference was 'the relationship between Defence Force and civilian authorities in the matter of civilian security'.(3) In May 1978 the Attorney-General sought an opinion from Sir Victor Windeyer on the legal powers and obligations of ADF when called out and whether any changes were needed in the relevant law. The Review of Protective Security was tabled in May 1979 along with the Attorney-General's request and the response from Sir Victor Windeyer.(4)

Aid to the Civil Power - 'Call Out the Troops'

Generally, there are two types of civil assistance that ADF may provide:

  1. Defence Assistance to the Civil Community (DACC). This is the provision of Defence Force personnel, equipment, facilities or capabilities to perform emergency tasks which are primarily the responsibility of civil authorities or organisations, and for which the civilian community lacks the necessary equipment or resources; and
  2. Defence Aid to the Civil Power (DACP). This is the provision of Defence Force aid to civil law authorities in the performance of law enforcement tasks.(5)

In common parlance, to use ADF in aid of the civil power is to 'call out the troops'.(6)

Legal Bases

The call out in 1978 was the first time that armed military personnel had been used for domestic civilian security. While the States had made requests on a number of occasions, on each occasion the Commonwealth refused.(7) The closest precedent had occurred over fifty years before.(8) Since then, there have been few precedents.(9)

Commonwealth Acting to Protect a State

It is clear that the Commonwealth may, at the request of a State, call out the ADF to protect the State against domestic violence.

Section 119

Section 119 of the Constitution provides that the Commonwealth 'shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence'. While this language suggests that the Commonwealth is obliged to respond to requests by the States for assistance, the Commonwealth may have a discretion based on its assessment as to whether or not a state of 'domestic violence' exists.(10)

Section 51 of the Defence Act 1903 reflects this constitutional provision. It allows the Governor General to call out the Permanent Forces, and such Emergency and Reserve Forces as may be necessary, for the protection of a State against domestic violence. However, the power to order the call out is subject to a proviso that the Emergency and Reserve Forces 'shall not be called out or utilized in connexion with an industrial dispute'. Moreover, the call out can only be made on application from the State Government, following a proclamation by the State Governor that domestic violence exists in the State.

Commonwealth Acting to Protect its Interests

Alternatively, the Commonwealth may call out the ADF to protect its own interests.

While there is no specific constitutional or legislative provision dealing with the issue, it is widely accepted that the Commonwealth can use the ADF to enforce its laws and to protect its interests and property and thereby suppress domestic violence in a State. Thus, while it is acknowledged that 'it is not within the province of the Commonwealth to protect a State against domestic violence [in the absence of a request]',(11) it has been said that where domestic violence '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'.(12)

It also seems to be accepted that the Commonwealth may use the ADF 'in connexion with an industrial dispute'.(13) Arguably, it may be able to use the Emergency and Reserve Forces where the intervention is necessary for the protection of Commonwealth interests.(14)

Sections 51 and 61

Section 51 of the Constitution provides that the Commonwealth may make laws with respect to 'the control of forces to execute and maintain the laws of the Commonwealth' (section 51(vi)), 'external affairs' (section 51(xxix)) or 'matters incidental to the execution of any power vested by this Constitution in Parliament' (section 51(xxxix)).

Section 61 provides that executive power is 'exercisable by the Governor-General' and 'extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth'. It also includes the Commonwealth's prerogatives,(15) one of which relates to the defence of the realm,(16) and a range of (largely unexplored) powers derived from the 'character and status of the Commonwealth as a national government'.(17)

The legal basis for the call out in 1978 was the executive power in section 61. But the precise aspect of the power appears to be unclear. In a legal opinion given in 1979, Sir Victor Windeyer stated that '[t]he ultimate constitutional authority...was the power and the duty of the Commonwealth Government to protect the national interest and to uphold the laws of the Commonwealth'.(18) But he did not trace the direct source of the power. In fact he stated that the power 'arises fundamentally, I think, because the Constitution created a sovereign body politic with the attributes that are inherent in such a body. The Commonwealth of Australia is not only a federation of States. It is a nation.'(19)

Concerns

Arguably, the Commonwealth would often be empowered under this alternative avenue. As one commentator has suggested, 'the functions of the Commonwealth Government are so many and its agencies and instrumentalities so far reaching, that internal disorder on any large scale could hardly leave them unaffected'.(20) More recently another commentator has suggested that 'any social controversy can nowadays be injected with 'national security' implications' and that, as a result, the Commonwealth can circumvent s 119 to intervene in State affairs 'whenever the Commonwealth chooses'.(21)

More pressing perhaps is the issue of domestic violence motivated by or directed at issues or people of international concern. The threat of international terrorism is more significant than the threat of civil unrest in Australia.(22) Such violence would undoubtedly affect the Commonwealth in its position as Australia's representative in the international community. As indicated, one of the stated purposes of the call out in 1978 was the protection of the 'national and international interests' of the Commonwealth. The common view at the time was that the call out was not made under s 119 of the Constitution but was 'initiated by the Commonwealth to protect Commonwealth interests'.(23) The Attorney-General's opinion was that the Commonwealth had intervened 'not to protect the State but to protect itself'.(24)

Procedure

Commonwealth Acting to Protect a State

The procedure for a call out to protect a State has, to some degree, been dealt with in regulations. In addition to the constitutional and legislative provisions above, the Defence Instructions and Australian Military Regulations, under the Defence Act 1903, and the Air Force Regulations, under the Air Force Act 1923, impose a number of requirements, including a requirement that personnel always be accompanied by a magistrate.(25)

However, as indicated, the mechanism has never been used and it has been criticised. For example, in 1979 the Attorney-General considered that the regulations were directed to 'a riot situation of a kind more to be expected in 18th Century England than in Australia in the present day' and might not address a situation involving 'acts of violence by individuals or small groups of persons, possibly armed with highly effective weapons'.(26) Moreover, Justice Hope noted a number of deficiencies in relation to the call out procedure, including the range of powers and duties of military personnel, their awareness and training in respect of their roles and responsibilities and the level of parliamentary scrutiny and judicial review of the procedure and the conduct of military personnel (see below).

