Spontaneous Volunteers

Robert Hughes, in his seminal work The Fatal Shore, posited that the deeply militarised society of the early Sydney colony (and the use of military personnel to aid the civil power against the convicts) led to the particularly Australian aversion to domestic operations.^[18]

Since 1788, there has been reliance on the military to support government actions. Recent work by military historians such as Stephen Gapps^[19] and Ben Hingley^[20] has highlighted just how many times successive governors requested military reinforcements in the colony of New South Wales. My great-great-great grandfather Major James Morisset struggled to counter Wiradyuri warfare as the Commandant of Bathurst. The open plains of Wiradyuri country incentivised cavalry operations, utilising decentralised free citizens to defend themselves (the posse comitatus). The increasing use of ‘redcoats’ in the frontier may have reinforced a cultural dislike for the use of the military in police work—a dislike that has continued in Australian public opinion to this day. 

Federation of course changed this, when military forces were removed from the control of state governments (under section 114 of the Constitution). In return, a federal duty was imposed on the new Commonwealth Government (under section 119) to assist in instances of ‘domestic violence’. Legislation and popular conceptions of the ‘correct’ use of the ADF are often stuck (unknowingly) within these constitutional bookends. Against the backdrop of the Lindt Café siege, there was no debate about whether the potential use of the Tactical Assault Group (constituted by the 2nd Commando Regiment) was appropriate. Indeed, the debate and subsequent change in legislation was based on the assessment that the legal threshold to use the ADF was too high.^[21] Yet that threshold of domestic violence has actually never been met since Federation.^[22] As outlined in Table 1, since 1901 all uses of the ADF in aid to the civil authority have occurred under this threshold.

Table 1: Military deployments to keep the peace, below the threshold of domestic violence

Year	Event	Action
1923	Victorian police strike	Armed troops placed to protect Commonwealth facilities; equipment provided to state special constables[23]
1928	Premier of South Australia requests Commonwealth troops and/or Commonwealth-issued ammunition to the South Australian Police Commissioner for use in case of absolute necessity during a strike	Commonwealth provides equipment
1939	Darwin wharf strike	Unilateral Commonwealth intervention with troops to break strike
1942	Bombing of Darwin	Unilateral Commonwealth intervention with armed troops to restore order
1949	New South Wales coalminers’ strike	Commonwealth intervention with armed troops to transport coal, with state consent
1952	Bonegilla migrant centre riot	Commanding officer initiated call out from Latchford Barracks, with armoured support, to suppress communist riot
1953	Bowen Wharf dispute	Unilateral Commonwealth intervention with troops to break strike against backdrop of communist threat
1954	Sydney wharf strike	Unilateral Commonwealth intervention with troops to break strike against backdrop of communist threat
1970	Territory of New Guinea secessionist agitation	Orders-in-Council given to approve deployment (with lethal force) of Pacific Island Regiment (no deployment occurred)
1974	Cyclone Tracy and looting	Unilateral Commonwealth intervention with armed troops to restore order
1978	Hilton bombing	Orders-in-Council given to approve deployment (with lethal force) of regular Army troops, with state consent (but no request made)
1983	Tasmanian ‘spy flights’	Use of Royal Australian Air Force (RAAF) assets to take surveillance flight paths over Tasmania to collect evidence of non-state compliance (leading to the Tasmanian Dam Case)
1989	Newcastle earthquake and looting	Commonwealth intervention with armed troops to provide an armed cordon to deter looting (with state consent)
1989	Australian pilots’ dispute	Use of the RAAF to break an industrial strike by the Australian Federation of Air Pilots
2002	Commonwealth Heads of Government Meeting	Security provisions authorised the shooting down of civilian aircraft by fighter jets in order to prevent a suicidal crash. Although a contingent call out was authorised and enacted under Part IIIAAA, the statutory provisions at the time did not include any ability to authorise lethal force in air operations. Air operations occur instead under the Commonwealth’s executive power
2003	President of the United States visit	As for Commonwealth Heads of Government Meeting
2020	Operation COVID-19 Assist	Use of ADF members to support domestic border control operations

Each is discussed below in detail.

1923 Melbourne City Police Strike

When the Victorian police went on a coordinated strike on the eve of the Melbourne Cup, the Victorian Government responded swiftly: 4,700 special constables were sworn in and a squadron of Australian Light Horse were mounted on police horses to aid the civil power.^[24] This, in turn, catalysed an extension of the police strike and subsequently a third of the force went on strike.^[25] More special constables were sworn in under the command of General Sir John Monash.^[26] Close air support was requested and approved for use by members of the military against the civilian population.^[27]

Concurrently the Premier of Victoria, in a letter to the Acting Prime Minister, requested the Commonwealth Government to ‘arrange for troops to parade the City and take positions’ at specified locations during the police strike, as a ‘precautionary measure designed to make an impression and to have a strong force of men available at suitable points ready for instant use if the situation should demand their being called upon in the regular manner’.^[28] Although the request by the State of Victoria under section 119 was denied by the Commonwealth, armed troops were subsequently marched through the city and placed to protect Commonwealth facilities.^[29] The authority was the right of the Commonwealth to protect itself. 

