Friday, 21st July 2017

A lot has happened in the defence and security space this week. On Monday it was announced by the Prime Minister that the defence force would more easily be able to be called into domestic terrorism incidents. Then on Tuesday the Prime Minister in a joint announcement with Attorney-General George Brandis, Justice Minister Michael Keenan and Immigration and Border Force Minister Peter Dutton, announced a new Government Department to be called Home Affairs.

This new department will integrate a number of statutory agencies including the domestic spy agency ASIO, the Australian Federal Police, the Australian Border Force, the Australian Criminal Intelligence Commission, AUSTRAC and the office of transport security. The Home Affairs Minister will be Peter Dutton.

The Home Affairs Department will be based on the UK version of the Home Office, rather than the US version of Homeland Security. Since Australia is a federation of States, we thought it was appropriate to take a look at the Federal Defence powers in the Constitution and examine how they might be employed within the States.

Section 51 of the Constitution

This section of the Constitution outlines the powers of the Federal Parliament on what areas they can make legislation. One of these is the defence power:

Section 51 Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to:….

….(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;….

The defence of the six British Colonies that made up Australia was one of the strongest arguments for federation. At the 1891 Constitutional Convention, Henry Parkes moved a resolution in which he stated:

I then come to one to which I expect an almost unanimous agreement: That the military and naval defences of Australia shall be entrusted to federal forces, under one command. Whatever our views may be on other points, I think we shall all be agreed upon this: that for the defence of Australasia to be economical, to be efficient, to be equal to the emergency that may arise at any time, it must be of a federal character, and must be under one command. I am seeking to simplify my words as much as possible. I do not mean that the land forces and the naval forces shall be under one commander-in-chief; but that they should be under one kindred command—that the naval officer in command, equally with the military officer, shall be a federal officer, and amenable to the national government of Australasia. Now these are the conditions which appear to me to be essentially requisite that we should decide in one way or the other—that should be strictly defined by this Convention before we can proceed to construct a bill to confer a constitution.

It was also decided during the Constitutional Conventions that the States would not be able to raise their own military force without the consent of the Federal Parliament:

Section 114 States may not raise forces….

…A State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force….

But the Federal Government can protect the States against an invasion and with the consent of the State against domestic violence:

119 Protection of States from invasion and violence

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

The Commentaries on the Constitution of the Commonwealth of Australia by Quick and Garran 1901 explains:

The power and duty to protect against invasion may be exercised by the Federal authority on its own motion and according to its own judgment and discretion, without the necessity of an application from any State organization within the State

The Federal Authority is not required or empowered to interfere to protect a State against domestic violence, except on the application of the Executive Government of the State. The maintenance of order in a State is primarily the concern of the State, for which the police powers of the State are ordinarily adequate. But even if the State is unable to cope with domestic violence, the Federal Government has no right to intervene, for the protection of the State or its citizens, unless called upon by the State Executive.

If, however, domestic violence within a State is of such a character as to interfere with the operations of the Federal Government, or with the rights and privileges of federal citizenship, the Federal Government may clearly, without a summons from the State, interfere to restore order. Thus if a riot in a State interfered with the carriage of the federal mails, or with inter-state commerce, or with the right of an elector to record his vote at federal elections, the Federal Government could use all the force at its disposal, not to protect the State, but to protect itself.

And then of course we have the Commander in Chief, which is a Chapter II Executive power:

Section 68 Command of naval and military forces

The command in chief of the naval and military forces of the Commonwealth is vested in the

Governor‑General as the Queen’s representative.

CEFA’s written extensively about this. Click here to read the details about who is the commander in chief.

Elastic defence powers

The defence power in section 51vi is often described as an elastic power. What this means is that during times of war or conflict this power may apply to more legislation than during peacetime. This means the laws made using the defence power must be proportional.

This power is one of the few purposive powers in the Constitution and when considering the legislation it must be analysed to determine whether it is for defence purposes. The law must also be made to achieve the defence of Australia, rather than just designed to attain a desired end.

Previously the High Court has interpreted legislation as lawful when it is adapted and reasonably appropriate to achieving a defence purpose. So during WWI it was deemed lawful to fix the price of food to contribute to the war effort, but during WWII it was deemed unconstitutional to seize properties of organisations deemed prejudicial to the war effort because there was no adequate connection between the defence power and the seizure of property.

During peacetime, the Court has been more reluctant to permit legislation that does not have a strong connection to the defence of the country. If there is no real threat to the security of the nation then the defence powers are at their narrowest. This was demonstrated when the High Court found the Communist Party Dissolution Act 1950 invalid (one Justice dissented and you can find an interesting story on this in Great Australian Dissents). This legislation had declared the Australian Communist Party unlawful and confiscated its property. Acting Deputy Defence General Counsel from the Department of Defence, Kate Chetty writes:

….there were no relevant facts sufficient to bring the Communist Party Dissolution Act 1950 (Cth) within the scope of the defence power on the day it was enacted. Thus winding up bodies, disposing of their assets, and depriving individuals of their civil rights based on the executive’s assertion that they were conducting themselves in a manner prejudicial to defence, was not authorised by the defence power in the prevailing climate.

How will the Constitution apply to the defence force being deployed in domestic terrorism incidents?

Much of the commentary around the use of the defence force within Australia has been in response to the Sydney Lindt Café siege. The discussion is around whether the army might have been better equipped to handle that situation in December 2014. The ADF were in liaison with the NSW Police Force throughout the day of the siege and the Coroner’s report states:

Officers of Tactical Assault Group (TAG) East, stationed at Holsworthy Barracks, constructed a mock-up of the café and conducted a review of the Deliberate Action (DA) plan prepared by the NSWPF. Having done so, TAG East advised the NSWPF that the plan appeared to be “tactically feasible”.

So the army practiced the NSW police plan and then informed them that it was feasible. But, the report states that it wasn’t seriously considered that the defence force should enter the café.

What this new legislation might enable is for more consideration by State Governments of their ability to respond to an incident of domestic violence and then request ADF assistance with terrorism events. This fits with section 119 of the Constitution. The defence force can be used in domestic violence situations, with the agreement of the State.

If the Lindt Café situation was repeated in the same way, the federal government may need the consent of the state to deploy the army. If the situation was repeated, but was instead within a Post Office, then the Federal Government may not have to gain the consent of the State. They may be able to deploy the army immediately as the Post Office is a Federal institution.

How much of a change is this?

How do you feel about the army rather than the police being deployed within Australia? There have been mixed comments reacting to the announcement on Monday within the media and politics. A Parliamentary research paper, titled Call Out the Troops, produced for Members and Senators in 1997-98 states:

The spectre of Federal Government troops running essential services or maintaining law and order in a State does not sit well with our developed notions of democracy and the principle of the subjugation of the military to the civil authority.

But if they are perhaps just called in for certain situations, would the people of Australia be more accepting? Many still wonder whether the army may have been able to resolve the Lindt Café situation differently. The coroner has recommended more cooperation of State and Territory Governments with the defence force:

I recommend that the ADF Review confer with state and territory governments about the criteria governing applications for the ADF to be called out pursuant to the Defence Act 1903 (Cth) with a view to determining:

whether further guidance is required on the criteria to be used by states and territories in determining whether to apply for Commonwealth assistance; and

if so, what criteria ought to be stipulated.

With defence coordination being questioned, and the new Home Affairs Department possibly improving intelligence coordination, will Australians be safer? Let us know what you think. How do you feel about the defence force being deployed in domestic situations?

Photo attributed to the ABC