A Shield for the Tip of the Spear

AuthorSamuel White
Published date01 June 2021
DOI10.1177/0067205X21993147
Date01 June 2021
Subject MatterArticles
Article
A Shield for the Tip of the Spear
Samuel White*
Abstract
The defence of superior orders is not new. However, within Australia, its statutory codification is
lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth)
provides a neat catalyst to expand the defence and look at possible manners in which it can be
constructed. Utilising a theoretical case study of Australian Defence Force members killing a
possible terrorist, ‘this article addresses’ the key elements of the defence—what an order is, when
can it be constructed as being manifestly unlawful and what does reasonable and necessary force
mean for Australian Defence Force members.
The Scenario
At 09:00 hours, a group claiming to want to purge Australia of tourists commit concurrent terror
attacks across Melbourne, utilising improvised explosive devices. It would appear the bombs are
only detonated, via mobile phone, when there are enough people around. In total, the group kill
48 people. Three of the group are killed by civilian police and one is captured and arrested. The
arrested individual claims that additional attacks will occur.
A request from the Victorian Government for Australian Defence Force (‘ADF’) members to
assist with controlling vulnerable areas under Part IIIAAA of the Defence Act 1903 (Cth) (Part
IIIAAA) (‘Defence Act’) goes to the Commonwealth Government. Being satisfied that domestic
violence is likely to occur and noting the ADF will enhance the domestic security operations, the
Prime Minister authorises an expedited Division 4 call-out, declaring Melbourne CBD a specified
area. ADF members, armed with rifles, are called out to assist civilian police establish vehicle
checkpoints.
Three days into Operation FLINDERS STREET ASSIST, an ADF Corporal notices an unac-
companied duffel bag near a narrow po int filled with people. Looking around , he notices an
individual on top of a roof adjacent to and overlooking the unaccompanied duffel bag, holding
a mobile phone. The individual appears agitated and is pacing around the rooftop, looking back
towards the duffel bag and the CBD. The Corporal, fearful that the bag contains explosives and can
be triggered by the mobile phone, raises his weapon and fires at the individual on the mobile phone.
* M War Studies (UNSW), LLM (Hons I) (Melbourne), BA (Classics)/LLB (Hons) (UQ). Captain, Australian Army Legal
Corps, currently posted to the Directorate of Operations and International Law. The author may be contacted at samuel.
white@adelaide.edu.au. The opinions and errors expressed herein are those solely of the author’s and do not reflect
those of the Australian Defence Force nor the Department of Defence.
Federal Law Review
2021, Vol. 49(2) 210–230
ªThe Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/0067205X21993147
journals.sagepub.com/home/flr
It jams. In a sense of urgency, he orders the nearest ADF member, a Private, to shoot the individual
holding the mobile phone.
The Private fires a single shot, killing the man instantly.
The duffel bag is empty.
There is no evidence found suggesting that the individual with the mobile phone was linked to
the terror group.
I Introduction
It has been noted that
the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well
said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury
if he obeys it.
1
One solution, then, to this conflict of laws is the defence of superior orders. This defence is not
new. Indeed, in many instances of Greco-Roman history, actions by individuals could be absolved
if they were remotion criminis or metastasis.
2
But the degree of culpability, and the effect the
defence had for individuals, varied amongst Roman jurists. There were two fundamental schools of
thought about the defence. Auctor held that the action did not shift the crime but merely the culpa
or causa;
3
Cicero held that superior orders shifted the factum,ortheres ipsa—that is, the beha-
viour had no link to the subordinate, as they were merely a subordinate.
4
Quintilian wavered
between the two. Although he advocated to interpret superior orders as transferre crimen (a
passing of the crime), he stressed that it was only a question of deflecting the culpa.
5
On this
basis, the defence of superior orders was similar to stating you were simply following the law.
6
The High Court of Australia has, importantly, not accepted that there exists any common law
defence of superior orders. The facts of A v Hayden (No 2)
7
merit recounting. In 1983, an
Australian Secret Intelligence Service (‘ASIS’) training operation, involving heavily armed ASIS
employees, stormed Melbourne’s Sheraton Hotel. Complaints were made by the owners, staff and
occupiers of the hotel and a subsequent investigation identified 21 serious criminal offences arising
as a result of the exercise.
8
The High Court accepted that the Commonwealth itself was immune
from criminal prosecution, and only in dividual intelligence officers could be culpable. These
individuals claimed that they were acting under a lawful authority, being under the orders of the
1. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) 303.
2. Metastasis relates to the Greek concept of obeying one’s father. See Aulus Gellius, Attic Nights (John C Rolfe trans,
Harvard University Press, 1927) bk 2, ch 7.
3. See Appian, Civil Wars (Horace White trans, Macmillan & Co, 1899) bk 5, ch 5, s 43; Lucius Annaeus Seneca, Troades
(Frank Miller trans, Harvard University Press, 1917) 290.
4. Rhetorica Ad Herennium (Harry Caplam trans, Harvard University Press, 1954) bk 3, ch 2, s 3.
5. Quintilian, Institutes of Oratory (Harold Edgeworth Butler trans, Harvard University Press, 1921) bk 3, ch 6, s 78.
6. On the topic more generally, see David Daube, The Defence of Superior Orders in Roman Law (Clarendon Press, 1956).
7. (1984) 156 CLR 532 (‘A v Hayden’). Whilst providing guidance, this case related to an ASIS training exercise rather
than the exercise of powers under a call-out order.
8. Robert M Hope, Protective Security ReviewReport of Mr Justice Hope, 15 May 1979 (Unclassified Version)
(Parliamentary Paper No 397, May 1979) 18 (‘Hope Report’).
White 211

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