A Soldier By Any Other Name: A reappraisal of the ‘Citizen in Uniform’ in light Part IIIAAA of the Defence Act 1903 (Cth).

Samuel White

Master of Laws Submitted June, 2019 Melbourne Law School University of Melbourne

Submitted in partial fulfilment for the degree of Master of Laws

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 1 A SOLDIER BY ANY OTHER NAME

A REAPPRAISAL OF THE ‘CITIZEN IN UNIFORM’ DOCTRINE IN LIGHT OF PART IIIAAA

Samuel C. Duckett White*

The position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it.

A.V. Dicey, Introduction to the Study of the Law of the Constitution1

Few tasks are more vexing than establishing appropriate roles for the military in domestic security duties. C. Jones, Military as Law Enforcers2

I INTRODUCTION

On 15 December 2014, Man Haron Monis held eighteen hostages in the Lindt Café, Sydney. One hostage, at the direction of Monis, alerted the civil authorities that ‘an Islamic State operative armed with a gun and explosives … had stationed collaborators with bombs in other locations in the city.’3 While New South Wales Police Officers acted as first responders, members of the Australian Defence Force’s (ADF) counter-terrorism unit, Tactical Assault

* LL.M (Hons I) (Melb) | BA/LL.B (Hons) (UQ). I would like to express my thanks to my two supervisors, Professor Bruce Oswald CSC and Major General the Hon. Richard Tracey AM RFD QC for their direction, advice and comments. I would further like to thank the Hon. Justice John Logan RFD, of the Federal Court of Australia and current President of the Defence Force Discipline Appeals Tribunal, to whom I was Associate to and who guided me towards this topic. Although drawing upon experiences both as a Royal Australian Infantry Corps and Australian Army Legal Corps officer, the opinions herein are mine alone and do not represent any opinion of the Department of Defence. NB: This paper was published, in part, as ‘A Soldier By Any Other Name’ (2020) 59(1) Military Law and Law of War Review. 1 (Macmillan, 10th ed, 1959) 303. 2 ‘Coming to Terms with the New Security Environment’ (Working Paper No 72, Australian Defence Studies Centre, 2002) 16. 3 Coroners Court of New South Wales, Inquest into the Deaths Arising from the Lindt Café Siege: Findings and Recommendations, Glebe, May 2017, 3 (Lindt Café Coronial).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 2 Group (East) (TAG(E)) were concurrently rehearsing methods by which to resolve the hostage situation.4 After a sixteen-hour siege, Monis executed a hostage, which triggered the New South Wales Police to enter the premise, resulting in the death of Monis and a second hostage.5 The subsequent Coroner’s report canvassed, inter alia, the use of the ADF in the siege and concluded that the ‘challenge global terrorism poses for state police forces calls into question the adequacy of existing arrangements for the transfer of responsibility for terrorist incidents to the ADF.’6

Consequentially, on 10 December 2018, the Defence Amendment (Call Out of the Australian Defence Force) Act 2018 (Cth) (2018 Amendments) was passed with bipartisan support. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) (Part IIIAAA) (Defence Act) aimed to: streamline the legal procedures for call out of the ADF and to enhance the ability of the ADF to protect states, self-governing territories, and Commonwealth interests, onshore and offshore, against domestic violence, including terrorism.7

The use of the military within Australia domestically falls into two broad categories: defence aid to the civil community (DACC) and defence force aid to the civil power (DFACA). The earlier relates to instances where the ‘civilian community does not have the necessary resources to undertake a specified task.’8 It equally can be viewed as involving ADF support to civil authorities, ‘where there is no likelihood that Defence personnel will be required to use force.’9 DACC taskings are often uncontroversial and includes military aid in bushfires, floods and storms; use of the military to build roads and housing; or use of specialist military equipment for explosive ordnance disposal.10 It does not fall within the scope of this paper.

4 Lindt Café Coronial (n 3) 201. 5 Ibid, 3. 6 Ibid, 385. 7 Explanatory Memorandum to Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) 2 (Explanatory Memorandum 2018); as corroborated in the Second Reading Speech for the Bill by the Attorney- General, House of Representatives, Hansard, 28 June 2018, 674. 8 David Letts and Rob McLaughlin, ‘Call-Out Powers for the Australian Defence Force in an Age of Terrorism: Some Legal Implications’ (2016) 85 AIAL Forum 63, 64. 9 Elizabeth Ward ‘Call out the Troops: an examination of the legal basis for Australian Defence Force involvement in ‘non-defence’ matters’ (Research Paper No 8/1997-98, Laws & Bills Digest Group) 31. 10 There are grey zones, however, such as what has happened at least on one occasion when the ADF assisted Victorian police in breaching motorcycle gang safe houses, see ‘Army, police raid Melbourne property in ongoing operation’ Australian Broadcasting Corporation (online, 12 October 2013) ).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 3 The latter category, DFACA, provides the basis for the ADF to use force in matters of ‘domestic security’. This phrase finds its best definition in the seminal Protective Security Review by Mr Justice Robert Hope, who construed it to mean: … aid to the Commonwealth and State governments and their civilian authorities in meeting civil emergencies, especially terrorist attacks and other politically motivated violence, but also riots and the like.11

Importantly, DFACA is multifaceted of which calling out the ADF under Part IIIAAA constitutes only one branch. Although not as overt, the ADF – primarily through one of the Services, the Royal Australian Navy (RAN) – has been engaged in an ‘on-going call-out’12 by assisting the Australian Federal Police (AFP), Australian Customs Service and the Department of Immigration & Citizenship in Australia’s offshore territory with border security operations.13 Moreover, there are other select Commonwealth Acts that contain authorisation for the ADF to be employed to execute and maintain the laws of the Commonwealth.14 This thesis is solely concerned with Part IIIAAA and as such, no other DFACA branches will not be covered.

Whilst the domestic use of armed forces has been has been subject to commentary in foreign jurisdictions,15 DFACA has received sporadic academic attention domestically.16 This is

11 Robert M Hope, Protective Security Review (unclassified) (Parliamentary Paper No 397/1979), 141. 12 Norman Charles Laing, ‘Call-Out the Guards: Why Australia should no longer fear the deployment of Australian troops on home soil’ (2005) 28(2) UNSW Law Journal, 508. 13 See for general discussion on Australian maritime operations Michael W Duckett White, Australian Offshore Laws (The Federation Press, 2nd ed, 2009) 101 - 130. The RAN itself has accepted that Operation Sovereign Borders is a ‘constabulary operation’; see Australian Maritime Doctrine (Defence Publishing Service, 2000) 5. 14 Customs Act 1901 (Cth), Crimes Act 1914 (Cth), Quarantine Act 1908 (Cth), Crimes (Internationally Protected Persons) Act 1976 (Cth), Fisheries Management Act 1991 (Cth), Torres Strait Fisheries Act 1984 (Cth) and Offshore Petroleum (Royalty) Act 2006 (Cth). 15 For India, see Simon Bronitt and Ashutosh Misra, ‘Use of Lethal Force and Military Aid to the Civil Power in India and Australia: Sharing Lessons in Counter Terrorism’ in Uttam Jumar Sinha (eds) Emerging Strategic Trends in Asia (Pentagon Press, 2015); for the United Kingdom, ‘2015 to 2020 Government Policy: Military Aid to the Civil Authorities for activities in the UK’ (Ministry of Defence Policy Paper, published 04 August 2016); for Italy, see Carlo Cabigioni, ‘The Role of Italy’s Military in Supporting the Civil Authorities’ (2005) 4(3) Connections 59. 16 See David Letts and Rob McLaughlin, ‘Call-Out Powers for the Australian Defence Force in an Age of Terrorism: Some Legal Implications’ (2016) 85 AIAL Forum 63; David Letts and Rob McLaughlin ‘Military Aid to the Civil Power’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) 112; Elizabeth Ward ‘Call out the Troops: an examination of the legal basis for Australian Defence Force involvement in ‘non-defence’ matters’ (Research Paper No 8/1997-98, Laws & Bills Digest Group); John Sutton, ‘The increasing convergence of the role and functions of the ADF and civil police’ (2017) 202 Australian Defence Force Journal 38; Cameron Moore, ‘The ADF and Internal Security: Some Old Issues with New Relevance’ (2005) 28(2) UNSW Law Journal, 523; Michael Head, ‘The Military Call-Out Legislation: Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review, 271; Margaret White, ‘The Executive and the Military’ (2005) 28(2) UNSW Law Journal 438; Andrew Hiller, Public Order and the Law (Sweet & Maxwell Ltd, 1983); Norman Charles Laing, ‘Call-Out the Guards: Why Australia should no longer fear the deployment of Australian troops on home soil’ (2005) 28(2) UNSW Law Journal, 508; Hoong

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 4 unsurprising, considering its limited, almost negligible, use. When used within Australia though, DFACA has been characterised by ‘deeply held, even if imperfectly understood, reservations.’17 This perhaps reflects the isolated nature the of ADF from civilian society18 or historical aversion that Anglo-Saxon cultures have held towards the military who – prior to the creation of a standing army – were primarily ‘the dregs of society… the rouges and vagabonds, the destitute, the condemned felons and the prisoners from the gaols.’19

In Australia, law enforcement is the constitutional responsibility of the States and Territories, within their respective jurisdictions.20 There are instances, however, where State and Territory law enforcement agencies lack the necessary resources or capabilities to resolve an imminent, or immediate, threat. In many situations, police may ‘lack the highly sophisticated military hardware to cope with extremely dangerous emergencies.’21 As such, it may fall upon ADF members to aid the civil authority, due to their unique capabilities for responding to incidents offshore and in the air22 and experiences gained from nearly two decades of continuous combat and peace-keeping operations.23 Public trust and support for the ADF has remained strong24 and it rightfully holds an internationally recognised reputation for sound leadership.25 Moreover, the ADF has accepted its changing role, with former Chief of the Defence Force (CDF) Air Chief Marshall Sir Angus Houston agreeing that the ADF must maintain and

Phun Lee, ‘Military Aid to the Civil Power’ in Michael Adams and Colin Campbell (eds) Emergency Powers in Australia (Monash University Press, 2018). 17 White (n 16) 438. DFACA is not, however, the imposition of martial law. For an unparalleled legal history of martial law, as is often the case, one need only read Sir Victor Windeyer’s opinion in Hope (n 9) Appendix 9; see further Hoong Phun Lee, Emergency Powers (Sweet & Maxwell Ltd, 1984). 18 Both geographically and culturally; see Tony Fitzgerald, The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Inquiry, 3 July 1989) 199-213 and synonymous traits between police and military culture; see further Edgar Scheine, ‘Organisational Culture’ (1990) 45 American Psychologist 111 on the development of internal cultures; see relevantly the ‘total’ institutional character of the armed forces in reflecting Ervin Goffman, Asylum, Essays on the Social Situation of Mental Patients and Other Inmates (Amorrotu, 1997) where Goffman’s studies of psychiatric institutions concluded they comprised of closed worlds. 19 Anthony Babington, Military Intervention in Britain: From the Gordon Riots to the Gibraltar Incident (Routledge, 1990), 2. 20 By operation and inference of section 119 of the Australian Constitution. 21 Lee, ‘Military Aid to the Civil Power’ (n 12) 223. 22 See Australia and New Zealand Counter-Terrorism Committee, National Counter-Terrorism Plan (4th ed, 2017) 35. 23 Whilst not exhaustive, inclusive of deployments to Timor-Leste, Bougainville, the Solomon Islands, Iraq, Afghanistan, South Sudan and the Philippines. 24 Ian McAllister, Public Opinion Towards Defence and Foreign Affairs: Results from the ANU Poll (ANU Poll, No 4 of 2009) 2. 25 Michael Head, Calling out the Troops (The Federation Press, 2009) 140.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 5 develop an ability to ‘quickly and decisively assist the civil authorities of Australia by providing military assistance.’26

Yet it is not the purpose of this paper to divert into the merits or justification of the expansion of the call out powers in Australia. Whilst the legislation raises intriguing areas for practical and academic debate,27 this thesis focuses specifically on whether ADF personnel should be viewed as ‘citizens in uniform’ whilst called out under Part IIIAAA. This phrase comes from Lord Tindal CJ, who in 1832 noted in in his much-quoted Charge to the Bristol Grand Jury on a Special Commission: The law acknowledges no distinction… between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation and invested with the same authority to preserve the peace of the King as any other subject.28 Without clear statutory powers, an ADF member cannot be construed to be more than simply a citizen in uniform; yet the development and evolution of Part IIIAAA may be argued to broaden, rather than narrow, the distinction between military and civic counterparts and demonstrates an intent on behalf of Parliament to maintain the exceptionalism of the ADF.29

26 Angus Houston, ‘The ADF of the Future’ (2007) 57 Australian Defence Force Journal, 63-64; this reflects the position of the Department of Defence, White Paper 2016, 72-73. 27 Such as the viability of a call out for judicial review; see Samuel C. Duckett White and Andrew Butler, ‘Reviewing a Decision To Call out the Troops’ (2020) 99 AIAL Forum (forthcoming); generally Simon Bronitt and Dale Stephens, ‘Flying Under the Radar – the use of lethal force against hijacked aircraft’ (2007) 7(2) Oxford University Commonwealth Law Journal 265, 266; Lee, Emergency Powers (n 15) 252 – 322. Further research areas include whether the ADF can realistically be utilised (and in what capacity) against industrial actions by operation of Defence Act 1903 (Cth) (Defence Act) ss 33(4), 35(4) and 36(4) which note that ‘the Reserves must not be called out or utilised in connection with an industrial dispute’. However, the 2018 Amendments have provided additional circumstances under which the ADF may be used in connection with an industrial action (namely, serious damage to property) as per Defence Act s 39. It is the opinion of this author that use of the ADF in industrial actions remains a viable and legal option for the Executive Government especially if an industrial action touched on an area that the Commonwealth has an interest in – such as overseas trade and commerce; Victoria v Commonwealth (1975) 134 CLR 338, 396-8 (Mason J). On the topic more generally, see Samuel C. Duckett White, ‘Military Intervention in Australian Industrial Action’ (2020) 31(3) Public Law Review (forthcoming); see further Christopher J Whelan, ‘Military Intervention in Industrial Disputes’ (1979) 8 Industrial Law Journal, 222. Finally, the use and utilisation of ADF’s organic cyber capability in aiding State and Territory governments against threats of domestic violence in cyberspace is submitted to become an increasingly important considering when considering Part IIIAAA. For general commentary on what actually constitutes the use of force in cyber realm, see Michael Gervais, ‘Cyber Attacks and the Laws of War’ (2012) 30 Berkley Journal of International Law, 525; see further Antonia Chayes, ‘Rethinking Warfare: The Ambiguity of Cyber Attacks’ (2015) 6 Harvard National Security Journal, 474. 28 R v Pinney (1832) 5 Car & P 258, 258 (Lord Tindal CJ); as approved in Groves v Commonwealth (1985) 150 CLR 113. 29 The notion of military exceptionalism, is gratefully adopted from work of Jacoba Brasch, ‘More Martial than Court: From Exceptionalism to Fair Trial Convergence in Australian Courts Martial’ (PhD Thesis, University of New South Wales, 2011). This exceptionalism includes, but in no way is limited to, exemptions from providing procedural fairness on the basis of the contingencies of service – see Millar v Bornholt (2009) 177 FCR 67, 72 (Logan J); workplace health and safety – Work Health and Safety Act 2011 (Cth) s 12D(2); exception from the requirements of the civil law system under Freedom of Information Act 1982 (Cth) s 7; the requirement for State or Territory licenses and/or registration to operate a ‘vehicle, vessel, animal, firearm or other thing belonging to

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 6 This thesis first outlines the relevant constitutional and legislative framework for calling out the ADF, and highlights the extraordinary nature of the threat that must exist for this to occur. It then turns to, in Chapter 3, a substantive discussion of the doctrine of a ‘citizen in uniform’ and aims to distinguish ADF members from civilian police by comparing their duties, roles, powers and defences through the lens of Part IIIAAA. It culminates with the conclusion that were the ADF to be called out to assist with another Lindt Café siege, or against a potential plane hijacker or a maritime security threat, that it is incongruous to view military personnel as no more, no less than civilian law enforcement.

The thesis then addresses, in Chapter 4, the appropriate jurisdiction in which to hear allegations of potential misconduct by ADF members whilst aiding the civil authority. The military justice system is canvassed, and the viability of retaining prosecutions within an institution which provides for service knowledge is addressed. The thesis then culminates with select legislative reforms to the ‘esoteric maze of uncertainties’30 that is the Defence Act and the Defence Force Discipline Act 1982 (Cth).

the Commonwealth’ Defence Act s 123; this principle is similar to the sale of intoxicating liquors under Defence Act s 123A; and absolute immunity for negligence whilst undertaking combat operations and training activities directed to the conduct of such operations - Groves v Commonwealth (1982) 150 CLR 113, 134 (Stephens, Mason, Aickin and Wilson JJ). On the topic see also David Letts and Rob McLaughlin, ‘Intersection of Military Law and Civil Law’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) 100. 30 Anthony Blackshield, ‘The Siege of Bowral – The Legal Issues’ (1978) 4(9) Pacific Defence Reporter, 6.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 7 II LEGAL FRAMEWORK

Security is a concept with a fluctuating content, depending very much on circumstances as they exist from time to time; it is similar to the constitutional concept of defence. Mason J in Church of Scientology v Woodward (1982) 154 CLR 25 at [60]

It is appropriate to first outline the legislative and constitutional framework of the aforementioned maze under which the ADF may aid the civil authority. It is necessary to do so, so as highlight in Chapter 3 the extraordinary nature a decision to call out the troops constitutes.

The increasing threat of domestic violence, primarily through acts of terror by individuals or groups, remains an ongoing and probable threat in Australia. The 2018 Amendments recognise the need for flexible, dynamic and sometimes near-instantaneous call outs of ADF members to assist. It necessarily follows that situations where the ADF are to be pre-positioned, or called out without following the necessary procedure, serve to highlight the intention of the legislator to maintain the distinction between ADF members and civilian police.

A Constitutional Basis

The Australian Constitution aimed to provide control over military and naval forces to the Commonwealth, whilst allowing the various States to retain residual authority over domestic law and order.31 The provisions in the Constitution readily relevant to the relationship between the ADF and the civilian community are important and require detailed discussion. These provisions are:

s 61 The executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative, and extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. s 68 The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative.

s 114 A State shall not, without the consent of Parliament of the Commonwealth, raise or maintain any naval of military force…

s 119 The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.

31 Military power was transferred to the Commonwealth under s51(vi); the colonial defence force was transferred under s69; States were forbidden to raise military or naval forces without the consent of Commonwealth Parliament under s114.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 8 s 51 The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good governance 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.

1 Section 61

The executive power has historically been the principal constitutional provision by which the ADF may aid the civil authority, although it is ‘described but not defined in section 61.’32 The provision equally includes the prerogative powers of the Crown,33 despite debate surrounding whether such powers arise from the executive power, the nationhood power or the common law.34 However, that the Executive may act to deal with emergencies is an established fact of law.35

The words ‘maintenance of this Constitution, and of the laws of the Commonwealth’ offer the primary source for use of the ADF within Australia; but it is not simply any matter.36 Sir Victor Windeyer found, in his annex to Mr Justice Robert Hope’s Protective Security Review, that the Commonwealth had the inherent power ‘to employ members of its Defence Force “for the protection of its servants or property or safeguarding its interests.”37 This was because, prima facie, 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.38 Specifically to s 61, Sir Victor continued: the ultimate authority for calling out the Defence Force… was thus the power and the duty of the Commonwealth 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.39

32 Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, 440 (Isaacs J); Davis v Commonwealth (1988) 166 CLR 79, 92 (Mason CJ, Deane and Gaudron JJ); see also Ruddock v Vadarlis (2001) 110 FCR 491; see further George Winterton, ‘The Limits and Use of Executive Power by the Government’ (2003) 31 Federal Law Review 421. 33 Barton v Commonwealth (1974) 131 CLR 477. 34 See Winteron (n 34); see further Herbert V Evatt, ‘The Royal Prerogative’ (PhD Thesis, University of Sydney, 1924). 35 A-G v De Keyser’s Royal Hotel Ltd [1920] AC 508; Burmah Oil Co Ltd v Lord Advocate [1965] AC 75. 36 See Victoria v Commonwealth (1975) 134 CLR 338, 362 (Barwick CJ). 37 Hope (n 9) Annex 9, 279, quoting from the Australian Military Regulations 1927 (Cth). 38 Ibid. 39 Ibid, 280.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 9 This position necessarily must be qualified by a clear statement that although there has been an assumed power of the Commonwealth to protect its interests, there has been limited judicial endorsement.40 Johnston pertinently proposes the following: An alternative approach in determining when resort to the [Australian] Defence Force is constitutionally justifiable is to focus on the gravity of the risk and the nature of the persons engaged in breaking a Commonwealth law, instead of the kind of Commonwealth interest entailed. No one would quibble about calling in specialist military units to counter terrorist assaults, for example. This comment is concerned, however, with the use of the armed serviced in normal operations.41 No cases, however, have specifically addressed the use of force by the ADF for internal security. Ruddock v Vadarlis – perhaps closest in scope – can be distinguished as dealing with ‘non-violent illegal immigration, rather than violent acts of terrorism.’42 Equally, Kiefel J relevantly foreshadowed judicial hesitation on solely relying upon the executive power: It can hardly be said that a statute such as the MP [Maritime Powers] Act, which authorises a decision that the relevant powers be exercised in a particular way and details the manner and conditions of their exercise, and in respect of which the role of the Commonwealth Executive is discernible, supports an intention that the Commonwealth Executive is to retain a complete discretion as to how such powers are to be exercised.43 Her Honour denotes a line of reasoning which, if adopted, could call into question the constitutional validity of relying upon the executive power for calling out the ADF.44Although not within the scope of this thesis, it is a cause for concern both for ADF members and Australian residents, that such a constitutional power remains unconfirmed.

2 Constitutional divide of civilian police / military forces – ss 114 & 51(vi)

Upon Federation, the constitutional arrangements under s 114 provided Commonwealth control of the maintenance and raising of military and naval forces within Australia, although prior to the various States maintained their own militia forces.45 Whilst a majority of academic

40 Australian Communist Party v Commonwealth (1951) 83 CLR 1; Victoria v Commonwealth (1975) 134 CLR 338; Davis v Commonwealth (1988) 166 CLR 79; Ruddock v Vadarlis (2001) 110 FCR 491; see Williams v Commonwealth (No 2) (2014) 309 ALR 41 which made clear that the allocation of funds to provide for the deployment of the ADF could be challenged. 41 Peter W Johnston, ‘Re Tracey: Some Implications for the Military-Civil Authority Relationship’ (1990) 20(1) Western Australia Law Review, 79. 42 (2001) 110 FCR 491; Michael Head, ‘Calling out the Troops – Disturbing Trends and Unanswered Questions’ (2005) 28(2) UNSW Law Journal, 529. 43 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514, 601. 44 See David Letts and Rob McLaughlin ‘Military Aid to the Civil Power’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) 112. 45 The effect of this being that each State’s Army Reserve infantry regiments reflect their state of origin (such as the Royal Queensland Regiment, Royal Tasmanian Regiment), as opposed to the Regular Army which simply has the Royal Australian Regiment (although various battalions are spread across the country).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 10 discussion46 and jurisprudence47 surrounding section 114 is concerned with the abrogation of the power of States to impose taxation, it importantly provides a clear constitutional intention to retain military and naval forces within the purview of the Commonwealth government48

Equally, a call out may occur under s 51(vi). Colloquially referred to as the ‘defence power’. It is a purposive power, permitting legislation across an indefinite spectrum of subjects deemed necessary for the purpose of defending Australia.49 The defence power is relevant on two grounds: providing constitutional validity to the use of the ADF domestically; and allowing for a separate military discipline system. First, with respect to the use of the ADF domestically, in Thomas v Mowbray it was held that when s 51(vi) is read in conjunction with the aforementioned s 61, it includes the ‘power to protect the nation.’50 In the case – looking pertinently at the use of control orders against a suspected terrorist – the Court held that such control orders fell within the ‘central conception of the defence power’.51 Obiter comments effectively expanded judicial notice relating to the war on terror, noting: groups of zealots forming part of, or associated with Al Qa’ida were making common cause of hatred against communities posing no threat to them… and planned to undertake violent, literally suicide attacks upon even the institution and persons of those communities.52

It is against this threat that the ADF is most likely to be called out to assist. The decision of the High Court in Thomas v Mowbray thus provides a basis for the call out powers. Inference would suggest that if Australia was faced with a sufficiently grave threat, the defence power might operate to override constitutionally-guaranteed rights.53 This was aptly summarised by Isaacs J who commented that the defence power’s limits are ‘bounded only by the requirements of self-preservation.’54

The defence power moreover applies in times of peace. One such example is the validation of the Defence Force Discipline Act 1982 (Cth) (DFDA) and a separate military justice system in

46 Anne Twoney, ‘Federal Limitations on the Legislative Power of the States and the Commonwealth to bind one another’ (2003) 31(3) Federal Law Review, 507. 47 Austin v Commonwealth (2003) 215 CLR 185; Melbourne Corporation v Commonwealth (1947) 74 CLR 31. 48 The term ‘military force’ is undefined; see Sutton (n 14) 37. 49 Australian Woollen Mills Ltd v Commonwealth (1944) 69 CLR 476; Edward Santow and George Williams, ‘Terrorism threat assessments: Problems of constitutional law and government accountability’ (2012) 23 Public Law Review 33, 40; see further Stenhouse v Coleman (1944) 69 CLR 457. 50 Thomas v Mowbray (2007) 233 CLR 307, 388-9 (Kirby J). 51 Ibid, 363 (Gummow and Crennan JJ). 52 Ibid, 490 (Callinan J). 53 Jeremy Kirk, ‘Constitution Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1. 54 Farey v Burvett (1916) 21 CLR 433, 453-454, as affirmed in Dawson v Commonwealth (1946) 73 CLR 157, 177 (Rich J).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 11 Re Tracey; ex parte Ryan.55 When the DFDA was originally enacted, it contained provisions aimed at removing jurisdiction of civilian court, with respect to service members, if convicted in service tribunals.56 The Court in Re Tracey; ex parte Ryan found these provisions unconstitutional, whilst upholding that the need to enforce military discipline, a fundamental basis for military effectiveness, was implied because of the constitutional provision of a disciplined force ‘no less at home in peace-time than upon overseas service or in war-time.’57

Although no ratio decidendi could be extracted from the reasons for judgment, the jurisprudence that evolved over Re Nolan; ex parte Young58, Re Tyler; ex parte Foley59 and Lane v Morrison60 has constantly reinforced the need for, and validity of, a separate military justice system.61 This is important insofar as Chapter 4 of this thesis is concerned, questioning the viability of Australia’s military justice system in the prosecution and sentencing of ADF members who commit offences whilst called out under Part IIIAAA.

