Since the start of the new century we have seen a clear distinction in the public mind begin to crumble—namely, that the Australian Defence Force (ADF) is for duly authorised war, and that maintaining domestic safety and peace is the job of the police.
We have seen inappropriate tasking of the ADF, on shaky or spurious legal foundations, as a result of which the ADF has been engaged in war or warlike operations throughout this century; the extraordinary spectacle, in the run-up to the 2007 election, of 600 ADF members being deployed to provide logistical support to the Howard government’s Northern Territory Intervention, mischaracterised by that government as an ‘emergency response’, with a serving military officer being placed in command of the overall operation; faux militarisation of civilian border operations, attended by various violations of international law; the introduction of something like sixty-seven pieces of national-security legislation, some designed to increase powers of surveillance over citizens going about their lawful occasions, some designed to enhance the powers of security agencies and reduce the powers of citizens in relation to them, and some to make it easier to call out the ADF to aid the civil power within our borders.
It seems timely, therefore, to consider what we want our armed forces to do, what we do not want them to do, and the legal steps to be observed, lest we sleepwalk into a situation that will be an ongoing nightmare when we wake up.
As foundation principles, any use to which the ADF is put must comply with both international and domestic law, and the framework for calling out the ADF in aid of the civil power must maintain both the civil nature of our society and the primacy of the states and territories in maintaining law and order within their borders.
The central purpose of the Australian Defence Force is to defend Australia and its island territories from attack and/or invasion. Ideally it would achieve this goal by deterrence—i.e. without a shot being fired—rather than by fighting off an attacker, but it can only deter by having a credible capability to achieve its objectives by force if it has to.
Establishing a credible deterrent capability requires ancillary capacities that enable the ADF and the ADF members that operate it to be welded into an effective fighting force that can be directed to the right targets, in defensive or offensive operations, at the right time.
Alliances are another very important part of our armoury, not simply in order to have others to turn to when our territorial integrity is threatened but as a source of intelligence and sensitive, leading-edge technologies to sustain our capabilities and keep them up to date. Paradoxically, a firm alliance structure gives us a better opportunity to maximise our defence self-reliance.
Having established a suitably robust defence capability, we face the question of when it is appropriate to use it. As far as combat operations are concerned, the occasions are limited. Under international law, the only circumstances in which it is permissible to enter into armed conflict are:
- In our own direct defence, i.e. in response to a direct attack upon our own territory
- Pursuant to a United Nations Security Council resolution
- At the request of another government that is defending itself from attack
Attempts have been made to justify military adventures outside that framework, such as the invasion of Iraq, in terms of either ‘anticipatory self-defence’ or the ‘responsibility to protect’.
The circumstances in which anticipatory self-defence is permissible are extremely narrow. The applicable test, the so-called ‘Caroline test’, derives from an 1837 incident between the United States and British North America. It holds that pre-emptive action can be justified only when ‘the necessity of that self-defence is instant, overwhelming, and leaving no choice of means, and no moment for deliberation’. The invasion of Iraq did not meet those criteria.
The emerging doctrine relating to the responsibility to protect holds that state sovereignty carries with it the obligation of the state to protect its own people, and that if the state is unwilling or unable to do so, the responsibility shifts to the international community to use diplomatic, humanitarian and other means to protect them. The legal situation remains, however, that any action taken must be in accordance with the United Nations Charter and hence any military action requires a Security Council resolution.
Within the borders of Australia, the responsibility for maintaining public order and safety, enforcing the law, and preventing, detecting and investigating criminal activities rests with the states and territories, and that responsibility is discharged by their respective police organisations and their personnel. At the federal level other bodies enforce parts of the law, notably those responsible for customs, immigration and quarantine.
What clearly distinguishes the military function from the various civil-safety, public-order, investigative and enforcement functions is their approach to the use of force. The core purpose of the ADF is to give the government the capability to apply lethal force as and when the occasion demands it. The aim of police and other civil enforcement bodies like customs, immigration and quarantine is to carry out their functions without resorting to the use of firearms or other weapons, relying instead upon detection, persuasion, direction, negotiation, investigation and arrest. It is a consequence of the civil nature of the work they do that people engaged in these policing and regulatory functions rarely if ever use their weapons.
A critical issue for Australian society is how to handle situations that the civilian authorities are unable to handle by traditional policing means, including the occasional resort to police sidearms to protect the public from one or more violent individuals. How should we deal with domestic situations that require military-type responses or specialised capabilities that reside in or would be more appropriate for the ADF? In my view these capabilities should always reside in the ADF and the ADF should have a monopoly on them. From a defence point of view, all military capabilities should be available to and under the direct command of the ADF, and the more we militarise our civilian agencies the more we can expect them to become habituated to military-style responses.