Commonwealth Acting to Protect its Interests

By contrast, there is no legislative regulation of a call out to protect the interests of the Commonwealth.(27) Thus, the call out in 1978 could have been made without a request from the State Government and without a meeting of the Executive Council.(28) The ADF might have been used without any call out, but by the Minister acting in conjunction with the Chief of the Defence Force (CDF).(29)

The possibility of a purely executive and unilateral intervention raises a number of additional concerns including constitutional validity, uncertainty and excessiveness. All of these concerns were levelled at the call out in 1978. At the time one commentator noted that the Order by the Governor-General 'set no limit on the kind or number of armed forces that might be called out; nor on the length of time for which those forces might be deployed; nor on the degree of intervention in civilian life they might undertake'.(30)

Commentary and Reform

Sir Victor Windeyer

In his opinion, Sir Victor Windeyer made a number of recommendations for changes to the legislation and regulations relating to the call out procedure. He recommended that the penalty for obstructing ADF personnel should be 'adequate as a deterrent',(31) that the restriction on the use of forces 'in connexion with an industrial dispute' should be relaxed,(32) and that the requirement for a magistrate to accompany troops be abolished.(33) He recommended that the regulations apply seamlessly to the protection of the States and Commonwealth interests. In addition, he recommended that the language and operation of the regulations be clarified to give greater guidance on the roles and obligations of military personnel and how they are to cooperate with civilian authorities, noting that:

[I]t is important to remember that the Regulations and Instructions are not addressed to lawyers. They are there for the guidance of officers of the Defence Force in the discharge of a duty that is responsible and serious and may be distasteful. Regulations governing it should be clearly, briefly and simply stated.(34)

Protective Security Review

In the Protective Security Review, Justice Hope made a number of recommendations to improve the 'call out' provisions, including a simplification of the regime in the Defence Act 1903 and an enlargement of it to incorporate the powers in sections 51 and 61 of the Constitution and to clarify and incorporate safeguards into the call out procedure.

Justice Hope seemed to suggest that the Governor-General should not merely 'call out' the troops in readiness for their deployment but should be able to personally authorise their use.(35) Either way, the Governor-General should only authorise the use of troops where:

  • the Commissioner of a police force of the Commonwealth or of a Territory other than a self-governing Territory requests assistance
  • the Government of a State or a self-governing Territory requests the Prime Minister for assistance,(36) or
  • the Prime Minister is of the opinion that armed members of the ADF are needed to protect Commonwealth interests in a State or Territory.(37)

He also recommended that the regulations should continue the existing requirement for a formal authorisation or written requisition from a Minister, police force, etc.(38)

In terms of powers, Justice Hope recommended that the Defence Act 1903 should be amended 'to make members of the ADF ordered out in civilian security operations special Commonwealth police officers, and to give them the powers and obligations of police officers, but consistently with their rights and duties as members of the [ADF]'.(39) (He also recommended that the regulations should prescribe a caution to be used by ADF personnel.)(40) Equally, the penalties for obstructing the ADF should be equated with those for obstructing Federal Police.(41) While he noted arguments for and against a defence based on a reasonable belief in the lawfulness of orders, he did not express an opinion.(42)

In terms of safeguards, Justice Hope recommended that Parliament should not have a supervisory role.(43) However, he did suggest a requirement to recall and notify Parliament if more than fifty armed servicemen are used,(44) if ADF are used for over 15 days in any three months(45) or for more than 10 days in a continuous period.(46) He recommended that the Minister report to Parliament after the use has ceased.(47) Otherwise, the most satisfactory safeguard would be 'a full recognition by the members of the [ADF] of the nature of the role which they perform when acting in civilian security situations, their obligations and responsibilities, and of the limits of their powers...and the use of minimum force'.(48)

Other Perspectives

The Protective Security Review was not without its critics. In 1982 a number of potential flaws were identified in the language and recommendations of the report. One of the key concerns was the possibility that the Governor-General acting on the advice of the Prime Minister rather than the Executive Council could issue a call out order. On the one hand, there was a need for collective responsibility in Cabinet. On the other hand was the need for expedience in the case of surprise attacks. On balance, the preference seemed to be for the Governor General to be advised by the Prime Minister and the Minister for Defence with confirmation by the Executive Council within 24 hours.(49)

Since that time, there has been very little commentary in the public domain.(50)

Powers

Effect of a Call Out

In general, ADF personnel who are called out do not acquire any special powers or responsibilities and remain subject to the law and jurisdiction of the forum. A call out 'is not like a declaration of martial law' in which the military acquires complete control. On the contrary, 'the civil power remains paramount throughout and the civil law supreme':

Members of the Defence Force are called out to be in readiness to uphold the law. They remain subject to it, and liable to its penalties, except insofar as in some circumstances any one of them may be exculpated by his orders.(51)

A call out, without more, does not impose active duties to be immediately performed. It is simply 'a warning order to those parts of the ADF to which it was communicated to be ready for duty for the purpose specified'.(52) In order to be used, there must be a 'requisition of civil authority', that is a written authorisation from the Minister, Chief of Police, etc.

Once called out, military personnel stand in the same position as ordinary citizens. Thus, while they are able to detain offenders using reasonable force, they have no power to question, stop and search persons nor do they have powers of arrest. Moreover, they are subject to investigation in the ordinary court system.(53) At the same time, personnel may be obliged, in accordance with orders, to place themselves in danger and may be able to claim a defence against prosecution based on a reasonable belief that those orders were lawful.(54)

Police Powers

Under common law, police do not have any general powers of entry, search and seizure and do not have any power to detain a person prior to arrest. Some of these powers may be exercised in limited circumstances, but in practice they are largely conferred by statute.

