The Use of Lethal Force by Military Forces on Law Enforcement Operations — is There a ‘Lawful Authority’?

DOI10.22145/flr.37.3.5
Date01 September 2009
Published date01 September 2009
ORIGINALISM IN CONSTITUTIONAL INTERPRETATION THE USE OF LETHAL FORCE BY MILITARY FORCES ON
LAW ENFORCEMENT OPERATIONS — IS THERE A
'LAWFUL AUTHORITY'?
Rob McLaughlin*
Now a person, whether a magistrate, or a peace-officer, who has the duty of suppressing
a riot, is placed in a very difficult situation, for if, by his acts, he causes death, he is liable
to be indicted for murder or manslaughter, and if he does not act, he is liable to an
indictment on an information for neglect; he is, therefore, bound to hit the precise line of
his duty: and how difficult it is to hit that precise line, will be a matter for your
consideration, but that, difficult as it may be, he is bound to do.
R v Pinney (1832) 5 Car & P [254], [270] (Littledale J).
A soldier is bound to obey any lawful order which he receives from his military superior.
But a soldier cannot any more than a civilian avoid responsibility for breach of the law by
pleading that he broke the law in bona fide obedience to the orders (say) of the
commander-in-chief. Hence 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.
A V Dicey, Introduction to the Study of the Law of Constitution (10th ed, 1959) 303.
I INTRODUCTION
Our comprehension of the legal means and methods by which military forces are
employed, controlled and — where considered necessary — immunised, is incomplete.
Some questions are — in a jurisprudential sense — well settled, or at least evolving
along a logical, comprehensible, and generally linear course. Thus the scope of the
defence power under the Australian Constitution has, on the whole, been relatively
consistently interpreted over time as an elastic power — expanding in time of large-
scale conflict, contracting in time of profound peace, variably waxing and waning
between these two poles in situations of uncertainty less than war but short of settled
peace.1 There have certainly been some new developments in understanding the scope
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*
Legal Officer, Royal Australian Navy, PhD (Cantab). The views expressed in this article are
those of the author, and should in no way be inferred as representing the views of any part
of the Australian Government. Although most fortunate to have received much
constructive feedback from a number of colleagues — most notably Cameron Moore
(University of New England), Bruce Oswald (University of Melbourne), Chris Gallavin
(University of Canterbury), and the two anonymous reviewers — all errors are mine alone.
1
Constitution s 51(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'. As Dixon J observed in Stenhouse v Coleman (1944) 69 CLR 457, 471, the

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of the power — such as the High Court of Australia's decision in Thomas v Mowbray2
(relating to the constitutional validity of the federal control order regime). In this case
the majority held that components of the defence power are also exercisable through
non-military organs such as the police.3 But on the whole, our understanding of the
power has developed along conceptually and chronologically coherent and logical
lines. Similarly, there is no question in the Australian context that this evolution has
also been more generally coherent in terms of its interaction with related constitutional
questions. Thus Thomas v Mowbray is, in many ways, a belated cross-referral allowing
police and intelligence agencies to access authority under the defence power. This
merely reflects and accompanies the long established principle that the military forces
can likewise be used for law enforcement purposes — as confirmed in Li Chia Hsing v
Rankin.4 It is perhaps justified to say that were we to apply a jus ad bellum / jus in bello
approach (law of armed conflict based and thus formally inapplicable, but nevertheless
useful) to the problem, the jus ad bellum issues — the when and why of use of military
forces in law enforcement operations — are relatively settled, or at least evolving
coherently and consistently with their history and precedent.
It is amongst the menagerie of issues within the jus in bello realm — the how of use
of military forces in law enforcement operations — where disquiet is most commonly
found. One of these problematic issues is our lack of clarity as to the occasions on
which use of lethal force in law enforcement operations may be justified or excused.
The fact that it is unsettled is counter-intuitive, as questions of justification or excuse in
relation to use of lethal force by state agents must logically be of fundamental concern
to any society underpinned and sustained by democratic traditions and the rule of law.
This is especially so where the state agents in question are under a general, and legally
enforceable, obligation to obey. One would be entitled, justly, to think that there
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defence power 'involves the notion of purpose or object', rather than (as with most of the
other heads of Commonwealth power) being characterised by subject matter. This elasticity
— in relation to personal freedoms, for example — was well described by Brennan J in
Polyukhovich v Commonwealth (1991) 172 CLR 501, 592–3: 'In times of war, laws abridging
the freedoms which the law assures to the Australian people are supported in order to
ensure the survival of those freedoms in times of peace. In times of peace, abridging of
those freedoms … cannot be supported unless the Court can perceive that the abridging of
the freedom in question is proportionate to the defence interest to be served. What is
necessary and appropriate for the defence of the Commonwealth in times of war is
different from what is necessary or appropriate in times of peace'. This elasticity has been
repeatedly re-affirmed by the High Court since its early establishment in Farey v Burvett
(1916) 21 CLR 433, and was most recently restated in Thomas v Mowbray (2007) 233 CLR 307
— the 'Jihad Jack' control order case. See, eg, Gleeson CJ at 324 [7]; Gummow and
Crennan JJ at 359–64 [132]–[48]; Kirby J at 384 [220]–[1] (affirming this elasticity, although
he dissented as to the scope on the facts of this particular case); Hayne J at 449–60 [411]–
[45], 475–8 [504]–[13]; Callinan J at 503-6 [582]–[90]; Heydon J at 511 [611].
2
(2007) 233 CLR 307.
3 Ibid. See, eg, Hayne J at 457 [437]: 'It may be accepted that "naval and military defence"
does point to kinds of threat with which the power is concerned. In particular, the reference
to "naval and military defence" reveals that, as Dixon J said in the Communist Party Case, the
central purpose of the legislative power is protection of the Commonwealth from external
enemies. It by no means follows from this observation, however, that the only permitted
subject matter of legislation made in reliance upon s 51(vi) is the provision for naval and
military responses to such threats.' See also Callinan J at 504 [588].
4
(1978) 141 CLR 182.

2009
The Use of Lethal Force by Military Forces 443
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should be nothing contentious left to discuss in respect of this most fundamental of
issues. And yet, unsettled it is. Perhaps the best recent evidence is found in a piece by
journalist Greg Sheridan, dated 14 February 2008, concerning operations in Timor-
Leste. It should be noted that there is no armed conflict afoot in Timor-Leste (thus no
legal basis for proactively targeting, with lethal force, persons taking a direct part in
hostilities in a fighting role), and that the International Security Force's operations are
of a law enforcement nature.
It isn't very often that a meeting of the Australian cabinet's National Security Committee
['NSC'] authorises the killing of anybody. But that's what happened in February last year
when the NSC, under the Howard government, met to consider the case of Alfredo
Reinado … [I]n February last year, the NSC authorised the Australian Defence Force
['ADF'] to kill Reinado. Of course, the order was to capture him. There was not a specific
order to kill him as such. But the NSC was very specific that the ADF could use lethal
force.5
Clearly, left unanalysed, this report by a respected journalist with acknowledged
access would leave one with the impression that either the NSC broke the law by
ordering, tacitly, an assassination, or alternatively that the law provides for the NSC
(and/or others) to authorise such use of lethal force. Neither would appear to be
correct, but the report does serve to illustrate, starkly, that uncertainty as to legal
authorisations for use of lethal force by state agents persists.
This uncertainty is based in two grounds. The first, more readily ascertainable
ground, is that in the one analogous jurisdiction where the issue has come in for
occasional judicial consideration — the United Kingdom ('UK') — there are a plethora
of contradictory precedents. Many are in fact...

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