feature | Michael Head

188 cover

spring 2007
ISBN 978-0-9775171-5-2
published 20 September 2007


Michael Head on domestic security as a ‘core business’ of the armed forces

Since September 11 2001, the declaration of a ‘war on terror’ and the wars in Afghanistan and Iraq, Australian society has been increasingly militarised. This trend has grave implications for basic legal and democratic rights, not to speak of the political, social and ideological climate.

This year, we have seen the Howard government declare a ‘national emergency’ in order to mobilise the military across the Northern Territory, providing active support to police. Heavily armed SAS commandos have been deployed at the Sydney APEC summit, in addition to huge contingents of police, ASIO agents and foreign security personnel.

Thousands of soldiers were mobilised for major sporting events such as the 2000 Sydney Olympic Games, the 2003 Rugby World Cup and the 2006 Melbourne Commonwealth Games.1 Naval vessels have been dispatched to repel refugees. Frequent anti-terrorism exercises have been conducted in urban environments, involving heavily armed troops alongside police and intelligence officers. Deployments have been conducted against civilian populations in Afghanistan, Iraq, the Solomon Islands and East Timor.2 The armed forces have been used in highly publicised shows of strength, including air force jets and helicopters flying overhead during major political events such as the 2002 Commonwealth Heads of Government Meeting at Coolum, Queensland and President Bush’s visit in 2003.3

This trend is likely to accelerate. In August 2007, in Thomas v. Mowbray (2007) HCA 33, the High Court by a 5-2 majority sanctioned for the first time the substantial use of the federal defence power in peacetime and for domestic purposes. The decision validated the house arrest-style control order imposed on Jack Thomas and, by implication, all the terror laws introduced since 2002. It also seems to clear the way constitutionally for the internal deployment of troops under the new call-out legislation.

In February 2006, the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006 (Cwlth) was passed, considerably expanding the military call-out powers first enacted in 2000.4 After a debate lasting only about six hours in the Senate and House of Representatives, the amendments to the Defence Act 1903 (Cwlth) were pushed through with little public discussion or media coverage, on the basis of essential agreement between the government and the Labor opposition. In August 2006, Prime Minister John Howard announced a major expansion in the Australian Defence Forces (ADF), citing the need to respond to ‘regional challenges’ and foreshadowing further military interventions in the South Pacific, including in Papua New Guinea, Fiji and Vanuatu.5

This turn toward militarisation began before September 11, but has developed apace. It is now just seven years since the Sydney Olympic Games provided the initial rationale for call-out legislation that eroded the basic political and legal principle – dating back to the overthrow of the absolute monarchy in Britain in the seventeenth century – against using the armed forces to deal with civilian disturbances.6

The measures taken have significantly enhanced the federal government’s unilateral power to mobilise troops internally and given the military unprecedented domestic powers, including the right to interrogate civilians, seize documents and use lethal force. There is no reason to trust the present federal government, or any future one, with the use of such powers, and there are clear dangers that social unrest and political dissent will be targeted. In fact, the ‘war on terror’ is being utilised to condition public opinion to accept the internal deployment of the armed forces for broader political purposes.7

These concerns have been further amplified by the November 2006 publication of an Australian Strategic Policy Institute (ASPI) report advocating ten “next steps” to establish domestic security as a “core business” of the ADF.8 These include developing a “defence domestic security strategy”, strengthening “special event security”, reorienting military education, conducting “no-warning” exercises involving “whole-city terrorism”, and upgrading links and shared training with police and emergency services. Above all, the report argues for a shift in what it calls “defence culture”, complaining that it has not yet “embraced domestic security as core business”:

This reflects Australia’s constitutional arrangements, but may not recognise the reality that, when the Australian people perceive themselves to be under attack, they will demand that governments bend every resource to their protection. Defence is a significant and highly visible government resource that will be expected to play its role in a domestic security crisis, not just trying to prevent an attack but also helping to restore some degree of normalcy after a major terrorist strike.9

ASPI specifies that the ADF’s role should extend far beyond a purely military function. The reference to “restoring some degree of normalcy” envisages a longer-term policing role, directed against any signs of political instability or popular unrest, perhaps in something akin to a martial law situation.

The report suggests ignoring or sweeping aside Australia’s “constitutional arrangements”, which partly embody the centuries-old taboo on using the military on home soil. To some extent, this principle 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.