Entry, Search and Seizure

Traditionally, the common law has sought to prescribe narrow powers of entry, search and seizure. Originally, search warrants were permitted for stolen goods, had to be issued by judges and had to describe what was to be searched and seized and/or the related offence. Recognising the need to balance individual privacy with public interest in law and order, these powers have been extended to allow police officers to seize other property they discover by chance which they reasonably believe reveal other offences.(55) Otherwise the common law 'was, and remains, hostile to any greater degree of generality'.(56)

These powers have been extended by statute. First, there have been piecemeal extensions to cover particular classes of offences. Second, there have been extensions which largely codify the common law rules relating to search warrants. Third, there have been measures which provide for 'general warrants' which may be unlimited with respect to place, time or the offences to which they relate or, while partially limited, may be issued not by a judicial officer but by an administrative officer.(57) 'General warrants' have been widely criticised on the basis that they lack certainty(58) and suffer from a lack of independent scrutiny:

There is no requirement...that before the powers are exercised an independent judicial mind should consider the circumstances of the particular case, weighing the public interest as against that of the individual...Nor is there any effective way in which any of the powers once exercised can be the subject of ex post facto judicial review(59)

In addition, the common law permits entry, search and seizure in the absence of a warrant, pursuant to making an arrest. As noted above, these powers have been extended by statute. Various Acts provide for the exercise of these powers based on 'reasonable suspicion'. Typically they deal with emergencies or dangerous situations. As with 'general warrants' 'warrantless searches' have been criticised for the absence of independent scrutiny:

[A] warrantless power of search and seizure represents a relatively discretionary mode of authorisation, legal control and review of which are substantially diminished(60)

Thus, the Australian Law Reform Commission recommended that all search and seizures should be unlawful:

Unless made pursuant either to a court order or warrant, or, if made without a warrant ... in response to circumstance of such seriousness and urgency as to require and justify immediate action without the authority of such an order or warrant [or] pursuant to specifically designated statutory authority.(61)

Clearly, the general position is that search warrants require concrete information.(62) Moreover in issuing a search warrant a judge must balance at arms length the competing interests in light of this information. He or she must 'stand between the police and the citizen' and give 'real attention to the question whether the information proffered by the police does justify the intrusion they desire to make into the privacy of the citizen'.(63)

Move-On, Detention and Arrest

Traditionally, the common law does not allow a police officer to stop or detain a person or direct them in their movements unless they are detained for a specific offence (ie arrested). While there have been statutory extensions, the prohibition on detention 'is only exceptionally modified'.(64) Ordinarily, a warrant is required although a person may be arrested for certain offences on reasonable suspicion and without a warrant.(65)

The statutory framework largely maintains the status quo. However, in some jurisdictions, there is now a statutory framework, which extends police powers. The Crimes Legislation Amendment (Police and Public Safety) Act 1998 (NSW) gives the police wide ranging search and 'move-on' powers.(66) Officers may request a person in a public place to submit to a search where they reasonably believe that he or she has a dangerous implement.(67) Officers may direct a person in a public place to move along if they reasonably believe that the person is obstructing, harassing or intimidating or otherwise causing fear in another person.(68) It is an offence not to comply with a repeated request or direction.

Sydney Olympics

One of the motivations for the Bill would seem to be the Sydney Olympics. The Government has indicated that the impetus for the Bill is the Hilton Bombing and has suggested that the Bill should be viewed 'in the wider context of our counter terrorist preparedness'.(69) By contrast, the Opposition has clearly identified as a catalyst 'the Olympic Games and the preparedness that we need to have for the security of the people of Sydney and those people who are coming to Sydney as athletes, officials and guests'.(70)

There are at least two connections between the Bill and the Sydney Olympics. First, it is clear that the ADF will have a significant security role to play during the Olympics which may draw on the powers in the Bill. Second, it seems that extraordinary legislative measures have been taken in New South Wales to support Olympic security which may provide some context for consideration of the measures proposed in the Bill.

Aid to the Civil Power

The connection between the Olympic Games and the ADF is growing. For example, in 1998 the Australian National Audit Office (ANAO) issued a report on the security preparations of Commonwealth agencies for the Olympics. But only passing reference was given to the ADF. The ANAO did not seem to consider that the ADF would have a major role, noting, perhaps inaccurately, that the defence forces 'can only ever act in support of police and then only when it is beyond the capacity of police to resolve the incident'.(71) By 1999 commentators were examining the role of defence forces in previous Olympics. For example, a former Australian Army Commander noted that for the Seoul Olympics there were in excess of 25,000 military and police personnel deployed for security, but observed that 'we haven't got 25,000 in our army, the total army - cooks, everything'.(72)

In March 2000 the Minister for Defence announced 'Operation Gold' - a major commitment of ADF to support security at the Olympics.(73) It would engage the ADF in a number of tasks including searches of venues and vehicles, bomb searches and disposal and clearance diving. It would involve around 4000 personnel, including units from the Special Air Services Regiment and the reserve 1st Commando Company, most of which would be located 15 km from Stadium Australia at Holsworthy Barracks.(74) The total cost of the operation was estimated to be around $71m.(75) While the announcement stated that New South Wales had primary responsibility, the Commonwealth had 'broad security responsibility for gathering and disseminating security and criminal intelligence, border control, aviation security, counter-terrorism, dignitary protection and enforcement of Federal law'.(76) At least two of these tasks are compatible with aid to the civil power.

Thus, in contrast to the scepticism above, the (Commonwealth) Commander of Special Forces issued 'a warning to anybody who wants to interfere with the Olympic Games'. He stated categorically 'we will interfere with them ... we are prepared to meet any challenge'.(77)

Measures in New South Wales

The legislative regime in New South Wales is noteworthy. Legislation passed in 1999 and 2000 effectively criminalises unauthorised public assemblies outside Olympic venues and the Sydney harbour foreshore and creates special security licences for security officers.(78)

The Homebush Bay Operations Act 1999 (NSW) (the NSW Act), together with the Homebush Bay Operations Regulations 1999, permits the Olympic Co-ordination Authority to perform a wide range of law and order functions.