B Defence Act 1903 (Cth)

With the constitutional fundamentals covered, it follows to highlight the role of the Defence Act. It is unsurprising, given the underlying logic in the federation of the Australian colonies in 1901 to coordinate the defence of the nation,62 that one of the earliest Acts passed by the newly elected Parliament was the Defence Act. Although heavily amended, the Act remains in force.

For a majority of Australian history, calling out the ADF has been dictated through four administratively focused sections of the Defence Act.63 Section 50E related to calling out the Reserve Forces in war or emergency; s 50F in other circumstances where the Governor-General considered it desirable.64 Section 50G consequentially set out the reporting requirements.65

55 (1989) 166 CLR 518; see Kate Cherry, ‘A History of the Defence Power: Its Uniqueness, Elasticity and Use in Limiting Rights’ (2016) 16 Macquarie Law Journal, 17; see further Richard Tracey, ‘The Constitution and Military Justice’ (2005) 28(2) UNSW Law Journal 426; Richard Tracey ‘Military Discipline Law’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) 91. 56 Defence Force Discipline Act 1982 (Cth) ss 190(3), (5) (DFDA). 57 Re Tracey; ex parte Ryan (1989) 166 CLR 518, 543 (Brennan and Toohey JJ). 58 (1991) 172 CLR 460. 59 (1994) 181 CLR 18. 60 (2009) 239 CLR 230. 61 See above Tracey, ‘The Constitution and Military Justice’ (n 57, 2005). 62 John Quick and Robert Garran, The Annotated Constitution of the Commonwealth of Australia (The Federation Press, revised, 2014) 561-563. 63 Letts and McLaughlin, ‘Call-Out Powers for the Australian Defence Force in an Age of Terrorism’ (n 6) 69. 64 Defence Act as at 01 July 2000. 65 Ibid.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 12 The provisions were woefully antiquated.66 The immediate precursor to Part IIIAAA – section 51 - was as follows: 51 Protection of State from domestic violence

Where the Governor of a State has proclaimed that domestic violence exists therein, the Governor-General, upon the application of the Executive Government of the State, may, by proclamation, declare that domestic violence exists in that State, and may call out the Permanent Forces and in the event of their numbers being insufficient may also call out such of the Emergency Forces and the Reserve Forces as may be necessary for the protection of that State, and the services of the Forces so called out may be utilised accordingly for the protection of that State against domestic violence.

Under these provisions, two call out situations arose. The first, in 1969, occurred when the Administrator of New Guinea sought military assistance from the Commonwealth of Australia over secessionist agitation in Rabaul. At the time of the civil unrest, Papua New Guinea was a territory of the Commonwealth of Australia. In July 1970, the Governor-General signed an Order-in-Council calling out the members of the Pacific Island Regiment to protect the Territory from ‘domestic violence.’67 The order empowered the Administrator of the Territory, in the event the police lost or feared losing control of law and order, for lethal use of force.68 Ultimately, the troops were not used and no questions were raised as to whether civilian or military jurisdiction would apply for any offences that may have occurred.69

The second, more widely known, instance of the ADF aiding the civil authority concerned the bomb explosion outside the Hilton Hotel in Bowral, Sydney, on 13 February 1978; three men were killed with a further nine injured.70 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, as authorised by an Executive Council minute,71 leading to 1900 troops, utilised in a security force role, occupying Bowral.72 The call out was justified under the duty of the Commonwealth ‘not to protect the State but to protect itself.’73

66 An example of this is the Australian Military Regulations 1927 (Cth) s 407(2) which provided that an alarm be sounded on a bugle to call the crowd to attention before proclamation, as read by a magistrate, be read. 67 Robert J O’Neill, The Army in Papua New Guinea (ANU Press, 1965) 4. 68 Ibid. 69 Brian Beddie and Sue Moss, Some Aspects of Aid to the Civil Power in Australia (University of New South Wales, 1982) 59. 70 Hope (n 9) 41. 71 Commonwealth, Gazette, No S30, 14 February 1978. 72 Head, Calling out the Troops (n 23) 44. 73 R v Sharkey (1949) 79 CLR 121, 151 (Dixon J).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 13 The Hilton bombing remains the ‘only major mobilisation of troops in an urban setting in Australia’s history.’74 A local newspaper noted that the ‘virtual siege conditions’ were reminiscent of ‘Franco’s Spain’.75 Professor Blackshield summarised the position: In terms of our popular social traditions, the idea is very firmly entrenched that the use of armed forced 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.76 This maze was navigated by Mr Justice Robert Hope, in his Protective Security Review (Hope Report) which, inter alia, found the use of the ADF valid on the basis of the inherent power of the Commonwealth to protect its interests, as well as authority under the Australian Military Regulations.77 Yet, despite the attention given to the legal validity and consequences of calling out the ADF, no concerns were raised around which jurisdiction would apply to ADF personnel.

The recommendations of the Hope Report took three decades to be enacted and codified. In 2000, in light of the Sydney Olympic Games (Operation Gold) and threat of terrorist activities, Part IIIAAA was introduced to the Defence Act, replacing the aforementioned s 51 with 27 new sections.78 The focus of Part IIIAAA related to land-based counter-terrorism and hostage recovery situations and provided a statutory footing for ‘the mechanics for the deployment of the ADF in aid of the civil authorities.’79

Operation Gold marked the beginning of large-scale domestic use of the ADF with over 4000 personnel – equipped with armoured vehicles and Black Hawk helicopters – being used in: operational searches of venues and vehicles, bomb searches and disposal, naval explosives clearance, driving, ceremonial activities and managing logistics, communications and transport.80 Operation Gold was on a ‘stand-by’ basis. No terror threat was specified, nor did any terrorist act occur. Operation Guardian II – the operation surrounding the 2002 Commonwealth Heads of Government summit at Coolum – established the framework for the use of force by the Royal Australian Air Force (RAAF) and authorised the shooting down of civilian aircraft by fighter jets in order to prevent a suicidal crash, without any clear statement as to the legal basis

74 Head, Calling out the Troops (n 23) 49. 75 Southern Highland News, 15 February 1978, 1. 76 Blackshield (n 32). 77 Australian Military Regulations 1927 (Cth), which were abolished with the creation of the DFDA. 78 Letts and McLaughlin, ‘Military Aid to the Civil Power’ (n 46) 114. 79 Lee, ‘Military Aid to the Civil Power’ (n 3) 226. 80 Head, Calling out the Troops (n 23) 83.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 14 for the operation.81 The legislative framework as it existed in 2000 failed to consider, at all, the appropriate jurisdiction to try ADF members.

In 2003-2004, an independent review of Part IIIAAA was conducted in light of the upcoming 2006 Commonwealth Games being held in Melbourne.82 This review identified practical limitations which were addressed in the Defence Legislation Amendment Act (Aid to the Civilian Authorities) Act 2006 (Cth) (2006 Amendments).83 The amendments aimed at greater flexibility for ADF responses through, inter alia, allowing for expedited call outs in rapidly evolving situations and the use of reserve forces. It moreover expanded the use of the ADF into ‘offshore areas’, as well as providing that the ADF could use force to protect declared infrastructure.84 The 2006 Amendments further addressed protections afforded to ADF members whilst called out. Division 4A – as it was – recognised the need for the Commonwealth to have exclusive jurisdiction and responsibility for criminal prosecution of ADF members.85 It concurrently provided a clear statement as to the availability of defence of superior orders.86 All call outs since have occurred under this legislative regime.

Consequential to the Lindt Café coronial inquiry, the outcomes of the Review of Defence Support to National Counter-Terrorism and a desire to simplify Part IIIAAA, the 2018 Amendments were passed, aiming to streamline the process necessary for call outs, provide for contingent call outs and to clarify the legal position of ADF personnel. It reorganised Part IIIAAA into eight divisions as outlined below.

81 Moore (n 14) 524. 82 By Anthony Blunn, John Baker and John C Johnson, Statutory Review of Part IIIAAA of the Defence Act 1903 (Aid to the Civilian Authorities) (Commonwealth of Australia, 2004). 83 The 2006 amendments equally were in response to the Commonwealth Games, as well as terror attacks in the United States, London and Madrid; see Michael Head, ‘Australia’s Expanded Military Call-Out Powers: Cause for Concern’ (2006) 3 University of New England Law Journal, 125. 84 Which at the relevant time was noted as critical infrastructure; see generally Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2006, 72 (Brendan Nelson). 85 Explanatory Memorandum, Defence Legislation Amendment (Aid to the Civilian Authorities) Bill 2005 (Cth), 13[8]. 86 The Explanatory Memorandum to the Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) relevantly noted: The nature and effectiveness of a military service and the operation of a Defence Force demands teamwork, mutual support and personal reliability underpinned by individual and collective discipline. On occasion this will require unhesitating compliance with orders. However, the requirement for unhesitating compliance with orders is not absolute. The circumstances in which the defence of superior orders to a criminal act may be raised include that the order was made by a superior, that the ADF member was under a legal obligation to obey the order and that the order was not manifestly unlawful.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 15 A Call Out Process

Part IIIAAA is predicated on the need to resolve domestic violence incidents, or a threat thereof, as quickly and efficiently as possible. Thus: The threshold (for calling out the troops)… recognises that calling out the ADF to respond to an incident is a significant and exceptional act, and ensures that it is not to be done in relation to incidents that are within the ordinary capability of police.87

This threshold will be explored in more detail below. A call out order is generally made by the Governor-General, on the satisfaction of the Authorising Ministers. The Authorising Ministers are the Prime Minister, the Attorney-General and the Minister for Defence.88

An order by the Governor-General requires the Chief of the Defence Force (CDF) to utilise the ADF in ‘such a manner as is reasonable and necessary, for the purpose specified in the order’.89 Importantly, this does not transfer operational command or control of ADF members to constabulary forces.90

Table 1: Type of Call Out Orders Section Call Out Type 33 Commonwealth interest 34 Commonwealth interest – contingent call out 35 Protection of States and Territories 36 Protection of States and Territories – contingent call out

A call out order under ss 33 and 35 are effective for up to twenty days, unless revoked earlier.91 If the Authorising Ministers are still satisfied, the order may be extended for up to another twenty days, without restriction on the number of times an order may be varied.92 Contingent call out orders cease to be in force at the end of the timeframe specified in the order, unless revoked earlier.93 A call out order must also specify which Division, as per Table 2 below, it authorises, dictating the powers that might be utilised by ADF members.94 More than one Division may be in effect at one time.

87 Addendum to the Explanatory Memorandum to the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth), (Addendum to the Explanatory Memorandum 2018). 88 Defence Act, s 31. 89 Defence Act, s 39(2). 90 Ibid, s 40(3). 91 Ibid, ss 33(5)(d)(ii), 35(5)(d)(ii). 92 Ibid, s 37(2). 93 Ibid, ss 34(5)(d)(ii), 36(50(d)(ii). 94 Ibid, ss 33(5)(c), 34(5)(c), 35(5)(c), 36(5)(c).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 16 Table 2: Part IIIAAA Divisions

Number Division 3 Special powers generally authorised by the Minister 4 Powers exercised in specified areas 5 Powers to protect declared infrastructure

For a Commonwealth interest call out, the Governor-General may make an order to call out the ADF, on the satisfaction of the Authorising Ministers, that:

(a) any of the following applies:

(i) domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia;

(ii) there is a threat in the Australian offshore area to Commonwealth interests (whether those interests are in that area or elsewhere);

(iii) domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia, and there is a threat in the Australian offshore area to those or any other Commonwealth interests; and

(b) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the Commonwealth interests against the domestic violence or threat, or both; and

(c) one or more of Divisions 3, 4 and 5 should apply in relation to the order.95

Whilst there is nothing to prevent a State or Territory from requesting a Commonwealth interests order, the Commonwealth can also make one of its own initiative to protect Commonwealth interests, within a State or Territory. Where a Commonwealth interests call out order is made that a State or Territory has not requested, there is a requirement for an Authorising Minister to consult with the State or Territory before the order is made (unless, for reasons of urgency, it is not practicable to do so).96

Part IIIAAA does not provide any definition for the phrase ‘Commonwealth interest’; some interpretive help is found in the Addendum to the Explanatory Memorandum to the Act, where the term is to be read as including:

95 Defence Act, ss 33(1). 96 Ibid, ss 38(2)(3) .

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 17 …the protection of: Commonwealth property or facilities; Commonwealth public officials; visiting foreign dignities of heads of state; and, major national events, including the Commonwealth Games or G20.97 Indeed, bearing in mind that there has been no judicial consideration of the phrase, nor any statutorily binding definition, one academic has suggested that where Commonwealth laws or property are affected then, ipso facto, a Commonwealth interest has been affected.98 Although this position was posited prior to the 2006 and 2018 Amendments, it may still be legally correct.

For a State or Territory protection call out, the Governor-General may make an order to call out the ADF, if:

(a) a State Government or Government of a self-governing Territory applies to the Commonwealth Government to protect the State or Territory against domestic violence that is occurring, or is likely to occur, in the State or Territory; and

(b) the Authorising Ministers are satisfied that:

(i) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the State or Territory against the domestic violence; and

(ii) one or more of Divisions 3, 4 and 5 should apply in relation to the order.99

For both Commonwealth interest and State or Territory protection call outs, Part IIIAAA allows for a mechanism by which the Governor-General may essentially pre-authorise an order for a call out, triggered by specified circumstances, where for reasons of urgency a normal call out is impracticable.100 These are known as contingent call outs. Although the usefulness of a contingent call out has been questioned,101 it would appear Parliament has considered it necessary in light of, particularly, aviation threats (which, if they were to materialise, require immediate action).

97 Addendum to the Explanatory Memorandum 2018, 3. 98 Hope (n 10) Annex 9; see Michael Head, ‘Calling out the Troops – Disturbing Trends and Unanswered Questions’ (2005) 28(2) UNSW Law Journal, 528. 99 Defence Act, s 35(1). 100 Ibid, ss 34(1), 36(1). 101 For example, whilst preceding Part IIIAAA, in 1979 Mr Justice Robert Hope commented that: the past has established in many parts of the world a great variety of emergent circumstances, some of which would have fallen within a predictable pattern but some of which would not. The last two decades have shown how quickly different situations can develop, thereby creating entirely new challenges to law enforcement authorities. The prescription of the circumstances in which the Defence Force can be used, or of the criteria to be applied in deciding whether that use should be approved, is impracticable and would impose too great an inflexibility upon a situation, which although unusual, of its very nature requires flexibility. Hope (n 10) 161.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 18 Additional to the above, in sudden and extraordinary emergencies, an order may be made by Authorising Ministers, or alternative Authorising Ministers, in lieu of the Governor-General, to call out the ADF.102 Such an order may simply be made verbally, 103 or be an electronically signed email.104 What constitutes a sudden or extraordinary set of circumstances is undefined, necessarily so due to the flexibility afforded.

There are three different methods by which this can occur, and may only progress if the preceding option cannot be satisfied. In the first instance, the Prime Minister may unilaterally make an order or declaration.105 Where the Prime Minister is unavailable to be contacted for the purpose of considering or making such an order or declaration, then the two remaining Authorising Ministers may make an order or declaration.106 In the event that one of the aforementioned Authorising Ministers is unavailable, the remaining Authorising Minister may jointly, with an alternative Minister, make an order or declaration.107 An alternate Authorising Minister is any one of the following Ministers: the Deputy Prime Minister; the Foreign Affairs Minister; the Treasurer; or the Minister for Home Affairs.108 An expedited call out can only last up to five days.109

B Threshold Requirements for a Call Out

As aforementioned, when deciding to call out the troops for any of the above situations, the Governor-General’s decision is based off the satisfaction of the Authorising Ministers. This satisfaction is different for Commonwealth interests, and State or Territory protection call outs. For a Commonwealth interest call out, or Commonwealth interest contingent call out, the Authorising Ministers: i. must consider the nature of the domestic violence; and ii. must consider whether the utilisation of the Defence Force would be likely to enhance the ability of each of those States and Territories to protect the Commonwealth interests against the domestic violence; and iii. may consider any other matter that the authorising Ministers consider relevant.110

102 Defence Act, s 51U. 103 Ibid, s 51U(3). If this is the case, then a written record of its particularity must be made and signed by the decision-maker(s) and the CDF, as per s 51U(3). Failure to comply with this requirement will affect the validity of the order or declaration, by implication of Defence Act, s 51U(3). 104 Ibid, ss 51(U)(3)(a)(b). This could allow, theoretically, for an expedited call out in under five minutes. 105 Ibid, s 51U(2)(a). 106 Ibid, s 51U(2)(b). 107 Ibid, s 51U(2)(c). 108 Ibid, s 51U(2)(c). In an era of rapidly changing political portfolios, the Minister for Home Affairs is defined as the Minister who administers the Australian Federal Police Act 1979 (Cth), as per s 31. 109 Ibid, s 51V(4)(b). 110 Ibid, ss 33(2)(a)(b), 34(2)(a)(b).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 19 This is compared to the test for a State or Territory protection call out, which requires that the Authorising Ministers: i. must consider the nature of the domestic violence; and ii. must consider whether the utilisation of the Defence Force would be likely to enhance the ability of the State or Territory to protect the State or Territory against the domestic violence; and iii. may consider any other matter that the authorising Ministers consider relevant.111

The language used in Part IIIAAA aims to reflect s 119 of the Australian Constitution - the ‘wallflower of the Constitution’.112 Viewed through the prism of a continual cycle of industrial struggles in the 1890s,113 Sir Samuel Griffiths, as Premier of Queensland, is thought to have inserted the original provision on or around March 1891114 in light of his deployment, two months earlier, of 1,442 troops to break the Shearer’s Strike.115 The provision of the Constitution reads: The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. The term ‘domestic violence’ finds no definition in the Constitution nor the Defence Act, nor has it received any jurisprudential commentary. The Addendum to the Explanatory Memorandum to the Act notes that: ‘domestic violence’ … refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful protests, industrial action or civil disobedience would not fall within the definition of ‘domestic violence.’116 [Emphasis added]. When considering the nature of the domestic violence, consideration could include: matters such as the type of violence, the types of weapons used, the number of perpetrators involved, as well as the scale of domestic violence (or anticipated domestic violence), where such information is available. For example, the ADF could be called out in response to unique types of violence, such as chemical, biological, radiological or nuclear attack The ADF could also be called out where the type of violence is not unique – for example an active shooter – but where the violence is so widespread, or there are so many shooters involved, that law enforcement resources are in danger of being exhausted.117

111 Ibid, ss 35(2)(a)(b), 36(2)(a)(b). 112 Peta Stephenson, ‘Fertile Grounds for Federalism – Internal Security, the States and Section 119 of the Constitution’ (2015) 43 Federal Law Review 289, 291. 113 Head (n 48) 45. 114 See John A La Nauze, The Making of the Australian Constitution (Melbourne University Press, 1972). 115 Which the Queensland Government viewed as amounting to an insurrection and troops were called in to suppress it; see Hope (n 10) 330. 116 Explanatory Memorandum 2018, 6. 117 Ibid, 36.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 20 [Emphasis added]. This direction, however, is merely advisory. There is a large ambit of discretion granted to Authorising Ministers to be satisfied in making their recommendation to the Governor- General..

The second mandatory consideration requires an assessment of the differing capabilities and capacity of the various States or Territories.118 The constabulary forces of New South Wales, for example, require less assistance than those of Tasmania. This is ostensibly aimed at ensuring that the ADF is called out in situations: where the ADF has relevant specialist capabilities that could be brought to bear… (allowing for) greater flexibility for the ADF to be used to provide the most rapid, effective or appropriate specialist support to the states and territories, while respecting the states’ and territories’ position as first responders.119 Arguably, one ADF member equipped with a service rifle could enhance the capabilities of a State or Territory constabulary forces; equally, a lack of training and communication systems could hinder the effectiveness of co-ordinated responses.120 Although a balancing act, the use of the ADF is a significant and exceptional act not intended to respond to ‘incidents ordinarily and easily dealt with by police.’121

The same follows for contingent call outs. As noted above, contingent call outs may occur for a Commonwealth interest or State or Territory protection call out, and are triggered by ‘specified circumstances’.122 Contingent call out orders, under s 34, will typically be: used as part of a request for ADF security support for major international events hosted within Australia, where there is a foreseeable or anticipated threat against Commonwealth interests. Such orders have been regularly made as part of security measures to protect major Commonwealth events including the 2014 G20 Leaders’ Summit in Brisbane, the 2018 Gold Coast Commonwealth Games and the 2018 ASEAN-Australia Summit, from circumstances involving air threats.123 This is shared for contingent call outs under s 36, in relation to State or Territory protection orders.124 Specifically, a contingent call out under s 36 may occur where ‘the relevant State or Territory may have limited, or no, capability to respond to such an attack’.125

118 Anthony Blackshield, ‘The Siege of Bowral – The Legal Issues’ (1978) 4(9) Pacific Defence Reporter, 36. 119 Explanatory Memorandum 2018, 25. 120 ‘Working with Police’ (2019) 56 Smart Soldier, 29 – 32. 121 Explanatory Memorandum 2018, 6. 122 Defence Act, ss 34(1), 36(1). 123 Addendum to the Explanatory Memorandum 2018, 3. 124 Ibid, 5. 125 Ibid, 4.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 21 These specified circumstances must be ‘sufficiently particular to allow Authorising Ministers to make the assessment required’126 and are not intended to be made ‘on the basis of vague or indefinite specified circumstances.’127 But what exactly ‘specified circumstances’ constitute, and the level and reliability of the intelligence required for offshore and land contingencies, was a significant issue in the drafting stages.128 The Explanatory Memorandum notes that there ‘are a range of circumstances that could give rise to a contingent call out order. What constitutes specified circumstances will depend on the situation in question.’129

A contingent call out order could be made, for example, to protect Commonwealth interests during a major international summit where there is a foreseeable risk, based on intelligence, of a chemical, biological, radiological or nuclear (CBRN) attack at a summit venue. It would be appropriate for a contingent call out order to be in place to deal with this foreseeable risk, empowering the ADF to use its specialist capabilities should the specified circumstances of an imminent or actual CBRN attack at the summit arise without having to use the normal or expedited call out process when the specified circumstances actually arise.130 This moreover applies to possible aviation or maritime threats.

Thus, it can be seen that a decision to call out the ADF under Part IIIAAA is a significant and exceptional act, and recognises the remarkable circumstances which must occur before ADF members are called out. Although the 2018 Amendments aimed to reduce the threshold requirements for use of the ADF,131 the twofold requirements that Authorising Ministers must consider not only the nature of the domestic violence, but the enhancement the ADF may offer, highlights that not every instance of domestic violence, or threat of domestic violence, will result in a call out.

2 Multi-jurisdictional

An important development within Part IIIAAA has been the recognition of multi-jurisdiction incidents.132 This recognises the dynamism of current domestic violence threats, which may arise in one jurisdiction and rapidly move to another. Equally, it allows for the ADF to operate

126 Addendum to the Explanatory Memorandum, 4. 127 Ibid, 3. 128 See Senate Legal and Constitutional Affairs Committee, Report, Defence Legislation Amendment (Aid to the Civilian Authorities) Bill 2005, February 2006, 44. 129 Addendum to the Explanatory Memorandum 2018, 5. 130 Explanatory Memorandum 2018, 36. 131 This was arising from the Review of Defence Support to National Counter-Terrorism Arrangements, which considered the Lindt Café. 132 Defence Act ss 44, 51K.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 22 effectively against co-ordinated, simultaneous threats occurring over multiple State and Territory jurisdictions. Examples of this may be in the aviation environment, at airports that span across jurisdictions (such as Coolangatta airport on the Queensland/New South Wales border), or an incident in Albury-Wodonga.

The new Commonwealth interests call out provisions allow for a single call out to specify more than one State or Territory. Whilst a nexus between the ADF response and domestic violence specified in the order must be established, the legislative developments will provide more security for ADF members by ensuring Part IIIAAA works when the threat is mobile or dynamic.

3 Expedited Call Out or Declaration

There are occasions when the Prime Minister, or Defence Minister and Attorney-General jointly, or an Authorising Minister and another specified Minister may give any of the four call out orders because of a sudden and extraordinary emergency.133 An expedited call out can only last five days.134 What constitutes a sudden or extraordinary set of circumstances is undefined.