Over many years, the constitutional demarcation has 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 force 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.10 One local newspaper said the “virtual siege conditions” were reminiscent of “Franco’s Spain”.11

Why is ASPI, an officially-funded military and strategic think-tank, casting doubt on the constitutional structure? The constitution contains only one mechanism for amendment – it requires a referendum, that is, a majority vote by citizens carried in a majority of states.12 To advocate evasion of the constitutional arrangements suggests contempt for democratic institutions. The ASPI report canvasses overtly political calculations in advocating a further expansion and entrenchment of the ADF’s internal role. It contends that the events of September 11 and the ensuing declaration of a ‘war on terror’ by the Bush administration and its allies have created a political climate in which the public will support – indeed, demand – the ADF’s mobilisation for domestic purposes:

Government is attracted to using the ADF because it projects strength. There is a high degree of public respect for the ADF. This image supports a public view that with Defence involved, security on the homefront is in capable hands. Decisions on the employment of the ADF in domestic security post-9/11 have therefore been influenced by the political necessity of demonstrating effectiveness in the face of national security threats.13

Presumably, the ASPI report represents the views of senior figures in political and military circles, where their views are likely to carry considerable weight. Anthony Bergin is the institute’s research director, while co-author Brigadier Andrew Smith commands the army’s 7th Brigade. Smith served in the Iraq war and commanded the military task forces at the 2000 Sydney Olympics and the 2006 Melbourne Commonwealth Games.

Bergin and Smith express contempt for civil liberties, dismissing such concerns as “an elite debate”:

Unlike in other countries … history has provided little reason for the Australian population to develop an aversion to the use of Defence in the homeland. Although civil liberty watchdogs have at times raised concerns about the dangers of excessive involvement by the armed forces in domestic security, especially where it involves the use of force, this appears to be an elite debate that does not resonate with the general public.14

As a matter of fact, Australian history has given plenty of cause for concern. There has been no recorded use of martial law since Federation in 1901 but it was invoked several times during the nineteenth century to suppress convicts, Aborigines and workers.15 The great strikes of the 1890s saw troops mobilised against specific demonstrations and gatherings, with orders to shoot to kill. In one infamous incident, Colonel Tom Price ordered a Mounted Rifles unit to “fire low and lay them out” during the extended maritime strike of 1890.16

Troops were mobilised to break strikes on several occasions during the twentieth century, mostly by Labor governments. The Chifley government sent in soldiers against the coal miners’ strike of 1949, the Fraser government used the RAAF to ferry passengers during the 1981 Qantas strike and the Hawke government mobilised the air force against striking pilots in 1989. These operations provoked bitter recriminations and questions as to their legality.17 In a lesser-known case, the Menzies Liberal government sent troops to break a wharf labourers’ strike in Bowen, Queensland in 1953, but was forced to withdraw the soldiers after tensions involving strikers and police, and a protest by the state government.18

On several occasions, soldiers were deployed for political purposes. In 1970-71, the Gorton government called out troops to suppress secessionist agitation in Papua New Guinea, then an Australian colony.19

The gravest political crisis came in 1975, when Governor-General Sir John Kerr secretly placed the armed forces on alert after dismissing the Whitlam government.20 No troops were seen on the streets, however. In 1983, the Hawke government authorised RAAF flights over Tasmania to photograph work being conducted by the state government in breach of Commonwealth regulations, and in 1989 the same government authorised the dispatch of troops to counter protesters at the Nurrungar joint Australian-United States military satellite base. Both deployments generated political controversy and legal uncertainty, particularly with regard to the potential use of soldiers to confront demonstrators outside the Nurrungar base perimeter.21

The original call-out legislation passed in 2000 limited deployments to occasions where the government alleged that a danger of “domestic violence” existed which required the protection of “Commonwealth interests” or the protection of a state or territory where the state or territory could not, or was unlikely to be able to, protect itself.22 Although “domestic violence” – a term derived from s. 119 of the constitution – was nowhere defined legally, it was derived from American usage and meant to relate to intense political, industrial or social crises that imperilled the very existence of the state.23

The amendments adopted in 2006, however, permit the air force and navy, as well as the army, to be mobilised more broadly and routinely to deal with lesser incidents, including any alleged act or danger of terrorism. According to the memorandum for the legislation, the amended act would also apply to “mobile terrorist incidents”,24 allowing for military mobilisations under the broad banner of combating terrorist acts.