Under the NSW Act, the Authority may exercise the functions of a council and may control use of roads and parking. The regulations may provide for the control or prohibition of entry of persons, searching of bags, containers and articles and their contents, the securing of decency and order and the removal of persons.(79) The Authority may appoint enforcement officers who may carry out any specified functions of the Authority.(80) It is an offence to impersonate or obstruct an enforcement officer.(81)

Under the NSW Act and Regulations, an authorised officer may: erect barriers and control the movement of a person or any vehicle,(82) move unattended vehicles,(83) control or prohibit the entry of persons,(84) or categories of persons,(85) remove a person using reasonable force,(86) demand names and addresses and proof of identity,(87) and confiscate property.(88)

Together with the Police and Public Safety legislation, these measures create a fairly generous regime for dealing with public order at the Sydney Olympics.

Precedent

Arguably, there is a trend towards greater use of armed forces in law enforcement, particularly in relation to policing of the law of the sea. For example, the Royal Australian Navy (RAN) currently assists the Australian Federal Police, Australian Customs Service, Department of Immigration and Multicultural Affairs and other agencies in relation to offences under crimes at sea, customs and immigration laws. In reality, the RAN infrequently exercises 'police powers'. But it has been suggested that military and police roles are converging and the scope for use of military in law enforcement is increasing.(89)

Main Provisions

Schedule 1 amends the Defence Act 1903 (the Act).

Call Out

Item 1 requires members of the Regular Army Emergency Reserve to provide continuous full time service when called out under the new provisions relating to domestic violence in a State. Item 2 achieves the same result for members of the Australian Army Reserve.

Item 3 replaces the current 'domestic violence' provisions in section 51 of the Act, inserting a new Part IIIAAA - 'Utilisation of Defence Force to protect Commonwealth interests, and States and self-governing Territories against domestic violence'. As its name suggests, the new part expands upon the existing regime to incorporate the Commonwealth acting to protect a State (or self governing Territory) and acting to protect its own interests.

Clause 51A provides for orders relating to the protection of Commonwealth interests, in the absence of any request from a State or Territory. Where the authorising Ministers (the Prime Minister, the Defence Minister and the Attorney-General) are satisfied that:

  • domestic violence is occurring or is likely to occur, and
  • a State or Territory is not, or is unlikely to be, able to protect Commonwealth interests, and
  • the ADF should be called out to do so and should be given certain powers (see below under the heading 'Powers of the ADF'),

the Governor-General may give an order calling out the ADF and giving the appropriate directions to the Chief of the Defence Force (CDF).

The order must state that it is made under proposed section 51A and it must specify the powers to be held by the ADF. It comes into force immediately and ceases within 20 days unless revoked earlier or a new order is made.(90) In making or revoking an order, the Governor-General must act on the advice of the Executive Council. However, in urgent situations he or she may be required to act on the advice of one authorising Minister (proposed section 51A(7)(b)).

Clause 51B provides for orders relating to the protection of States. Where a State Government applies to the Commonwealth for protection against domestic violence that is occurring or is likely to occur and where the authorising Ministers are satisfied that:

  • the State is not, or is unlikely to be, able to protect itself, and
  • the ADF should be called out to do so and should be given certain powers,

the Governor-General may give an order similarly as above.

The Bill preserves the existing proviso relating to protection of States, namely that in all cases, 'the Emergency Forces or the Reserve Forces shall not be called out or utilized in connection with an industrial dispute'.

Item 4 contains provisions relating to the making and revoking of orders. These essentially mirror the provisions above, except that an order made under clause 51B must be revoked if the State Government withdraws its application for protection.

Item 4 also contains clause 51C.

Clause 51C provides for orders relating to the protection of self-governing Territories. These provisions essentially mirror the provisions relating to States.

Clause 51D provides that the CDF must act as directed by the Governor General. For example, in relation to the protection of Commonwealth interests, he or she must act 'in such manner as is reasonable and necessary' for the purpose of protecting the specified Commonwealth interests against the specified domestic violence in the specified State or Territory. Similar provision is made in relation to the protection of States and Territories, except that the CDF is charged with the protection of the State/Territory per se and is not restricted to the protection of any specific interests. The CDF must also comply with directions given by the Minister (clause 51E).

As far as practicable, ADF personnel must cooperate with State/Territory police and must not be utilised for specific tasks unless responding to a written request from a member of the State/Territory police force. However, command over ADF personnel ultimately remains with the CDF and may not be transferred to the State/Territory (clause 51F).(91)

As far as possible, Permanent Forces should be used rather than the Emergency or Reserve Forces. No forces should be used to restrict any lawful protest or dissent (clause 51G).

Powers of the ADF

Divisions 2 and 3 describe the powers that may be exercised by ADF. Decisions authorising or making an order may choose powers in one and/or the other. Division 4 describes the restrictions common to the exercise of powers in both Divisions 2 and 3.

Recapturing Buildings, Etc.

Division 2 deals with recapture of buildings, freeing hostages, etc. It empowers ADF personnel, under command of the CDF, to:

  • recapture premises, transport or other things
  • free hostages and evacuate persons
  • exercise powers such as search, seizure and detention, and
  • do anything incidental to the fulfilment of these tasks.

The detention power may be exercised where an ADF member finds 'in the subject premises, etc' a person whom he or she 'believes on reasonable grounds' has committed an offence. (Thus, persons may only be detained if they are found within the 'premises, transport or other thing' which the ADF is tasked to recapture.) It may only be exercised for the purpose of placing the person in police custody 'at the earliest practicable time'.

ADF members may not exercise any of these powers unless the recapture has been authorised in writing by the authorising Ministers (or by any other Minister authorised in writing by them). But they may exercise these powers where they reasonably believe that there is insufficient time to obtain authorisation because there is a 'sudden and extraordinary emergency'. Thus, ADF members may have a considerable discretion where they reasonably believe that a 'sudden and extraordinary emergency' exists.

General Security Areas

Division 3 empowers the authorising Ministers to declare that a specified area is a 'general security area'. The declaration must be in writing and a descriptive statement must be broadcasted on a television or radio station within the area and published in the Gazette. However, a failure to comply with the publication requirements will not make the declaration ineffective (clause 51K(3)).

