Review Essay - Calling Out the Troops
Calling Out the Troops: The Australian military and civil unrest: the legal and constitutional issues
Written by: Michael Head,
Federation Press, Sydney, 2009,
ISBN: 9781862877092, 254pp
Abstract
This review essay examines the arguments of a new book on the use of the ADF to deal with civil unrest within Australia. Several arguments are set out which point to a growing capacity and inclination on the part of governments to use the ADF for such purposes. Various factors that constrain such use are also examined, some of them relatively weak. At all events, the topic is an important one that deserves close consideration by both the general public and the armed forces.
Can the government be trusted to use the Australian Defence Force legally and wisely? Can the ADF itself be trusted to respect civil liberties? Calling Out the Troops examines the complex legal and constitutional issues relating to the use of the ADF for domestic security purposes broadly defined. More specifically, it examines what the author terms ‘call out of the Australian Defence Force ... against citizens’ (p. 2, emphasis added). Michael Head is concerned about the growing use of the ADF for such purposes—whether or not it is formally ‘called out’ by the Governor-General.
The problem is that governments, rather than seeing use of the armed forces for domestic security as a last and reluctant resort, may find the ADF an increasingly convenient and effective instrument of policy. Current insecurities seem to be encouraging this trend not only in Australia but also overseas. The ‘war on terror’ in particular has helped justify turning to the military in the eyes of the public. For this is a war of ‘infinite duration’ (p. 216) and it threatens major violence in the very fabric of Australian society. The need to defend porous borders against illegal arrivals further fuels community anxieties and increases readiness to invoke military responses.
It is also the case that the ADF is a useful and versatile instrument for governments. Australia’s armed forces have a wide range of capabilities that can be rapidly and efficiently deployed, a strong culture of obedience to political direction, and a degree of separation from the civilian judiciary in the event of criminal charges against its members. It also has long experience of constabulary operations in many countries. As Head sees it, the ADF’s experience of ‘policing’ in Afghanistan, Iraq, Timor-Leste, the Solomon Islands and elsewhere has left military personnel more psychologically prepared and better trained to undertake constabulary action within Australia (p. 89).
Reasons for Concern
Calling Out the Troops subscribes to the well-established but often ill-defined tradition in Western democracies that governments must be constrained in their use of the armed forces by constitutions, laws and conventions and by countervailing institutions, especially parliament and the judiciary. The danger is that, left unchecked, the executive will use control over the military to reinforce its political position at home, infringe civil liberties and undertake actions which are difficult to call to account in courts of law, including the use of lethal force against citizens. Ultimately the military may be used to target not just serious terrorist threats but ‘social unrest and political dissent’ (p. 16).
It may well be that governments do not intend to misuse the armed forces in this way. The pursuit of domestic security is a necessary and proper policy but it may blind national leaders, the general public and the media to the costs incurred in terms of political-military relations, individual rights and the separation of powers. There is a danger of ‘creeping militarisation’ that will ‘accustom ordinary people to the sight of troops on the streets’ (p. 221). Any moves to extend the power of governments to make use of the ADF in domestic security, Head argues, must be met with suspicion and distrust.
Several current trends underpin this concern. First, there has clearly been greater use of the ADF to uphold domestic security in recent years, and not just since 11 September 2001. The ADF began to enhance its counter-terrorism capabilities in the 1990s, and over 4000 military personnel were assigned to support security at the 2000 Sydney Olympics. As in other Western democracies, Australian governments rapidly overcame any historic reluctance to use troops in this way, turning readily to the ADF to deal with actual and potential internal disorder, terrorism and border protection. It is now the norm, for example, to call on the ADF to assist in security at major sporting events and international meetings held in Australia. The Labor Government elected in 2007 has continued this practice.
Second, in response to government policy more ADF capabilities have been directed towards domestic security. After a review in 1997 a unit was established to deal with chemical, biological and radiological threats and the SAS was given more capacity to resolve terrorist incidents onboard a ship underway. After 11 September 2001, major developments took place: an Incident Response Regiment was set up to deal with a wide range of man-made and natural disasters, a second Tactical Assault Group was established in Sydney, and a two-star Special Operations Command was created. Reserve Forces were also brought into play. Most notably, six Reserve Response Forces (not Ready Reserve Forces! pp. 84, 88) consisting of 156 personnel were set up in most capital cities to be available for domestic security tasks at 28 days’ notice. Head also finds significant the ASPI Strategic Insights paper, Australian Domestic Security: The Role of Defence, November 2006, for its argument that the ADF should adapt its culture and embrace domestic security as ‘core business’.