There are three different methods by which this can occur, and may only progress if the preceding option is impracticable. In the first instance, the Prime Minister may unilaterally make an order or declaration.135 Where the Prime Minister is unavailable to be contacted for the purpose of considering or making such an order or declaration, then the two authorising Ministers may.136 Failing their availability, a single authorising Minister and an alternative Minister may do so.137

If such an order is made verbally then a necessary burden is placed upon the CDF to create a written record of its particularity.138 Moreover, a copy of said record must be given to the Governor-General.139 Such a written record may be as simple as an electronically signed email.140 The 2018 Amendments have removed the witnessing requirements.141

133 Ibid, s 51U(3). 134 Ibid, s 51V(4)(b). 135 Defence Act, s 51U(2)(a). 136 Ibid, s 51U(2)(b). 137 Ibid, s 51U(2)(c). 138 Ibid, s 51U(3)(a). 139 Ibid, s 51U(3)(c)(ii). 140 Ibid, ss 51(U)(3)(a)(b) – this could allow, theoretically, for an expedited call out in under five minutes. 141 As formerly required under the old Defence Act s 51CA.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 23 It is important to note though that failure to abide by the requirements does not affect the validity of the order, so as to ‘ensure that a delay in providing a written record… does not cause a delay in the expedited order or declaration taking effect.’142 The Department of Defence offered the following explanation: [We] need to have a circumstance where members of the executive, who are much better connected these days than they ever have been with secure communications, can quickly give effect to a call-out by doing something as simple as making a secure telephone call which can be properly and duly recorded later.143 Whilst some academics have criticised such a move as disproportionate, these criticism fail to recognise the acknowledged prevalence of electronic communications between higher command within the ADF.144.

4 Criminal Prosecution & Jurisdiction

Part IIIAAA provides little guidance as to the proper prosecutorial and jurisdictional approach to be taken with respect to ADF members. The legislation notes members are liable for civilian criminal punishment,145 and vests control of the prosecutorial process in the CDPP to the exclusion of State or Territory prosecutors.146 Although the Commonwealth Director of Public Prosecutions (CDPP) is currently empowered under Part IIIAAA to prosecute ADF members, to the exclusion of the State and Territory prosecutorial bodies, it does not necessarily follow that this should be the case. This is the focus of Chapter 4.

C Conclusion

It follows from the foregoing that a decision to call out the ADF is not one taken lightly. The clear division of military and naval forces from State and Territory government control, and retention of civilian police as first responders, reflects the intention of the Constitution that use of military forces, domestically, should only occur in exceptional situations. Although reinforcing the subordinate role of the ADF to civilian police, Part IIIAAA importantly does not change the status of ADF members whilst called out, but serves to further distinguish it.

The consequential powers granted to ADF members to address this risk, and reflecting their differing roles to civilian police, is covered below.

142 Explanatory Memorandum 2018, 81. 143 Michael Pezzullo, Committee Hansard, 31 January 2006, 34; Senate Legal and Constitutional Affairs Committee (n 131) 35. 144 Thomas; Secretary, Department of Defence and (Freedom of Information) [2018] AATA 604. 145 Through the application of the criminal law of the Jervis Bay Territory - Defence Act s 51Y. 146 Ibid, s 51Y(3).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 24 III A ‘CITIZEN IN UNIFORM’?

It is no longer a credible position for a civilised society to take that a soldier in times of urban guerrilla warfare should be regarded as a special constable and in time of conventional warfare as an extra-legal being. A soldier is a soldier is a soldier. D.B. Nichols, ‘Untying the Soldier by Refurbishing the Common Law’147

This chapter addresses the central thesis question of whether, whilst called out under Part IIIAAA, ADF members are more than citizens in uniform. First, the history and use of military personnel in aiding the civil authority is canvassed, in order to demonstrate the development of the dual duties to assist in keeping the Peace of the Realm, and the duty to obey orders, as well as the ADF’s role as an institution. This chapter will then look at comparing select powers under Part IIIAAA with their civilian equivalents, where possible, and highlighting unique powers and defences available to the ADF.

A The Doctrine

The position this paper seeks to promote – that ADF members are more than simply ‘citizens in uniform’ whilst called out to aid the civil power – was a central issue for the British military in their deployments in Northern Ireland. Specifically, between 1970 and 1979, the British military in Northern Ireland killed 186 individuals; 28 British soldiers were prosecuted for offences, 13 of whom were convicted. One was found guilty of manslaughter, with his conviction quashed on appeal.148 The House of Lords were subsequently requested by the Attorney-General for an advisory opinion on the matter. Lord Diplock commented thus:

There is little authority in English law concerning the rights and duties of a member of the armed forces of the Crown when acting in aid of the civil power… Where used for such temporary purposes it may not be inaccurate to describe the legal rights and duties of a soldier as being no more than those of an ordinary citizen in uniform. But such a description is in my view misleading in the circumstances… in theory it may be the duty of every citizen when an arrestable offence is about to be committed in his presence to take whatever reasonable measures are available to him to prevent the commission of the crime; but the duty is one of imperfect obligation and does not place him under any obligation to do anything by which he would expose himself to risk of personal injury, nor is he under a duty to search for criminals or seek out crime. In contrast to this a soldier who is employed in aid of the civil power in Northern Ireland is under a duty, enforceable under military law, to search for criminals if so

147 [1976] Crim LR 181, 190. 148 Stephen Livingstone, ‘The House of lords and the Northern Ireland Conflict’ (1994) 57(3) The Modern Law Review 333-360.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 25 ordered by his superior officer and to risk his own life should this be necessary in preventing terrorist acts.149 To date, the High Court of Australia has not directly engaged with the doctrine and it remains open for debate.150 The question of the legal status and construction for members of the armed forces, operating domestically, is an important question for all countries.

Armed forces from around the world have evolved along a spectrum, stretching from where soldiers have ‘identical rights and duties to those of civilians (civilian soldiers) to where the armed forces are kept quite separate (militarised soldiers).’151 The concept of a citizen in uniform has been argued to ground, at the common law, military personnel within society.152 But to accept that argument is to assume that the civilian population is ‘homogenous and that soldiers themselves will see all citizens as equally worthy of protection.’153 Experiences outside Australia have suggested that it may not be the case.154 It further, incorrectly, treats all armed forces members as a homogenous group, without difference or deference to rank.155

What this paper proposes is that, using the ADF as an example, when called out to aid the civil power, the doctrine of a ‘citizen in uniform’ is antiquated and inappropriate. This is through acknowledging the ADF’s duty to assist in Keeping the Peace of the Realm, duty to obey orders, and proficiency in the weapon systems fundamental to the Profession of Arms. It will then look specifically at the ability to use force whilst called out under Part IIIAAA. The effect of this is to posit that when deployed domestically, armed forces members operate under a separate legal status, a privilege gained through military training, duty and subjugation to discipline, which was once summarised as serving ‘to separate the soldier from the mass of other citizens, and to nourish a particular character in him, and a higher jealousy of disgrace or affront.’156

149 Attorney-General for Northern Ireland’s Reference (No. 1 of 1975) [1977] AC 105 (HL) 136, 137 (A-G Reference). 150 Groves v Commonwealth (1985) 150 CLR 113. 151 Peter Rowe, ‘The Soldier as a Citizen in Uniform: A Reappraisal’ (2007) 7 New Zealand Armed Forces Law Review 1. Germany, as an example of the earlier, encourages its soldiers to think and act as citizens in uniform through promoting and developing Innere Fuhrung (internal leadership). The German Parliamentary Commissioner for the Armed Forces has commented that his role was ‘to ensure that… the concept of soldiers as citizens in uniform and the principles of Innere Fuhrung will remain decisive criteria governing all action taken’ see Rowe, 7. 152 Ibid. 153 Ibid, 4. 154 See Nachova v Bulgaria [2006] 42 EHRR 43, 168 in relation to the treatment of Roma. 155 See Yedidiah Groll-Ya’ari, ‘Towards a Normative Code for the Military’ (1994) 20 Armed Forces & Society 457, 459 who argues that there is no difference between soldiers and officers. 156 Baron Hume, Commentaries on the Law of Scotland Respecting Crimes (Bell & Bradfute, 1844), 205.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 26

A Duty to Assist in Keeping the Peace of the Realm

An ADF member, upon enlisting in their respective service, takes an oath or affirmation to serve Her Majesty the Queen, swearing ‘I will resist her enemies and that in all matters appertaining to my service I will faithfully discharge my duty according to law.’157 Until 1964, this affirmation additionally included the words ‘and that I will cause Her Majesty’s peace to be kept and maintained.’158 Although not formally undertaken on attestation, this duty remains for ADF members, by virtue of their obligations to provide aid to the civil power and aid to the civil community.

It merits to explore the historical use of the military in the Anglo-Saxon context to understand the development of the positive duty to assist in keeping the Peace of the Realm. Insofar as States have existed, there has existed a prerogative right to use the military both externally and internally.159 With regards to the latter, in the Anglo-Saxon tradition, able-bodied men were obliged to serve in the fyrd, aiding the suppression of riots in accordance with the principle that ‘each civic grouping should be responsible for the maintenance of order within its own area.’160 This tradition continued unchanged after the Norman Conquest,161 and was subsumed by the positions of Justice of Peace, and Lord Lieutenant162 who could utilise the possee comitatus – the power of the County – to suppress riots and insurrections163 and keep the ‘Peace of the Realm.’164

This Anglo-Saxon, localised governance continued unchanged until the civil administration of Britain under Oliver Cromwell. Under the Lord Protector, the eponymously named ‘London Scheme’ was introduced, establishing a military commission in London with authority to raise troops for the suppression of ‘rebellions, insurrections, tumults and unlawful assemblies.’165

157 Hope (n 10) Annex 9, 278 (Sir Victor Windeyer). 158 Ibid. 159 The nature of this right is best summarised in the Latin maxim, salus populi supremea es lex or safety of the people is the supreme of law. 160 Babington (n 15) ix. 161 Ibid. 162 Ibid. 163 For a matter of specificity it would also appear that a Justice of the Peace might raise the posse comitatus, see William Hawkins, Pleas of the Crown (Maxwells, 8th ed, 1824) 513-4; see also William Blackstone, Commentaries on the Laws of England (Bancroft-Whitney Publishing) Bk 1, 343. 164 Ibid, 2. 165 Ibid, 3.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 27 This scheme was quickly adopted in major population centres.166 In 1688, the ‘Glorious Revolution’ culminated in the subjugation of the military to Parliament.167 The new regent, William III, utilised the troops stationed in London in an attempt to disband highwaymen who plagued the countryside.168 Equally, the use and direction of soldiers and sailors remained at the Crown’s discretion.169 Both the military and naval position at this time was that they did not fall under civilian jurisdiction, but were directly answerable to the Crown.170

Progressively, the conditions of the eighteenth-century fuelled mass protests, with the now British military being increasingly used as riot controllers.171 Rarely of national or political character, these civil disturbances were often in protest to a local grievance or food shortage.172 The death of Queen Anne in 1714 led to government apprehension of riots over the accession of George I. Accordingly, a statute was introduced which imposed a duty on public officer holders (such as magistrates, sheriffs or mayors), whenever twelve or more individuals were gathered, to read the following: Our Sovereign Lord the King chargeth and commandeth all persons being assembled, immediately to disperse themselves and peaceably to depart to their habitations or their lawful business, upon the pains contained in the Act made in the first year of King George for preventing tumultuous and riotous assemblies. God save the King!173

The Riot Act of 1715 (UK) (Riot Act) – as the statute was – equally imposed a duty on any of the King’s subjects of age and ability to seize individuals who remained for more than an hour after the proclamation was read. This duty was positive for members of the armed forces.174 The Secretary at War informed the Attorney-General in 1732 that all magisterial requests for military assistance would be granted after the proclamation was read.175 Accordingly, implementation changed over time from a near ‘obsessional emphasis… on civil authorities

166 Over the course of its history, the etymology of the phrase ‘call out’ has developed; see Hope (n 10) Annex 9 (Sir Victor Windeyer). In the United States, the phrase remains ‘calling forth’ – as per American Constitution cl 15; see further Martin v Mott (1827) 12 Wheat. 19. 167 Bill of Rights [1688] ses II c II, s 6 ‘that the raising or keeping a standing army within the Kingdom in time of peace, unless it be with the consent of Parliament, is against the law.’ 168 Babington (n 15) 3. 169 Ibid, 5. 170 Ibid, 4. 171 Ibid, 3. 172 Ibid. 173 In 1830, a charge of failing to disperse after the Riot Act of 1715 (UK) was read apparently failed due to the omission of the magistrate to read proclaim ‘God save the King!’; see Reports from Commissioners, Criminal Law; Volume 5 (1840) 100-101. 174 A historical search has suggested the first instance of the Riot Act being read was in Southern Ireland in 1717, and remained on the Statue Book until 1967; see Babington (n 15). 175 Which, in turn, led to standing orders to be issued to military authorities that on requisition from magisterial office they were to assist; see Hope (n 10) Appendix 16.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 28 remaining in control’176 of troops, to an approach that placed responsibility on the military, and in particular the junior officer at the scene, for determining the necessary actions required to achieve the intent of the Riot Act. Although granted a large discretion to judge what was necessary to preserve peace, the military personnel were tried in civilian court.177 In 1781, the Chief Magistrate of London was charged with criminal breach of duty in failing to order a military invention with respect to the Gordon Riots.178 The difficulty of the position was expounded by Littledale J in R v Pinney: Now a person, whether a magistrate or a peace officer, who has the duty of suppressing a riot, is placed in a very difficult situation for if, by his acts, he causes death, he is liable to be indicted for murder or manslaughter, and if he does not act, he is liable to an indictment on an information for neglect; he is, therefore, bound to hit the precise line of his duty: and how difficult it is to hit that precise line, will be a matter for your consideration, but that, difficult as it may be, he is bound to do.179 It can be seen that whilst this duty relates to a magistrate, and not an ordinary subject of the Crown, it can by extension apply to members of the military who fall under their control. As such, it is a mistake to assume that the ‘position of a member of the (armed) Forces when ordered out to aid the civil power is in no way different from that of other citizens.’180 The duty for citizens, as noted by Lord Diplock, is one of imperfect obligation – the average citizen has no obligation to do anything that would expose them to risk or harm, nor need the citizen to go in search of criminals.181 Conversely, there is a positive duty imposed upon members of the armed forces to help the Crown restore order.182

The effect of this historical and legislative evolution was imposed on the British colony of New South Wales after settlement in Sydney. During the first 100 years of British settlement in Australia, troops aided the civil power in a variety of ways – from guarding penal colonies and convict labourers to operations at the Frontier.183 Colonial courts were mostly comprised of British military personnel, and instigated courts martial to individuals regardless of military or

176 Babington (n 15) 6. 177 Michael Head, Calling Out The Troops (The Federation Press, 2009) 40. 178 R v Pinney (1832) 5 Car & P [254]. 179 Ibid, [270]. 180 Hope (n 10) Annex 9, 285 (Sir Victor Windeyer). 181 A-G Reference (n 20) 141 (Lord Diplock). 182 See Oskar Teichman, ‘The Yewomanry as an Aid to the Civil Power, 1795 – 1867’ (1940) 19 Journal of the Society for Army Historical Research 127; Lieutenant-Colonel Thomas Brereton was court martialled for leniency, having failed to charge the mob in the Bristol Riots under which the mayor, Charles Pinney, was also charged. LTCOL Brereton committed suicide before the conclusion of the court martial. 183 See Timothy Bottoms, Conspiracy of Silence – Queensland Frontier Killing Times (Allen & Unwin, 2013); see Richard J Fox and Jodie E Lydeker, ‘The Militarisation of Australia’s Federal criminal justice system’ (2008) 32 Criminal Law Journal 290; see David Mackay, ‘Far-Flung Empire: A Neglected Imperial Outpost at Botany Bay 1788 – 1801’ (1981) 9(2) Journal of Imperial and Commonwealth History 125, 135.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 29 civilian status.184 The scope and role of the British Army personnel posted to the colony remained relatively constant, until after the establishment of police forces in the nineteenth century,185 at which time it shifted to ‘acting in support of the civil power… rather than being the only effective instrument of that power.’186

The duty to assist in keeping the Peace of the Realm not only reflects the overarching common law duty to assist keeping the peace, but specifically the positive obligation on ADF members when aiding the civil power. As Lord Diplock noted, citizens are imposed with an imperfect obligation; conversely, members of the ADF who are on duty with their respective units cannot be required to aid the civil power until authorisation under Part IIIAAA has been given.187 Once called out, however, the positive duty imposed on ADF members to maintain the Peace of the Realm surpasses that of a citizen, or a police officer.

B A Duty to Obey

A second, and more permanent, duty applicable to ADF members is the duty to obey lawful orders. This duty applies to all members of the ADF. Specifically to officers, from the moment of assuming command within the ADF, their commission notes:

I (name of the Governor-General)… Charge and Command you faithfully to discharge your duty as an officer and observe and execute all such orders you may receive from your superior officer…188 The Defence Force Discipline Act 1982 (Cth) (DFDA) provides that lawful orders,189 and lawful commands,190 need to be obeyed, and such offences are of strict liability.191 ADF members are expected not only to follow explicit orders, but implicit orders from superior commanders as well. This is achieved through understanding and enacting a superior officers’ intent. A recent Defence Force Discipline Appeals Tribunal (DFDAT) decision considered this in Randall v Chief of Army192 where a Warrant Officer Class 2, although prima facie committing breaches of the Criminal Code by accessing emails without authorisation, was

184 Victor Windeyer, ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) 1(5) Tasmanian University Law Review 635, 641. 185 Gary Mason and Keith Skinner, The Official History of The Metropolitan Police (Carlton Press, 2004). 186 Hugh Smith, ‘The Use of Armed Forces in Law Enforcement: Legal, Constitutional and Political issues in Australia’ (1998) 33 Australian Journal of Political Science 219, 222. 187 Hope (n 10) 167. 188 Rhonda M Wheate and Nial J Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’ (2003) 160 Australian Defence Force Journal 20, 21. 189 Defence Force Discipline Act 1982 (Cth) ss 27, 29 (DFDA). 190 Ibid, s 29. 191 Ibid, ss 27, 29. 192 Randall v Chief of Army (2018) 335 FLR 260.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 30 acquitted when the Tribunal held that such actions could have been an implied order due to his job role (as the internet service manager).193 Thus, whilst not only can an ADF member be expected to follow explicit orders, they may further be expected to follow implicit orders.

Failure to follow a lawful command is punishable by up to two years’ imprisonment194 and failure to obey a lawful general order by up to one year.195 With relevance to Part IIIAAA, ADF members are obliged to abide by the rules of engagement (ROE) they are issued. ROE are best summarised as: Directions to operational and tactical level commanders that delineate the circumstances and limitations within which armed forces may be applied by the ADF to achieve military objectives. ROE are issued both in peace and armed conflict. ROE will be issued by the Chief of Defence Force to Command Australian Theatre (COMAST). Joint Force Commanders and Australian Contingent Commanders will also receive ROE from COMAST. The factors that influence the formulation of ROE are diplomatic, political, operational, and international and domestic law. Any ROE issued will include legal consideration of these factors.196 The phrase ROE came to the fore due to its use by the United States, during the Korean War.197 ROE have expanded to cover all forms of armed conflict.198 For the purposes of Part IIIAAA, ROE constitute a lawful general order and must be adhered to.199 Any non-compliance with such orders is thus ‘not just an individual breach of discipline, but jeopardises the implementation of national policy as reflected in the rules.’200

Whilst civilians usually ‘view the command function as one that comes to the fore during combat’201 it is axiomatic that a military must train for war, not peace.202 Accordingly, orders must be followed at all times – whether in a barracks environment, on training exercises in the field, or on deployment.203 Put more expansively by Sir David Fraser, a career officer whose

193 Ibid, see in particular 271-2. 194 DFDA, s 27. 195 Ibid, s 29 196 Royal Australian Air Force, Australian Air Publication 1003, Operations Law for RAAF Commanders, (2004) 45. 197 Jeffrey F Addicott, ‘The Strange Case of Lieutenant Waddell: How Overly Restrictive Rules of engagement Adversely Impact the American War Fighter and Undermine Military Victory’ (2013) 45 St Mary’s Law Journal 1, 14-15. 198 Jon Moran, ‘Time to Move Out the Shadows? Special Operations Forces and Accountability in Counter- Terrorism and Counter-Insurgency Operations’ (2016) 39(3) UNSW Law Journal 1239, 1251. 199 See Moore (n 12); see DFDA ss 15F, 27 and 29. 200 Justice Paul Brereton, ‘The Director of Military Prosecutions, the Afghanistan Charges and the Rule of Law’ (2010) 85(2) Australian Law Journal 91, 101. 201 See Dr Matthew Groves, ‘The Civilianisation of Australian Military Law’ (2005) 28(2) UNSW Law Journal 364, 371. 202 See generally Justice John Logan, ‘Military Court Systems: Can They Still be Justified in This Age?’ (Speech, Commonwealth Magistrate and Judges Association Triennial Conference, 10 September 2018). 203 The latter of which acts as an aggravating factor; see DFDA Sch 3.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 31 experience spanned combat operations in World War Two, Malaya, Suez and Cyprus, as well as formation command during the Cold War: Few men are born heroes. Few are incorrigible cowards. Most can be either; and to help them towards the former rather than the latter state an army uses leadership, discipline and training – a mix which produces confidence and pride. The man well-led can believe there is sense in what he is ordered to do, and that his commander both cares for him and knows his own job. The disciplined man knows that the habit of obedience and united action distinguishes a self- respecting body of soldiers from a mob. The trained man knows his profession enough to do what he has to do, and do it by instinct amidst great dangers. Without these characteristics in the body to which they belong soldiers cannot behave well in battle; and when they fail the fault is not theirs but lies in the system which has placed them there unprepared. … No army can function on the basis that its members require rational explanations before they obey: obedience must be absolute, immediate and enforced. But although, in practice, men had “blindly” to obey, they needed to feel they were not blind – that they knew as much as could be managed, and that it made sense. They needed to know, above all, that their destinies were in good hands.204 Simply, in the military, an enforced disciplinary system underpinned by obedience to orders is a corollary of command. It reflects the unique relationship that ADF members have as an institution. But it further serves to distinguish ADF members from members of civil society, including their constabulary counter-parts.

C The Profession of Arms

When approaching the use of the ADF in domestic operations, it must be viewed with a mind to the training and weapon systems employed by ADF members, as part of their proficiency in the Profession of Arms. Although the Commonwealth Government has re-tasked the ADF to pursue counter-terrorism, this is not its raison d'être since the advent of contemporary warfighting. This staple of the ADF is best highlighted through the role of the Royal Australian Infantry Corps: to seek out and close with the enemy, to kill or capture him, to seize and hold ground and to repel attack, by day or night, regardless of season, weather or terrain.205 Each other Corps within the Australian Army, in effect, exists to support or complement the infantry. A similar point may be made with respect to the RAN and RAAF.

204 David Fraser, And We Shall Shock Them, A History of the British Army in World War Two (Hodder & Stoughton, 1983) 41, 99; see equally Niccolo Machiavelli, The Prince (Penguin Publishing, 2002) 38-41 when Fabrizio comments to Cosimo: ‘discipline drives away fear from men, lack of discipline makes the bold act foolishly… for a courageous army is not so because the men in it are courageous, but because the ranks are well disciplined’. 205 Australian Army, Royal Australian Infantry Corps, (19 December 2016)

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 32 The distinction of ADF members is particularly evident when compared to the role and training of the constabulary forces of a nation. Policing as a concept exists along what is commonly called the ‘security/justice continuum’,206 which at one end aims to provide stability and security to the community and on the other aims to develop a community.207 Where a police force sits on the continuum is reflective of the nation it serves, and within Australia it can be seen as being used to protect and serve the community.208 Lethal force is used as a last resort by State and Territory police personnel, and when employed must be proportionate, reasonable and necessary.209 The Australian Federal Police (AFP), for example, is bound by its Commissioner’s Order on operational safety, which states that conflict de-escalation is the primary consideration.210 Equally, the National Guidelines for police personnel training raise ten Operational Safety Principles, emphasising the overarching considerations of safety of the police, public, and offenders. Force is to be avoided unless necessary211 and reflects the position that protection of the public is paramount.212 As such, the role of the constabulary forces has been described to keep the Queen’s peace, and the ADF’s role to kill the Queen’s enemies.213

Generally speaking, armed forces members, and soldiers in particular, are trained ‘to shoot reflexively and instantly and a precise mimicry on the act of killing on the modern battlefield… Every aspect of killing on the battlefield is rehearsed, visualised and conditioned.’214 To achieve this, in 2017 the Australian Army Headquarters established a new ‘Combat Shooting Cell’ aimed at qualifying all serving members of the Australian Army (regardless of Corps or service category) with advanced Special Forces training through enhanced realistic training of actual combat scenarios.215 This is achieved, in part, through the use of robotics to simulate moving targets in a complex terrain environment.216

206 William Terrill and Eugene Paoline, ‘Examining Less Lethal Force Policy and the Force Continuum: Results from a National Use-of-Force Study’ (2013) 16(1) Police Quarterly, 38-65. 207 Ibid, 41. 208 Ibid. 209 Simon Bronitt, ‘Rethinking Police Use of Force: Linking Law Reform with Policy and Practice’ (2012) 26 Criminal Law Journal 71, 72. 210 Australian Federal Police Commissioner, The AFP Commissioner’s Order on Operational Safety 3 (01 June 2012) s 5.1 211 Bronnit (n 79) 73. 212 Australian Federal Police Act 1979 (Cth) s 8. 213 Paraphrased from Paul Sieghart, ‘Harmless Weapons: A Threat to Liberty?’ New Scientist (London, 30 March 1978) 840 who wrote that ‘the job of the soldier is to kill the Queen’s enemies in war-time; that of the policeman to protect the Queen’s subjects in peacetime.’ 214 David Grossman, On Killing (Little, Brown & Company) 254. 215 Katherine Ziesing, ‘Robotics enlisted to sharpen soldiers’ skill’ The Australian (online) 2 March 2017 < https://www.theaustralian.com.au/nation/defence/robotics-enlisted-to-sharpen-soldiers-skills/news- story/c456e3fba1505939f82bbf1348d8aefe>. 216 Ibid.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 33 E Part IIIAAA Powers

In addition to the specific duty to assist the civil authority in times of unrest, and the constant duty to obey orders and the weapon systems employed, it is submitted Part IIIAAA has empowered soldiers to such an extent that it is a misnomer to describe them merely as citizens in uniform whilst called out. This reflects the necessary statutory intent, required by Lord Tindal CJ, to delineate soldiers from being merely ‘citizens in uniform.’