The question then becomes the process by which these capabilities become available to the civilian authorities. In considering that question we need to bear at least two things in mind. First, that it is a very grave step indeed to direct the lethal capabilities of the ADF against citizens, residents or visitors to this country, so the steps need to be suitably formal and, in all but the direst emergencies, provide for careful deliberation. Second, as responsibility for domestic law, order and public safety rests with the states and territories, it should be a matter for them to determine whether or not a situation is beyond their capabilities to handle, and when to seek the assistance of the ADF.
There has always been provision for the ADF to come to the aid of the civil power. Section 119 of the Constitution provides:
The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
Note the requirement for the state government to take the initiative in relation to military aid to the civil power. The phrase ‘domestic violence’, drafted at the end of the nineteenth century, seems directed more to situations like an eighteenth-century riot than anything like the Lindt Café siege, but one can conceive of a variety of domestic circumstances in which the appropriate response is more military than civilian policing in nature. It would clearly be a severe drain on resources, for example, for the police service of each jurisdiction to be required to maintain the capability to carry out the storming of a hijacked aircraft, rather than, as now, have a specialised ADF capability that is available to the civil authorities on request.
The arrangements that enable the civil authorities to call upon the ADF as needed must not only provide for a timely response; they must protect us from risks such as unwarranted military intrusion into matters properly the business of the civil authorities, unwarranted Commonwealth intrusion into the business of the states, state governments too readily calling for military intervention into matters they find politically difficult, such as large-scale industrial disputation, and Commonwealth and state governments of the same political complexion conniving at invoking military aid for some perceived political advantage.
Prior to 2000, call-outs were regulated by unclear rules that were last used in 1978 following the Hilton bombing—the first ADF call-out since Federation for a domestic security threat. Despite several state attempts to request military assistance domestically, the federal government had shown itself reluctant to order their deployment. A 1998 Parliamentary Research Service (PRS) paper showed important deficiencies, however. It concluded that:
- there were legal difficulties inherent in nearly all uses of the defence forces for ‘non-defence’ purposes
- successive Commonwealth governments had used the defence forces without prior consideration of the legal steps involved
- the defence forces had often responded to requests without regard for their own operational instructions, and
- on a legal basis, the deployed troops were largely unprotected.
What seemed clear both from legal opinion and from practice was that in circumstances other than the protection of Commonwealth interests, there needed to be a request from the relevant state, and in considering whether to respond the Commonwealth would make its own assessment of whether a state of domestic violence existed. Once the ADF was called out, the local police would remain in control until such time as the police officer in command determined that the police were unable to resolve the situation. At this time the police would formally hand over to the ADF; the ADF would at no time be under the command of the police.
The reason that the call-out provisions are rarely used in these circumstances is that everyone recognises that any handover is the moment when it is decided that lethal force will be used. The ADF will look to apply decisive force immediately, whereas the police will seek to avoid using their weapons.
The PRS paper argued that legislation was 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 counselled that any law to rectify this 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.
Notwithstanding that advice, when in the run-up to the Sydney Olympics in 2000 the government introduced Part IIIAAA of the Defence Act, the legislation attempted to enumerate the scenarios in which ADF assistance might be required. Part IIIAAA modernised call-out procedures and specified ADF powers when assisting police for counterterrorism and public-safety purposes.
Most recently, the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 seeks to amend the Defence Act to, inter alia, permit states and territories to request that the Commonwealth call out the ADF in a wider range of circumstances; and simplify, expand and clarify the power of the ADF to search and seize, and to control movement during an incident.
Many of the amendments seem sensible, but the devil is in the detail. As the amendments make it easier to call out the ADF and expand its powers, this legislation warrants very careful scrutiny indeed.
A disturbing feature of the historical approach of successive governments to the use of the ADF is their failure to pay due regard to the legal requirements. As far as I can determine, at no time in this century has the governor-general, the only person with the constitutional power to deploy the ADF into international armed conflict, been asked to authorise an international deployment and, as noted above, in deploying the ADF in aid of the civil power, successive Commonwealth governments have used the defence forces without prior consideration of the legal steps involved. In both circumstances the ADF members are left with inadequate legal protection.
Whatever the rules may be, we are entitled to insist that the government of the day be scrupulous in observing them.