Third, amendments to the Defence Act in 2000 and especially in 2006 spell out, and arguably expand, what were formerly rather vague and indeterminate powers available to the government to employ the ADF for domestic security purposes. The Constitution provided for such action at the request of the states against ‘domestic violence’ (a term still undefined, but taken from the US Constitution where it is intended to mean ‘insurrection’) while subsequent practice established that the federal government could use its executive powers under the Constitution to deploy the armed forces in protection of its own interests. The 2006 legislation now permits the government to use the ADF not only to defend ‘Commonwealth interests’ against actual or potential violence but also to protect designated ‘critical infrastructure’ which can include such things as physical facilities, information technologies and communication systems—whoever they belong to. Lethal force can thus be used to protect not only life but also private property.
In this light almost anything the federal government deems to be relevant to national security, it appears, might justify call out of the ADF. Thus acts of terrorism can easily be considered ‘domestic violence’, giving wide authority to the Commonwealth to resort to the use of the ADF. Significantly, terrorism itself has been widely defined in the raft of anti-terrorism legislation passed since 2001, and looks likely to be widened even further to include ‘psychological terrorism’. As Head points out, this legislation makes no distinction between serious and minor acts of terrorism, perhaps because threats are as defined by governments which can easily exaggerate them (p. 149).
Fourth, the actual procedure for formally calling out forces in Australia has been streamlined by the amendments of 2000 and 2006. Where once it required a formal request from the Prime Minister to the Governor-General to sign an order to call out the armed forces (as in 1978 to protect visiting Commonwealth Heads of Government after the Hilton hotel bombing), now in a ‘sudden and extraordinary emergency’ an order may be made by the Prime Minister alone, or by the Defence Minister and the Attorney General, or by one of these plus the Deputy Prime Minister, Minister for Foreign Affairs or Treasurer. There is no definition of what constitutes a ‘sudden and extraordinary emergency’ and the order can be made by a simple phone call. Nor is there any requirement to recall parliament in the event of a call out.
Fifth, the ADF itself has been granted wider and more explicit powers. The Chief of the Defence Force (CDF) can now be given a standing order directly by authorising ministers (as well as by the Governor-General) to deploy the ADF in ‘specified circumstances’. Whether those circumstances have come into existence would be a matter for judgment on the part of the CDF. The Defence Act does expressly forbid the CDF from stopping or restricting any ‘protest, dissent, assembly or industrial action’ but immediately qualifies this by allowing such action if ‘there is a reasonable likelihood of the death of, or serious injury to, persons or serious damage to property’.
The specific powers granted to members of the ADF on call out are also widely defined. Under command they may recapture a location or thing; prevent, or put an end to, acts of violence; and protect persons from acts of violence. Given that the term ‘act of violence’ is not defined and could be interpreted very loosely, almost any action by the ADF might be justified. The amendments to the Defence Act also set out ‘special powers’ for military personnel such as freeing hostages, searching individuals and premises for dangerous objects, detaining suspected persons (to be handed over to the police as soon as practicable), and controlling the movement of people and means of transport. In certain circumstances, ADF personnel may be empowered to require individuals to answer questions or produce documents (subject to penalty for failure to comply), demand that a person operate a vessel or aircraft, or ‘compel’ obedience to directions.
The current legislation also states that once called out, military personnel are entitled to use force if they have ‘reasonable grounds’ to believe that it is necessary to protect themselves or others from serious injury or loss of life. Lethal force can also be used to protect any infrastructure deemed critical by the government and to prevent the escape of a person being detained if there is no other means of preventing that escape (a greater power than that possessed by police). It may also be possible, Head warns, that actions by the ADF could provoke threatening reactions which might then be used to justify lethal force (p. 166).