As covered in Chapter 2, Part IIIAAA governs the powers and responsibilities of ADF members when called out to aid the civil authority, and are outlined in relevant Divisions – pertinently 3, 4 and 5 – below. Across the three divisions there are certain overlaps in powers; the circumstances in each division are, however, different.

As noted above, the 2018 Amendments aimed to streamline the process necessary for call outs. Consequentially, Part IIIAAA is now divided into eight Divisions. Divisions 3-6 are relevant for considering whether ADF members are more than ‘citizens in uniform’.

Division 3

Generally speaking, Division 3 powers may only be exercised when authorised by an Authorising Minister.217 The powers under Division 3 are focused primarily on ‘preventing, ending, and protecting people from, acts of violence and threats.’218 Although separate divisions, powers under Division 3 may also be utilised under Division 4. If a power could be used under both, it is taken to be exercised under Division 3.219 Specifically, for ADF soldiers operating under Division 3, and with reference to Table 3, ADF members may be authorised to do any of the following things:

Table 3 – Powers of ADF troops under Division 3 Section Power 46(5)(a) Capture or recapture a location, prevent or put an end to violence 46(5)(b)(i) Prevent, or put an end to, acts of violence 46(5)(b)(ii) Prevent, or put an end to, threats to any person’s life, health or safety, or to public health or public safety 46(5)(c)(i) Protect any person from acts of violence 46(5)(c)(ii) Protect any person from threats to any person’s life, health or safety, or to public health or public safety

217 Defence Act, s 41. 218 Explanatory Memorandum 2018, 59. 219 Defence Act, s 41.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 34 46(5)(d) Take measures (including the use of force) against an aircraft (whether the aircraft is airborne) or vessel, subject to restrictions

Importantly there are, however, situations where Ministerial authorisation is not required in order for ADF members to utilised Division 3 powers. Any ADF member who believes on reasonable grounds that there is insufficient time to obtain the authorisation because of a sudden and extraordinary emergency existing, may take an action under the powers outlined in Table 3 or the additional powers under Table 4.220 One such emergency could be ‘where the ADF have been called out to respond to a siege, but while preparing to take action to end the siege a separate armed attack breaks out nearby.’221 The empowerment of ADF members by Parliament to utilise lethal force, or to take measures against an aircraft, or to search a premise (as a few examples) of their own initiative is clearly incompatible with the maintenance of the position that they are ‘citizens in uniform’.

Whilst operating under Division 3, ADF members are equally empowered to utilise the powers outlined in Table 4. An Authorising Minister need only authorise one power in Table 3 to validate the remaining powers under subsection 7 and 9.222

Table 4– Additional powers under Division 3 Section Power 46(7)(a) Free any hostage from a location (including a facility) or thing 46(7)(b) Control the movement of persons by means of transport 46(7)(c) Evacuate persons to a place of safety 46(7)(d) Search persons, locations, premises, transport or things for items that may be seized 46(7)(d) Search persons, locations, premises, transport or things for people who may be detained 46(7)(e) Seize any item the member believes on reasonable grounds is a thing that may be seized in relation to the call out order 46(7)(f) Detain any person that the member believes on reasonable grounds may be detained, for the purpose of placing the person in custody at the earliest practicable time 46(7)(g) Provide security (whether armed or not, and whether with police or not) including by patrolling or securing an area or conducting cordon operations 46(7)(h) Direct a person to answer a question, or produce a document, that is readily accessible to the person (including requiring identification) 46(7)(i) Direct a person to operate machinery or a facility

220 S 46(1)(b). 221 Explanatory Memorandum 2018, 55. 222 Ibid, 56.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 35 46(9) Actions incidental to such powers

ADF members may also do anything incidental to anything under subsection (5) or (7).223

Whilst there is no limitation on the Corps or service categorisation of the ADF members to be used (Regular or Reserve), realistically any land-based call out of the ADF under Division 3 will utilise Australian Special Forces, which include Tactical Assault Group (East) or (West) (TAG(E) / TAG(W)). TAG(E) is constituted by members of the 2nd Commando Regiment (2CDO) and is responsible for assisting Australia’s eastern seaboard.224 TAG(W) constituted by members of the Special Air Service Regiment (SASR) and is responsible for Australia’s western seaboard.225

Personnel in TAG(E) or TAG(W) are members of Special Operations Command (SOCOMD). The effect of this is : qualified members of SOCOMD are highly trained and experienced in urban combat, being considered the apex of combat soldiers. They are, even within the isolated institution of the ADF, removed both geographically and culturally,226 with their identities, for the tenure of their posting in SOCOMD, protected (in policy) from both the public and their peers (protected identity herein referred to as (PID)). Accordingly, there is no requirement for soldiers to wear uniform or have any form of identification whilst operating under Division 3. Whilst lengthy, the justification merits replication: The requirement to wear uniforms and identification applies to proposed Division 4, but not to proposed Division 3. This is because the tasks that the ADF will be required to perform under Division 3 are higher end military actions and may involve the Special Forces. These tasks may require the ADF to operate in a covert manner where uniforms would be detrimental. ADF Special Forces soldiers have protected identity status because they are associated with sensitive capabilities. Protected identity status is required to maintain operational security and the safety of the individual and their family. By virtue of their protected identity status, ADF Special Forces soldiers are able to exercise powers under proposed Division 3 without being required to produce identification or wear uniforms. Tasks under Division 4 are more likely to be related to securing an area with, or in assistance to, the police. When carrying out Division 4 tasks, the ADF is more likely to need to display a visible presence and therefore uniforms will assist the conduct of these tasks.227

223 Defence Act, s 46(8). 224 Michael Brisseden, ‘Sydney Siege: Counter-terrorism specialist questions weapons’ Australian Broadcasting Corporation (online) 25 January 2015 . 225 Ibid. 226 The effect of this isolation on the culture of SOCOMD was addressed in an internal review by sociologist Dr Samantha Crompvoets; see Dan Oakes, ‘Claims of illegal violence, drugs and alcohol abuse in leaked Australian Defence report’ Australian Broadcasting Corporation (online) 9 June 2018 . 227 Explanatory Memorandum 2018, 60.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 36 Division 3 evidently envisages situations which require extreme, deliberate and potentially lethal force to be used. It allows a wide discretion to ADF members on the ground, in the air or on the water, to prevent or put an end to violence.

Division 4

Under Division 4, the Authorising Ministers may declare a ‘specified area’.228 The intent of such a declaration by the Authorising Ministers is to empower an ADF member to search premises in the specified area, and to also search means of transport and persons in the specified area.229 The search powers under the specified area are accordingly divided into two subdivisions: one relating to premises (Subdivision C),230 and the other to means of transport and people (Subdivision D).231 The authorisation process for these subdivision search powers differs subtly.

A declaration of a specified area can relate to a part of the mainland Australian territory, or an offshore area.232 Importantly, a specified area declaration can occur with respect to a contingent call out, whether or not the circumstances specified have arisen.233 Reasonably, a specified area is three-dimensional and includes both the airspace and underground – such as subway areas – of the boundaries.234 The intention of the provisions is to remove the distinction between the previous General Security Areas and Designated areas, and ‘allow for the full suite of powers to be exercised within a single specific area.’235

A copy of the declaration of a specified area is to be given to the Presiding Officer236 of each House of the Parliament within 24 hours of the declaration being made, and each House is to sit within six days after the Presiding Officer receiving the statement.237 When relating to onshore areas, the statement surrounding the specified area (being its boundaries) may be broadcast publicly, by television, radio or electronic means.238 The 2018 Amendments have removed the need to publish declarations in the Gazette.239

228 Defence Act, s 51. 229 Explanatory Memorandum 2018, 16. 230 Defence Act, s 51A. 231 Ibid, s 51B. 232 Ibid, s 51. 233 Ibid, s 51(2). 234 Explanatory Memorandum 2018, 61. 235 Ibid, 59. 236 Defence Act, s 31. 237 Defence Act, s 51(9). 238 Ibid, s 51(7). 239 Ibid, s 62.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 37 With respect to Subdivision C, whilst called out under Part IIIAAA, the CDF or an authorised Defence officer240 may give a search authorisation if, the officer believing on reasonable grounds that on any premise within the specified area there is:

(a) a person who is likely to pose a threat to: (i) any person’s life, health or safety; or (ii) public health or public safety; or (b) a thing that is likely to: (i) pose a threat to any person’s life, health or safety; or (ii) pose a threat to public health or public safety; or (iii) cause serious damage to property; or (c) a person or thing connected with domestic violence or threat specified in the order.241 Subdivision C is of more interest, as a cornerstone for the exceptional powers being granted to ADF members, than Subdivision D. Practically, the delegation of an authorised Defence officer allows for operational flexibility, and reflects the fact that the CDF will not always have accurate, on the ground information as a situation develops.242 It moreover demonstrates a clear level of responsibility being granted, by Parliament, to a class of Defence officers on the ground. Noting that subparagraph (c) allows for the ADF to search for individuals who have not committed an offence, but may seek to assist others,243 it is clear that the scope is wide and inconsistent with the perspective that an ADF member is simply a citizen in uniform. Equally, a search authorisation may be given to confirm that an individual or thing is not located within the area (‘search to exclude’). A search authorisation may be given generically, relating to an area, kind of premise, or individual premise.244 This is justified under a need for flexibility in locating and pursuing perpetrators quickly.245 There is no requirement under the legislation that the power be used in response to terrorism. The ability for the ADF to conduct dragnet searches is a departure from other Anglo-American nations and remains a remarkable power.246

There are also further procedural requirements granted to the occupiers of a premise being searched. A member of the ADF conducting a search must provide the occupier with a document establishing the necessary authority.247 The occupier – to the extent they do not

241 Ibid, s 51A(1). 242 EM, p 65 243 Explanatory Memorandum 2018, 64. 244 Defence Act s 51A(2). 245 Explanatory Memorandum 2018, 64. 246 In no instance has a dragnet search been upheld as legal within the United States in a civilian court; see Nicholas B Waranoff, ‘Federal Judicial Control of the National Guard’ (1972) 52 Boston University Law Review 1, 16. The only instances in which it has been upheld has been within military courts – see United States v Schafer, 13 USCMA 83, 32 CMR 85 (1962). 247 Defence Act, s 51B(1).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 38 impede the search248 – is entitled to observe the search.249 This right of the occupier does not, however, impact on the freedom of the ADF to search rooms concurrently.250 A search authorisation must not last longer than 24 hours.251 There is no limitation on consecutive search authorisations.252

Subdivision D empowers ADF members to conduct operations centred on search and seizure, ‘in relation to a dangerous thing and persons who are believed to have committed offences related to the domestic violence or who pose a threat.’253 These powers are as follows:

51D Powers relating to means of transport and persons in specified area (1) This section applies if a member of the Defence Force who is being utilised under a call out order believes on reasonable grounds that there is in a specified area: (a) a person who is likely to pose a threat to: (i) any person’s life, health or safety; or (ii) public health or public safety; or (b) a person who has in the person’s possession a thing that is likely to: (i) pose a threat to any person’s life, health or safety; or (ii) pose a threat to public health or public safety; or (iii) cause serious damage to property; or (c) a person connected with the domestic violence or threat specified in the order; or (d) a thing that is likely to: (i) pose a threat to any person’s life, health or safety; or (ii) pose a threat to public health or public safety; or (iii) cause serious damage to property; or (e) a thing connected with the domestic violence or threat specified in the order.

Powers relating to any means of transport or person, and other general powers (2) Any member of the Defence Force who is being utilised under the call out order may do any one or more of the following: (a) erect barriers or other structures, at the border of, or in any part of, the specified area; (b) stop any person (including a person mentioned in subsection (1)), or means of transport, in the specified area (whether or not barriers were erected); (c) direct any person: (i) not to enter the specified area; or (ii) to leave, or not to leave, the specified area; or (iii) to move from a place in the specified area to another place in the specified area; or (iv) not to move from a place in the specified area to another place in the specified area;

248 Ibid, s 51C(2). 249 Ibid, s 51C(1). 250 Ibid, s 51C(3). 251 Defence Act s 51A(2)(e). 252 Ibid, 51A(4). 253 Explanatory Memorandum 2018, 59.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 39 (d) direct a person in charge of any means of transport: (i) not to bring the means of transport into the specified area; or (ii) to take, or not to take, the means of transport out of the specified area; or (iii) to take the means of transport from a place in the specified area to another place in the specified area; or (iv) not to take the means of transport from a place in the specified area to any other place, or to a specified place, in the specified area; (e) if there is no person in charge of a means of transport that is in a specified area— take any action that is reasonable and necessary for either of the following purposes: (i) taking the means of transport out of the specified area; (ii) taking the means of transport from a place in the specified area to another place in the specified area; (f) direct a person in charge of a means of transport not to move the means of transport within the specified area (including by bringing it into or taking it out of that area) unless the person agrees to a member searching: (i) the person; and (ii) the means of transport and any thing in or on the means of transport; (g) direct any person not to move within the specified area (including by coming into or going out of that area) unless the person agrees to a member searching the person; (h) if a person agrees to a search under paragraph (f) or (g)—conduct the search and: (i) seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order; or (ii) detain the person, if the member believes on reasonable grounds that the person is a person who may be detained in relation to the call out order, for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time; (i) direct a person in the specified area to answer a question put by the member, or to produce to the member a particular document that is readily accessible to the person, (including by requiring the person to provide identification to the member); (j) operate, or direct a person to operate, a facility, machinery or equipment (including electronic equipment) in a particular manner (whether or not the facility, machinery or equipment is on a facility or means of transport), if the member believes on reasonable grounds that doing so is reasonable and necessary for the purpose of: (i) preserving the life or safety of any person in the specified area; or (ii) protecting against the threat of the person or thing mentioned in subsection (1). Note 1: For the definitions of person who may be detained, search and thing that may be seized, see section 31. Note 2: See also sections 51E (general provisions relating to section 51D), 51P (persons to be informed of certain matters if detained), 51Q (actions to be taken if things seized) and 51R (offence for failing to comply with a direction).

Search and seizure powers relating to specific means of transport (3) Any member of the Defence Force who is being utilised under the call out order may do any one or more of the following if the member believes on reasonable grounds that a person or thing mentioned in subsection (1) is in or on a means of transport in the specified area: (a) detain the means of transport; (b) search the means of transport, and any thing found in or on the means of transport;

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 40 (c) seize any thing (including a means of transport) found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order; (d) detain any person found in the search who the member believes on reasonable grounds is a person who may be detained in relation to the call out order for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time. (4) A member who detains a means of transport under paragraph (3)(a) must not detain the means of transport for longer than is reasonable and necessary to search it and any thing found in or on it, unless the means of transport is seized in accordance with paragraph (3)(c).

Search and seizure powers relating to the suspect (5) Any member of the Defence Force who is being utilised under the call out order may do any one or more of the following if the member believes on reasonable grounds that a person (the suspect) mentioned in paragraph (1)(a), (b) or (c) is in the specified area: (a) search the suspect; (b) seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order; (c) detain the suspect if the member believes on reasonable grounds that the suspect is a person who may be detained in relation to the call out order for the purpose of placing the suspect in the custody of a member of a police force at the earliest practicable time.

The powers outlined are natural corollaries of the ADF’s ability to establish and manage cordons. The powers aim to ‘fill gaps in the powers provided under existing legislation.’254 The operational experience of the ADF in the Greater Middle East region can be seen in the powers to control and stop a vehicle-borne improvised explosive device. It further allows for soldiers to move and remove vehicles that might inhibit movement or allow for a getaway.255 It is important to note in some circumstances, searches may occur without consent, if the ADF member reasonably believes the individual or means of transport fall under s 51D(1). The provisions are similar to those outlined under Division 3.

The 2018 Amendments removed the need for soldiers to provide the name, rank and service number of the ADF member commanding the search under the justification that it is ‘impractical.’ 256 In lieu thereof, Part IIIAAA now requires soldiers operating under Division 4 to be in uniform and have clear identification.257 Failure to abide by these statutory requirements is a civilian offence punishable by an acknowledged ‘relatively low penalty’258

254 Explanatory Memorandum 2018, 67. 255 Ibid, 67. 256 Ibid, 65. 257 Defence Act s 50(1)(c). 258 Explanatory Memorandum 2018, 60.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 41 of 30 penalty units.259 The CDF moreover has a positive obligation to ensure ADF troops abide by the requirement.260 There are two exceptions to this requirement: the first relates to where the contravention was because of an act of another person, who is not an ADF member, done without consent;261 and the second being when the power used is within Division 3, and is therefore held to operate under those provisions.262

The overall effect of Division 4 is important, and separate from either Division 3 or 5. It allows for ADF members to proactively search property and people without delay, and without much legal formality. Although providing that searches should be done consensually, it doesn’t necessarily follow that a lack of consent will halt a search.

Division 5

Division 5 develops further on the powers of the ADF when protecting ‘declared infrastructure’ and is focussed primarily on ‘preventing and ending damage or disruption to the operation of declared infrastructure, and on preventing, ending and protecting people from acts of violence and threats.’263 Under Part IIIAAA the Authorising Ministers may, in writing, declare particular infrastructure, or part thereof, as ‘declared infrastructure.’264 Separately, an expedited infrastructure declaration can be made under Division 7.265 The criteria by which the Authorising Ministers may declare infrastructure requires belief, on reasonable grounds, that: (a) Either: (i) There is a threat of damage or disruption to the operation of the infrastructure or the part of the infrastructure; or (ii) If a contingent call out order is in force – if the circumstances specified in the order were to arise, there would be a threat of damage or disruption to the operation of the infrastructure or part of the infrastructure; and (b) The damage or disruption would directly or indirectly endanger the life of, or cause serious injury to, any person.266 The Explanatory Memorandum makes clear that it is not intended to cover or: … protect nationally significant buildings such as the Opera House in the absence of any concomitant risk to life. The type of infrastructure intended to be declared includes, for example, power stations, water treatment plants, nuclear power stations and hospitals.267 But is equally linked to:

259 Defence Act s 50(1). 260 Ibid, s 50(3). 261 Ibid, s 50(2)(a). 262 Ibid, s 43. 263 Explanatory Memorandum 2018, 72. 264 Defence Act, s 51H. 265 Ibid, s 51F 266 Ibid, s 51H(2). 267 Explanatory Memorandum 2018, 71.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 42 physical facilities, supply chains, information technologies, and communication networks which if destroyed, degraded or rendered unavailable for an extended period, would significantly impact on the social or economic wellbeing of Australia, or affect Australia’s ability to conduct national defence and ensure national security.268

Whether or not infrastructure such as the Sydney Harbour Bridge – which, if destroyed, would impact on the economic wellbeing of Sydney through significant disruption to its flow of trade and transport – could be deemed declared infrastructure remains open. Declared infrastructure may be either within Australia or the offshore area; and whether a call out is in force or not.269 Pertinently, it may relate to infrastructure in a State or Territory whether or not the relevant State or Territory government has requested it.270 It may only operate whilst the call out order is on foot. .271 These powers are as follows:

51L Powers to protect declared infrastructure (1) A member of the Defence Force who is being utilised under a call out order may, under the command of the Chief of the Defence Force, take any of the actions in subsection (2), or exercise any of the powers in subsection (3) or (5), for the purpose of protecting declared infrastructure. (2) The member may take one or more of the following actions: (a) prevent, or put an end to, damage or disruption to the operation of the declared infrastructure; (b) prevent, or put an end to: (i) acts of violence; or (ii) threats to any person’s life, health or safety, or to public health or public safety; (c) protect any persons from: (i) acts of violence; or (ii) threats to any person’s life, health or safety, or to public health or public safety. (3) The member may do any one or more of the following in connection with taking any such action: (a) control the movement of persons or of means of transport; (b) evacuate persons to a place of safety; (c) search persons, locations or things for any thing that may be seized, or any persons who may be detained, in relation to the call out order; (d) seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order; (e) detain any person found in the search that the member believes on reasonable grounds: (i) is a person who may be detained in relation to the call out order; or (ii) is a person who is likely to pose a risk to the operation or integrity of declared infrastructure;

268 National Counter-Terrorism Plan (n 89) 32. 269 Defence Act s 51H. 270 Ibid, 51H(6)(7). 271 Ibid, 51H(5)(ii).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 43 for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time; (f) provide security (whether or not armed, and whether or not with a police force) including by patrolling or securing an area or conducting cordon operations; (g) direct a person to answer a question put by the member, or to produce to the member a particular document that is readily accessible to the person, (including by requiring the person to provide identification to the member); (h) operate, or direct a person to operate, a facility, machinery or equipment (including electronic equipment) in a particular manner (whether or not the facility, machinery or equipment is on a facility or means of transport).

ADF members may also do anything incidental to anything under subsection (2) or (3).272

Evidently, the scope for what could potentially be declared infrastructure is intended to be qualified by the Explanatory Memorandum’s four examples (physical facilities, supply chains, information technologies, and communication networks). Yet, the Explanatory Memorandum, further notes that ‘terrorists may deliberately target persons who are essential to the operation of declared infrastructure in order to damage that infrastructure.’273 Such a position would seem to place individuals in a separate category of declared infrastructure (support). It is the position of this paper that it is legally plausible that an individual, who is fundamental to the maintenance of a particularly critical piece of infrastructure, could be found by the Authorising Ministers as a declared infrastructure (support). However, their protection could equally be guaranteed under Division 3 or 4 powers.

4 Comparative Analysis of Powers

Through isolating and expanding on three key provisions, the intent to maintain and expand the distinction between ADF members and civilian police becomes evident. Read in conjunction with the aforementioned duties to assist in maintaining the Peace of the Realm, and duty to obey orders, the conclusion that ADF members, whilst called out, cannot be construed as simply citizens in uniform is arrived at.

(a) Person who may be detained

The ability for ADF members to detain, on reasonable suspicion, individuals who ‘may be detained’ for the purpose of placing them in custody at the earliest practicable time274 serves to distinguish the ADF not simply from civilian police, but from citizens in general. The power, covered under all three Divisions, is justified as allowing an ‘ADF member to require the

272 Defence Act, s 51L(5). 273 Explanatory Memorandum 2018, 73. 274 Defence Act s 46(7)(f).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 44 person to provide identification to the member.’275 An individual may be detained, on reasonable grounds, by an ADF member: (a) who is likely to pose a threat to any person’s life, health or safety, or to public health or public safety; or (b) both: (i) who has committed an offence, against a law of the Commonwealth, a State or Territory, that is related to the domestic violence or threat specified in the call out order; and (ii) whom it is necessary, as a matter of urgency, to detain.276 The 2018 Amendments to Part IIIAAA narrowed the ability of the ADF to detain individuals by adding that the requisite conduct be related to domestic violence or the threat specified in the call out.277 This reflects that the ADF is not a law enforcement agency, and may only detain ‘whom it is necessary, as a matter of urgency.’278 This urgency might relate to, for example, ‘where there were no police in the vicinity and detaining the person was necessary to prevent them from escaping.’279

Yet, Part IIIAAA allows for ADF members to detain an individual without the need for a connection to domestic violence or threat specified in the call out order. When ‘a thing’ has been seized an ADF member, they may detain the person for the purpose placing them in police custody at the earliest practicable time.280 ‘A thing’ is defined as follows: (a) is likely to pose a threat to any person’s life, health or safety, or to public health or public safety; or (b) is likely to cause serious damage to property; or (c) is connected with the domestic violence or threat specified in the call out order, and that is necessary, as a matter of urgency, to seize.281 Subsections (a) and (b), without the necessary qualification of subs (c), by implication provide the ADF an umbrella power to take things that are dangerous to the general, wider community, as well as various bomb parts which on their own do not pose a threat.282 It moreover is based on a likely threat, contrary to the powers of citizens arrest for non-law enforcement civilians, which require the individual to view the criminal act being performed.283

275 Explanatory Memorandum 2018, 58 276 Defence Act s 31. 277 Explanatory Memorandum 2018, 31. 278 Defence Act s 31. 279 Explanatory Memorandum 2018, 31. 280 Defence Act s 51Q(4). 281 Ibid, s 31. 282 Explanatory Memorandum 2018, 32. 283 See for example Law Enforcement (Powers and Responsibilities) Act 2000 (NSW) s 100.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 45 When detaining an individual, ADF members are imposed with certain obligations.284 The individual detained must be informed of the offence they have committed, as well as the basis on which they are being detained; it is not necessary, however, for ADF members to inform the individual in precise language or correct technical nature.285 Equally, where the offence is clear (such as an active shooter)286 the obligation to inform the individual is waived.287 This is necessarily different from the requirements imposed on civilian police and is distinguished on the basis of the ADF’s lay nature.288 Such a distinction also serves to highlight the difference of roles and to negate the opinion that an ADF member is no more than a citizen in uniform.

(b) Provide Security

A major power under Division 3 is the ability of ADF members to patrol, secure an area or conduct cordon operations, whilst armed, and without police assistance or escort.289 Considering the explicit subordination of the ADF to civilian police290 whilst called out, such a provision – albeit operationally and tactically sound – seems inconsistent with the proposition that ADF members are simply citizens in uniform. This is especially so considering the justification for the power, being that it is necessary when ‘an attack is expected but the exact location of the attack is unknown.’291

To elaborate; the empowering of ADF members to actively patrol an area, actively seeking to close and engage with a known enemy in a set area of operations, would appear to surpass even the paramilitary roles that civilian police forces would appear to have (where they might engage in storming a home, but this is not in instances where they expect an armed resistance).292

(c) To answer a question or produce a document

In order to ensure ‘consistency in the authorities provided to the ADF’293 onshore ADF members have been granted coercive questioning powers. Such a legislative step mirrors

284 Defence Act s 51P. 285 Ibid, ss 51P(1), (3). 286 Explanatory Memorandum 2018, 78. 287 Defence Act s 51P(2). 288 Explanatory Memorandum 2018, 77; these requirements differ between the various State and Territory police forces; see Australian Federal Police Act 1979 (Cth) s 14A. 289 Defence Act s 46(7)(g). 290 Ibid, s 40(1)(b). 291 Explanatory Memorandum 2018, 58. 292 As occurred in the late 1990s with the Victorian police force’s Special Operation Group; see generally Jenny Hocking, Beyond Terrorism: The Development of the Australian Security State (Allen & Unwin, Sydney, 1993); see specifically, Victorian State Coroner, Investigation into the Death of Jed Malcom Houghton (Melbourne, 1992). 293 Explanatory Memorandum 2018, 58.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 46 actions taken by the British Government in Northern Ireland, who curtailed the right to silence in an attempt to increase convictions and prevent terrorism.294

The granting of coercive questioning powers to ADF members is not without controversy. Traditionally the investigation of, and questioning in relation to, crimes has been within the remit of law enforcement agencies. Due to its intrusive nature, the common law has developed certain rights and privileges as a safeguard to civil liberties and embodies the historical distrust of police interrogation methods in the seventeenth century, deriving from the maxim nemo debet se ipsum prodere – no person can be compelled to be their own betrayer.295 This would appear to apply differently to ADF members.