Because the counter-terrorism legislation passed since 2001 defines terrorism so widely as to cover many traditional forms of political protest, such as mass demonstrations, blockades and picket lines,25 the armed forces could in theory be called out for political purposes. While s. 100.1 (3) of the Criminal Code Act 199526 (Cwlth) exempts “advocacy, protest, dissent or industrial action” from the definition of terrorism, the exemption is substantially nullified by the proviso that the action must not be intended to cause physical harm to a person or “create a serious risk to the health or safety of the public or a section of the public”. The 2006 amendments also authorise ADF operations against threats to physical property, judged by ministers to be “critical infrastructure”, rather than threats to people.

The procedures for calling out the ADF have been expedited so that in “sudden and extraordinary emergency” situations the Prime Minister or two other “authorising ministers” can give the order, which does not need to be in writing. The list of “authorising ministers” includes the Deputy Prime Minister, Foreign Affairs Minister and Treasurer, as well as the Minister for Defence and Attorney-General.27 In addition, standing orders can be issued for the activation of the ADF whenever the chief of the armed forces deems it necessary.28

Without permitting any debate on the point, the government, backed by Labor, dismissed an Australian Greens amendment to require any ADF call-out be followed by the recall of parliament with the power to disallow the decision.29 This places great power in the hands of the executive, exercisable by the Governor-General, Prime Minister, two cabinet ministers or the ADF chief. The 2006 amendments also permit the authorising ministers to dispense with a previous requirement under s. 51K to notify both houses of parliament (and the general public) within twenty-four hours of the declaration of a “general security area”.30

One purpose of the 2006 amendments was to give ADF members explicit powers and legal immunities. Once deployed, the military will be legally authorised to shoot down aircraft, sink ships, use deadly force, demand answers to questions and require the production of documents. Potentially lethal force can be used where it is considered necessary to protect any infrastructure that the government designates as “critical”.31 These provisions raise the possibility of soldiers – who are, after all, trained specifically to shoot to kill – killing innocent civilians, in the manner that Jean Charles de Menezes was killed in the London underground in 2005.32

Citizens will have no right to refuse to answer questions or hand over material on the grounds of self-incrimination. Instead, they can be jailed for non-compliance.33 Similar powers have been given to the intelligence and police agencies where people are detained without trial under the counter-terrorism laws passed since 2002,34 but their extension to the military raises even greater issues, given the lethal weaponry which may potentially be used to enforce compliance.

All the ADF powers are now protected by a defence of “superior orders”, which exempt ADF members from criminal liability, except if the order they obeyed was “manifestly unlawful”.35 They no longer have to wear name tags during operations.36 Any criminal prosecutions will be handled by federal authorities under federal law, overriding state laws.37

The expanded military call-out legislation was among the measures agreed upon by Prime Minister John Howard and the state and territory Labor premiers in their joint communiqué from the 27 September 2005 Council of Australian Governments counter-terrorism summit. As a result of that bipartisan communiqué, fresh counter-terrorism laws were introduced in the federal, state and territory parliaments in the final months of 2005.38 At the Commonwealth level, these were the latest of more than thirty pieces of such legislation introduced since 2001. The full list is on the federal government’s national security web site.39

On the face of it, none of these measures, including the military call-out laws, were necessary to protect ordinary people against terrorism. Specialist counter-terrorism and paramilitary units were established in federal, state and territory police forces during the 1970s, giving the authorities substantial and specialised resources to deal with any conceivable threat.40 The police and intelligence services already possessed a vast array of powers to detect, monitor, infiltrate and move against violent organisations. Every conceivable terrorist act was already a serious crime – from murder to arson and hijacking – and the criminal law amply covered planning, preparing, conspiring, financing, supporting and attempting such activities.41 The Australian Security Intelligence Organisation (ASIO) and the state and federal police already possessed powers to infiltrate organisations, tap phones, bug premises, intercept mail, search homes and hack into computers.42

The anti-terrorist legislation of 2002 to 2004 had already introduced a special category of crimes punishable by life imprisonment. It allowed secret detention and interrogation by police and ASIO officers for up to a week without charge, the ability to conduct closed-door trials, and powers to ban political organisations by executive fiat.43