Clause 51L deals with powers of entry, search and seizure. Authorisation may be given where the CDF, or his or her delegate, reasonably believes that there is a 'dangerous thing' on any premises within the area and that it is necessary and urgent that it be deal with. The authorisation must state the relevant particulars, including the details of the member in charge, the general nature of the powers involved and the duration (less than 24 hours). Where relevant, the member in charge must identify himself or herself to an occupier, give a copy of the authorisation to the occupier and show a copy to any person who is searched (clause 51M). The occupier may be present during searches (clause 51N).

Clause 51O deals with detention, search and seizure in relation to means of transport.

Clause 51P deals with search and seizure in relation to persons.

Within a general security area, the authorising Ministers may declare a designated area (clause 51Q).(92) Within this area, ADF personnel may erect barriers and control the movement of a person or of any means of transport (clause 51R). The powers to control movement may be exercised unconditionally or on condition that a person agrees to a search of themselves or their means of transport (clause 51R). In giving directions ADF personnel may enter premises or a means of transport (clause 51R).

Clause 51S requires that ADF personnel be in uniform with their surname and identifying numbers and letters attached. Failure to do so is an offence subject to 30 penalty units. (One penalty unit is currently $110.)(93)

Restrictions on the Exercise of Powers

Division 4 describes the manner in which powers are to be exercised. In exercising any of the powers in the Bill, ADF personnel may use reasonable and necessary force, but must not do anything likely to cause serious injury or death unless they reasonably believe that it is necessary to protect a person (including themselves) from serious injury or death or to apprehend a person who has been called on to surrender and is attempting to escape detention (clause 51T).

Where persons are detained, they must be informed of the offence when they are detained although they need only be informed 'of the substance of the offence' and personnel need not use language of 'a precise and technical nature'. No information need be given where the person 'should, in the circumstances, know the substance of the offence' (clause 51U).

Where a dangerous thing is seized, the ADF member may take reasonable and necessary action to neutralise it. If it is seized from a person, he or she must, 'if it is practicable' issue a receipt. If he or she reasonably believes it has been used in an offence, he or she must give to it to a police officer 'at the earliest practicable time' and may detain the person. Otherwise, he or she should return the thing ('if it is practicable') (clause 51V).

If an ADF member fails to comply with any of the obligations in Division 2, 3 or 4 his or her action is deemed not to have been entitled to exercise the power (clause 51W).

Miscellaneous

Where an order or successive orders cease, copies of the order(s), any declarations made under the order(94) and a report detailing the use made of the ADF must be published within 7 days. Publication may be by tabling in Parliament, publishing on the Department of Defence website, or by being 'otherwise publicly released'. If the documents are not initially tabled in Parliament, they must be tabled within 3 sitting days following the expiration of the 7 day publication period (clause 51X).

Clause 51Y provides that the new Part IIIAAA inserted by the Bill 'does not affect any utilisation of the [ADF] that would be permitted or required, or any powers that the [ADF] would have, if this Part were disregarded'. Thus, it seems to preserve the power to use ADF under the executive power in section 61 of the Constitution.

Schedule 2 amends the Air Force Act 1923 and the Naval Defence Act 1910 to reflect the wider range of orders that may be made under proposed Part IIIAAA.

Concluding Comments

The Bill seeks to increase the scope and regulation of defence aid to the civil power. It expands the current regime to incorporate a call out to protect self-governing Territories and Commonwealth interests. It defines the call out procedures and the powers of military personnel in great detail compared to the existing regime. At the same time it permits greater flexibility than would otherwise be apparent under the existing regime. It will ultimately replace the imprecise framework of legislation and regulations with a single source of legislative authority(95) for future defence aid to the civil power while allowing the mechanism to respond appropriately to any exigencies and emergencies.

Codification

Arguably, the Bill only codifies the call out procedure and the exercise of 'police powers'. As indicated, the Constitution seems to allow a wide range of laws permitting the use of armed forces in aid of the civil power. There is width in section 119 and sections 51 and 61 and there are few clear restrictions on the call out procedure or the role of the military. Where the Defence Act 1903, Regulations and Instructions are general, the Bill is precise.

At the same time, it does enlarge the existing regime. As indicated, the Defence Act 1903 currently allows the Commonwealth to intervene to protect the interests of States. It may only do so where a Governor declares that 'domestic violence' exists. The Bill would allow the Commonwealth to intervene to protect its own interests. It would permit intervention where domestic violence is 'likely to occur'. On a practical level, the Regulations and Instructions currently contain only general guidance as to the exercise of 'police' powers. The Bill explicitly provides for powers of search, seizure and detention. It also authorises use of reasonable force and, where necessary, deadly force in the exercise of those powers.

Accountability

In a real sense, the Bill may concentrate power in some members of the executive. As indicated above, the Defence Act 1903 currently requires that the Governor-General may only make an order following a proclamation and request by a State Governor. However, in emergencies the Bill would effectively permit intervention solely on the advice of the Prime Minister, the Defence Minister or the Attorney-General. Moreover, on its face, the Bill would permit one of these Ministers to compel the Governor-General to consider their advice even if that advice was in conflict with advice given by the Executive Council.(96)

In particular, there is a weakness in the accountability of the executive to Parliament. As indicated, after a call out has ended, the Minister must table a report in Parliament. However, where there have been successive orders, he or she is not required to table any report until the last of the successive orders ceases to be in force. In effect, successive orders could be issued indefinitely without any parliamentary consultation. There is no requirement to provide a report to the relevant State/Territory Parliament or Government. Nor is there a requirement to recall Parliament if an order is made or to table an order or declaration in Parliament within a specified number of sitting days of making the order.

Hypothetically, the Minister for Defence could call out the ADF indefinitely where he or she considers that there is an urgent situation in which domestic violence 'is likely to occur' from which a State or Territory is unlikely to be able to protect the Commonwealth. He or she does not need to consult with the Prime Minister, the Attorney-General, Cabinet, Commonwealth Parliament, or State/Territory Parliament.