To elaborate, the ‘right to silence’ is one such development and aims to provide ‘important mechanisms for individuals to lawfully resist the coercive powers of the state to obtain information.’296 Although commonly referred to as a single, autonomous right, in reality the expression denotes a bundle of connected principles and rules, including the common law privilege against self-incrimination297 or that no adverse findings can be raised from a failure to give evidence.298 The unifying nature of the ‘right to silence’ is that the right is pervasive; applying across all stages of the criminal justice process.299

The aforementioned rights are, despite perhaps popular lay opinion, not constitutionally enshrined but merely ‘basic and substantial common law rights’.300 But to assume they are absolute would be erroneous; in the Australian legal system there ‘is no free-standing or general right of a person charged with a criminal offence to remain silent.’301 Here, an automatic distinction can be drawn between the principle and the legislated powers – the individuals being questioned are not subject to any charge or criminal offence.

294 Through the enactment of Crim. L.R. 405; see John D Jackson ‘Curtailing the right of silence: lessons from Northern Ireland’ (1991) 42 Criminal Law Review 404 on the lack of effect the legislation had. 295 See Stephen Odgers, ‘Police Interrogation and the Right to Silence’ (1985) 59 Australian Law Journal 78, 83; see further Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118. 296 Thomas Bathurst and Sarah Schwartz, ‘Crime Commissions and Compulsory Examinations: Wither the Right to Silence?’ (2017) 91 Australian Law Journal 642. 297 Bathurst and Schwartz (n 296) 644. 298 R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1; Evidence Act 1995 (NSW) ss 12, 17, 20, 89. 299 X7 v Australian Crime Commission (2013) 248 CLR 92. 300 Ibid, 137 (Hayne and Bell JJ). 301 Lee v NSW Crime Commission (2013) 251 CLR 196, 318 (Gageler and Keane JJ).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 47 The bundle of rights is simply protected by the principle of legality – a principle arising from the comments of Chief Justice Marshall in the Supreme Court of the United States of America,302 and enshrined in Australia in the rule of statutory construction that: Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms… unless such an intention is clearly manifested by unambiguous language which indicates that the legislature has directed its attention to the rights and freedoms in question.303 Thus, the removal by the 2018 Amendments of the clear statutory abrogation operates to revive the common law bundle of rights.304 Although not relating to terrorism, the coercive powers of the ADF are similar to the provisions empowering statutory commissions to investigate corrupt or serious and complex crime – such as the Australian Crime Commission or the Australian Securities and Investments Commission. In these circumstances, it was recognised that: given the particularly violent and pernicious nature of organised crime, history has shown the need to create specialist crime fighting bodies with significant powers to combat these organised crime networks.305 Even in these situations, restrictions are often placed on the use of evidence gained through the breach of privilege in instances where there has been clear legislative abrogation.306 Part IIIAAA s 51SO(5) denotes that any evidence given, or as a direct or indirect consequence of answering a question or production of a document, is not admissible as evidence.307 There are two exceptions to this rule – the first being a failure to comply with a direction, and the second being making a false or misleading statement or information.308 Such a position reflects the ‘golden thread’ of the criminal law – namely, that an individual need not prove their innocence.309

An important friction point in the legislation exists when considering the use of force and coercive questioning powers. ADF members may not use force to demand an answer or produce a document.310 This would appear to conflict with the fact that the mere presence of armed troops, prima facie, constitutes the use of force;311 and considering that such powers

302 United States v Fisher (1805) 6 US 358, 390. 303 Al-Kateb v Godwin (2004) 219 CLR 562, 577 (Gleeson CJ); see generally Bathurst and Schwartz (n 299); see further Coco v The Queen (1994) 179 CLR 427. 304 Smith v Read (1736) 1 Atk 526 at 527; Rich v ASIC (2004) 220 CLR 129, 141–143 (Gleeson CJ, Gummow, Hayne, Callinan and Heydon JJ); Sorby v Commonwealth (1983) 152 CLR 281. 305 Review of the Australian Crime Commission Act 2002 (Parliamentary Joint Committee on the Australian Crime Commission, 2005), 5.86. 306 Bathurst and Schwartz (n 296) 645. 307 Which in turn reflects state practice; see for example Evidence Act 1995 (NSW). 308 Which in turn reflects Criminal Code (Cth) ss 137.1, 137.2. 309 Woolmington v Director of Public Prosecutions [1935] AC 462. 310 Defence Act s 51N(2). 311 A point acknowledged in the recently published ‘Working with Police’ (2019) 56 Smart Soldier, 32 which notes that mere posturing should be modified in order to present an appearance suitable to the threat.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 48 have been utilised in the offshore area it appears difficult that this legal issue has not arisen earlier.312 Whilst an individual may now refuse to answer a question under Part IIIAAA, failure to do so still constitutes a criminal offence and as such the individual may be detained for the purposes of handing over to civilian police for arrest.313 Such detention necessarily constitutes a use of force against an individual for exercising their right to silence.

As such, whilst the current coercive questioning powers would appear to place ADF members in a legal limbo, they moreover serve to place the ADF in an increasingly distinct position.

F Use of Force under Part IIIAAA

It is here that a necessary shift must be taken, from comparing the general powers available to ADF members under the various Divisions, to the scope for use of force by ADF members under Part IIIAAA. It is a lengthy section, the purpose of which is to reinforce the unique scenarios the ADF may be utilised and to compare the levels of force available between ADF members and civilian police forces.

Before delving into what force may be used by ADF members, it merits to first delineate the various options available. The use of force by the ADF must always be graduated, or otherwise be escalated. The escalation of force ‘may involve sequential actions that begin with non- deadly force measures and may graduate to deadly force measures.'314 As such, mere presence of an ADF member may constitute force;315 equally, it may also constitute soft physical pressure, non-lethal weapon systems (such as tear gas or batons) or lethal weapons (such as firearms).316 Although outside the scope of this thesis, it may also constitute the use of force in a cyber-environment.317 As a general rule, minimum force should always be applied by ADF members. It is important to note, though, that minimum force does not imply a minimum number of troops.318

Some limitations on the below case studies should be acknowledged from the outset. Arising from the paucity of precedent, it follows that foreign authorities must be sought. Common law

312 Although perhaps unsurprising, considering the effect that the Border Force Act 2015 (Cth) has on the flow of information surrounding offshore operations. 313 Defence Act s 46(7)(f). 314 San Remo Handbook on Rules of Engagement (International Institute of Humanitarian Law, 2009), Appendix 5 to Annex A, 5.2. 315 This is the basis of the issue as outlined with the prohibition on the use of force to compel answers or produce documents. 316 Ibid. 317 With reference to footnote 29. 318 Ward (n 7) 12.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 49 cases on the use of military in assisting law enforcement ‘dates from the period of empire when places such as Palestine, Australia, New Zealand, South Africa and India shared a greater formal legal affinity.’319 As such, obiter and ratio from these cases are acknowledged to not be binding. It is unlikely, however, that in a scenario relating to the use of force by an ADF member under Part IIIAAA that ‘the UK experience would not feature strongly in the search for jurisprudential guidance – at least, as a minimum, with respect to the broader philosophical- legal issues at play.’320

1 Reasonable and Necessary

Under Part IIIAAA the use of force must be reasonable and necessary.321 Below, in Table 5, are six key instances, by way of example, in which a member of the ADF, being utilised as part of a call out, may use force.

Table 7 – Permitted instances for use of force when it is reasonable and necessary to do so

Section Power 51N(3)(i) To protect the life of another person

51N(3)(i) To prevent serious injury to another person

51N(3)(ii) To protect declared infrastructure 46(5)(d) Against an aircraft (whether or not it is airborne) 46(5)(d) Against a vessel 51N(3)(b) When an individual attempts to escape being detained by fleeing

However, what is reasonable and necessary by military members may not necessarily be the same as with civilian police. An example of this is shown in the nature of a call out, authorising Division 3 powers, which may require the deliberate, planned use of force by ADF members to retake a building in order to prevent domestic violence. For civilian police to engage in ‘deliberate, planned targeting operations against certain categories of people… would likely be murder’322 yet, this is a fundamental element of any military operation.

319 Rob McLaughlin, ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations – Is there a ‘Lawful Authority’ (2009) 37(3) Federal Law Review 441, 446. 320 Ibid, 447. 321 Defence Act, s 51N. 322 Rob McLaughlin, ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations – Is there a ‘Lawful Authority’ (2009) 37(3) Federal Law Review 446.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 50 What constitutes reasonable force by a soldier will always be a question of fact, and ‘cannot be predetermined by rigid rules of law.’323 As one academic has noted, however: Frankly the great amount of detail set out in the Act, while reasonable from a legal point of view, makes it difficult for the members of armed forces themselves when caught up in the heat of a dangerous and violent situation. Even though they are usually exposed to a range of scenarios during training exercises to tease out legal nuances, if something unexpected occurs they are hardly then in the position to seek detailed legal advice about the meaning and effect of s 51T.324

The reference to s 51T above relates to Part IIIAAA as it was prior to the 2018 Amendments, and which is now identical to the requirements for reasonable and necessary under the current s 51N(3). The effect of this is that whilst what constitutes reasonable force for the protection of life or prevention of serious injury might be claimed to be the same for ADF members and civilian police, reference should be taken to the various weapon systems and training differences. As posited elsewhere, when asking what constitutes reasonable force by a member of the armed forces operating domestically: justice requires a higher allowance of his forwardness in maintaining his service, whatsoever it is for the time; and they are withal a warning to everyone, not to molest or meddle with him therein.325 This is submitted to still be current, albeit in need of a more modernised approach: justice requires a higher allowance for the use of force by armed forces members, acknowledging their training and duties, and the stress of service. An exploration of historical instances of the use of lethal force, and where it was deemed reasonable and unreasonable may allow for the boundaries to be drawn. Some limitations on the below case studies should be acknowledged from the outset. Arising from the paucity of Australian precedent, it follows that foreign authorities must be sought. Common law cases on the use of military in assisting law enforcement ‘dates from the period of empire when places such as Palestine, Australia, New Zealand, South Africa and India shared a greater formal legal affinity.’326 As such, obiter and ratio from these cases are acknowledged to not be binding. It is unlikely, however, that in a scenario relating to the use of force by an ADF member under Part IIIAAA that ‘the UK experience would not feature strongly in the search for jurisprudential guidance – at least, as a minimum, with respect to the broader philosophical- legal issues at play.’327

323 Hope (n 10) Annex 9, 295. 324 Michael W. Duckett White, Australian Offshore Laws (The Federation Press, 2nd ed, 2009) 121. 325 HM Advocate v Sheppard (1941) JC 67, 72 (Lord Robertson). 326 McLaughlin (n 200) 446. 327 Ibid, 447.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 51 (a) Protect life or prevent serious injury

In the matter of R v Clegg,328 Private Clegg was convicted of murder by the trial judge for the use of lethal force, whilst on duty with a patrol in Northern Ireland. Use of force by British soldiers in Ireland followed relatively synonymous powers with that applicable to ADF soldiers under Part IIIAAA, allowing force to be used ‘as is reasonable in the circumstances.’329 The intent of the mission was to catch joyriders, but this had not been conveyed to the soldiers. As a stolen car approached at speed, Private Clegg shot three rounds into the windscreen; as it passed and drove away, he fired a fourth round that struck and killed a passenger.330 The first three shots were accepted as self-defence. The fourth shot, however, was found to have no viable defence. On appeal, PTE Clegg’s conviction for murder was upheld, to the apparent dismay of the Court, which submitted that legislative reform should been enacted to allow the trial judge discretion, taking into account the soldier’s weapon system, training and duty to assist the Crown.331 Relevantly to the question of whether military personnel in Northern Ireland were merely ‘citizens in uniform’, Lord Lloyd of Barwick, citing and agreeing with the House of Lord’s advisory opinion outlined at the start of this chapter, added: For the performance of this duty [a soldier] is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death. In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force. The only choice lay between firing a high- velocity rifle which, if aimed correctly, was almost certain to kill or injure, and do nothing at all.332 As noted by Lord Lloyd, the weapon systems employed by military personnel cannot be compared to those utilised by constabulary forces; and when viewed against the backdrop of the aforementioned combat shooting and combat mindset instilled in ADF members from recruit training, what is deemed reasonable and necessary must, naturally, differ from that of civilian constabulary forces.. Although the principle of proportionality in the National Guidelines for the AFP may make allowances for lethal force, it does not seem to reflect the principle of proportionality as it applies to the ADF in domestic security. The leaked Australian Army Manual of Land Warfare suggested that:

328 [1995] 1 AC 482. 329 Criminal Law Act (Northern Ireland) 1967, s 3. 330 [1995] 1 AC 482. 331 Ibid. 332 [1995] 1 AC 482, 497 – 498 (Lord Lloyd).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 52 As a last resort troops may be required to open fire on the crowd to disperse it. The principles of minimum force must be kept in mind by the commanders. Therefore, initially, only selected individuals should be nominated to fire upon selected agitators in the crowd.333

It is not proposed that this Manual at all remains current, or the instructions within. But it is, importantly, not permitted by civilian constabulary forces.334

(b) Declared Infrastructure

The authorisation for use of lethal force to protect declared infrastructure is a monumental distinction between military and civilian personnel. As noted above, the use of force under Part IIIAAA must always be reasonable and necessary. Specifically to the use of force under Division 5, use of force may be authorised to protect the declared infrastructure, against the domestic violence or threat specified in the call out order.335 Use of force under Division 5 thus not only envisages factoring in property damage when calculating necessity, but also the consequences to public health and safety.336 Whilst safely assuming this to include a CBRN attack on waterways, or destroying a nuclear reactor, the nature of what constitutes declared infrastructure means that it is impossible to quantify the number of situations in which property will supersede the right to life.337 Equally, the ability to use force to protect property finds no equivalent in Australian law, outside of Part IIIAAA and serves as an important distinction between the ADF and the rest of civil society.338

(c) Use of force against an aircraft

Despite historic instances of civilians being called upon to aid the civil authority, maritime and air space threats are spheres where civilian agencies may, reasonably, never be called upon to aid the civil power.339 Accordingly, it serves to distinguish the ADF from both its civilian and civilian law enforcement counter-parts. It will not be covered in-depth, however, in this paper.

333 Jude McCulloch, Blue Army: Paramilitary Policing in Australia (Melbourne University press, 2001) 183. 334 See Sutton (n 12). 335 Defence Act, s 51N(3)(ii). 336 Explanatory Memorandum 2018, 73. 337 Ibid - bearing in mind that it may potentially include individuals. 338 Criminal Code Act 1995 (Cth) – section 10.4(3) specifically provides that whilst self-defence may authorise use of force to protect property, it cannot be a defence for intentional force that inflicts death or serious injury. 339 Although some State or Territory constabulary forces may maintain an ability to intercept a maritime threat, the use of force against vessels raises its own considerations, as unique to the particularities of maritime law as use of force against an aircraft is to aviation law; see New South Wales Police Force, Organisation Structure: Marine Area Command .

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 53 In making a call our order, under Division 3, the Authorising Ministers must have regard to Australia’s international obligations340 which include, inter alia, the application of Article 3bis to the Convention on International Civil Aviation (Chicago Convention): The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not be interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations.341 The reference to ‘rights and obligations’ refers to the rights of national self-defence342 and the national security prism through which it is to be interpreted.343 Consequential to the September 11 attacks on the United States, various nations have brought, or attempted to bring in, legislation that deals with airspace threats. Germany provides an interesting example of where such legislation was struck down as being disproportionate and unreasonable, and violating the right not to be arbitrarily deprived of one’s life.344 The German jurisprudence was replicated in a recommendation by Australia’s first Independent National Security Legislation Monitor.345 The possibility of multiple, innocent civilian casualties is acknowledged in the 2018 Amendments’ Statement of Compatibility: There will be some circumstances where the use of lethal force would require a decision to destroy an aircraft or vessel, which may be carrying large numbers of innocent people, in order to save the lives of other people. There may be other circumstances where only the person causing or threatening the domestic violence may be killed or injured.346 With regard to the right to life, some academics, such as Professor Bohlander, neatly dispose of any argument. Whilst morally difficult to agree with, it is pragmatic in its treatment of the matter: A harsh – but in my view ultimately correct – approach to that sort of case [a hijacked plane] would suggest that their doomed lives cannot be used as one side to a balancing exercise, when trying to decide whether necessity could be applied as a means of justification or excuse. The outwardly cynical, but logically proper approach is that necessity does not enter into it at all because there is no balancing exercise; they are, to put it bluntly, already dead. If the lives of the passengers will be lost in any case, then it would be a mere academic exercise to weigh the

340 Defence Act, s 45. 341 International Civil Aviation Organization, Convention on Civil Aviation, 7 December 1944, (1944) 15 U.N.T.S. 295. The legal instrument which gives effect to this in Australia is the Air Navigation Act 1920 (Cth). 342 Charter of the United Nations art 51. 343 Bronitt and Stephens (n 16). 344 Bundesverfassungsgericht, 1 BvR 357/05; see also Oliver Lepsius, ‘Human Dignity and the Downing of Aircraft’ (2006) 7 German Law Journal 761. 345 Independent National Security Legislation Monitor, Annual Report (28 March 2014) Recommendation II/1,7. 346 Statement of Compatibility to Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) 9.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 54 relatively minor shortening of their lives by shooting down the plane against the possibility of saving the otherwise endangered lives of the people on the ground.347

The use of force with respect to an aircraft is completely different than any situation canvassed above. Air combat and interception has no ability to apply intermediate levels of force, such as a cordon. As such, there can only be warnings, or lethal force.348 Such actions cannot fall under the duty of a citizen or civilian agencies – imperfect or not – as a normal citizen, let alone State or Territory law enforcement, as they do not possess the necessary equipment or weapon system to do so.349

(d) Attempting to flee

ADF members may further be required to use force against individuals attempting to flee. As for all use of force within the Part IIIAAA construct, it must be reasonable and necessary. There are, from the outset, crucial differences in the application of the use of force between police force and soldiers when dealing with arrests. The Part IIIAAA scheme reflects existing principles in civilian law for synonymous circumstances under s 3ZC(2)(b)(ii) of the Crimes Act 1914 (Cth). The provision under Part IIIAAA reads as follows:

Section 51N(3)(b)

if a person against whom force is to be used is attempting to escape being detained by fleeing –the person has, if practicable, been called on to surrender and the member believes on reasonable grounds that the person cannot be apprehended in any manner.350

Whilst this provision thereby applies the same standard to civilian police and ADF members, there are a few nuanced differences. Part IIIAAA authorises ADF members to use force against detainees.351 This is distinct from the ability and powers of civilian police to arrest an individual. Moreover, ADF members are equipped with weapon systems that are more lethal, at a longer range, than civilian police.

This provision codifies a long running common law power for ‘sentries’ to shoot, if necessary, to prevent an escape. As noted above, the lack of cases in Australian jurisdiction relating to these powers requires an excursion into dually the past, as well as foreign, jurisprudence. A

347 Michael Bohlander, ‘In Extremis – Hijacked Airplanes, Collateral Damage, and the Limits of Criminal Law’ [2006] Crim LR 579, 580. 348 Cameron Moore, Crown and Sword (ANU Press, 2017) 199. 349 This position may be different, say, in certain areas in the United States of America, where civilians have access to weapon systems that may cause such an effect. 350 Defence Act, s 51N(3). 351 Who, to reiterate, are not arrested; see Defence Act, s 46(7)(f).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 55 place to start is 1944 Palestine, where a Polish soldier shot a fleeing suspect he was ordered to guard. The UK Court of Criminal appeal held in Hajdamovitz: the appellant [Hajdamovitz] was entitled to, and in fact, bound, to obey (the order to guard the deceased), and he was therefore in the position of any other sentry, properly and duly appointed.352 That Court went on to find that the Polish soldier had acted upon the ‘general rule which a sentry should follow’353 which recognises that ‘if firing is the only or reasonable means available to him, then he is entitled to fire.’354 Such a distinction is so negligible for a soldier on the ground, who may act ‘in the agony of the moment… intuitively or instinctively without foreseeing the likely consequence of his act beyond preventing the deceased from getting away;355 to be useless in practice.

A second case worth considering, when reflecting on the policy need to provide leniency when assessing the actions of soldiers using force against a fleeing detainee, is that arising in the Scottish jurisdiction of HM Advocate v Sheppard.356 The case related to an almost comical, if not tragic, set of circumstances relating to a deserter by his sole guard. The deserter had twice previously attempted to escape, after watching a soccer match and sharing a ‘considerable quantity of beer’ with his guard.357 The guard had been ordered to shoot, if necessary, the individual if he attempted to escape.358 As Lord Robertson explained to the jury: The accused was on duty, and his immediate duty was to keep in custody, and to deliver up, the man whom he was escorting. In such a case it is obviously not impossible by any means for a jury to take the view that, if the circumstances were such as to require the accused, for the due execution of his duty, to shoot in order to keep the man in custody, then the homicide was justifiable, and so acquit the accused entirely … In considering [guilt], it will be right for you to keep in view the situation in which the accused was placed. He was a soldier on duty in charge of a deserter and under obligation to deliver up the body of the deserter to headquarters. It would be altogether wrong to judge his actings, so placed, too meticulously — to weigh them in fine scales. If that were to be done, it seems to me that the actings of soldiers on duty might well be paralysed by fear of consequences, with great prejudice to national interests.359 The end result was a unanimous verdict of not guilty. Whilst both Hajdamovitz and Sheppard were decided over 80 years ago, they demonstrate the difficult position that ADF members will be placed in under Part IIIAAA, especially with a view to an ‘all or nothing’ scenario as outlined above. This places the ADF in an unique position when faced with a detained

352 Hajdamovitz v A-G (1944) 11 Palestine Law Reports 140. 353 Ibid. 354 Ibid, 145. 355 A-G Reference (n 20) 139 (Lord Diplock). 356 (1941) JC 67. 357 HM Advocate v Sheppard (1941) JC, 68. 358 Ibid, 67. 359 Ibid, 71.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 56 individual who, on reasonable grounds, they believe they cannot apprehend in any other manner, with a mind to the weapon systems they are called out with.

(e) Use of force against a vessel

Moreover, Part IIIAAA - from its inception in 2000 - has envisaged situations where the ADF may be called out to assist in the offshore area, and it may be appropriate to utilise the RAN if pursuing a vessel. Although consideration is often given to the use of force as it arises in immigration enforcement operations and fisheries, especially when vessels either refuse to stop for a search or flee the scene, there may be situations where a RAN vessel engages in ‘hot pursuit.’360 The law of hot pursuit is well known both in international and domestic law, and relates, in popular terms, to an ability for a vessel to pursue another into the high seas, but ceases when entering the territorial seas of a foreign state.361 Under Australian law, this right is governed by the Migration Act 1958 (Cth).362 This Act provides the procedural requirements to enliven a hot pursuit, as well as specifications for its duration and cessation, which, whilst interesting, is moreover important when considering the use of force.

The use of force in hot pursuit, possible under situations when called out under Part IIIAAA, allows for an ADF vessel to fire at, or into, the chased vessel, in order to disable it or to compel it to heave-to for boarding.363 The difficulty of firing into a vessel is obvious in that unarmed individuals may be hidden from view in the hold. Firing at the stem or stern equally does nothing to alleviate the associated risks. These difficulties are universal when considering the use of force against maritime targets.

These are considerations which find no equivalent outside the ADF, even when compared to civilian law enforcement. Whilst some State law enforcement bodies may maintain an ability to intercept a maritime threat,364 the use of force against vessels raises its own considerations, as unique to the particularities of maritime law as use of force against an aircraft is to aviation law. It is a sphere where civilians may, reasonably, never be called upon to aid the civil authority. Accordingly, it serves to distinguish the ADF from both its civilian and civilian law enforcement counter-parts.

360 White, Australian Offshore Laws (n 11). 361 Ibid, 144. 362 Migration Act 1958 (Cth) s 245C; the power to chase Australian ships is mirrored in s 245D. 363 Ibid, s 245C(6). 364 See New South Wales Police Force, Organisation Structure: Marine Area Command .

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 57 G Defence of Superior Orders

Finally, there exist in Part IIIAAA various defences and immunities available to ADF members who, whilst operating in a DFACA role, breach civilian or military law. Some are general defences available to ADF members by operation of the Criminal Code Act; others are specific defences to the specific offence under the DFDA.

The defence of ‘superior orders’ is available for criminal acts purported to be done, whilst called out under Part IIIAAA, regardless of ‘the limitations on such use of lethal force that are manifested in more specific and detailed provisions of Part IIIAAA.’365 The defence of superior orders, and its criticisms, are neither novel nor unique and it is not the intent of this section to argue for or against its application; merely, it is intended to demonstrate another limb of distinction between ADF members and civilian counterparts by virtue of their military status. Whilst the defence applies in certain circumstances to civilian law enforcement bodies,366 there are a few necessary distinctions when compared to the defence as it applies to Part IIIAAA.