1939 Darwin Wharf Strike

In early November 1939, an industrial dispute at the port of Darwin saw defence stores held up. The cargo, which was perishable, was assessed to be in short supply by the Manager of the Railways and the Territory Administrator.^[30] The short supply of coal in Darwin saw the Territory Administrator—with approval from the Prime Minister—requisition all the coal on board the MV Montoro.^[31] Defence Force members were used on 8 November to unload the material in lieu of the striking wharf workers. This was done under armed guard by other ADF members. The risk? Australian citizens. The authority to shoot? Executive power.^[32]

A further opportunity was given the following day for union members to unload stores on the wharf; none presented themselves, and uniformed sailors unloaded the SS Koolina.The overall legality of armed forces to strike-break was questioned by the Australasian Meat Industry Employees Union.^[33] In turn, a memorandum was prepared by the Secretary, Department of the Army to establish the powers under which the intervention had occurred. The Secretary held that:

The Commonwealth has the right to use any of its forces for the protection of Commonwealth property or services. This is a duty which devolves upon the Commonwealth itself and the Commonwealth has a duty to use all its powers for the protection of its own property and services. The power is not in any way affected by the provisions of s. 51 of the Defence Act which only deals with the liability of the Commonwealth to assist the Governments of the States when domestic violence has been proclaimed.^[34]

The latter statement about the requirement for a state of domestic violence to be proclaimed is perhaps incorrect. At any rate, it is clear that the ADF was used below this threshold in instances where force was clearly anticipated. The intervention was legal and within the role of the military to support the Commonwealth.

1942 Bombing of Darwin

In the Northern Territory, there was again cause for Australian troops to keep the peace. In the aftermath of the initial Japanese bombings of Darwin, civil order totally collapsed. As Justice Lowe remarked in his secret Royal Commission on the Air Raids on Darwin report,^[35]looting was rife and public administration inadequate. Accordingly, the military commandant in the area took command from 21 February 1942. This was done outside of any statutory provisions or regulations, as the National Security (Emergency Control) Regulations 1941 did not take effect until they were gazetted on 28 February 1942.^[36]

Professor Cameron Moore holds this to be an example of an exercise of martial law.^[37] An in-depth discussion of martial law is outside the scope of this work. However, martial law can most properly be characterised as the centralisation of law into the command of one individual.^[38] The military control of Darwin in 1942 is perhaps more properly characterised as an exercise of the royal prerogative to keep the peace. The critical case of Northumbria assessed that the prerogative is enlivened when there is ‘an actual or an apprehended threat to the peace’.^[39]This was recently approved in Privacy International v Secretary of State for Foreign and Commonwealth Affairs where the UK Court of Appeal held that the Secretary of State had ‘authority’ under it to ‘keep law and order … and could act pre-emptively in doing so’.^[40] There is no clearer example of apprehended threat than the total collapse of civil authority (as happened in Darwin). The unilateral military adoption of control is, then, best viewed as an exercise of the duty to keep the peace, occurring outside of statute, rather than martial law. As this occurred in a territory (and thus not subject to section 119), the only constitutional authority for such military conduct is the Commonwealth Government’s constitutional executive power.

1949 Coalminers’ Strike

In April 1949, Australian troops were used to unload coal from an Indian ship which had been blacklisted by the communist-controlled Miners’ Federation of Australia.^[41] The logic of the domestic operation was to ensure the supply of coal rather than to preserve law and order in the area.^[42] This control of the coal supply, however, was viewed as a necessary precaution in order to prevent a breakdown of the peace that might occur if industry ground to a halt. Interstate trade was no doubt affected:

more than 500,000 wage and salary earners in the several States were progressively thrown out of work. Reserves of coal had been practically nil, and of alternative fuels scanty. Much of heavy industry ground to a standstill. Electricity was sharply rationed in at least three States. Domestic gas was rationed to an hour a day in Melbourne and Sydney. Electric train and tram services ran at skeleton strength.^[43]

Troops were sent by the Commonwealth to work in the mines as a strike substitution force. In positioning the troops, it was agreed that the maintenance of law and order would remain the responsibility of the New South Wales constabulary forces.^[44] However, the Australian military personnel raised a furore on being deprived of their arms. Accordingly, it was agreed that the troops could carry their weapon systems in the rail and road movements and could guard their own camps against the threat of communists in regional New South Wales.^[45] The legal authority for this decision was not articulated and not questioned.^[46]

Subsequent academic commentary has suggested that the use of the military in this situation would be authorised by constitutional executive power.^[47] HP Lee suggested that, in the absence of statute, the prerogative could have been relied upon.^[48] Elizabeth Ward agreed.^[49] Dr Evatt, the Attorney-General during the strikes, later commended the ‘strong executive action to defend the people against specific disruptive activities’.^[50] While not explicit in stating constitutional executive power, the Attorney-General’s comments illustrate the seeming legality of the actions. The movement of the troops could fall under the prerogative of control and disposition of troops.^[51] However, their employment in a proactive manner (contemplating lethal force) could only fall under the power to keep the peace.

1952 Bonegilla Migrant Centre Riots

The influx of migrants at the end of the Second World War was used as an opportunity for the Commonwealth Government to develop large public works with limited costs, on the condition of passage and accommodation in Australia. Over 300,000 migrants over two decades were housed in Bonegilla, Victoria, where ‘New Australians’ were acclimatised. These migrant centres were decommissioned barracks across the road from the new accommodation at Latchford Barracks (part of the current Army Logistic Training Centre).