It is difficult to imagine a 'sudden and extraordinary emergency' occurring indefinitely. It is also difficult to imagine the Governor-General permitting this process to run unchecked. However, the call out procedure at least suggests that this scenario may be possible.

There may also be a weakness in terms of community awareness. As indicated, in relation to general security areas, there is a requirement to 'take reasonable steps' to publish statements regarding orders. However, there are no time limits on publication. There is also a requirement that ADF members wear uniforms and identification. However, failure to publish does not invalidate a declaration and the penalty for failure to wear uniform and identification may not be severe ($3 300). Moreover, there are no such requirements in relation to exercise of powers to recapture buildings, etc.

There may be a weakness in the accountability of the ADF to States and Territories. As indicated, the CDF must ensure 'as far as reasonably practicable' that the ADF cooperates with the State/Territory police force and is not used for tasks except on request. However, the CDF is prevented from transferring any command to the police force. In effect, the ADF may operate against the wishes of the police force and the State or Territory.

In particular, there is a weakness in the accountability of the ADF to the community. The regulations require that a magistrate accompany personnel. But there is no such requirement in the Bill. Similarly, a judge would ordinarily authorise the issue of a search warrant. But the CDF or his or her delegate effectively exercises this power. There is no requirement that an independent person exercise the power on the basis of concrete information. In these respects the search and seizure powers effectively share some characteristics of the 'general warrants' and 'warrantless searches' discussed above.(97)

ADF members have a wide discretion to exercise powers to recapture buildings, etc where a 'sudden and extraordinary emergency' exists. They also have considerable latitude to detain alleged offenders without providing detailed information. A detainee need only be informed of the 'substance of the offence' and need not be informed at all if they should already know this in the circumstances. In effect, ADF members may detain persons without themselves knowing the actual offence involved. They need only believe on reasonable grounds that the person has committed 'an offence'.

ADF members must not be used to stop or restrict any 'lawful protest or dissent'. However there is no definition of what constitutes a 'lawful protest or dissent'.

The Bill could be said to truncate civil liberties by giving wide powers to the ADF but failing to ensure that citizens know the details of orders and declarations or the reasons for their detention by the ADF. However, the measures are framed in the context of 'urgent' situations and the existence of 'sudden and extraordinary emergencies'. They proposed measures might be extraordinary but they are designed for extraordinary circumstances.

Practicability

However, the greatest area of concern may be practicability. Even if the lines of authority were clear, there may be questions about the capacity and training of military personnel to perform law and order functions and their capacity to integrate seamlessly into the relevant criminal justice system.

Moreover, there may be a tension between discretion and personal liability. As indicated, there are uncertain limits on the exercise of power by ADF members. If they fail to comply with statutory procedure, they are deemed not to have been entitled to exercise the powers. In effect, their actions are reviewable, although it is unclear whether they would be open to judicial review, internal disciplinary proceedings or criminal proceedings. They may be personally liable for the consequences of their actions as if they were civilians.

Observation

Over nearly a century despite the existence of a statutory regime and repeated requests from the States, the Commonwealth has not intervened to protect the States. The only genuine 'call out' was made using executive power to protect the Commonwealth. Ironically, despite the extensive codification of defence aid to the civil power in this Bill, executive power might still be used to 'circumvent' the statutory regime. While the basic rule, with respect to prerogatives, is that a statute covering the field will govern its exercise,(98) the Bill expressly reserves the power to 'call out the troops'.(99) Thus, arguably, the Commonwealth could continue to intervene 'whenever it chooses'.(100)

