The Military Call-Out Legislation — Some Legal and constitutional questions
| Author | Michael Head |
| Published date | 01 June 2001 |
| Date | 01 June 2001 |
| DOI | http://doi.org/10.22145/flr.29.2.6 |
| Subject Matter | Article |
THE MILITARY CALL-OUT LEGISLATION — SOME
LEGAL AND CONSTITUTIONAL QUESTIONS
Michael Head*
Amid considerable public controversy, the Australian Labor Party combined with the
Government of Prime Minister John Howard to pass military call-out legislation
through both houses of the Commonwealth Parliament on 7 September 2000. Less than
three months after it was first announced and introduced in the House of
Representatives on 28 June, the Defence Legislation Amendment (Aid to Civilian
Authorities) Act 2000 (Cth) came into force on 12 September, when it received royal
assent by the Governor-General.
Under the amended Defence Act 1903 (Cth) (the Act), the Federal Government now
has the power to call out the armed forces on domestic soil against perceived threats to
'Commonwealth interests', with or without the agreement of a state government. Once
deployed, military officers can order troops to open fire on civilians, as long as they
determine that it is reasonably necessary to prevent death or serious injury. Soldiers
will have greater powers than the police in some circumstances, including the right to
shoot to kill someone escaping detention, search premises without warrants, detain
people without formally arresting them, seal off areas and issue general orders to
civilians.
As will be examined in some detail in this article, the legislation authorises the
Prime Minister, the Defence Minister and the Attorney-General, or 'for reasons of
urgency', one of these 'authorising ministers', to advise the Governor-General (the
Commander-in-Chief of the armed forces under the Constitution) to call out military
personnel to deal with 'domestic violence '. The term 'domestic violence' is somewhat of
an anachronism. It does not correspond to the modern sense of the phrase, which
refers to violence within homes or families. It is a vague expression, undefined
legislatively or judicially, found in s 119 of the Constitution, which provides that 'the
Commonwealth shall protect every State against invasion and, on the application of
the Executive Government of the State protect such State against domestic violence'.
Both the Government and the Labor Party proposed minor amendments in an effort
to meet certain objections from some state governments and to head off public concern
about the impact on civil liberties, but the legislation's essential content remained the
same: to authorise the use of the military to deal with civilian disturbances, including
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* B Juris, LLB (Monash), LLM (Columbia), Coordinator, Community Law Program, Law
Faculty, University of Western Sydney. Some aspects of this article are drawn from earlier
reports published by the author on the World Socialist Web Site (www.wsws.org), see below
n 10.
274 Federal Law Review Volume 29
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political and industrial unrest. The very fact that such legislation has been introduced
and passed suggests a bipartisan expectation in official political circles that, in the
coming period, troops will be required to deal with such disturbances that the police
forces cannot contain.
Until now, the deployment of troops within the country has been both politically
contentious and clouded by legal uncertainties. In the words of one author, although
Australia was established as a penal colony under military administration, 'with the
passage of time, the evolution of the Australian political system ensured a clear
distinction between military powers and civil powers'.1 During the 19th century,
martial law was declared several times to deal with riots and rebellions, but the last
clear exception to the military-civil division of power occurred in 1891 when the
Queensland Government used troops to help the police suppress a sheep shearers'
strike.2
This division of power was enshrined in the Constitution at federation in 1901. The
military power was handed to the Commonwealth under s 51(xxxi), the colonial
defence forces were transferred to the Commonwealth by s 69, and under s 114 the
states were forbidden to raise military or naval forces without the consent of the
Commonwealth Parliament. Residual authority over domestic law and order remained
in the hands of the states and their police forces.
The constitutional demarcation has, furthermore, become embedded in public
consciousness. Domestic use of the armed forces has become widely regarded as
conduct to be expected of a military or autocratic regime, not a democratic
government. On the only occasion since federation that a Commonwealth government
has called out the military in an urban situation — following a bomb blast outside a
regional Commonwealth Heads of Government meeting at the Sydney Hilton Hotel in
1978 — the sight of armed soldiers patrolling highways and the streets of the New
South Wales town of Bowral caused public consternation.3
THE PASSAGE OF THE LEGISLATION
Despite the historic importance of the issue, the legislation was initially introduced
without any publicity. With the support of the Opposition, the Bill was first passed
through the House of Representatives in a single day on 28 June 2000. Neither Defence
Minister John Moore nor Attorney-General Daryl Williams issued a media statement
announcing the Bill, and no reports appeared in the mass media. Just one day before
the Bill was tabled, the Government launched a public discussion paper, Defence
Review 2000, in preparation for a Defence White Paper. The document canvassed an
expanded role for the military, but made no mention of the Bill.4
Both the Government and the Opposition declared that it was necessary to have the
legislation in place before the Sydney Olympic Games. Speaking in the House of
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1 Christopher Doogan, 'Defence Powers Under the Constitution: Use of Troops in Aid of
State Police Forces — Suppression of Terrorist Activities' (1981) 31 Defence Force Journal 31.
2 Ibid 31.
3 See Tom Molomby, Spies, Bombs and the Path of Bliss (1986), and Jenny Hocking, Beyond
Terrorism: The Development of the Australian Security State (1993).
4 See Defence 2000 — Our Future Defence Force, (2000) Department of Defence,
<http://whitepaper.defence.gov.au> [accessed 27 June 2000].
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