Poor food, limited work conditions, segregation of families and the substandard treatment of migrants by ‘Old Australians’ eventually led to a large migrant centre riot in 1952.^[52] Over 3,000 Italian and Spanish migrants, catalysed by the suicide of three young migrants, protested their conditions.^[53] Some buildings were burnt and the protest was classified as a ‘riot’ by the local civil authority, whose limited constabulary forces from regional Victoria (although boosted from neighbouring areas) were assessed as being of limited viability. Accordingly, 200 armed troops and four tanks were called out from Latchford Barracks to suppress the riot (which was characterised as a ‘communist insurrection’).^[54]

It is unclear from the declassified ASIO documents what the trigger for this domestic security operation was, and whether it was a unilateral decision of the Latchford commandant.^[55] The Commonwealth interests were explicit—a migration centre and the threat of communism. The legality of the operation to keep the peace of the realm did not appear to be questioned and it remains a relatively undiscussed and under-documented instance of aid to the civil power in Australian history.

1953 Bowen Wharf Terminal Strikes

In 1953, members of the Australian Army were deployed in the town of Bowen, Queensland, in an attempt to alleviate a labour shortage on the docks which caused a backlog of meat and sugar for unloading onto the wharves. The industrial dispute arose over the failure of the Waterside Workers’ Federation to:

fulfil its quota allowing new members to take up work loading ships on the dock. The union announced it would fill the quota but this was not immediately done. In the meantime a fire at the sugar mill exacerbated the problem of sugar storage … on the day of the mill fire, Mr Holt [the Commonwealth Minister for Labour] said that the Acting Premer of Queensland had contacted the Prime Minister to emphasise the seriousness of the situation.^[56]

Five days after this representation, the Commonwealth covertly flew 200 troops to Bowen.^[57] The deployment of the troops was not classified as an intervention in an industrial dispute, but merely as an action for the purpose of relieving the backlog of loading work.^[58] However, archival research in the preparation of this paper has highlighted that the Commonwealth had  a long-held conviction in its power to keep the peace. Internal cables circulated during the Bowen Wharf strike referred to earlier plans to use federal troops in a law-and-order role. Specifically, in 1918, the Acting Prime Minister, WA Watt, had written to the local manager of the Queensland Meat Export Company that ‘in the event of a definitive refusal from the State Government to supply the necessary protection … the Federal Government would consider it’.^[59] These cables (with respect to the Bowen Wharf strike) then supported the position that the Commonwealth was prepared to use the military as an armed guard if the state government was unwilling to protect the workers.^[60] Operational concept plans do not convey legality—but they clearly signal a presumption that the proposed operation is legal.

For a variety of reasons, the deployment of troops failed to secure local support. Railway workers declared the wharf blacklisted and local workers supported it. The subsequent commandeering of the goods-yard railway by troops escalated tensions. Public outcry among several other unions, as well as the Queensland Government itself,^[61] led to the withdrawal of the troops two days later.^[62]

The calling out of troops was widely criticised as opening the ‘doors to unrestricted intervention by the executive in industrial disputes’.^[63] It could not be argued that the intervention was protecting an essential service as had occurred in the 1949 coalminers’ strike. The issue at the Bowen Wharf was simply that the civilian labour force was not performing the work quickly enough for the Commonwealth’s liking. As such, the action could justifiably fall under the nebulous ‘Commonwealth interest’—although no Commonwealth laws would appear to have been breached, and no Commonwealth property affected. The use of the armed forces in this scenario is most validly authorised by a non-statutory executive power.

1954 Sydney Wharf Strike

From April to May 1954, a crippling strike occurred on Sydney docks over pay and conditions. The issue was that the Waterside Workers’ Federation had been loading a charter vessel with military stores to support the French during the Indochina War. The strike was characterised as pro-communist by a bipartisan Commonwealth Government^[64] after the unionists had passed a motion condemning Australian intervention in foreign disputes.^[65] The Vietminh General Confederation of Workers thanked the union for their ‘noble proletarian internationalism’.^[66]

Troops were used to load the stores, on the legal/political basis that: ‘The Government is not prepared to see arrangements it has made with the French Government disrupted by any political decision of the W.W.F.’^[67]

The legal basis for military involvement was not articulated. However, it is evident under the Constitution that external affairs and international relations are Commonwealth interests.^[68] The legal authority for enforcing these Commonwealth interests was (and remains) constitutional executive power.

1970 Papua New Guinea Secessionist Movements

Fears of agitation and foreign interference in the Territory of Papua and New Guinea had circulated within Commonwealth departments since the 1950s.^[69] Against the backdrop of ‘an alien-inspired global campaign of espionage, subversion and sabotage … by a hostile foreign Power’^[70] plans had been drawn up for internal security operations involving civilian constabularies and Australian military forces. Concern over the security situation in the Territory was compounded by ‘a growing proportion of dissident Europeans’ and ‘a wider group with strong racial and cultural ties with Asia’.^[71]

These fears came to a head in 1970, when the then Administrator of New Guinea sought military assistance from the Commonwealth in response to secessionist agitation in Rabaul and wider armed agitation across Papua and New Guinea.^[72] Intelligence reports suggested that any death of a Tolai person would result in targeted killings of non-indigenous inhabitants.^[73] At the time of the civil unrest, Papua New Guinea was a territory of the Commonwealth of Australia under a governance agreement with the Trustee Council of the United Nations.