The first accounts of the defence of superior orders can be traced to the military laws and regulations of Republican Rome in 113BC.367 Various jurisdictions and individuals raised the defence leading up to the Nuremburg Trials368 from which the defence of superior orders gained its colloquial name of the ‘Nuremburg Defence.’ The defence, after it was raised by German officers at the International Military Tribunal as a justification for their actions in World War Two, was overwhelmingly dismissed: The fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires. 369

365 Rob McLaughlin, ‘Submission to Senate Standing Committee on Legal and Constitutional Affairs Re: Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth)’ Submission 1. 366 For Queensland, refer to Criminal Code 1899 (Qld) s 31; for Western Australia, refer to Criminal Code 1913 (WA) s 31; for Tasmania refer to Criminal Code 1924 (TAS) s 38. 367 David Daube, The Defence of Superior Orders in Roman Law (The Clarendon Press, 1956), 7; it came to the forefront of international legal minds in 1799 through the case of Captain George Little, of the American Navy, who argued his privateering was in accordance with President John Adam’s instructions – see Little v Barreme (1804) 6 Cranch, 177-178. 368 Regina v Smith (1900) 17 Special Courts Reports of Good Hope, 56; see further George G Battle, ‘The Trials Before the Leipzig Supreme Court of Germans Accused of War Crimes’ (1921) 8 Virginia Law Review, 18; see also James Edward Edmonds and Lassa Oppenheim, ‘Land Warfare: An Exposition of the Laws and Useage of War on Land for the Guidance of Officers of His Majesty’s Army’ (1929) His Majesty’s Stationary Office, 95. 369 Charter of the International Military Tribunal art 8.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 58 The Australian common law has importantly failed to accept any defence of superior orders.370 The matter was considered by the High Court in A v Hayden371 but was not found to be successfully raised. The facts of the case are as follows. In 1983, an Australian Secret Intelligence Service (ASIS) training operation, involving heavily armed ASIS employees stormed Melbourne’s Sheraton Hotel. Complaints were made by the staff, owners and civilians and a subsequent investigation found that 21 serious criminal offences that had potentially arisen as a result of the exercise.372 The High Court accepted that the Commonwealth itself was immune from criminal prosecution, and only individual intelligence officers could be culpable.373 The individual obiter of their Honours provides helpful guidance on the defence. Chief Justice Gibbs noted that: it is fundamental to our legal system that the Executive has no power to authorise a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer.374 Justice Deane agreed, suggesting that ‘the criminal law of this country has no place for a general defence of superior orders or of Crown or executive fiat.’375 Finally, Justice Murphy held: In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders.376 … The Executive power of the Commonwealth must be exercised in accordance with the Constitution and laws of the Commonwealth. The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land… I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads.377 Yet, Part IIIAAA, notwithstanding judicial caution and academic commentary has revived the defence of superior orders. The provision is as follows: Section 51Z – Defence of superior orders in certain circumstances

370 Adopting the position of the English courts; see Rex v Thomas, Judges’ Note Books, Crown Cases Reserved 1757-1845; 4 M. & S. 448. 371 (1984) 156 CLR 532. 372 Royal Commission on Australia’s Security and Intelligence Agencies: Report on the Sheraton Hotel Incident, (1984), 18. 373 A v Hayden (1984) 156 CLR 532. 374 Ibid, 540. 375 Ibid, 592. 376 Ibid, 562. 377 A v Hayden (1984) 156 CLR 532, 562.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 59 (1) The fact that a criminal act was done, or purported to be done, by a member of the Defence Force under this Part under an order of a superior does not (subject to subsection (2)) relieve the member of criminal responsibility. (2) It is a defence to a criminal act done, or purported to be done, by a member of the Defence Force under this Part that: (a) the criminal act was done by the member under an order of a superior; and (b) the member was under the legal obligation to obey the order; and (c) the order was not manifestly unlawful; and (d) the member had no reason to believe that the circumstances had changed in a material respect since the order was given; and (e) the member had no reason to believe that the order was based on a mistake as to a material fact; and (f) the action taken was reasonable and necessary to give effect to the order. The legislation may be a trap to the unwary, especially with regards to subs (c)-(e). Whilst some terms are couched in the objective, others are in the subjective, and will inevitably require judicial interpretation. There are three basic interpretations of the defence of superior orders: an absolute defence,378 an absolute liability,379 or a via media between the two. The compromise is the position as adopted by Australia,380 and has the ‘advantage of striking a balance between the reality and needs of military structure and the supremacy of law.’381

Whilst this paper is not the place to question the legal ambiguities arising from the above section,382 it is useful to highlight the unique nature of the defence and its application to ADF members. For the defence of superior orders to prevail, relevant to distinguishing ADF and civilian police, the orders must not have been manifestly unlawful from the perspective of a reasonable person. The inclusion of the ‘manifestly unlawful’ qualification has been argued as ‘controversial and arguably a retreat from the standard applied at the post-World War II Nuremburg trials.’383 But equally the phrase lacks any discernible judicial direction in Australia. Professor Dinstein noted that the test is ‘objective in its character and is based on the intelligence of the reasonable man.’384 Two potential situations thus arise where the defence may be raised:

378 Gerhard Werle, Principles of International Criminal Law (Blackwell Publishing, 2005) 458. 379 See generally Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (A.W. Sijthoff, 1965). The United Kingdom has adopted this position; see, British Manual of Military Law (Ministry of Defence, 8th ed, 1944). 380 With very limited debate. See Commonwealth, Parliamentary Debates, Senate, 8 February 2006, 18 (Bob Brown). 381 Sunita Patel, ‘Superior Orders and Detainee Abuse in Iraq’ (2008) 5 New Zealand Yearbook of International Law 91, 93. 382 See Zoe Lippis and Samuel White ‘Easier said than done? The defence of superior orders under Part IIIAAA’ (2019) Defence Legal: In House, 19-32. 383 Head (n 48) 171. 384 Dinstein (n 258) 26.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 60 the first is where a soldier commits an offence following the orders not manifestly unlawful from the perspective of a reasonable man. The second is where a soldier committed a criminal act which is manifestly unlawful for any reasonable man, but due to his personal inadequate abilities, he himself is not aware of the illegality of his act.385

This test is controversial, particularly in relation to whether the objective person test applies the standard of a regular civilian or a reasonable person with military experience. This lack of clarity is compounded by the aforementioned lack of jurisprudence marking its limits. It is the submission of this paper that insisting ADF defendants fit within a purely objective, reasonable standard is unrealistic and unjust. Failing the adoption of a subjective approach, what follows is that ADF members should be held to the standard of a ‘reasonable soldier.’

What actions a reasonable soldier, sailor or airperson would constitute to be manifestly unlawful was studied in 2003, with respect to cadets and midshipmen at the Australian Defence Force Academy. The study looked at the potential officers’ ability to identify, and reaction when given, an unlawful order.386 The majority of the participants reported that orders were not prima facie presumably lawful387 and 77 per cent reported that they would disobey an order they thought to be unlawful.388 A large proportion of the participants reported they would seek clarification regarding the orders through questioning their superiors.389 It was the opinion of the study’s authors that it is important to acknowledge that none of the participants had seen active combat and that operational experience may well result in individuals being more willing to obey an order of questionable legality.390

Identifying a manifestly unlawful order is thus one that is subjective to the individual, albeit an act that would be acknowledged objectively by every individual. In the trial of Adolf Eichmann, the Israeli Supreme Court held: The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above a given order, as a warning reading ‘Prohibited!’ Not mere formal illegality, hidden or half- hidden, not the kind of illegality discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself; the clearly criminal character of the order or of the acts ordered, an illegality clearly visible and repulsive to heart, provided the eye is not blind and the heart is not stony and corrupt

385 Natalia M Restivo, ‘The Defence of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England’ (2006) Cornell Law School J.D. Student Research Papers, 18. 386 Wheate and Wheate (n 59). 387 Ibid, 29. 388 Ibid, 25. 389 Ibid, 29. 390 See Dr John Shay, Achilles in Vietnam (Scribner, 1994) for a medically trained Classicist’s overview of the ancient and modern effects of combat on soldiers.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 61 – that is the extent of ‘manifest illegality’ required to release a soldier from the duty of obedience and make him criminally responsible for the acts.391

More succinctly, a manifestly unlawful order may be defined as being ‘so palpably atrocious as well as illegal that one ought to instinctively feel that it ought not be obeyed.’392 It does not, however, allow for an ADF member to disobey an order based on their ‘conscience, religious beliefs, moral judgment or personal philosophy.’393

In the context of Part IIIAAA, an objectively manifestly unlawful order may be ordering an ADF member to shoot a detained individual who poses no threat. However, it may not extend to instances where a soldier is ordered, by a superior officer, to shoot an individual approaching a cordon. This is because whether or not the order is manifestly unlawful will be dependent upon the circumstances, including for example: whether the person is armed or unarmed; whether they are responding to instructions to stop; and whether there is an explanation for approaching the cordon.

It may be that in situations where ADF members train for, rehearse and clearly understand the demarcations in a theatre they will be more vocal with their hesitancy to obey orders.394 But for ADF members called out under Part IIIAAA, this is not necessarily the case. Whilst some rehearsals may be undertaken for potential, likely call out scenarios,395 an exigent call out may occur without training and rehearsals, and thus will place soldiers out of their depth, reliant on their instinctive training and conditioned by military discipline to obey orders.

H Conclusion

Professor Rob McLaughlin, a Royal Australian Navy Reserve Legal Officer and a leading academic in DFACA related legal issues, is emphatic that no broader power exists in Australia or the United Kingdom to allow armed forces to use lethal force, whilst operating domestically

391 Attorney General of the Government of Israel v Eichmann, 36 IRL 5 (District Court of Jerusalem, 1961) 257- 258. 392 McCall v McDowell (1867) 15 F. Cas, 1235, 1241. 393 Gary Solis, ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’ (2000) 15 American University International Law Review 481, 520. 394 This is in addition to the basic obligation that all military commanders must instruct their soldiers on LOAC; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950), art 47; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950), art 48; Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950), Art 144. 395 Such as has occurred in Exercise Southern Magpie 19, between ADF members, Victorian police and emergency services; see https://gippslandsgold.com.au/articles/terrorism-exercise/; see further ‘Working with Police’ (2019) 56 Smart Soldier, 29 – 32.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 62 or in a peacekeeping role, beyond self-defence.396 This reflects the commonly held position that a soldier is no more, and no less, than a citizen in uniform.

Yet development and evolution of Part IIIAAA may be argued to broaden, rather than narrow, the distinction between military and civic counterparts and envisage the intent outlined by Lord Tindal CJ in his Grand Charge.397 This distinction is important, for in aiding the civil authority, adopting the position that the soldier is no more, no less than a citizen in uniform is a shibboleth which may be superficially satisfying and have some political merit398 but in reality, legally unfounded. Put more simply: The attempt to apply the same principles of criminal liability to ordinary members of the public and security forces is defeated when the latter are equipped with deadly weapons and placed in circumstances when they may be under a duty to use them.399 When reviewing the position during the Hope Report, after acknowledging that the position of an ADF member purely as a citizen was irrational and unworkable in the civilian security position,400 Mr Justice Hope reached the conclusion that ADF members should be granted the status of a special Commonwealth police officer. It is submitted that the conclusion reached – of an extra-legal status – was correct, albeit that the solution of a special Commonwealth police officer is untenable considering the increasing divergence of powers even since the report.

Some of these powers have no civilian equivalent, such as lethal force against aircraft and vessels, or in defence of designated property. Others yet have prima facie civilian equivalents yet differ in key respects. The ADF’s ability to conduct sweeping searches and detain individuals, for the purpose of placing them in custody later, exceeds the common law ability to enact a citizen’s arrest. Equally, coercive questioning powers can result in detaining individuals for failure to comply. Civilian police forces have options other than lethal force to stop individuals attempting to escape arrest; ADF members are contained by an ‘all or nothing’ approach. The point has been raised above, but is worth reiterating: the military remains ‘one of the few branches of society where lethal force is permitted, and it is the only branch in which it is required that members take exceptional risks… to accomplish their missions.’401 In

396 See generally McLaughlin (n 319). 397 See generally Dennis Pearce, Statutory Interpretation in Australia (Lexis, 9th ed, 2019); it does, however, seem to evidence ‘lingering confusion as to the precise justification for the use of lethal force outside situations of immediate self-defence’ in Letts and McLaughlin, ‘Military Aid to the Civil Power’ (n 46) 129. 398 Rowe (153) 14. 399 Kader Asmal, ‘International Law and Practice’ (2000) Proceedings of the Annual Meeting (American Society of International Law) 103, 134. 400 Hope (n 9) 171. 401 Arne Dahl, ‘International Trends in Military Justice’ (Speech, International Society for Military Law and the Law of War – Oslo Conference, 23 November 2011) 4.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 63 recognition of this duty to obey, ADF personnel are covered by a unique defence with no civilian equivalent, which whilst not an absolute immunity, makes necessary allowances.

When viewed in light of the weapon systems and instinctive training instilled in soldiers, it seems incongruous to view the two categories as the same.402

402 Colin Greenwood, ‘The Evil Choice’ [1975] Crim LR 4, 6-7.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 64 IV COURT, OR COURT-MARTIAL?

Commanders use the summary discipline system on a daily basis. The system is integral to their ability to lead the people for whom they are responsible in order to ensure their welfare and safety. It must operate quickly, be as simple as possible and it must be capable of proper, fair and correct application by persons who do not possess legal qualifications.

Explanatory Memorandum, Defence Force Legislation Amendment Bill 2008 (Cth)403

The effect of the previous chapters was to establish the legislative and constitutional basis for not only Part IIIAAA but of a distinct military justice system separately, as well as to clearly distinguish the role and status of ADF personnel from civilian police forces. What necessarily follows is to question whether the jurisdiction of the courts, or of courts martial, should apply to ADF personnel called out in aid to the civil power. As canvassed earlier, whilst the prosecutorial process is currently vested in the CDPP (to the exclusion of State or Territory prosecutors) it does not fail to exclude investigation and prosecutions by the military.

This thesis seeks to promote that the Australian military justice system should apply to ADF members, for offences that occur whilst called out under Part IIIAAA, on the basis of the adequacy of the military justice system in investigating, dealing, hearing and sentencing ADF personnel. First, an outline of Australia’s military justice system is given, relevantly to disciplinary proceedings. It then addresses key critiques of the military justice system, before concluding with the benefits of retaining prosecutions before service tribunals, with particular regard to the sensitive nature of ROEs and TAG(E) operators.

A Australian military justice system

The military justice system is complex. The umbrella term ‘military justice’ is interchangeable in academic commentary with ‘military discipline’, reflecting the long-standing interplay and acceptance that military forces require additional, stricter and higher levels of compliance.404

Globally, military justice systems may be separated two-fold: ‘Anglo-American’ military justice which relates to a courts martial system convened for individual cases, and a ‘European

403 1. 404 See generally on the topic Alison Duxbury and Matthew Groves (eds) Military Justice in the Modern Age (Cambridge University Press, 2016).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 65 continental’ system based on standing courts.405 Unsurprisingly, the earlier system is found more commonly in former British colonies, Australia included, and will be the main focus of this discussion.406

In Australia, the introduction of the DFDA on 3 July 1985, was heralded by one observer as: a long overdue and far reaching reform of Australian military law that for the first time brought coherence to what had hitherto been a Byzantine morass of Imperial and single service statutes and regulations.407 The DFDA replaced three separate, distinct disciplinary systems that had evolved to reflect their particular Service408 and provides the mechanism by which service discipline may be enforced. Service discipline is distinct from criminal law, in that it ‘embraces the maintenance of standards and morale, the preservation of respect for and the habit of obedience to lawful service authority.’409 This is achieved through providing for offences that are purely military in nature (such as operations against the enemy,410 insubordination,411 failing to comply with a command or order,412 or absence without leave413) as well as those which have civilian counter- parts.414

The DFDA applies many basic principles of civilian criminal law and rules of evidence: the onus of proof and criminal standards are synchronised with civilian equivalents;415 the accused is entitled to be legally represented without expense;416 and importantly the accused is innocent until proven guilty.417 Part VII of the DFDA envisages a two-tiered system of enforcing

405 Dahl (n 404) 2. 406 The Royal Navy and British Army evolved over a period of time where legal advice was not readily available, due to ‘fleets being at sea, or garrisons abroad, at a time when communications moved at the speeds of horse and sailing ship’ in Ann Lyon and Geoffrey Farmiloe ‘The new British system of courts martial’ in Alison Duxbury and Matthew Groves, Military Justice in the Modern Age (Cambridge University Press, 2016) 159-178. The military justice system as envisaged now found its origins with disciplining a mercenary force after the 1867 Indian Mutiny; see Ian Copland, A History of State and Religion in South Asia (Routledge, 2012) 178–182. 407 John Logan, ‘Queensland Barristers in World War II’ Bar News, December 2005, 41. 408 For the Navy it was the Navy Discipline Act 1957 (UK) in conjunction with the Queen’s Regulations and Admiralty Instructions of 6 November 1964; for the Army it was the Army Act 1881 (UK), Rules of Procedure 1947 as in force on 29 October 1956 and the Australian Military Regulation 1927 (Cth)s; for the Air Force, it was the Air Force Act (UK), and the Air Council Instructions for the Royal Air Force as in force 18 July 1940. 409 Memorandum of Understanding between the Australian Directors of Public Prosecutions and Director of Military Prosecutions, signed 22 May 2007 (Memorandum of Understanding) 3. 410 DFDA Div 1. 411 Ibid, s 26. 412 Ibid, ss 27, 29. 413 Ibid, s 24. 414 Ibid, s 47 - such as offences against property. 415 Logan (n 206). 416 Summary Authority Rules 2009 (Cth) Part 9. 417 An implied right reiterated in Randall v Chief of Army (2018) 335 FLR 260, 261 (Tracey, Logan and Hiley JJ).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 66 military discipline which may operate outside of Australia:418 a lower form of summary authorities; and an ad hoc higher form of service tribunal which is enacted through Defence Force Magistrates (DFMs) and courts martial. It is complimented by a concurrent system of administrative sanctions.419 The service tribunal process is covered below.

1 Summary Authority

A majority of offences are heard within the summary authority scheme.420 The summary authority process, which as the name suggests, is intended to be efficient, effective, and without legal formalities,421 operated by general service officers who, prima facie, lack legal training.422 Typically, summary authorities sit at a unit level and try minor disciplinary offences. The three levels of summary authorities reflect three key unit levels – Subordinate Summary Authorities (SUBSA) at a company level;423 Commanding Officer (CO) for a battalion;424 and Superior Summary Authority (SUPSA) for brigade or higher.425 There is no ability for an accused to be legally represented at a SUBSA. At the commencement of dealing with a matter, a member may – subject to a few restrictions426 – elect to have the matter heard by DFM or court- martial.427

Dependent on the level of the summary authority certain punishments may be imposed. Across the summary authority level, however, these non-legally qualified officers may not imprison a member (although may impose a punishment of detention). Whilst some of the punishments have civilian equivalents, there are some that are distinctly military in nature – reduction in rank,428 forfeiture of seniority,429 restriction of privileges,430 stoppage of leave,431 or extra

418 DFDA s 9. 419 Re Tracey; ex parte Ryan (1989) 166 CLR 518; Re Nolan; ex parte Young (1991) 172 CLR 460; Re Tyler; ex parte Foley (1994) 181 CLR 18; Re Colonel Aird; ex parte Alpert (2004) 220 CLR 308; White v Director of Military Prosecutions (2007) 231 CLR 570; Lane v Morrison (2009) 239 CLR 230. 420 See Judge Advocate General, Report for the Period of 1 January to 31 December 2017 (Department of Defence, 2018) Annexes E and N which stated that there were 1,189 summary authority hearings and 115 trials by courts martial or DFM; this was corroborated by the Director of Military Prosecutions, Report for the Period of 1 January – 31 December 2017 (Department of Defence, 2018). 421 DFDA s 146A(2)(b). 422 Notwithstanding that a general service officer may already hold a law degree; this does not bar them from operating as a summary authority. 423 DFDA s 108. 424 Ibid, s 107. 425 Ibid, s 106. 426 Ibid, s 111B(2). 427 Ibid, s 111B. 428 Ibid, s 68(1)(e). 429 Ibid, s 68(1)(g). 430 Ibid, s 68(1)(k). 431 Ibid, s 68(1)(m).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 67 drill.432 Regardless, summary authorities are required to have consideration to civilian sentencing principles with the overarching consideration being the need to maintain service discipline.433

2 Defence Force Magistrate & Courts Martial

At the apex of Australia’s military justice system exists the courts martial system. Unique to the military justice system, the hearing of service offences by ‘officers, sworn to defeat the Queen’s enemies, who are appropriately experienced in the servitude and grandeur of arms and the splendours and miseries of military life’434 can be traced back to the seventeenth century.435

A restricted court-martial (RCM) consists of no less than three military officers,436 bound by the judge advocate’s directions on any question of law.437 RCM punishments are limited to imprisonment not exceeding six months.438 At the apex exists a general court-martial (GCM), which is convened as required for the most serious of service offences; it consists of no less than five military officers, bound as above by the opinion of the judge advocate on questions of law.439

Although members of a court martial may not be the same rank as the accused,440 nor are decisions required to be unanimous,441 ‘the sentencing role undertaken by a court-martial pursuant to the DFDA…in the military justice system is directly analogous [to] that undertaken by a jury.’442 Courts martial members are not required to provide reasons, but merely to decide punishment.443 Such punishments under a GCM can include the full suite of punishments empowered to it under the DFDA, including life imprisonment.444

432 DFDA s 68(1)(na). 433 Ibid, s 70(1). 434 Haskins v Commonwealth (2011) 244 CLR 22 at [103] per Heydon J. 435 See Boyson v Chief of Army [2019] DFDAT 2 at [20] per Logan J who traces the history and development of courts martial from Prince Rupert, in his capacity as Commander-in-Chief, in 1672. 436 DFDA s 114(3). 437 Ibid, ss 117, 134 and 196. 438 Ibid, ss 67, sch 2(2). 439 Ibid, ss 114, 117, 134 and 196. 440 Ibid, s 116(1)(c). 441 Ibid, s 113. 442 Boyson v Chief of Army [2019] DFDAT 2 at [17] per Logan J. 443 DFDA s 133(6). 444 Ibid, s 61(4).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 68 DFMs are legally qualified military officers who sit alone, and act judicially in hearing service offences.445 They are empowered, inter alia, to punish members through reduction in rank, dismissal from the ADF and imprisonment for up to six months. 446

Prima facie, a trial by court martial or DFM is held in public.447 The Director of Military Prosecution’s (DMP) own public prosecution policy recognises that: in some cases, the interests of justice may require that a matter be resolved publicly by proceedings under the DFDA before a Defence Force magistrate, restricted court-martial or general court-martial.448 This public setting is, however, subject to a limited class of restrictions recognised by the DFDA.449 This class of restrictions includes where it is necessary for the interests of security or defence of Australia, the proper administration of justice or public morals.450 It moreover may pronounce non-publication orders for victims of sexual assault.451 Such an order by the President of the RCM or GCM would require the approval of the relevant judge advocate.452 Whilst DFMs are not public, the results of them are, as of 31 March 2019.453 The effect of this is covered more in-depth below.

Upon conviction, all service tribunal proceedings undergo a mandatory legal review, which is binding upon commanders.454 This legal review may be referred to a Judge Advocate General for a secondary, overriding opinion.455

3 Director of Military Prosecutions

In matters relating to DFMs or courts martial, carriage is by the Director of Military Prosecutions.456 The position is independent from military chain of command, and as ‘a general rule, the DMP is responsible for conducting the prosecution of alleged conduct which is a breach of service discipline.’457

445 DFDA ss 127, 135. The practice of sitting alone is common within Australia’s inferior courts. 446 Ibid, s 129(1). 447 Ibid, s 140(1). 448 Director of Military Prosecutions, Prosecution Policy, as at 26 October 2015, para 1.4 (DMP Prosecution Policy). 449 DFDA s 140(2). 450 Ibid, s 148. 451 Boyson v Chief of Army [2019] DFDAT 2. 452 DFDA s 140(3). 453 Such as the rank, name and nature of the service offence. See Max Bree, ‘Courting cultural change’ Army News (online) 4 April 2019 . 454 DFDA s 152. 455 Ibid, ss 154(2)-(4). 456 A position established under the DFDA, s 188G and whose functions are outlined under s 188GA. 457 Memorandum of Understanding (n 412) 3.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 69 Prosecutions are instituted by a charge under s 87(1) where the DMP reasonably believes that an ADF member has committed a service offence.458 When preferring the charges, the DMP has discretion to decide whether an offence will be heard by a DFM, RCM or GCM.459 Relevantly, such a decision accounts for whether service knowledge is required when assessing the performance of duty, and whether the level of service tribunal has sufficient powers of punishment.460 This is aided by a prosecution policy which embraces the notion that not all suspected service offences should be prosecuted, but, like civilian counter-parts, must primarily take into account the public interest461 and the available, reliable evidence.462 This evidence is collected by the ADF’s own Investigative Service (ADFIS), headed by the Provost Marshal, which since 2008 has provided an independent body to investigate service offences.463

Before deciding to proceed with a charge, the DMP may invite a Superior Authority464 to make representations as to whether the prosecution would be in the service interest. Such a representation is merely a submission and has no binding effect on the DMP. It does, however, allow for an injection of the particularities of service by currently serving general service officers.465

For offences by an ADF member of treason, murder, manslaughter or bigamy, or an offence sexual in nature,466 consent must be sought from the CDPP in order to bring before a service tribunal.467 In determining whether consent shall be granted, the CDPP will have regard to whether retaining the right to prosecute is in the public interest;468 one such circumstance which may merit the prosecution occurring in the military jurisdiction is whether the conduct took place during a military operation.469 Importantly, the DMP currently retains the right to

458 DFDA. 459 Ibid, ss 103(1)(c)-(d). 460 DMP Prosecution Policy (n 451) paras 4(c)(3)-(4). 461 Ibid, para 1.1. 462 Brereton (n 204) 94. 463 As a result of the Reforms to Australia’s military justice system (Senate Standing Committee on Foreign Affairs, Defence and Trade, 2008). 464 Which in turn may be an officer, or a class of officers, appointed in writing by the Chief of the Defence Force under DFDA, s 5A. 465 As was the case with the Afghanistan charges; see Brereton (n 204) 97. 466 Being an offence against Crimes Act 1900 (ACT) ss 51–55 in its application to the Jervis Bay Territory. 467 DFDA s 63. 468 Prosecution Policy of the Commonwealth, para 2.10 as required under the Memorandum of Understanding (n 412) 6. 469 Memorandum of Understanding (n 412), 6; see Letts and McLaughlin, ‘Military Aid to the Civil Power’ (n 46).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 70 prosecute ADF members where administrative sanctions have already been imposed on the member in lieu of military discipline.470

4 Appeals

If convicted, ADF members enjoy a right of appeal to the DFDAT under the Defence Force Discipline Appeals Act 1955 (Cth). The DFDAT acts as a court of quasi-criminal appeal, and as such members corresponding right of appeal is synonymous with civilian criminal offences.