The legislation introduced in late 2005 went further, notably in allowing the police and intelligence agencies to charge people or detain them without trial, without evidence of involvement in specific terrorist activity or planning. The Anti-Terrorism Act (No. 1) 2005 (Cwlth) changed the wording of many offences from “the” terrorist act to “a” terrorist act. In effect, it means that people can be convicted of planning or preparing for terrorism without the police producing any evidence of a specific time, date, location or method of the supposed attack. The Anti-Terrorism Act (No. 2) 2005 (Cwlth) granted powers to intern “suspects” without any charge or trial, either by way of “preventative detention” or “control orders”.44

The new provisions can be exploited to silence many types of political dissent. An organisation that “advocates” a terrorist act can be outlawed. “Advocating” includes “praising” and could mean merely expressing sympathy for, or calling for an understanding of, the social and economic roots of terrorism.45

The crime of sedition was extended to include urging conduct to assist an “organisation or country engaged in armed hostilities” against the Australian military, whether or not a state of war has been declared.46 These provisions allow for the criminalisation of expressions of support for resistance to the growing range of Australian military interventions, including the occupations of Afghanistan and Iraq or operations in the Asia-Pacific region, such as the dispatch of troops to the Solomon Islands.47

By expanding the range of terrorist and related offences, the legislative package correspondingly enlarged the sphere of potential military deployment. More generally, it served to reinforce a climate of fear and insecurity that can be exploited to justify military measures.

1. Anthony Bergin and Andrew Smith, Australian Domestic Security: The Role of Defence, Australian Strategic Policy Institute, Canberra, 2006, p. 10.2. Michael Head, ‘Calling Out the Troops – Disturbing Trends and Unanswered Questions’, University of New South Wales Law Journal, 28, 2005, pp. 484–492.3 . Bergin and Smith, p. 10. 4. Michael Head, ‘The Military Call-Out Legislation – Some Legal and Constitutional Questions’, Federal Law Review 29, 2001, 273; Head, 2005, p. 479.5. John Howard, A Stronger AFP: Responding to Regional Challenges, media release, 25 August 2006, www.pm.gov.au/news/media_releases/media_Release2096.html.6. Head, 2001, pp. 278-284.7. Michael Head, ‘Australia’s Expanded Military Call-out Powers: Causes for Concern’, University of New England Law Journal, 3, 2006, pp. 145-150.
8. Bergin and Smith, 13, pp. 16-22.

9. Ibid., p. 21.
10. See Tom Molomby, Spies, Bombs and the Path of Bliss, Potoroo Press, Sydney, 1986 and Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State, Allen & Unwin, Sydney, 1993.
11. Southern Highland News, 15 February 1978, p. 1.

12. Commonwealth Constitution, s. 128.

13. Bergin and Smith, p.15.

14. Ibid., p. 21.

15. S.D. Lendrum, ‘The “Coorong Massacre”: Martial Law and the Aborigines at First Settlement’ Adelaide Law Review 6, 1977, 26. Also Victor Windeyer, ‘Certain Questions Concerning the Position of Members of the Defence Force When Called Out to Aid the Civil Power’ in Robert Hope, Protective Security Review Report, Commonwealth Parliamentary Paper no. 397, 1979, Appendix 9.

16. Quoted in Brian McKinlay, A Documentary History of the Australian Labor Movement, 1850-1975, Drummond, Richmond, 1979, 377. Such instructions – to “fire low and lay them out” – are still mirrored in the Australian Military Regulations. Regulation 421(6) specifies that: “Care shall be taken to fire only upon those who can be seen to be implicated in the disturbance”. H.P. Lee, Emergency Powers, Law Book Company, Sydney, 1984, n. 32, 242. Regulation 410 requires the commander of the forces to warn those present that, if the troops are ordered to fire, the fire will be effective. Call Out the Troops: An Examination of the Legal Basis for Australian Defence Force Involvement in ‘Non-Defence’ Matters, Australian Parliamentary Research Paper 8, 1997-98, p. 5.
17. Call Out the Troops, p. 19.
18. Ibid.

19. Ibid., p. 13. See also B.D. Beddie and Stanley Moss, Some Aspects of Aid to the Civil Power in Australia, Occasional Monograph No. 2, Department of Government, University of New South Wales, Sydney, 1982, 55.