In July 1970, the Governor-General of Australia, Sir Paul Hasluck, signed an Order-in-Council calling out the members of the Australian Army’s Pacific Island Regiment (PIR) ‘to render aid to the civil power’.^[74] The conditions were that in the event that police lost (or feared losing) control of sovereignty, the Administrator of the Territory was empowered to permit the PIR to use lethal force.^[75] It was planned that the PIR would ‘assume responsibility for the establishment of safe areas for elements of the local civilian population’^[76] as well as contributing ‘active participation by way of cordon … anti-riot action and … armed intervention’.^[77] This plan had government endorsement despite the existence of considerable disquiet among the ADF’s Chiefs of Staff about the effectiveness of the call out, but not its legality.^[78]

In 1971, a question was asked in the House of Representatives about whether the use of ‘Air Force Hercules aircraft, naval patrolboats [sic] and Army signalmen’ on the Gazelle Peninsula was legal.^[79] It seems that this concern was raised due to the cordon and searches of local civilians by members of the Australian armed forces.^[80] Prime Minister McMahon replied that it was, even without Territory consultation.^[81] Commonwealth documents highlighted that the ‘U.N. Charter and the Trusteeship agreement provided no legal barrier to the use of military forces in aid of the civil authority’.^[82] This makes sense—the legal authority was constitutional, not international.

The Order-in-Council was subsequently revoked on 22 April 1971 without any reported bloodshed. As Beddie and Moss opined, it was open to the Commonwealth Government to devise whatever procedures it considered appropriate for an exercise of constitutional executive power.^[83] Their views mirrored the opinion of Tom Hughes (then Commonwealth Attorney-General) to the Governor-General.^[84] The use of an Order-in-Council provided political form to what was an assessment of domestic violence in a territory. As the incident fell within a territory, not a state, neither section 119 of the Constitution nor relevant statutes were applicable. The use of an Order-in-Council was a political decision rather than a legal requirement. The legal authority ultimately fell under constitutional executive power in response to an apprehended threat to the peace.

1974 Cyclone Tracy

Perhaps overshadowed by the ongoing Vietnam War and impending secession of Papua New Guinea, Cyclone Tracy was a disaster on a scale unparalleled in Australian history. It almost destroyed Darwin, and exposed cracks in the Commonwealth’s disaster management responses.^[85] With no electricity, water or clear civilian leadership, Major General Stretton made the unilateral decision to place himself in command of the area.^[86]

Stretton’s legal position is unclear. He occupied a dual role: military district commander, and the civilian head of the Natural Disasters Organisation, a Commonwealth body whose powers were poorly defined at the time.^[87] Such a position is similar to the dual role held by Commander Maritime Border Command today. Stretton was answerable directly to the Prime Minister. Stretton stressed that his role after Cyclone Tracy was as a civilian director.^[88] However, he occupied a military position and provided military orders—and the only authority for ordering troops onto the street was via military command. Although no weapons were used, ADF members openly patrolled to deter looters.^[89] Their presence in uniform was intended to deter. They were clearly under the command of the Major General. McNamara suggests that constitutional executive power would provide the basis for legal authority, and Kerr’s analysis supports this proposition.^[90] Either the domestic patrols were valid under executive power (and command) or they were an unconstitutional use of troops by a ‘civilian’ director. It seems more likely it was the former than the latter.

1978 Hilton Bombing

Perhaps the best-known instance of the ADF aiding the civil authority occurred after the bomb explosion outside the Hilton Hotel in Sydney on 13 February 1978. Three men were killed and a further nine injured.^[91] The blast occurred before the opening of the Commonwealth Heads of Government Regional Meeting. Subsequently the Governor-General, by Order-in-Council, called out the ADF on the advice of the Executive Council.^[92] This form of call out followed the model established by the New Guinean experience less than a decade before.

Accordingly, 1,900 troops were called out to secure the town of Bowral, New South Wales, where the regional meeting subsequently took place.^[93] Until Operation COVID-19 Assist, Bowral was ‘[t]he only major mobilisation of troops in an urban setting in Australia’s history’.^[94] Indeed, ‘[o]ne local newspaper said the “virtual siege conditions” were reminiscent of “Franco’s Spain”’.^[95] Anthony Blackshield summarised the position as follows:

In terms of our popular social traditions, the idea is very firmly entrenched that the use of armed force[s] within the realm in peacetime is ‘not cricket’. It is this longstanding social tradition that really underlies the disquiet surrounding the events at Bowral. But as soon as one asks whether this social tradition is reflected in any legal tradition that might be invoked as a constitutional restraint on the use of armed forces, one is plunged into an esoteric maze of uncertainties.^[96]

This ‘maze’ was navigated by Sir Victor Windeyer’s opinion annexed to Justice Robert Hope’s Protective Security Review report.^[97] As noted in Table 1, the call out did not occur at the request of the State of New South Wales (although it did occur with its consent). Sir Victor held that the use of the ADF was based on the inherent power of the Commonwealth to protect its interests.^[98] This position mirrored the Sharkey case, reflecting that the power of the Commonwealth was ‘not to protect the State, but to protect itself’.^[99] Sir Victor stated that the Commonwealth had the inherent power to ‘employ members of its Defence Force “for the protection of its servants or property or the safeguarding of its interests”’.^[100] This was because such power was an incident of nationhood:

The power of the Commonwealth Government to use the armed Forces at its command to prevent or suppress disorder that might subvert its lawful authority arises fundamentally, I think, because the Constitution created a sovereign body politic with the attributes that are inherit in such a body. The Commonwealth of Australia is not only a federation of States. It is a nation.^[101]

Sir Victor continued:

The ultimate constitutional authority for the calling out of the Defence Force in … [Bowral] was thus the power and the duty of the Commonwealth Government to protect the national interest and to uphold the laws of the Commonwealth. Being by order of the Governor-General, acting with the advice of the Executive Council, it was of unquestionable validity.^[102]

Sir Victor’s opinion is often cited in support of government positions.^[103] Terrorist attacks—and threats thereof—were subsequently recognised as constituting domestic violence in the 1980s.^[104] However, no request was made in accordance with the relevant constitutional provision or statutory framework at the time. It is clear that the ultimate constitutional authority remained the constitutional executive power.