Membership of the DFDAT is an important consideration. It is restricted to members of the Australian judiciary,471 and is independent from both the Department of Defence and the CDF.472 Such are the roles as prescribed in statute; but it is more involved in practice. Membership of the DFDAT has historically been reserved for serving members of superior courts with prior ADF experience as commissioned officers.473 The effect of this tri-service experience is that service knowledge is often merged with judicial foresight to ensure justice occurs.474

In the ordinary course of events, DFDAT sittings are public and held within Commonwealth courts.475 Appeals on questions of law may go to the Federal Court of Australia476 and with special leave may further appeal to the High Court of Australia.477

B Adequacy of military justice

The preceding paragraphs outlined the state of military justice in the ADF as it currently stands. But it is not without controversy; globally, military justice is in a state of flux and the civilianisation of military justice has increasingly become the centre of academic work.478

470 McCleave v Chief of Navy [2019] ADFDAT 1 where the majority judgment upheld the right of the DMP to prosecute after administrative sanctions had been taken against the member by their respective chain of command. It is, at the time of writing, being appealed and awaiting listings before the Full Federal Court of Australia. 471 Defence Force Discipline Appeals Act 1955 (Cth) s 8. 472 Ibid, s 40(1). 473 As the DFDAT is currently constituted, the President Logan J was commissioned into the Australian Intelligence Corps in the Army Reserve and retired at the rank of Major; Deputy President Brereton J was commissioned into the Royal Australian Infantry Corps and retired at the rank of Major General; Perry J served as a Legal Specialist Reservist in the Royal Australian Air Force; and Barr J served as a Legal Officer in the Royal Australian Navy Reserve. See Defence Force Discipline Appeals Tribunal, People, as at 16 June 2019 . 474 See for a good example the use of service knowledge by the Tribunal in Randall v Chief of Army (2018) 335 FLR 260, 272. 475 Defence Force Discipline Appeals Act 1955 (Cth) s 18. 476 Ibid, s 52. 477 Ibid, s 33(3); see Li v Chief of Army (2013) 250 CLR 328. 478 Pauline Collins, Civil-Military ‘Legal’ Relations, (Brill Nijhoff, 2018); see Duxbury and Groves (eds) (n 407); see Creyke, Stephens and Sutherland (eds) (n 30).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 71 Some academics contest that military justice has civilianised unabated for a century479 whilst others claim it to be cyclical.480 Regardless of its pace, it is important enough of a topic for the eminent administrative legal expert, Dr Matthew Groves, to write on it. Groves expertly distils the term to refer to, at a micro-level, as being ‘the incorporation of the institutions and norms of the civilian legal system into military law.’481

The notion that war is too serious a matter to leave to soldiers is not a new concept.482 Referring military discipline matters to civilian authorities has been advocated to promote transparency and accountability in military justice, to improve the speed at which investigations may occur,483 and more generally that there is no longer need for a specialist court.484 To a large part, such criticisms are, when compared to a civilian system, correct. Discipline investigations are often performed by individuals with little to no training, which can result in a lengthy process at best and unusable evidence at worst.485 Prosecuting officers are often peers of the defendant, and whilst required to perform to the standard of a civilian counterpart may realistically be educated to secondary level and possess no prior experience.486 Although intended to be without legal formalities, the evidentiary burdens imposed under the Summary Authority Rules 2009 (Cth) creates confusion and procedural complications.487 Service needs and demands may result in an extended period between a member being charged and the trial being conducted.488 Certain punishments, such as extra duties or restriction of privileges, take effect immediately and have no recourse if the member’s conviction is quashed on review.489 Rank disparity between prosecuting officers and the defendant may result in pressure to plead guilty, despite the particularities of the charge not being met, and failure to plead guilty may

479 See Gerry Rubin, ‘United Kingdom Military Law: Autonomy, Civilianisation, Jurisdiction (2002) 65 Modern Law Review 36; see further Edward Sherman, ‘The Civilianization of Military Law’ (1970) 22 Maine Law Review 3, 8-59. 480 See for example Jonathan Turley, ‘The Pocket Military Republic’ (2002-3) 97 Northwestern Law Review 1, 133. 481 Groves (n 205) 364, 366-367. 482 ‘La guerre! C’est une chose trop grave pour la confere a des militaires’ as quoted in John Hampden Jackson, Clemenceau and the Third Republic (Collier Publishing, 1st ed, 1946) 228. 483 Collins (n 481). 484 This would appear to be the opinion of the Czech Government when abolishing the courts martial system in 1993; see Dahl (n 404) 6. 485 Such as failing to give a caution to members as required under DFDA s 101D. 486 Australian Defence Force Publications 06.1.1 Discipline Law Manual, Vol 3 7.283; the same duty is imposed on defending officers under 7.315. 487 Summary Authority Rules 2009 (Cth) Part 9. 488 Which although should be within three months, may be extended by a superior authority because of deployments, exercise requirements or other contingencies of service; DFDA s 129D(1)(a)(ii). 489 Ibid, ss 170(1)-(2); by implication.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 72 be deemed to reflect a lack of integrity by an ADF member. Equally, parts of the DFDA remain anachronistic and out of step with civilian practice.490

The civilianisation of military justice perhaps reflects growing dissatisfaction with what may be viewed as anachronistic procedures in obscure courts martial. The dissatisfaction may also equally reflect a broader change in civic-military relationships: There has been a change in the way that personnel relate to the institution that they work for, both in terms of what they expect it to do for them and they for it. This includes a shift from seeing military service as a vocation to ‘just a job’; a decline in deference, with service personnel more willing to question and challenge the organisation they work within; and an erosion of the armed forces’ traditionally claim ‘right to be different’ in areas such as employment rights.491 This trend may be a result of the abolition of conscription and increasing alienation of the military from the general public. As such, considerations of military efficiency are no longer paramount.492 But when viewed in light of the absolute need to maintain service discipline regardless of wartime status, it is submitted that the ‘right to be different’ is necessary and that many criticisms of the system are often, with respect, by individuals who fail to understand this necessity.493

The right to be different is often raised in areas that appear separate and distinct from mainstream society, in counter-attacks on the imposition of court supervision over the administrative decisions of prison officials494 or the preservation of the internal disciplinary system of firemen.495 Although the principle of legality, as applied by the courts, has rejected that mere pragmatism and a view of being different may provide the grounds to exclude some areas of decision-making from ‘the mainstream principles of law’,496 the High Court has, if not begrudgingly, recognised the need for a separate military discipline regime.497 The

490 Such as, if a Defence member is acquitted by a court martial or Defence Force magistrate on the ground of a mental impairment, then that member is kept in strict custody until released by the Governor-General, see DFDA s 145. 491 Timothy Edumnds and Anthony Forster, Out of Step: The Case for Change in the British Armed Forces (Demos, 2007) 17. 492 Dahl (n 404) 6. 493 Head, Calling out the Troops (n 23) 196-198; see Collins (n 481). 494 The full details of which are expertly covered, and gratefully adopted, by Matthew Groves in ‘Proceedings for Prison Disciplinary Offences’ (1998) 24 Monash Law Review 338, 349-51. 495 Ex parte Fry [1954] 2 All ER 118; in which instance the Court declined to interfere with the existing quasi- military discipline system. For criticism of the analogy, see Sir William Wade, ‘Discipline and Fireman Fry’ (1954) 17 Modern Law Review 375. 496 Groves (n 205) 364, 370. 497 See Hembury v Chief of General Staff (1998) 193 CLR 641, 652 (McHugh J).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 73 particularities of the fire-fighting service or prison life can be easily distinguished from those of ADF members.

In addition to findings, powers, responsibilities and defences outlined in Chapter 3, it benefits reflecting that soldiers are not employees, nor do they have contractual rights – they serve in accordance with the terms of their enlistment.498 Officers serve in accordance with the terms of their commission.499 An ADF member cannot terminate their service as readily as a civilian may terminate their employment; yet, regardless of rank, an ADF member may be terminated for a number of reasons,500 including that their service is ‘no longer in the interests of the Defence Force’.501 Just as an ADF member is not an employee, a theatre of operations (domestically or overseas) cannot in any sense be construed as a workplace. To do so fundamentally ignores the aforementioned role of the Royal Australian Infantry Corps,502 and fails to acknowledge the exceptional powers granted to, and duties imposed on, ADF members when aiding the civil power under Part IIIIAAA.

A major criticism of Australia’s military justice system, both by civilians and soldiers themselves, is the perceived delays.503 This criticism is, respectfully, unfounded. Timeliness is a legitimate concern with any justice system – military or civilian, criminal or civil. A comprehensive study, conducted in 2018, looking at the length of time for charging, trial and where applicable sentencing and appeal for courts martial commencing at the Boer War and progressing to the modern era, found no discernible difference between timeliness in civilian and military justice.504 As the current President of the DFDAT commented, in an extra curial capacity: There is, therefore, no reason to expect that the wholesale replacement of a military trial system by the civilian court system would confer any advantage at all on either an accused or the nation state in terms of timeliness of justice.505

498 Defence Act s 27; see Millar v Bornholt & Anor (2009) 177 FCR 67; C v Commonwealth of Australia (2015) 234 FCR 81. 499 Ibid. 500 Marks v Commonwealth (1964) 111 CLR 549, 586 (Windeyer J); Commonwealth v Quince (1944) 68 CLR 227, 241-242 (Rich J). 501 Defence Regulation 2016 (Cth), reg 24(1)(c). 502 Logan (n 206) 5. 503 See on this topic Bryan Cavanagh and John Devereux, ‘Reconsidering Summary Discipline Law’ (2013) 32(2) University of Queensland Law Journal, 295. 504 The results of this survey, conducted by the author of this thesis, are found annexed in Logan (n 206). 505 Justice John Logan, ‘Administrative Discharge in lieu of Military Disciplinary Proceedings – Supportive or Subversive of a Military Justice System’ (Speech, Queensland Tri-Service Reserve Legal Officer Panel, 16 November 2018) 5.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 74 It may be that, coming from an organisation that values quick decisions and decision making as a whole, the necessary delays to ensure justice occurs cause irritation. A further criticism of military justice, and its application to soldiers aiding the civil power, is that it aims to ‘go easy’ on soldiers and accordingly may fail to prosecute with the same vigour of a civilian prosecutorial body.506 Military prosecutions do not prevent subsequent administrative sanctions.507 As with decisions in the civilian justice system to decide to prosecute, there will often be criticisms regardless of the decision; this paper submits that a discipline system that can impose a fine for failing to shave might not be one that ‘goes easy’ on its members.508

Whilst the DFDA has removed the jurisdiction of a civil court to try a charge of a service offence,509 it concurrently provides an ‘important conduit for the influx of principles of the civilian criminal law.’510 This is through the aforementioned application of the external, civilian criminal law relating to the Jervis Bay Territory.511 There are multiple instances of both the DFDAT,512 and the Full Court of the Federal Court of Australia,513 referring to and implementing civilian jurisprudence when determining offences under a military jurisdiction. This is important: whilst civilian law cannot be used to maintain service discipline, Australia’s military justice system is able to absorb and maintain currency with developments in the common law. Indeed, findings and sentences by courts martial are considered to be a criminal record and must be disclosed as such.514

As it stands, if prosecutions for misconduct arising under Part IIIIAAA were to occur under civilian justice, civilian prosecutors are expected to consider the relevant ROEs.515 The simplicity of this consideration has been described as a ‘trap for the unwary.’516 ROEs are

506 Collins (n 481) 230. 507 White v Director of Military Prosecutions (2007) 231 CLR 570; Joshua Kelly, ‘Re Civilian Casualty Court Martial: Prosecuting breaches of international humanitarian law’ (2013) 37 Melbourne University Law Review 342. 508 By operation of failing to abide by a lawful general order. 509 DFDA s 190(1). 510 Groves (n 205) 364, 382. 511 DFDA s 61. 512 Kaprzysck v Chief of Army (2001) 124 A Crim R 217 relating to property offences; Mocicka v Chief of Army [2003] ADFDAT 1 [14] when considering the meaning of ‘likely’; see further Randall v Chief of Army (2018) 335 FLR 260 adopting the ‘golden thread of truth’. 513 Hofman v Chief of Army (2004) 137 FCR 520 for example of civilian statutory construction principles. 514 DFDA s 190A. 515 Explanatory Memorandum to the Defence Legislation Amendment Act (Aid to the Civilian Authorities) Act 2006 (Cth). 516 Bronitt and Stephens (n 29) 275.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 75 classified.517 If prosecuted in the civilian sphere for a purported offence under Part IIIAAA, knowledge of the ROE would be required by the presiding civilian judge, prosecution and jury. Failure to do so, it is submitted, would be unjust, particularly due to the aforementioned obligation for ADF members to abide by their issued ROE. Yet it seems unlikely that Standard Operating Procedures and ROE would be de-classified.518 By retaining prosecutions within a military jurisdiction and before a service tribunal, an ADF member may be judged by superior officers who understand the complex terrain they are required to operate in. The opposite follows; following the abolition of a separate military justice system, members of the Dutch judiciary in the Appeals Chambers of the Arnhem Court have noted a manifest lack of understanding by the prosecution in military operations.519

These same superior officers – whether in a RCM or GCM – equally would, and should, understand the complexity surrounding the defence of superior orders. The application of service knowledge – through courts martial, DFMs or on appeal to the DFDAT – would be invaluable when addressing the issues of identifying whether a member was a de facto or de jure superior, whether the order was indeed manifestly unlawful, and whether the action taken was reasonable and necessary to give effect to the order.520

Indeed, what constitutes an order is, prima facie, a matter that involves in-depth service knowledge.521 On the battlefields of the past, orders given by superior officers could be clear, concise and verified en masse by a number of soldiers; in an expedited call out under Part IIIAAA, confusion may arise. Members of TAG(E), like fellow soldiers in SOCOMD, do not necessarily follow the strict hierarchical practice of the standard infantry battalion; important decisions are often made collectively in what is known as a ‘Chinese Parliament’, where egalitarian decision-making can reduce group think and improve effectiveness.522

517 Moran (n 201) 1239, 1252-1253; who in turn quotes De-Anne Kelly, Minister for Veteran’s Affairs as saying ‘divulgence of these details could lead to mission failure and/or place the lives of ADF personnel in danger unnecessarily’ quoting Commonwealth, Parliamentary Debates, House of Representatives, 9 August 2005, 177. 518 This reluctance is understandable and sensible; see Samuel C Duckett White 'Hiding the Boats: The need for transparency in the Australian Government's border protection policy' (2018) 92 AIAL Forum 12. 519 Dahl (n 404) 8 quoting from the Dutch Military Law Review (June, 2005) 213 -224. 520 See The United States of America vs Otto Ohlendorf, et al.; see The Prosecutor v Aleksovski (Trial Chamber, Judgment) [1999] IT-95-14/1-T, para 34. This was an issue raised in the respective US and UK courts martial for behaviour by their military personnel in Abu Ghraib, see generally Sunita Patel, ‘Superior Orders and Detainee Abuse in Iraq’ (2008) 5 New Zealand Yearbook of International Law 91. 521 Which, indeed, was the case in Randall v Chief of Army (2018) 335 FLR 260. 522 See generally for the SAS - Peter de la Biller, Looking for Trouble: An Autobiography from the SAS to the Gulf (Harper Collins, 1994); Dr. Alastair Finlan, ‘Special Forces: Leadership, Processes and the British Special Air Service’ in Gitte Højstrup Christensen (ed.) Interdisciplinary Perspectives on Special Operations Forces (Danish Military College, 2017) 84-85.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 76 When a commander or the DMP decides to proceed with DFDA action, that jurisdiction may only be exercised ‘where the proceedings under the DFDA can be reasonably regarded as substantially serving the purpose of maintaining or enforcing service discipline.’523 This substantive purpose test is multi-factorial and takes into account, inter alia, whether an ADF member was on duty or may have contravened military orders or instructions. When viewing an offence that might occur under Part IIIAAA (such as a violation of the ROE, assault of a civilian, or failure to comply with dress requirements) it is not controversial that such a matter would fall under the jurisdiction of the DFDA.524 This is not to suggest ‘that the military should become a law unto itself’525 but to formally recognise that the ADF is, by necessity, a specialised society separate from civilian society. 526 This is a position wholly accepted by the United States of America, whose Supreme Court has gone so far as to accept that: military law… is a jurisdiction which exists separate and apart from the law which governs in or federal judicial establishment. This Court has played no role in its development; we have exerted no supervisor power over the courts which enforce it…527

Historically, English Courts moreover have accepted that whilst they possess a nominal jurisdiction over military personnel, it takes exceptional circumstances to allow civilian judicial interference. In some instances, this has resulted in leave to appeal being denied when a right to redress the matter within the chain of command is available;528 in others it has simply been for the court to deny jurisdiction to consider military law.529

Following Lane v Morrison530 and the collapse of the unconstitutional Australian Military Court, it seems unlikely that the previously discussed Military Court of Australia will become a reality, and the current system of military justice appears likely to remain.531 This, however, is submitted to not necessarily to be a negative development. Retrospective analysis of an immediate decision by a soldier may give insufficient weight to the operational stressors. The

523 DMP Prosecution Policy (n 451) para 1.1. 524 Whether the matter would be classified as ‘active service’ however remains open, and remains a friction point for ADF members who risk wounding and death if called under Part IIIAAA. The effect of this being that the powers of punishment sitting as a service tribunal increase; it is based on a declaration of active service by the Governor-General. As it stands, a call out under Part IIIAAA would not appear to meet the threshold for active service; see DFDA s 3(1) definition. 525 Groves (n 205) 364, 365. 526 The terminology of which is taken from the United States Supreme Court in United States; ex rel Toth v Quarles 350 US 11, 17 (1950). 527 Burns v Wilson 346 US 137, 140 (1953). 528 Marks v Frogley [1898] 1 QB 888. 529 R v Secretary of State for War; Ex parte Martyn [1949] 1 All ER 242; see further R v OC Depot Battalion, RASC Colchester; ex parte Elliot [1949] 1 All ER 373. 530 (2009) 239 CLR 230. 531 Judge Advocate General, Report for the Period of 1 January to 31 December 2016 (Department of Defence, 2017).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 77 ability for current general service officers to bring their specialist knowledge and experience would, it is submitted, be a better judge for service offences arising under Part IIIAAA than a civilian judge who lacks military or operational experience.

C Open justice & SOCOMD

ADF members called out and empowered under Part IIIAAA, in an onshore capacity, realistically will be constituted by members of SOCOMD. These members, as aforementioned, necessarily are granted protected identities. This raises interesting considerations of legal accountability and practical barriers that would occur in both military and civilian jurisdictions.

Protected identity status, and the barriers this represents in a court, is neither novel nor unique to Special Operations Command. In the aforementioned case of A v Hayden,532 the alleged participants sought an injunction on the Commonwealth disclosing their identities on the basis that it would endanger national security. 533 Oddly, the Court did not have to decide whether a claim of national security would protect the identity as it was conceded by the Commonwealth that it was not a matter of national security.534 The question is thus unanswered at common law.

Relevantly, the Canadian experience of holding to account service offences by Special Forces members has highlighted some of the barriers. In Afghanistan in 2005, a warrant officer in the highly regarded JTF-2 force element strangled another member for 45 seconds before being restrained; the offence and rank of the individual was deemed serious enough to merit a full court-martial in Canada. However, the Chief Military Judge of the Canadian military declined to proffer charges because of the friction between an open court, and classified identities and the information surrounding the operation.535

The notion ‘that justice should not only be done, but should manifestly and undoubtedly be seen to be done’536 is more than just an adage. Open justice – consisting of public hearings,537 publicly communicated evidence,538 and public reasons for judgment539 – is a central feature

532 (1984) 156 CLR 532. 533 Hope (n 9). 534 (1984) 156 CLR 532. 535 Moran (n 202) 1239, 1249. 536 R v Sussex Justices; ex parte McCarthy [1924] KB 256, 259 (Lord Hewart CJ). 537 Scott v Scott [1913] AC 417; John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465, 476-7 (McHugh J). 538 Ho v Loneragan [2013] WASCA 20 (5 February 2013). 539 A-G (UK) v Leveller Magazine Ltd [1979] AC 440, 450 (Lord Diplock).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 78 of common law and the administration of justice.540 This was recognised by the recent, and important, development within Australia’s military justice system, which will now publicly release the ‘decisions of courts martial and the decisions and reasons for decisions of DFMs’ noting that it is ‘an essential component of the administration of military justice.’541 Just as within the civilian sphere, open justice within the military sphere is not absolute.542 Relevantly to the PID status of TAG(E) operators, courts may derogate by ordering proceedings to be heard in closed court, that certain evidence be removed from public eyes, or the records of the proceedings be restricted.543 Notice would be given under a court-martial or DFM of the consequential publication, on which they may make contestations as to the effect it could have on the ‘security or defence of Australia.’544

The practical difficulties of both PID and sensitive classified material in civilian court may prove to be too much of a barrier to prosecutions. Take, for example, an attempt by a defendant to admit into evidence classified ROE, for the purpose of demonstrating that the actions taken were in accordance with it. If the civilian judge, sitting in civilian court, was satisfied that such material was confidential and thus excluded from evidence, it may lead to the trial collapsing on lack of evidence. Whilst this would not be a barrier to subsequent military prosecutions, it would appear that public policy should dictate, at first instance, that the DMP take carriage of the matter. The effect of this is that an open court hearing may encounter the same practical difficulties whether in a military or civilian jurisdiction. Civilian courts may allow for protected identities to continue, although in a jury situation this may prove difficult and could realistically present a barrier to justice. D Conclusion

Much of the disagreement that surrounds military justice frameworks, and the civilianisation of military law, depends on the perspective of the individual. If the difference between military and civilian life is accepted as sufficiently distinct to warrant its own form of governance, the encroachment of external values into military life may be viewed as curtailing, undesirable and detrimental to efficiency and effectiveness. If, however the military is not accepted as distinct,

540 See generally Scott v Scott [1913] AC 417; see Justice James Spigelman, ‘Seen to Be Done: The Principle of Open Justice (Pt 1)’ (2000) 74 Australian Law Journal 290, 292. 541 Judge Advocate General, Practice Note 1 – Publication of court-martial and Defence Force Magistrate Lists and Outcomes (2019). 542 Hogan v Hinch (2011) 243 CLR 506, 530 (French CJ). 543 And at the Federal level, relevantly, has resulted in the Access to Justice (Federal Jurisdiction) Amendment Act 2012 (Cth). The recent case of Boyson v Chief of Army [2019] DFDAT 2 demonstrates the viability of these non-publication orders, where the name of the complainant was subject to a non-publication order. 544 DFDA s 140(2).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 79 the adoption of civilian principles is a ‘natural and desirable evolution of military law and the broader culture within which it operates.’545

Whilst the ADF will always remain subordinate to the civil power, it is dangerous ‘to remain so enamoured of the supremacy achieved by the common lawyers in the constitutional conflicts of the seventeenth century’546 to ignore legitimate military interests. Australia’s military justice system enforces one such military interest – discipline – and is an apt jurisdiction for prosecuting offences by ADF members, acting under Part IIIAAA. Service tribunals retain a spectrum of powers that allow for appropriate punishments to be imposed for service offences, and allow for service knowledge to be applied. They moreover retain an ability to appropriately deal with sensitive information and protected identities. This knowledge allows for the full intent of the defence of superior orders to be achieved. Australia’s military justice system has adequate appeal rights and legal input to ensure that procedural fairness and the principles of natural justice are applied, by members of the judiciary whose experience allows for, and demonstrably has, injected both current military knowledge and updates in civilian law.

545 Groves (n 205) 364, 394. 546 Nichols (n 149) 181.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 80 V LEGISLATIVE RECOMMENDATIONS

Even consequent to the 2018 Amendments, the legislation as it stands, it is submitted, fails to acknowledge the differences between how ADF members and civilian police are trained, and will react, to situations arising from a call out. This failure, in turn, has resulted in selecting an inappropriate jurisdiction to prosecute offences arising under Part IIIAAA.

In order to resolve the aforementioned issues, some key legislative reforms are recommended. These reforms aim to address the following: the lack of clarity surrounding military and civilian jurisdiction; a perceived lack of transparency within military justice proceedings; and issues arising from the classified identities of TAG(E). This is achieved through proposed reforms to the Defence Act and the DFDA.

A Reform: Defence Act

1 Clarifying jurisdiction

With the adequacy of the military justice system being identified, and the necessity to maintain service discipline, it is submitted that the current section 51Y(2) be repealed and substituted with:

51Y – Applicable criminal law …

Functions of the Director of Military Prosecutions

(3) For the avoidance of any doubt and subject to subsection (4), any criminal act done or purported to be done by a member of the Australian Defence Force will be prosecuted by the Director of Military Prosecutions in accordance with his or her function.