Sixth, the legal position of ADF members who commit acts of violence against civilians has been buttressed. Criminal law applies to those in uniform but the recent legislation, Head argues, has served to give military personnel greater immunity from prosecution in at least two respects. For one thing, any charge against military personnel under criminal law is to be brought by the Commonwealth Director of Public Prosecutions and not by State or Territory prosecutors. This could give the Commonwealth government greater influence in the decision whether or not to prosecute (p. 116).
More significant, perhaps, is the introduction of a defence of superior orders, albeit highly qualified. Six conditions must be met to uphold this defence against criminal charges, including that the alleged criminal act was done under orders, that the order was not ‘manifestly unlawful’ and that the action taken was ‘reasonable and necessary to give effect to that order’. Despite such requirements, Head suggests, this is a retreat from the Nuremberg principle that superior orders cannot excuse a criminal act, only mitigate the punishment.
A final source of concern is the growing collaboration between the ADF, the police and other civilian security agencies. In response to transnational and multifaceted threats, organisations responsible for domestic security have naturally and understandably moved towards greater cooperation, especially in planning, training and joint exercises. Head sees further evidence for this in the establishment of the Asia Pacific Civil-Military Centre of Excellence in 2008, which aims to promote more effective collaboration between military and civilian agencies in disaster and conflict management. Though oriented towards overseas operations, the resultant closer ties will facilitate greater cooperation at home. Recent suggestions that the Defence Signals Directorate be permitted to eavesdrop on Australian citizens rather than confining its activities to non-Australians also reinforce this concern.
Absence of Counterweights
The trends examined by Head are seen as all the more worrying in that no strong counterweights to this expansion of executive power have emerged. The courts are generally compliant. In the case of Thomas v Mowbray in 2007, for example, the High Court sanctioned broad use of ‘defence power’ as a basis for domestic security operations in peacetime, and accepted the right of the Commonwealth to determine what security entails—this was a retreat from the decision in 1951, when the Court prevented the Menzies Government from outlawing the Communist Party on the claimed grounds of national security. The primacy of governments in matters of threats and security makes it extremely difficult, if not impossible, for private citizens to challenge official judgments (p. 179).
Nor does Head put any faith in the parliamentary process. Politicians of both major parties seem to regard the granting of broad powers to the executive government as necessary to the ‘war on terror’. The Howard Government’s amendments to the Defence Act in 2000 and 2006, for example, were supported by the Labor Opposition with little question. In both houses debate was relatively short and only the Greens in the Senate voiced any serious dissent.
The Governor-General as Commander-in-Chief is also unlikely to serve as a strong restraint on the use of the ADF for domestic security purposes. Several Governors-General have emphasised their special relationship with military personnel and might be expected to warn the government against any blatantly unwise use of the ADF. But, by convention, command-in-chief is primarily symbolic and any attempt to argue that it disposes of independent power opens up several cans of worms. Some have suggested the Governor-General, Sir John Kerr, contemplated calling in the armed forces during the 1975 constitutional crisis, but there is no evidence for this. More significant is Kerr’s claim that he did not consult the Queen about the dismissal in order to avoid dragging her into party politics. Does the Governor-General have a similar duty to keep the ADF out of party politics?
"It Can't Happen Here"
While Head is seriously unwilling to trust governments, others are less suspicious. For one thing, experience since Federation suggests that governments have in practice been reluctant to actually put armed troops on the streets. After 1901 up to 1929 the Commonwealth turned down six requests from State governments for military assistance against potential civil disorder (mostly related to industrial action) after which the States evidently gave up asking. The only actual call out in Australia was that in 1978, although RAAF fighters have on occasions been authorised to shoot down hijacked aircraft since 2002 during visits by heads of state. In none of these cases was force actually used.
Second, the ADF itself could constrain government action. Head suggests that senior ADF personnel might resist government proposals that are manifestly partisan or clearly ill-advised. He also refers to the unease of ADF personnel involved in the Tampa operation and the SIEV-4 ‘children overboard’ affair. Such reactions may give governments pause for thought, but resistance by the military to what they see as unwise use of the ADF can only be taken so far. In the event troops are called out, however, some reassurance that violence will be avoided if at all possible may be found in the good discipline, sound leadership and political sensitivity among ADF personnel.