1983 Spy Flights

In April 1983, the Commonwealth Government used ADF assets—primarily surveillance aircraft under the command of RAAF pilots—to collect evidence of the Tasmanian Government’s contravention of federal regulations.^[105] There was no suggestion that there was any threat of domestic violence. As Beddie and Moss opined, the flights were a law enforcement exercise by the Commonwealth, acting in preparation to enforce a Commonwealth law.^[106]

The ‘spy flights’ (as they became known) were subject to exhaustive debate in the Parliament^[107] and at Senate Estimates,^[108] with the aim of clarifying their legal basis. Under the policy at the time, the flights could have fallen under either DACC or DFACA. The Attorney-General at the time, Senator Gareth Evans, thought it was the latter, commenting:

As to the legality of the flights in question, I satisfied myself both before the flights took place, and certainly subsequently, that there was no question whatsoever but that the flights were legal … There are some legal uncertainties about the precise nature and extent of the powers available to the military and the limitations on those in the context of aid to the civilian power. There is no question but that under section 61 of the Constitution and with the legislative back-up of the Defence Act under section 51(6) … the flights in question were not only entirely within the range of normal practice so far as the Royal Australian Air Force is concerned but also unquestionably within the legality of the RAAF and indeed the military role.^[109]

There are some important points to extract from Senator Evans’s opinion. Attorney-General Evans clearly noted that the constitutional executive power provided ample lawful authority for the operation.^[110] Evans believed that the flights were conducted to enforce the laws of the Commonwealth and as such were legal.^[111] The ability for the ADF (not just the RAAF) to conduct surveillance operations was confirmed. Their role in evidence collection was within their constitutionally defined role. As such, the ‘spy flights’ were a demonstration of the prerogative power in operation in Australia, justified as being necessary to keep the peace of the realm. Their legality was unquestionable.

1989 Newcastle Earthquake

On 28 December 1989, Newcastle was struck by an earthquake measuring 5.5 on the Richter scale, causing damage and loss of life.^[112] Two hundred military personnel were requested by New South Wales to assist due to the ‘fear of possible looting in damaged buildings’.^[113] Although often cited as a DACC operation,^[114] the use of the ADF in the aftermath of the Newcastle earthquake shared many similarities with the 1942 bombing of Darwin and the 1974 post-Cyclone Tracy operations. This request was not formally made under section 119 of the Constitution and did not seem to be linked to any notion of domestic violence—just fear of looting.

Jointly, civilian police and military units patrolled the city streets to retain order and keep the peace. Barricades were established and cordons enforced by military personnel around the central business district.^[115] Civilians were searched and screened by armed military personnel.^[116] Local army units were relieved after 48 hours by 120 regular soldiers from Holsworthy Barracks.^[117]

No formal requisition appeared in the relevant gazette, no state of domestic violence was declared, and it was unclear whether any orders for opening fire on looters were given. There is, therefore, limited legal documentation to rely upon to assess the authorities given for these actions. It is likely that if cordoning and searches occurred, this was done in reliance on the prerogative to keep the peace from an apprehended disturbance. At the very least, it followed a familiar (and legally valid) history of ADF support to deter potential breaches of the peace through their presence in uniform.

2002 Commonwealth Heads of Government Meeting and 2003 President of the United States Visit

In 2000, the Defence Act was overhauled with respect to domestic operations through the insertion of Part IIIAAA. This amendment was intended to provide a clear statutory footing for the ADF to operate on during the Olympics and to put an end to the confusing legal status of the domestic operations of the previous 99 years.

This legislation, importantly, related only to instances of domestic violence, and still does. The term had not been defined by any Australian court but had been debated internally within government for over five decades (the results of which can be found within the National Archives of Australia).^[118] Terrorism and domestic violence had become fused terms, even as the notion of ‘domestic violence’ started to become linked with family violence. The 2000 Olympics importantly pre-dated the 11 September 2001 (9/11) attacks within the United States, and the 2000 amending legislation had omitted any statutory provision that regulated air patrols. It was a piece of legislation purely focused on the land domain.

The residual gap in the legislation was made clear two years later. Operation Guardian II—the operation with respect to the 2002 Commonwealth Heads of Government Meeting at Coolum, Queensland—established the framework for the use of force by the RAAF. Notably, it authorised the shooting down of civilian aircraft by fighter jets in order to prevent a suicidal crash. This authority reflected concerns generated by the 9/11 attacks.^[119] These security provisions were mirrored when the President of the United States visited Australia in 2003.^[120] Although a contingent call out was authorised and enacted under Part IIIAAA, the statutory provisions at the time did not include any ability to authorise lethal force in air operations. 

Unlike the 1978 Bowral call out, which unfolded in response to an ongoing threat, these two air operations ‘were planned well in advance for a foreseeable threat’.^[121] No clear legal basis was provided for the operations. Although the prerogative as to the disposition and arming of the forces would have authorised the take-off of the flights, and while self-defence could authorise the destruction of a civilian aircraft in response to an actual attack, these air operations arguably went beyond the scope of these sources of power.^[122] The only remaining authority was executive power.

2020 COVID Assistance

In combating the most destructive public health emergency in living memory (COVID-19), Prime Minister Morrison utilised the ADF as part of Australia’s response to a domestic crisis.^[123] As the pandemic continued to unfold, reliance upon military personnel increased significantly and Operation COVID-19 Assist was announced on 1 April 2020.^[124] The operation constituted the largest deployment of the ADF since the Second World War and comprised seven state and territory based task groups.