(4) The Director of Public Prosecutions may elect whether any criminal act as constituted by section 63 of the Defence Force Discipline Act 1982 done or purported to be done by a member of the Australian Defence Force will be prosecuted by:

(a) the Director of Military Prosecutions; or

(b) the Director of Public Prosecutions, who must invite the Director of Military Prosecutions to make submissions.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 81 The effect of this proposed reform is thus to confirm the primacy of military justice during a call out, whilst retaining the ability for the civil power to ‘determine under which system an alleged offender is dealt with’547 when dealing with sexual assault, manslaughter and murder. It moreover recognises the already acknowledged requirement for the CDPP to have regard, under s 63, as to whether the offence occurred during a military operation.548

The effect of subs (4)(b) is to provide a conduit, if prosecutions occur in a civilian criminal justice system, for service interests to be raised and brought to the attention of the CDPP. The intent of this is to negate the complications arising from a lack of knowledge in military operations experienced in jurisdictions which have abolished courts martial (such as the Netherlands). It equally reflects a practice within the military of allowing for Superior Authorities to make submissions. The mandatory obligation on the CDPP in no way envisages that submissions will always be given by the DMP.

2 Increasing transparency

Additionally, the following subs (5) and (6) are recommended to be inserted in s 51Y, to address a perceived lack of transparency at the conclusion of the end of service tribunals, whilst balancing the need, inter alia, to maintain the protected identities of SOCOMD personnel:

(5) Subject to subsection (6), all records of criminal acts, regardless of the verdict delivered, prosecuted by service tribunals, must be disclosed to the public, excluding:

(a) information relating to matters of a sensitive nature; and

(b) the identities of ADF members involved in the criminal act prosecuted by service tribunal.

(6) Nothing above limits the discretion of a service chief, or Chief of the Defence Force, to release that information.

The terminology in the advocated subsection (a) is deliberately and necessarily vague, so as to allow for information such as troop disposition, training, tactics and procedures, ROEs, SOPs, weapon systems and capabilities to remain classified.549 This could be provided for in the Explanatory Memorandum to the amendments. Through ensuring and enforcing transparency, whilst balancing, the proposed reforms allow for justice to be done and to be seen be done.

547 Logan, ‘Administrative Discharge in lieu of Military Proceedings’ (n 508) 10. 548 Memorandum of Understanding (n 412) 6. 549 As occurs in Operation Sovereign Borders; see White, ‘Hiding the Boats’ (n 521).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 82 B Reform: Defence Force Discipline Act

An additional amendment is recommended to the DFDA with respect to Part IIIAAA:

PART XB – SPECIAL PROVISIONS RELATING TO A CALL OUT

Section 178E

(1) Subject to subsection (2), all service offences committed by an ADF member operating under the Defence Act 1903 (Cth) Part IIIAAA will be prosecuted by the Director of Military Prosecutions in accordance with his or her duties under Part XIA of this Act.

(2) Nothing in subsection (1) limits the right of the Director of Military Prosecutions to delegate, in part or in full, their power in accordance with section 188GR of this Act.

(3) The Director of Military Prosecutions may, if they see fit, provide directions for prosecutions under service tribunals and create guidelines for the prosecutions of ADF members under this Part.

(4) Insofar as is necessary, and with attention to the principles of procedural fairness and natural justice, the Director of Military Prosecutions may take disciplinary action against an ADF member, notwithstanding previous administrative sanctions against the member.

The intent of the amendment is to establish special procedures applicable to ADF members when called out. It moreover is aimed at streamlining any prosecutorial issues. Importantly, in light of the an upcoming appeal of McCleave v Chief of Navy before a Full Federal Court of Australia, it seems prudent to confirms the current practice of allowing for concurrent administrative and disciplinary action to be taken against ADF members. This is achieved through subs (4).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 83 VI CONCLUSION

The problems of public order in an emergency pose agonising choices and stir deep passions. The subject is topical and urgent in Northern Ireland today, but it has a much wider significance, for it raises basic questions about any society’s response to dissent and to use violence. It is not just a problem in Ulster: it is also a British problem, an Irish problem and a world problem. W. Twining, Emergency Powers: A Fresh Start550

During the course of writing this thesis, multiple terror attacks have occurred globally: from the Christchurch mosque attacks551 to the multiple, mass-casualty Easter Day bombings in Sri Lanka.552 The threat of domestic violence is real, and the 2018 Amendments – which took effect on 10 June 2019 – to Part IIIAAA of the Defence Act 1903 (Cth) have streamlined the processes by which the Australian Defence Force may be called out to address, inter alia, the nebulous concepts of ‘domestic violence’ against a ‘Commonwealth interest’.

The cumulative effect of Part IIIAAA would demonstrate an intent to maintain and expand the distinction of the ADF from citizens, and civilian police. Whilst some of the powers granted by the call out provisions overlap with civilian police, many do not: the ability to use lethal force to protect property, or the grounds on which an ADF member may detain an individual, find no equivalent under Australian law. Equally, police are not trained to employ weapon systems lethally and instinctively, nor indeed are they equipped with weapon systems that may halt an aircraft or vessel. This reflects their role to preserve the Queen’s peace, as compared to the ADF’s primary role of killing the Queen’s enemies. The distinction between military personnel and civilian police, recognised by the House of Lords, is deepened by not only a positive duty to maintain the Peace of the Realm, but a constant and specific duty of ADF members to obey orders. This latter duty is rightfully recognised in the unique defence of superior orders available throughout the Defence Act.

Yet Part IIIAAA has failed to engage with, or recognise, the important role that the military justice system plays in enforcing discipline which, ipso facto, is the cornerstone of any warfighting organisation. The DFDA, and wider military justice system, recognises and

550 (Fabian Tract, 1976), 1. 551 ‘Christchurch shootings: New Zealand mosque attacks’ BBC (online, 15 March 2019) . 552 Anbarasan Ethirajan, ‘Sri Lanka attacks: the family networks behind the bombings’ BBC (online, 11 May 2019) .

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 84 embodies a unique body of law applicable to ADF members. The legislative reforms suggested by this thesis are an appropriate adjustment to empower the ADF to prosecute members for service offences, in a system that readily incorporates contemporary civilian criminal law principles. Retaining prosecutions within the military justice sphere not only allows for classified and sensitive information to be appropriately shared and considered, but provides for service knowledge to be appropriately applied for ADF members called out in accordance with their duties. The publication of results to the public, with redactions as necessary, would dually maintain public confidence in the ADF and trust by ADF members of a fair trial.

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 85 VII BIBLIOGRAPHY

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Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 87 Finlan, Alastair ‘Special Forces: Leadership, Processes and the British Special Air Service’ in Gitte Højstrup Christensen (ed.) Interdisciplinary Perspectives on Special Operations Forces (Danish Military College, 2017) Fitzgerald, Tony The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Inquiry, 3 July 1989) Fox, Richard and Jodie E Lydeker, ‘The Militarisation of Australia’s Federal criminal justice system’ (2008) 32 Criminal Law Journal 290 Fraser, David And We Shall Shock Them, A History of the British Army in World War Two (Hodder & Stoughton, 1983) 41 Gervais, Michael ‘Cyber Attacks and the Laws of War’ (2012) 30 Berkley Journal of International Law, 525 Goffman, Ervin Asylum, Essays on the Social Situation of Mental Patients and Other Inmates (Amorrotu, 1997) Greenwood, Colin ‘The Evil Choice’ [1975] Criminal Law Review, 4 Groll-Ya’ari, Yedidiah ‘Towards a Normative Code for the Military’ (1994) 20 Armed Forces & Society 457 Grossman, David On Killing (Little, Brown & Company) Groves, Matthew ‘Proceedings for Prison Disciplinary Offences’ (1998) 24 Monash Law Review 338 Groves, Matthew ‘The Civilianisation of Australian Military Law’ (2005) 28(2) UNSW Law Journal 364 Hawkins, William Pleas of the Crown (Maxwells, 8th ed, 1824) Head, Michael ‘Australia’s Expanded Military Call-Out Powers: Cause for Concern’ (2006) 3 University of New England Law Journal, 125 Head, Michael ‘Calling out the Troops – Disturbing Trends and Unanswered Questions’ (2005) 28(2) UNSW Law Journal, 529 Head, Michael ‘The Military Call-Out Legislation: Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review, 271 Head, Michael Calling out the Troops (The Federation Press, 2009) Hiller, Andrew Public Order and the Law (Sweet & Maxwell Ltd, 1983) Hocking, Jenny Beyond Terrorism: The Development of the Australian Security State (Allen & Unwin, Sydney, 1993) Hoffman, Bruce Inside Terrorism (Columbia University Press, 1998) Hope, Robert Protective Security Review (unclassified) (Parliamentary Paper No 397/1979 Houston. Angus ‘The ADF of the Future’ (2007) 57 Australian Defence Force Journal, 63 Independent National Security Legislation Monitor, Annual Report (28 March 2014) Jackson, John ‘Curtailing the right of silence: lessons from Northern Ireland’ (1991) 42 Criminal Law Review 404 Jackson, John Clemenceau and the Third Republic (Collier Publishing, 1st ed, 1946) 228 Johnston, Peter ‘Re Tracey: Some Implications for the Military-Civil Authority Relationship’ (1990) 20(1) Western Australia Law Review, 79 Jones, Charles Military as Law Enforcers ‘Coming to Terms with the New Security Environment’ (Working Paper No 72, Australian Defence Studies Centre, 2002) Judge Advocate General, Report for the Period of 1 January to 31 December 2016 (Department of Defence, 2017). Judge Advocate General, Report for the Period of 1 January to 31 December 2017 (Department of Defence, 2018) Kelly, Joshua ‘Re Civilian Casualty Court Martial: Prosecuting breaches of international humanitarian law’ (2013) 37 Melbourne University Law Review 342

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 88 Kirk, Jeremy ‘Constitution Guarantees, Characterisation and the Concept of Proportionality’ (1997) 21 Melbourne University Law Review 1 La Nauze, John The Making of the Australian Constitution (Melbourne University Press, 1972) Laing, Norman ‘Call-Out the Guards: Why Australia Should no longer fear the deployment of Australian troops on home soil’ (2005) 28(2) UNSW Law Journal, 508 Lee, Hoong ‘Military Aid to the Civil Power’ in Michael Adams and Colin Campbell (eds) Emergency Powers in Australia (Monash University Press, 2018) Lee, Hoong Emergency Powers (Sweet & Maxwell Ltd, 1984) Lepsius, Oliver ‘Human Dignity and the Downing of Aircraft’ (2006) 7 German Law Journal 761 Letts, David and Rob McLaughlin ‘Military Aid to the Civil Power’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) 112 Letts, David and Rob McLaughlin, ‘Call-Out Powers for the Australian Defence Force in an Age of Terrorism: Some Legal Implications’ (2016) 85 AIAL Forum 63 Letts, David and Rob McLaughlin, ‘Intersection of Military Law and Civil Law’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) Lippis, Zoe and Samuel White ‘Justice for the Profession of Arms? Understanding the defence of superior orders under Part IIIAAA’ (2019) Defence Legal 12. Lloyd, Nick The Amritsar Massacre: The Untold Story of One Fateful Day (I.B. Tauris, 2011) Logan, John ‘Administrative Discharge in lieu of Military Disciplinary Proceedings – Supportive or Subversive of a Military Justice System’ (Speech, Queensland Tri- Service Reserve Legal Officer Panel, 16 November 2018) Logan, John ‘Military Court Systems: Can They Still be Justified in This Age?’ (Speech, Commonwealth Magistrate and Judges Association Triennial Conference, 10 September 2018) Logan, John ‘Queensland Barristers in World War II’ Bar News, December 2005. Lyon, Ann and Geoffrey Farmiloe ‘The new British system of courts martial’ in Alison Duxbury and Matthew Groves, Military Justice in the Modern Age (Cambridge University Press, 2016 Machiavelli, Niccolo The Prince (Penguin Publishing, 2002) Mackay, David ‘Far-Flung Empire: A Neglected Imperial Outpost at Botany Bay 1788 – 1801’ (1981) 9(2) Journal of Imperial and Commonwealth History 125 Mason, Gary and Keith Skinner, The Official History of The Metropolitan Police (Carlton Press, 2004) McAllister, Ian Public Opinion Towards Defence and Foreign Affairs: Results from the ANU Poll (ANU Poll, No 4 of 2009) McCulloch, Jude Blue Army: Paramilitary Policing in Australia (Melbourne University press, 2001) McLaughlin, Rob ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations – Is there a ‘Lawful Authority’ (2009) 37(3) Federal Law Review 441 Moore, Cameron ‘The ADF and Internal Security: Some Old Issues with New Relevance’ (2005) 28(2) UNSW Law Journal 523 Moore, Cameron Crown and Sword (ANU Press, 2017) Moran, Jon ‘Time to Move Out the Shadows? Special operations Forces and Accountability in Counter-Terrorism and Counter-Insurgency Operations’ (2016) 39(3) UNSW Law Journal 1239

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 89 New South Wales Police Force, Organisation Structure: Marine Area Command Nichols, David ‘Untying the Soldier by Refurbishing the Common Law’ [1976] Crim LR 181 O’Neill, Robert The Army in Papua New Guinea (ANU Press, 1965). Oakes, Dan ‘Claims of illegal violence, drugs and alcohol abuse in leaked Australian Defence report’ Australian Broadcasting Corporation (online) 9 June 2018 Odgers, Stephen ‘Police Interrogation and the Right to Silence’ (1985) 59 Australian Law Journal 78 Patel, Sunita ‘Superior Orders and Detainee Abuse in Iraq’ (2008) 5 New Zealand Yearbook of International Law 91 Pezzullo, Michael Committee Hansard, 31 January 2006, 34; Senate Legal and Constitutional Affairs Committee, Report 35 Quick, John and Robert Garran, The Annotated Constitution of the Commonwealth of Australia (The Federation Press, revised, 2014) Reforms to Australia’s military justice system (Senate Standing Committee on Foreign Affairs, Defence and Trade, 2008) Restivo, Natalia ‘The Defence of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England’ (2006) Cornell Law School J.D. Student Research Paper Review of the Australian Crime Commission Act 2002 (Parliamentary Joint Committee on the Australian Crime Commission, 2005) Rowe, Peter ‘The Soldier as a Citizen in Uniform: A Reappraisal’ (2007) 7 New Zealand Armed Forces Law Review 1 Royal Australian Air Force, Australian Air Publication 1003, Operations Law for RAAF Commanders, (2004) 45 Royal Commission on Australia’s Security and Intelligence Agencies: Report on the Sheraton Hotel Incident, (1984) Rubin, Gerry ‘United Kingdom Military Law: Autonomy, Civilianisation, Jurisdiction (2002) 65 Modern Law Review 36 San Remo Handbook on Rules of Engagement (International Institute of Humanitarian Law, 2009) Santow, Edward and George Williams, ‘Terrorism threat assessments: Problems of constitutional law and government accountability’ (2012) 23 Public Law Review 33 Scheine, Edgar ‘Organisational Culture’ (1990) 45 American Psychologist 111 Senate Legal and Constitutional Affairs Committee, Report, Defence Legislation Amendment (Aid to the Civilian Authorities) Bill 2005, February 2006 Shay, John Achilles in Vietnam (Scribner, 1994) Sherman, Edward ‘The Civilianization of Military Law’ (1970) 22 Maine Law Review 3 Sieghart, Paul ‘Harmless Weapons: A Threat to Liberty?’ New Scientist (London, 30 March 1978) 840 Smith, Hugh ‘The Use of Armed Forces in Law Enforcement: Legal, Constitutional and Political issues in Australia’ (1998) 33 Australian Journal of Political Science 219 Solis, Gary ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’ (2000) 15 American University International Law Review 481 Spigelman, James ‘Seen to Be Done: The Principle of Open Justice (Pt 1)’ (2000) 74 Australian Law Journal 29

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 90 Stephenson, Peta ‘Fertile Grounds for Federalism – Internal Security, the States and Section 119 of the Constitution’ (2015) 43 Federal Law Review 289 Sutton, John ‘The increasing convergence of the role and functions of the ADF and civil police’ (2017) 202 Australian Defence Force Journal 38 Teichman, Oskar ‘The Yewomanry as an Aid to the Civil Power, 1795 – 1867’ (1940) 19 Journal of the Society for Army Historical Research 127 Terrill, William and Eugene Paoline, ‘Examining Less Lethal Force Policy and the Force Continuum: Results from a National Use-of-Force Study’ (2013) 16(1) Police Quarterly, 38 Tracey, Richard ‘Military Discipline Law’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds) Military Law in Australia (The Federation Press, 2019) Tracey, Richard ‘The Constitution and Military Justice’ (2005) 28(2) UNSW Law Journal 426 Turley, Jonathan ‘The Pocket Military Republic’ (2002-3) 97 Northwestern Law Review 1, 133 Twining, William Emergency Powers: A Fresh Start (Fabian Tract, 1976) Twoney, Anne ‘Federal Limitations on the Legislative Power of the States and the Commonwealth to bind one another’ (2003) 31(3) Federal Law Review 507 Victorian State Coroner, Investigation into the Death of Jed Malcom Houghton (Melbourne, 1992) Wade, William ‘Discipline and Fireman Fry’ (1954) 17 Modern Law Review 375 Wagner, Kim ‘Calculated to Strike Terror: Amritsar Massacres and the Spectacle of Colonial Violence’ (2016) 223(1) Past & Present 185 Waranoff, Nicholas ‘Federal Judicial Control of the National Guard’ (1972) 52 Boston University Law Review 1, 16 Ward, Elizabeth ‘Call out the Troops: an Examination of the legal basis for Australian Defence Force involvement in ‘non-defence’ matters’ (Research Paper No 8/1997-98, Laws & Bills Digest Group) Werle, Gerhard Principles of International Criminal Law (Blackwell Publishing, 2005) 458. Wheate, Rhonda and Nial Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’ (2003) 160 Australian Defence Force Journal 20 Whelan, Christopher ‘Military Intervention in Industrial Disputes’ (1979) 8 Industrial Law Journal, 222 White, Margaret ‘The Executive and the Military’ (2005) 28(2) UNSW Law Journal 438 White, Michael Australian Offshore Laws (The Federation Press, 2nd ed, 2009) White, Samuel 'Hiding the Boats: The need for transparency in the Australian Government's border protection policy' (2018) 92 AIAL Forum 12 Windeyer, Victor ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’ (1962) 1(5) Tasmanian University Law Review 635 Wing, Ian ‘Private Military Companies and Military Operation’ (Working Paper No. 138, Land Warfare Studies Centre, 2002) Winterton, George ‘The Limits and Use of Executive Power by the Government’ (2003) 31 Federal Law Review 421 Ziesing, Katherine ‘Robotics enlisted to sharpen soldiers’ skill’ The Australian (online) 2 March 2017 < https://www.theaustralian.com.au/nation/defence/robotics-enlisted-to- sharpen-soldiers-skills/news-story/c456e3fba1505939f82bbf1348d8aefe>.

B Cases A v Hayden (1984) 156 CLR 532

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 91 A-G (UK) v Leveller Magazine Ltd [1979] AC 440 A-G v De Keyser’s Royal Hotel Ltd [1920] AC 508 Al-Kateb v Godwin (2004) 219 CLR 562 Alister v The Queen (1984) 154 CLR 404 Attorney General of the Government of Israel v Eichmann, 36 IRL 5 Attorney-General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105 (HL) 136 Austin v Commonwealth (2003) 215 CLR 185 Australian Communist Party v Commonwealth (1951) 83 CLR 1 Australian Woollen Mills Ltd v Commonwealth (1944) 69 CLR 476 Barton v Commonwealth (1974) 131 CLR 477 Boyson v Chief of Army [2019] DFDAT 2 Burmah Oil Co Ltd v Lord Advocate [1965] AC 75 Burns v Wilson 346 US 137, 140 (1953) C v Commonwealth of Australia (2015) 234 FCR 81 Caltex Refining Co Pty Ltd v State Pollution Control Commission (1991) 25 NSWLR 118 Coco v The Queen (1994) 179 CLR 427 Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421 Commonwealth v Quince (1944) 68 CLR 227 CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514 Davis v Commonwealth (1988) 166 CLR 79 Dawson v Commonwealth (1946) 73 CLR 157 Ex parte Fry [1954] 2 All ER 118 Farey v Burvett, (1916) 21 CLR 433 Groves v Commonwealth (1985) 150 CLR 113 Hajdamovitz v A-G (1944) 11 Palestine Law Reports 140 Haskins v Commonwealth (2011) 244 CLR 22 Hembury v Chief of General Staff (1998) 193 CLR 641 HM Advocate v Sheppard (1941) JC 67 Ho v Loneragan [2013] WASCA 20 Hofman v Chief of Army (2004) 137 FCR 520 Hogan v Hinch (2011) 243 CLR 506 John Fairfax & Sons Ltd v Police Tribunal (NSW) (1986) 5 NSWLR 465 Kaprzysck v Chief of Army (2001) 124 A Crim R 217 Lane v Morrison (2009) 239 CLR 230 Lee v NSW Crime Commission (2013) 251 CLR 196 Li v Chief of Army (2013) 250 CLR 328 Little v Barreme (1804) 6 Cranch Little v Commonwealth (1947) 75 CLR 94 Marks v Commonwealth (1964) 111 CLR 549 Marks v Frogley [1898] 1 QB 888 Martin v Mott (1827) 12 Wheat 19 McCall v McDowell (1867) 15 F Cas, 1235 McCleave v Chief of Navy [2019] ADFDAT 1 Melbourne Corporation v Commonwealth (1947) 74 CLR 31 Millar v Bornholt (2009) 177 FCR 67 Mocicka v Chief of Army [2003] ADFDAT 1 Moyer v Peabody 212 US 78 (1909) Nachova v Bulgaria [2006] 42 EHRR 43 R v Clegg [1995] 1 AC 482

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 92 R v Director of Serious Fraud Office; ex parte Smith [1993] AC 1 R v OC Depot Battalion, RASC Colchester; ex parte Elliot [1949] 1 All ER 373 R v Pinney (1832) 5 Car & P [254] R v Secretary of State for War; Ex parte Martyn [1949] 1 All ER 242 R v Sharkey (1949) 79 CLR 121 R v Sussex Justices; Ex parte McCarthy [1924] KB 256 Randall v Chief of Army (2018) 335 FLR 260 Re Colonel Aird; ex parte Alpert (2004) 220 CLR 308 Re Nolan; ex parte Young (1991) 172 CLR 460 Re Tracey; ex parte Ryan (1989) 166 CLR 518 Re Tyler; ex parte Foley (1994) 181 CLR 18 Regina v Smith (1900) 17 Special Courts Reports of Good Hope 56 Rich v ASIC (2004) 220 CLR 129, Ruddock v Vadarlis (2001) 110 FCR 491 Scott v Scott [1913] AC 417 Smith v Read (1736) 1 Atk 526 at 527 Sorby v Commonwealth (1983) 152 CLR 281 Stenhouse v Coleman (1944) 69 CLR 457 Sterling v Constantin 287 US 378 (1932) Thomas v Mowbray (2007) 233 CLR 307 Thomas; Secretary, Department of Defence and (Freedom of Information) [2018] AATA 604 United States v Fisher (1805) 6 US 358, 390 United States v Schafer, 13 USCMA 83, 32 CMR 85 (1962) United States; ex rel Toth v Quarles 350 US 11, 17 (1950) Victoria v Commonwealth (1975) 134 CLR 338 White v Director of Military Prosecutions (2007) 231 CLR 570 Williams v Commonwealth (No 2) (2014) 309 ALR 41 Woolmington v Director of Public Prosecutions [1935] AC 462 X7 v Australian Crime Commission (2013) 248 CLR 92

C Legislation Air Force Act (UK) Army Act 1881 (UK) Australian Constitution Australian Federal Police Act 1979 (Cth) Australian Military Regulations 1927 (Cth) Bill of Rights [1688] Border Force Act 2015 (Cth) Charter of the International Military Tribunal Charter of the United Nations Crimes (Internationally Protected Persons) Act 1976 (Cth) Crimes Act 1900 (ACT) Crimes Act 1914 (Cth) Criminal Code 1899 (Qld) Criminal Code 1913 (WA) Criminal Code 1924 (Tas) Criminal Code Act 1995 (Cth) Criminal Law Act (Northern Ireland) 1967 Customs Act 1901 (Cth)

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 93 Defence Act 1903 (Cth) Defence Act 1971 (NZ) Defence Force Discipline Act 1982 (Cth) Defence Regulation 2016 (Cth) Evidence Act 1995 (NSW) Fisheries Management Act 1991 (Cth) Freedom of Information Act 1982 (Cth) Health and Safety Act 2011 (Cth) Law Enforcement (Powers and Responsibilities) Act 2000 (NSW) Migration Act 1958 (Cth) National Defence Act (Can) Navy Discipline Act 1957 (UK) Offshore Petroleum (Royalty) Act 2006 (Cth). Police Act 1990 (NSW) Quarantine Act 1908 (Cth) Summary Authority Rules 2009 (Cth) Torres Strait Fisheries Act 1984 (Cth) United States Constitution

D Treaties Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31 (entered into force 21 October 1950) Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85 (entered into force 21 October 1950) Geneva Convention relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) International Civil Aviation Organization, Convention on Civil Aviation, 7 December 1944, (1944) 15 U.N.T.S. 295.

E Other Judge Advocate General, Practice Note 1 – Publication of court-martial and Defence Force Magistrate Lists and Outcomes (2019).

Student ID: 927770 LAWS70015: Minor Thesis F/T LLM | 94

Minerva Access is the Institutional Repository of The University of Melbourne

Author/s: White, Samuel

Title: A Soldier By Any Other Name: a reappraisal of the "Citizen in Uniform' in light Part IIIAAA of the Defence Act 1903 (Cth)

Date: 2019

Persistent Link: http://hdl.handle.net/11343/234429

File Description: Final thesis file

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