20. See The Canberra Coup, Workers News, Sydney, 1976.

21. Call Out the Troops, n. 33, pp. 14-18.
22. Sections 51A, 51B, 51C.
23. Head, 2001, p. 281.
24. Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cwlth), Explanatory Memorandum, p. 2, parlinfoweb.aph.gov.au/piweb/view_document.aspx?ID=2144&TABLE=OLDEMS, accessed 16 May 2006.
25. Criminal Code 1995 (Cwlth) 100.1. See Michael Head, ‘Counter-Terrorism Laws: A Threat to Political Freedom, Civil Liberties and Constitutional Rights’, Melbourne University Law Review 26, 2002, pp. 666, 673.
26. Section 51CB(2).
27. Section 51CA(2).
28. Section 51AB.
29. Senate, Hansard, 8 February 2006, pp. 23-24.
30. Section 51K requires a recall of both houses of parliament within six days of a declaration of a “general security area”, but provides that failure to do so “does not make the declaration ineffective to any extent”. Under the 2006 amendments, s. 51K(2AA) permits the authorising ministers to avoid notifying parliament (and the public) of such a declaration, if they are satisfied that it “would prejudice the exercise of powers”.
31. Section 51T(2A).
32. British Independent Police Complaint Commission (IPCC) reports on this killing have been submitted to the British government and the Crown Prosecution Service but not yet released to the public. See IPCC Completes Recommendation Report Following Stockwell Investigation, media release, 14 March 2006, www.ipcc.gov.uk/pr140306_stockwell.htm, accessed 16 May 2006.
33. Section 51SO.
34. For example, Australian Security Intelligence Organisation Act 1979 (Cwlth), s. 34G.
35. Section 51WB.
36. Section 51S(1)(b).
37. Section 51WA.
38. Michael Head, Editorial: ‘Detention and the Anti-Terrorism Legislation’ University of Western Sydney Law Review, 9, 2005, pp. 1-8.
39. National Security Australia website, www.nationalsecurity.gov.au/agd/www/nationalsecurityHome.nsf/headingpagesdisplay/ 9F291545F46DC7B9CA256E43000565D4?OpenDocument, accessed 1 December 2005.
40. Jude McCulloch, Blue Army: Paramilitary Policing in Australia, Melbourne University Press, Melbourne, 2001, p. 1.
41. See also N. Hancock, Terrorism and the Law in Australia: Legislation, Commentary and Constraints, Parliament of Australia, Department of Parliamentary Library, Research Paper No. 12, 2001-2002.
42. Head, 2002, pp. 666, 678-9.
43. For details of these measures see Michael Head, ‘Another Threat to Democratic Rights: ASIO Detentions Cloaked in Secrecy’, Alternative Law Journal, 29, 2004, 127 and Michael Head, ASIO, Secrecy and Lack of Accountability’, Murdoch University Electronic Journal of Law, 11, 2004.
44. For the Commonwealth provisions, see Criminal Code Act 1995 (Cwlth), Divisions 104 and 105. For an examination of these provisions and their human rights implications, see Lex Lasry and Kate Eastman, ‘Memorandum of Advice: Anti-Terrorism Bill 2005 (Cwlth) and the Human Rights Act 2004 (ACT)’, University of Western Sydney Law Review, 9, 2005, p. 111.
45. See Michael Walton, ‘The Anti-Terrorism Bill (No. 2) 2005: An Overview’, Human Rights Defender, 3, 2005.
46. Criminal Code Act 1995 (Cwlth), s. 80.2(7)&(8).
47. The Senate, Legal and Constitutional Committee, Provisions of the Anti-Terrorism Bill (No. 2) 2005, Department of the Senate, Parliament House, November 2005, 77. See also Ben Saul, ‘Speaking of Terror: Criminalising Incitement to Violence’, University of New South Wales Law Journal, 28, 2005, 868, 873.
48. Ian Kershaw, Hubris, Hitler 1889-1936 , Allen Lane, London, 1998, pp. 456-460.

Michael Head is Associate Professor of Law, University of Western Sydney. He is currently writing a book for Federation Press on military call-out powers. Parts of this article are based on previous articles by the author published on the World Socialist Web Site.
© Michael Head
Overland 188 – spring 2007, pp. 68-73

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