At its peak, several thousand ADF personnel were deployed in support of Operation COVID-19 Assist.^[125] The role of each task group varied depending upon each jurisdictional need but included assistance to health workers in contact tracing, assistance to law enforcement agencies as part of quarantine and isolation compliance in areas of international arrivals, and border control.^[126] The Minister for Defence stressed that all stages of the operation were DACC policy (thus not permitting ADF members to use coercive powers at any time).^[127]

As previously stated, DACC policy clearly defines force as including ‘the restriction of freedom of movement of the civil community whether there is physical contact or not’.^[128] It seems nearly impossible to achieve quarantine and isolation compliance without triggering this threshold. The use of the ADF in support of quarantine and isolation compliance, however, falls outside of any authorities granted by the Biosecurity Act 2015 (Cth) and—by virtue of Defence’s own policy construct—falls logically within DFACA provisions.

Notably, however, no such call out actually occurred. This is not to say that the operation was illegal; this paper has demonstrated that there is a clear non-statutory lawful authority for the conduct of these operations. But it demonstrates that, regardless of paradoxical policy guidelines, the ADF has a clear history of supporting the civil authority in a domestic context.

Summary Observations from Case Studies

It is possible to discern a pattern to the Commonwealth Government’s historical practice of calling out the military in response to perceived threats on Australian soil. After the first formal request for military assistance (by the Queensland Government) under section 119 of the Constitution was denied in 1912, serious legal questions were asked about the role and capacity of the federal military forces to conduct domestic operations. Yet the debates were never around whether it could happen. It just was a question of how federalism constrained Commonwealth power. A hundred years of practice and law have made clear that the Commonwealth can call (and has called) itself into states to protect its own interests, while ignoring mandatory constitutional requirements to assist states. Responding to domestic violence under section 119 is an imperfect duty and relationship, which the Commonwealth cannot be bound to. Equally, the Commonwealth can protect itself even without state consent.

Subsequent to the centralisation of its decision-making processes after wars, the Commonwealth Government seems to have become more willing to use troops. This is evidenced by the rise in deployments from 1919 to 1928 (after World War I) and again from 1939 to 1954 (after World War II). The centralisation of responses to emergencies reached its pinnacle against the backdrop of the threat of terrorism, with the referral of state power to the Commonwealth, and the statutory expansion of Part IIIAAA. In reality, the Commonwealth Government has a long history of authorising ADF interventions in response to perceived national emergencies, even if such emergencies are shortages of coal. Since air threats materialised in September 2001, the codification (in law and policy) of domestic operations has invariably envisaged a worst-case scenario. It is this policy that will now be canvassed.

Endnotes

As outlined in the introduction to this paper, the use of the military within the land territory of Australia falls into two broad categories of defence policy: defence assistance to the civil community (DACC) and defence force aid to the civil authority (DFACA). To clarify the distinction, some describe DACC as the utilisation of the ADF for ‘tasks which are normally the responsibility of the community, including State and Territory governments, law enforcement agencies and private organisations’.^[129] Importantly, DACC relates to situations ‘where there is no likelihood that Defence personnel will be required to use, or potentially use, force’.^[130] Implied in this statement is an understanding that the ADF cannot be used to facilitate the use of force by a state or territory.^[131] By contrast, DFACA is the policy construct applied when there is a likelihood of force being used. It is questionable, however, whether these policy distinctions reflect the full ambit of circumstances under which the ADF may lawfully be requested to operate on Australian soil. These are policy, not legal, constructs. It is the most fundamental point to make.

The Prevalence of the Policy Framework

The binary policy framework of DACC/DFACA has become the model employed by civilian and military agencies when discussing and framing domestic ADF deployments. It is difficult to ascertain when the policy came into action. Open-source research shows that the policy framework informed decisions concerning the use of the ADF at Bowral in 1979^[132] and was at the centre of parliamentary debates in 1989 around joint police/ADF operations.^[133] The policy was noted in a parliamentary research paper in 1998^[134] and again in an Australian Government Disaster Response Plan in 2008,^[135] was discussed in a 2012 article by a then-serving ADF legal officer,^[136] and increasingly appeared in discussions by government officials^[137] and in the academic literature around domestic security operations after 2012.^[138] Under current Emergency Management Australia plans, DACC forms the core operational foundation for any ADF domestic disaster response.^[139] None of these plans, documents or frameworks note that the policy is more restrictive than the law. The policy seems to reflect the law.

Perhaps due to the need to maintain consistent strategic messaging, the DACC policy framework became increasingly referenced within ministerial commentary about Operation COVID-19 Assist. In March 2020, the then Minister for Defence noted that ADF support for mandatory quarantine measures fell under the DACC framework as ADF members had ‘no coercive enforcement powers’.^[140] This is legally and historically wrong. The policy was also reflected in the ADF’s ‘role statement’ in support of Emergency Management Victoria.^[141] Comments to Senate committees by ADF members also made reference to the DACC framework.^[142]

Notwithstanding its central relevance to distinguishing DACC from DFACA, the question of what constitutes a ‘use of force’ has never been publicly resolved. It is therefore important to address this omission for current planners and ADF operators, to highlight the significant gap between law and policy (and to show that a new policy needs to be introduced).

What Is ‘Force’?

Force is ‘a word of varied and extensive denotation’.^[143] The concept of force is intrinsic to international law and international relations, with key prohibitions on the use of force by one sovereign state against another.^[144] From a domestic law perspective, the concept of force litters both the common law (assault, battery, false imprisonment, sexual offences) and Australia’s body of statutory law.