Endnotes

  1. This reference related to the Crimes (Internationally Protected Persons) Act 1976 (Cth).
  2. Protective Security Review, Report (Unclassified Version), AGPS, Canberra, 1979, Annex 1 to Appendix 15, p. 320.
  3. ibid, Appendix 7, p. 271.
  4. ibid.
  5. New South Wales State Emergency Management Committee, 'Index to [New South Wales State Disaster Plan] Displan Part 4 b: Roles and Responsibilities' at http://www.oes.nsw.gov.au/PART4B.HTM [7/7/00].
  6. The expression 'call out' traditionally refers to the use of 'reserves, militia and other auxiliary forces' for certain contingencies. In Eighteenth Century England, where regular troops were to be used they were said to be 'called in'. However, in time, the practice was to 'call out' troops in readiness to be 'called in': Protective Security Review, Report (Unclassified Version), AGPS, Canberra, 1979, 'Opinion of Sir Victor Windeyer, KBE, CB, DSO on certain questions concerning the position of members of the Defence Force when called out to aid the civil power', Appendix 9, p. 282.
  7. Queensland requested intervention of armed forces to suppress domestic violence arising out of a general strike in 1912, but the request was refused. Tasmania made a request for assistance to put down disturbances on Referendum Day 1916, but it was also refused. Similar requests were made by Western Australia in 1919 to control expected violence during a wharf strike and in 1921 to assist local police with 'labour troubles', both of these were refused. South Australia also requested ammunition and military equipment as a contingency measure in preparation for a strike in 1928, but the request was also refused. The Prime Minister ordered members of the Defence Force to work in the coal mines during the New South Wales coal miners strike in New South Wales in 1949, but there was no law and order role: Protective Security Review, p. 153, Appendix 9, pp. 282-283 and Appendix 16, pp 331-332. See also 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, Canberra, 1982 pp. 6-15. For a historical account of call outs before federation see 'Aid to the Civil Power' on the Army Website at http://www.army.gov.au/history/brief/aid_to_the_civil_power.htm [10/7/00].
  8. Victoria requested assistance during the Victorian police strike in 1923, but the request was refused. The Acting Prime Minister did authorise the use of armed guards to protect Commonwealth property in Melbourne, but there was no formal call out: ibid.
  9. The Prime Minister authorised the use of RAAF aircraft and personnel to provide commercial flights during the pilots' strike in 1989, but there was no formal call out. There was speculation in 1997 that the Commonwealth Government had considered the use of military personnel in the context of the waterfront dispute, but no action was taken. See generally Elizabeth Ward, 'Call Out the Troops: an examination of the legal basis for Australian Defence Force involvement in 'non-defence' matters', Research Paper No. 8 1997-98, at http://www.aph.gov.au/library/pubs/rp/1997-98/98rp08.htm [5/7/00] and Gary Brown, 'Troops as Strikebreakers: Use of the Defence Force in Industrial Action Situations', Current Issues Brief no. 3 1996-97 at http://www.aph.gov.au/library/pubs/cib/1997-98/98cib03.htm [10/7/00].
  10. See Research Paper no 8 1997-98, op cit, p. 3.
  11. R v Sharkey (1949) 79 CLR 121, per Dixon J at p. 151.
  12. J. Quick and R. Garran, The Annotated Constitution of the Australian Commonwealth, Angus & Robertson, Sydney, 1901, p 964. This passage was cited with approval in R v Sharkey (1949) 79 CLR 121, per Dixon J at p 151. See also the Australian Communist Party v The Commonwealth (Communist Party Case) (1951) 83 CLR 1, per Dixon J at p. 188.
  13. See generally Brown, op cit and Ward, op cit.
  14. See for example the following comment made in an opinion of the Solicitor-General in 1920 on the proviso in section 51 of the Defence Act 1903 regarding emergency and reserve forces: 'In my opinion this provision does not necessarily operate to prevent the use of those Forces in connection with violence arising out of an industrial dispute. The object of the proviso is to prevent the forces being used to the prejudice of industrialists in any dispute affecting their wages or conditions of employment. If participants in such a dispute resort to violence or rioting, and Commonwealth functions or federal rights are thereby affected, the Citizen Forces may, in my opinion, be utilised to restore order': Opinions of the Attorneys-General of the Commonwealth of Australia, Vol 2, 1914-1923, p. 599.
  15. Barton v Commonwealth (1974) 131 CLR 477.
  16. Hampden's Case (the Case of Ship Money) (1637) 3 St. Tr. 826 at p 976; In re a Petition of Right [1915] 3 KB 649 at p 659; Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508; Burmah Oil Co. (Burma Trading) Ltd v Lord Advocate [1965] AC 75; Attorney-General v Nissan [1968] 1 QB 286.
  17. Victoria v The Commonwealth and Hayden (1975) 134 CLR 338, per Mason J at p 379. It permits the Commonwealth 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': Davis v The Commonwealth (1988) 166 CLR 79 per Mason CJ, Deane and Gaudron JJ at p 111. See generally Dr Max Spry, 'The Executive Power of the Commonwealth: its scope and limits', Research Paper No. 28 1995-96, at http://www.aph.gov.au/library/pubs/rp/1995-96/96rp28.htm [5/7/00].
  18. Windeyer, op cit, p. 280.
  19. ibid, p. 279.
  20. Harrison Moore, Constitution of the Commonwealth of Australia, 2nd Edition, Law Book Company, Melbourne, 1910, pp 338-339.
  21. Professor Tony Blackshield, 'The Siege of Bowral - The legal issues', Pacific Defence Reporter, March 1978, op cit, p 7.
  22. As Justice Hope acknowledged 'the greatest risk appears to be the possibility of international terrorist activity originating from abroad': Protective Security Review, op cit, p xv.
  23. Protective Security Review, op cit, 'Letter of 24 May 1978 from the Attorney-General [The Hon. Peter Durack] to Sir Victor Windeyer seeking advice concerning the position of members of the Defence Force when called out in aid of the civil power', Appendix 8, p 274. This opinion was shared by a High Court Judge: 'Opinion of Sir Victor Windeyer, KBE, CB, DSO on certain questions concerning the position of members of the Defence Force when called out to aid the civil power', Appendix 9, ibid, p. 277.
  24. Durack, op cit, p. 274.
  25. Australian Military Regulations, regulation 405, Air Force Regulations, regulation 501.
  26. Durack, op cit, p. 274.
  27. The Australian Military Regulations deal primarily with the protection of a State, but contain the following exhortation: '[t]he provisions of this 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': Australian Military Regulations, regulation 415 (cf Air Force Regulations, regulation 511)..
  28. Windeyer, op cit, p. 280.
  29. ibid, p 281. An example would be the Defence Act 1903, ss 8 and 9, Victorian Police Strike in 1923
  30. Blackshield, op cit, p. 6.
  31. Windeyer, op cit, p. 299.
  32. ibid, p. 300.
  33. ibid, p. 302.
