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'Citizen in Uniform' in Light Part IIIAAA of the Defence Act 1903 (Cth)

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'Citizen in Uniform' in Light Part IIIAAA of the Defence Act 1903 (Cth) 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) <https://www.abc.net.au/news/2013-10-12/police-and-adf-raid-bikie-property-in-melbourne/5018414>). 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
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