Within the context of DACC and DFACA, the threshold of ‘any likelihood’ makes it difficult to envisage a situation where there is absolutely no likelihood of force being used by ADF members, including in self-defence. This is difficult to assess if intervening in industrial actions—such as in Bowen or against coalminers—where the ADF may aggravate the situation and be required to use force in self-defence.^[145] The notion of force within the DACC Manual is not defined but includes concepts such as ‘intrusive or coercive actions’^[146] as well as ‘the restriction of freedom of movement of the civil community whether there is physical contact or not’.^[147] No examples are given and no other publicly available policy documents help interpret these defining terms. Recourse must be had, then, to the plain English meaning of the words.

‘Intrusive’ is defined within the Macquarie Dictionary as ‘characterised by or involving intrusion’, ‘coming unbidden or without welcome’, or ‘violating one’s privacy’. Equally, ‘coercive’ is defined as ‘to coerce’: ‘to restrain or contain by force, law, or authority’ or ‘to compel by forcible action’. The golden thread between the words, then, is that they involve an act, physical or not, done to an individual without their consent. This interpretation is reflected in the second limb of the 2020 DACC Manual’s description of force: restricting the freedom of movement of the civil community. Accordingly, at the core of this definition is the lack of consent and the compulsion by force or authority.

Ambiguity in the definition raises a difficult question: from whose perspective is force to be interpreted? The plain English reading of the DACC Manual definition would suggest that force is in the eye of the beholder.^[148] Does the mere presence of ADF members constitute force? Examples of DACC have historically included military aid in bushfires, floods and storms, or use of specialist military personnel and equipment for explosive ordnance disposal.^[149] It has also included helicopters or fighter jets appearing at motorsport events, helicopters or skydivers appearing at football matches, or bands appearing at ceremonial functions.^[150] Implicit in this pattern of behaviour is that the ADF does not believe that the mere presence of its members, unarmed, constitutes a use of force, or that the use of military equipment (outside of weapons) triggers DFACA. This approach mirrors jurisprudence in United States case law^[151] but runs contrary to earlier legal discussion in Parliament concerning the legality of the RAAF’s conduct over Tasmania in 1983.^[152]

The gap within law and policy is not resolved by the 2020 DACC Manual, albeit that the policy provides that the ADF cannot carry weapons.^[153] As this paper has shown, there is no legal issue with ADF members carrying and utilising weapons domestically.^[154] The tension in law and policy came through during the response to COVID-19. Major General Roger Noble—then Head of Military Strategic Commitments, whose signature authorised the 2020 DACC Manual—responded to Senator Fawcett on the orders for opening fire. Noble stated that the order:

is not advice to them. This is an order with which they must comply: ‘You are to act in a calm and professional manner when performing your duties. You are to apply common sense and adhere to defence values when interacting with members of the public and assisting authorities. You are only to undertake tasks directed by your chain of command. You are not authorised to undertake law enforcement tasks, including arresting anyone, using intrusive or coercive powers against anyone; issue orders to or demand answers from members of the public.’^[155]

Noble continued:

So the notion that you, as an ADF member, can tackle someone leaving a hotel—you would not be complying with the orders you have been given. People will ask, ‘What’s the point, then?’ The answer is: they’ve got eyes, ears, legs, brains and they are with the police. Their immediate response would be to inform the police, who have the authority to conduct law enforcement. There’s a bit of a misnomer, I suspect, on the limits of [ADF] powers. They are very clearly laid out to them.^[156]

Although the Major General is not a legal officer, he receives legal advice through organic command legal officers posted to Military Strategic Commitments Branch, and from the Defence Legal Branch, which services the entire Department of Defence. Indeed, the head of this branch, Mr Adrian D’Amico, attended the Senate committee with Noble. Noble’s comments make it clear that the mere presence of ADF troops in hotel quarantine is not viewed within the Department of Defence as a use of force.

While the mere presence of ADF troops does not constitute a use of force (for the purposes of policy), military presence is widely recognised to be a deterrent. For example, as early as 1923, the Commonwealth Government deployed troops to a tumultuous Melbourne central business district to protect Commonwealth property and to restore order through their presence.^[157] This followed colonial experience where the visible use of troops was often sufficient to defuse a situation.^[158] A Military Board pamphlet of 1964 stated that:

depending on the circumstances, the minimum force necessary to restore law and order can vary from the mere appearance of troops to the use of all the force at the commander’s disposal.^[159]

Again, in preparing to utilise the ADF in Papua New Guinea in 1970, the Chiefs of Staff believed that ‘the military forces could be deployed without call-out so as to deter, by their mere presence, unlawful activities’.^[160] Justice Sir Victor Windeyer, a decorated World War II veteran,^[161] recognised the deterrent effect when he wrote:

Members of the Defence Force so called out may be required to act in ways and with weapons and equipment that are very different from those of their predecessors who were called upon in past times to put down riots. Tear-gas and smoke missiles were then unknown; and today the mere presence of military vehicles, AFV’s [Armoured Fighting Vehicles] and APC’s [Armoured Personnel Carriers] may be a deterrent.^[162]

Within the Royal Australian Infantry Corps, soldiers are taught the need to escalate and de-escalate force in order to resolve situations. This parallels training that civilian police undertake in the use of force continuum.^[163] The doctrine of de-escalation of violence recognises the authority military uniforms hold. Since Federation, the use of the ADF domestically has not been grounded in ‘likelihood of the use of force’ but in keeping the peace—proactively if needed. This paper asserts that an alternative policy framework is therefore needed that reflects the full ambit of constitutional executive power and grounds discussions around the ‘proper’ use of military power domestically.