Third, though resistance to the expanding use of the ADF has been weak so far, any attempt to use armed force against citizens is likely to stimulate growing resistance (use against non-citizens such as ‘boat people’ is another matter). The weight of the Westminster tradition may be brought to bear. The judiciary, parliament, public opinion and the media may well restrain governments if they seek to go too far in using force for internal security. What, for example, would be the popular reaction in Australia to an event such as the killing of four student demonstrators at Kent State University by the Ohio National Guard in 1970?
Fourth, there is the argument that recent legislation has not so much expanded Commonwealth powers to use the armed forces as defined them more clearly and set out the legal position of service personnel more fully. Head challenges this view (e.g. pp. 16–21), especially with regard to the 2006 amendments to the Defence Act, but must acknowledge that the original constitutional powers were so vague and amorphous they could mean almost anything the government wanted them to mean. (For example, the powers on which the 1978 call out was based were never clearly and explicitly justified.) It is a difficult question whether spelling out ill-defined powers is likely to encourage the use of such powers or actually sets more effective limits on those powers compared with leaving them vague and undefined—a problem that also arises in any attempt to define the ‘reserve powers’ of the Governor-General.
Similarly, with regard to the apparently greater immunity from prosecution of soldiers who kill civilians in the course of domestic security operations, it could be argued that the law has simply caught up with contemporary practice and political reality. The vague and untested legal situation of the soldier with a rifle is merely set out in a way that parliament and the public would expect and support. No British soldier serving in Northern Ireland in the 1990s, for example, was ultimately found guilty of murder even though several were prose- cuted—albeit in some cases exoneration only came after appeals or re-trials.
Conclusion
Calling Out the Troops examines the issues surrounding the use of the ADF for domestic security in considerable depth, together with other related questions such as the place of military justice in the wider legal system, the legal status of Rules of Engagement, the civil liability of ADF commanders for abuses during a call out, the nature of martial law and the militarisation of police forces. As its title suggests, the book has a strong legal and constitutional focus but it raises crucial questions for government, military and public alike. Though some readers may dislike the author’s ingrained suspicion of governments, the arguments are worth examining.
There are some weaknesses in Head’s book. The issues are organised by chapters but there is some repetition of material as the same topic is approached from a different angle. The book also delves into arcane legal matters on occasion. Nor is the author always accurate on military matters. The older term ‘Military Aid to the Civil Power’ is used rather than the contemporary ‘Military Aid to Civilian Authorities’. Of more concern is the somewhat ambiguous use of the term ‘call out’ (and sometimes ‘call-out’ or ‘callout’). It is not always clear whether a reference is to formal call out or simply employment of military personnel for particular tasks. For example, the author states that troops were ‘called out in 1974 to guard Darwin’s petrol depots from looters after ... Cyclone Tracey’ (p. 18), when there was no call out in the legal sense.
The author also claims that ‘little academic attention’ has been paid to the changing nature of the tasks undertaken by modern militaries (p. 205). There is, however, an extensive literature on what military sociologists call the ‘constabulary force’ and the ‘post-modern military’. In Australia much has been published about the tension between the ADF as a ‘constabulary force’ engaged in law enforcement, peacekeeping and domestic security and the ADF as a military force that has warfighting as its defining and unique role. Head is correct, however, in stating that this literature does not feature prominently in public debate (as it does not in his book).
The aim of the book is to promote an informed and ‘much-needed debate’ about the use of the ADF for domestic security (p. 4), though Head concludes by expressing hope for ‘an informed and vigilant opposition’ to current trends (p. 221). Others have made similar pleas, whether from the perspective of civil liberties, the separation of powers or liberal philosophy. Head’s contribution is a useful and important one given its focus on the ADF, the law and the Constitution. Calling Out the Troops is a vigorous and valuable examination of some of the problems relating to domestic security in Australia at the present time. The book should be widely read, not least by members of the ADF. They may not be interested in domestic security, but governments faced by domestic insecurity are interested in them.
About the Author
Dr Hugh Smith lectured in politics and military affairs at the Royal Military College, Duntroon, and then at the Australian Defence Force Academy until his retirement in 2004. He is the author of numerous articles on armed forces and society and a book on the military and political ideas of Clausewitz. His most recent publication (with Nick Jans) on Australia’s reserve forces appears in Armed Forces & Society.