  34. ibid.
  35. Although it may be unclear whether Hope J intended that an order dispose of the requirement for there to be a requisition of a civil authority: Beddie and Moss, op cit, p. 67.
  36. In relation to requests from States, he recommended that the Governor should not be required to proclaim the existence of domestic violence.
  37. Beddie and Moss, op cit, p 66 paraphrasing proposed new section 51C to the Defence Act 1903, Protective Security Review, Appendix 18, op cit, pp. 340-341.
  38. Protective Security Review, op cit, para 10.115, p. 178.
  39. ibid, para 10.95, p 171. Justice Hope cited the following as an example: s 6 of the Commonwealth Police Act 1957.
  40. ibid, para 10.116, p. 178.
  41. ibid, para 10.96, p. 171.
  42. ibid, para 10.83-10.86, pp. 168-169.
  43. 'It does not seem practical to enable Parliament to exercise any supervisory powers before the use of the Defence Force is authorised', ibid, para 10.109, p. 177.
  44. ibid, para 10.105, p. 176.
  45. ibid, para 10.107, p. 176.
  46. ibid, para 10.108, p. 177.
  47. ibid, para 10.111, p. 177.
  48. ibid, para 10.101, p. 174.
  49. Beddie and Moss, pp 69-70.
  50. But see Michael Head, Olympic Security, Alternative Law Journal, Vol 25(3), p. 131,
  51. Windeyer, op cit, p. 294.
  52. ibid, p. 283.
  53. Charge to the Bristol Grand Jury on a Special Commission (1832) 172 ER per Tindal LJ at p 967; Reference by the Attorney-General for Northern Ireland (1976) 3 WLR 235, per Diplock LJ, at p. 245.
  54. See generally Protective Security Review, Appendix 20, op cit.
  55. Chic Fashions v Jones [1968] 1 All ER 229; Ghani v Jones [1970] 1 QB 693; Reynolds v Commissioner of Police of the Metropolis [1985] 2 WLR 93. In Australia see generally Parker v Churchill (1985) 63 ALR 326.
  56. Australian Law Reform Commission, Criminal Investigation: An interim report, AGPS, Canberra, 1975, Chapter 7, Keith Tronic, Cliff Crawford and Doug Smith, Search and Seizure in Australia and New Zealand, Law Book Company, Sydney, 1996, Chapter 1.
  57. For example, Commissioner of Police.
  58. ALRC, op cit, para 191-192; Tronic, et al, op cit, pp. 58-62.
  59. ibid, para 192.
  60. Canadian Law Reform Commission, Report on Search and Seizure, 1984, p. 10 quoted in Tronic, et al, op cit, p 48.
  61. Australian Law Reform Commission, Criminal Investigation: An interim report, AGPS, Canberra, 1975, para 197.
  62. For example, a search warrant may be issued if a Justice of the Peace 'is satisfied by information' (Crimes Act 1914, old s 10), 'satisfied by information upon oath' (Crimes Act 1958 (Vic), s 465) or if it appears 'on a complaint made on oath' (Criminal Code 1913 (WA), s 711) that there is reasonable ground for suspecting the existence of property connected with an offence, etc.
  63. Parker v Churchill (1985) 9 FCR 316 per Burchett J at p 322, quoted with approval by the High Court in George v Rockett (1990) 93 ALR 483.
  64. Mark Findlay, Stephen Odgers, Stanley Yeo, Australian Criminal Justice, 2nd Ed, Oxford University Press, Melbourne, 1999, p. 43.
  65. George v Rockett (1990) 93 ALR 483.
  66. See also Crime Prevention Powers Act 1998 (ACT) which deals with 'move-on' powers.
  67. Section 28A.
  68. Section 28F.
  69. Second Reading Speech, Dr Sharman Stone, House of Representatives, Debates, 28 June 2000, p. 16958 at [5/7/00].
  70. Stephen Martin, House of Representatives, Debates, 28 June 2000, p. 16961 at [5/7/00].
  71. Australian National Audit Office, 'Commonwealth Agencies' Security Preparations for the Sydney 2000 Olympic Games', Audit Report No. 5, 1998-99, Canberra, August 1998, p. 121.
  72. Brigadier Malcolm McKenzie-Orr, Former Australian Army Command, 'Olympic planners confident of Games security', 7:30 Report, Transcript, 2/9/99 at http://www.abc.net.au/7.30/stories/s48930.htm [17/7/00].
  73. The Hon John Moore, 'Olympic Games Security', Media Release, 16 March 2000 at http://www.minister.defence.gov.au/2000/05100.html [5/7/00].
  74. ibid and see also Head, op cit, p. 133-135.
  75. ibid.
  76. ibid.
  77. Martin Chulov and David Kennedy, 'Games security revealed', The Australian, 1/3/00.
  78. Homebush Bay Operations Act 1999, Olympic Arrangements Act 2000, Security Industry (Olympic and Paralympic Games) Act 1999, Sydney Harbour Foreshore Authority Regulation Act 1999.
  79. Section 31.
  80. Section 17,
  81. Section 18.
  82. Section 11.
  83. That are standing unlawfully, constitute a danger or are causing an obstruction: section 13.
  84. Regulation 5 and regulations 14-18.
  85. Regulation 5(1)(a1) inserted by Olympic Arrangements Act 2000, Schedule 2, item 1.
  86. Regulation 22.
  87. Regulation 21.
  88. Regulation 24.
  89. In part the impetus comes from changing and expanding notions of domestic security. It might also come from increased use of military in international peacekeeping roles: Hugh Smith, 'The Use of Armed Forces in Law Enforcement: Legal, Constitutional and Political Issues in Australia', Australian Journal of Political Science, 1998, Vol 33(2), pp 219-233.
  90. The order must be revoked if the authorising Ministers cease to be satisfied that domestic violence is occurring or is likely to occur, etc.
  91. The Government's intention is that 'the Defence Force is there to assist civilian authorities such as the police force, and not [to] replace them': Explanatory Memorandum, p. 6.
  92. A declaration must be in writing and reasonable steps must be taken to publicise it (clause 51Q).
  93. Crimes Act 1914, s 4AA.
  94. In relation to general security areas or designated areas.
  95. As the Second Reading Speech indicates, the Government proposes to repeal those parts of the regulations that deal with the call out, leaving a single source of legislative authority: Second Reading Speech, p. 3.
  96. Proposed section 51(7)(b).
  97. For example, while an authorisation to search premises in a general security area (clause 51L) must be limited as to time (ie 24 hours) it is not limited as to offences. Moreover, there is no requirement to describe the property to be searched and seized. The authorisation simply permits a member to seize anything he or she reasonably believes to be a dangerous thing.
  98. The basic rule is that 'where a statute, expressly or by necessary implication, purports to regulate wholly the area of a particular prerogative power or right, such power or right is, as to its exercise, governed by the provisions of the statute, which are to prevail in that respect': John Goldring, 'The Impact of Statutes on the Royal Prerogative; Australasian Attitudes as to the Rule in Attorney General v De Keyser's Royal Hotel Ltd', Australian Law Journal, Vol 48, p 434 at p 437. See also Attorney General v De Keyser's Royal Hotel Ltd [1920] AC 508; Barton v Commonwealth (1974) 131 CLR 477.
  99. Clause 51Y states that the Bill 'does not affect any utilisation of the [ADF] that would be permitted or required, or any powers that the [ADF] would have, if this Part were disregarded'.
  100. See Blackshield, op cit, p. 7.

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