Endnotes

The British framework around domestic operations is a useful comparison—not because British practice is immediately applicable within the federal Commonwealth of Australia, but due to the similarities in executive power. To that end, British policy around domestic operations reflects the full extent of executive power, while Australian policy reflects only a fraction.

There are many instances in contemporary history of British armed forces being relied upon for domestic operations.^[164] A well-known example among constitutional lawyers is the deployment of British troops to break a massive industrial strike in 1911. At the time, Home Secretary Winston Churchill granted military commanders complete discretion to use the troops as they saw fit.^[165] Invoking the state’s right to act to keep the peace, he justified the discretion on the basis that:

military authorities always enjoy the power to move troops in their own country—to move British troops around whenever it is found to be convenient or necessary, and the regulation which hitherto restricted their employment in places where there was disorder until there had been a requisition from the local authority was only a regulation for the convenience of the War Office and the Government generally, and has in these circumstances necessarily been abrogated to discharge the duties with which at this juncture they were officially charged.^[166]

What, then, were these regulations? Domestic deployments of UK service personnel occur on three possible legal bases: a Defence Council Order under the Emergency Powers Act 1964, emergency regulations under the Civil Contingencies Act 2004 (which do not appear to have ever been used), or the royal prerogative for operations involving ‘military work’.^[167] The concept of military work is the factor that delineates the categorisation, rather than ‘a likelihood of use of force’. Military work is undefined, but includes matters:

where service personnel have been trained by the military, where service personnel undertake that work as their ‘day job’, and for work which traditionally has been seen as military work. This type of work is usually, but not exclusively, requested by law enforcement agencies, most commonly the police, the Border Force and Her Majesty’s (HM) Revenue and Customs.^[168]

The military is therefore used in instances where the civil authority lacks the capability to fulfil the task or where the size and nature of the military makes it the logical choice. While the use of military personnel armed with weapons is exceptional,^[169] there are many instances of it being planned and occurring within contemporary British history.^[170] This mirrors Australian experiences.

Turning back to the Australian context, there is merit in approaching the legality of domestic operations with reference to whether the work is ‘military’ in nature rather than by applying the arbitrary and contested concept of ‘use of force’ underpinning DACC/DFACA. Applying the concept of ‘military work’ to frame ADF domestic operations would reflect the full left and right of the arc the military enjoys under the Constitution.^[171]

Adopting the ‘military work’ construct would create the conceptual certainty that has been long absent in discussions around domestic operations, notwithstanding a century of it occurring. While there is considerable merit in following British practice concerning ‘military work’, there are equally many bureaucratic obstacles to replacing the DACC/DFACA framework. Foremost is that many ADF and civilian planners think the policy reflects law—which this occasional paper has challenged head-on. A review of Australian military history (which is so loved by military professionals) highlights just how integral domestic operations have been to the Commonwealth, notwithstanding the choice of federalism. Federal government means weak government. This choice was deliberate, and even then, constitutional executive power was enshrined to support the federal executive. As the Australian nation has grown in size, maturity and capacity, the Commonwealth has found that the easiest and most constitutionally valid way to fix a problem is to use the ADF. The policy should reflect practice.

Endnotes

To requote Major General Noble: ‘there’s a bit of a misnomer, I suspect, on the limits of their [the military’s] powers’.^[172] It is important, then, to demonstrate the legality and credibility of domestic operations, and to bust the myth that ADF members are ‘spontaneous volunteers’ on domestic operations.

It is clear that the Commonwealth’s executive power, founded in section 61 of the Constitution, can and does provide a breadth and depth of lawful authority for ADF operations both external and domestic. As section 114 of the Constitution makes clear, only the Commonwealth has the constitutional authority to raise and maintain military and naval forces. Use of the nation’s military is inherently a Commonwealth responsibility and issue.

As this paper has shown, there is nothing within the Constitution that prohibits the use of ADF troops domestically.^[173] Although the Founding Fathers of the Australian Constitution chose a federal construct to keep government weak,^[174] the foundational document was not designed to be so impotent as to fail at the moment of need.^[175] As Jacobs J in Victoria v Commonwealth stated half a century ago:

the growth of national identity results in a corresponding growth in the areas of activities which have an Australian rather than a local flavour. Thus, the complexity and values of a modern national society result in a need for co-ordination and integration of ways and means of planning for that complexity and reflecting those values.^[176]

This paper has demonstrated clear historical precedents for the deployment of military forces on Australian soil in response to a range of perceived threats to national security. Having identified flaws in the DACC/DFACA policy framework that shapes public rhetoric around domestic ADF operations, this paper submits that the term ‘military work’ captures ‘the deeply held, if imperfectly understood, reservations’^[177] around military operations conducted on Australian soil. The concept of ‘military work’ is undefined, allowing for a judgement call to be made by those directing the work—elected representatives—about what the role of the military is: a role that may shift over time, even if certain warfighting elements always remain core.

The Constitution can evolve—and so can the role of the military. It is important to recognise this in debates around the ‘proper’ use of the ADF in domestic operations. By adopting the proposed policy changes, the available courses of action open to decision-makers can be broadened to the full extent of legal possibilities in a way that is consistent with the lessons of applied history outlined in this paper. By moving away from the current policy constraints that afflict the DACC/DFACA policy framework, the ADF can evolve from its artificial position as ‘spontaneous volunteers’ into one that acknowledges the ADF’s role in upholding national security interests, be they external or domestic.

Endnotes