CALLING OUT THE MILITARY: A THEORETICAL AND JURISPRUDENTIAL JUSTIFICATION OF THE EXPANSION OF DOMESTIC MILITARY POWERS ANASUYA DATTA
I INTRODUCTION Historically, military involvement in domestic affairs was associated with authoritarianism and military dictatorships.1 Since the 1688 Glorious Revolution, British political culture has been hostile towards domestic military deployments, due to parliamentary supremacy ensuring that power rested with Parliament, not the Executive’s discretion alone.2 The absence of using military forces domestically was considered fundamental to liberal democracy.3 However, there are tensions between this and the state’s responsibility to protect its citizens in emergencies. In Australia, Part IIIAAA of the Defence Act 1903 (Cth) (‘Defence Act’) regulates military call-outs, permitting military involvement in aid of civil power and law enforcement.4 After the 2014 Lindt Café siege, the government was criticised for not calling out the Australian Defence Force (ADF), despite its terrorist nature5 which put the ADF on notice for a potential call-out.6 The New South Wales Police did not declare the event beyond their capabilities, thus not warranting ADF call-out. Arguably the ADF should have been called out to resolve the situation due to its expertise in armed conflict and its aggressive approach which better suits counter-terrorism.7 Since then, the Defence Department has considered reforming Part IIIAAA to facilitate faster anti-terror responses.8 Conversely, Part IIIAAA has been criticised as an overstepping of state power through broad and extensive powers9 in allowing military involvement domestically. Despite criticisms, the unforeseen nature of terrorism requires greater state power to protect. This paper aims to justify Part IIIAAA and the expansion of military power domestically, using a jurisprudential framework going beyond contemporary policy-making, to demonstrate the necessity in having an emergency system where the executive, and military, can
1 Michael Head, Calling Out the Troops: The Australian Military and Civil Unrest (The Federation Press, 2009), 9. 2 Douglass C North, Barry R Weingast, ‘Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth-Century England’, (1989) 49(4) Journal of Economic History 803, 816. 3 Jude McCulloch, ‘Blue Armies, Khaki Police and the Cavalry on the New American Frontier: Critical Criminology for the 21st Century’ (2004) 12(3) Critical Criminology 309, 311. 4 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) Parliamentary Library, Parliament of Australia, 1997-1998. Contrast with defence aid to civil community, which relates to disaster management. For more, see Hugh Smith, ‘The Use of Armed Forces in Law Enforcement: Legal, Constitutional and Political Issues in Australia’, (1998) 33(2) Australian Journal of Political Science, 219. 5 E.g. following the definition of “terrorist act” in Criminal Code Act 1995 (Cth) s 100.1 6 Jeremy Gormly, ‘Statement by Jeremy Gormly SC, Counsel Assisting, Regarding Commonwealth Australian Defence Force Issues’, Inquest into the Deaths Arising from the Lindt Café Siege, 13 May 2016, 2 [7-9]. 7 Ibid, 3-4 [16-19]. 8 Paul Maley, Secret Review: Special Forces to get Call if Terrorists Strike, (29 August 2016) The Australian,
II EMERGENCY JURISPRUDENCE A Extra-Legalism Incidental to emergency jurisprudence is the ongoing debate surrounding extra-legalism and legality. “Legality” may be used interchangeably with “rule of law”, and can mean anything from formal legality through clear, prospective, consistent and stable law, to formalistic accounts mixed with substantive justice. The common denominator is that state power is authorised by law.10 The fundamental questions surrounding this debate are whether the law can constrain the state in times of emergency, or if the state can act outside the law when an emergency threatens its existence, and if it acts outside the law, whether that conduct is detrimental to its legality.11 Some commentators, such as Oren Gross, place executive emergency powers extra-legally, outside ordinary legal or constitutional order, circumventing ordinary restrictions yet paradoxically preserving them internally. Others, like David Dyzenhaus, construe emergency power as confined by legality, instead of a separate extra-legal act. Nonetheless, the extra- legalism debate, despite being of substantial academic contention, is less relevant in the context of this paper. The question of whether executive emergency powers are inside or outside the law can be consolidated through general acceptance that in such emergencies, an increase in executive/military power, discretion and autonomy is justified. What they differ on is scope, basis, interpretation and implementation of such power. While extralegality is not the focus of this paper, it will be discussed as necessary.12
B Liberalism, Rule of Law, Security, Emergencies Western legal tradition is based on liberalism and liberal democracy. Despite various interpretations of the theory itself, the commonality lies in the rule of law. This embodies, among other things, governments acting both through and under the law, and formalistic elements allowing laws to be challenged through courts. A V Dicey’s conception of the rule of law prioritises civil liberty and freedom from arbitrary government control, which legitimises state power by constraining its power and exercise.13 Similarly, J S Mill states the only warranted exercise of power over another’s liberty is to prevent harm to others.14 Often, the rule of law is conceived as consisting either of moral requirements, or solely formalistic. The
10 Victor V Ramraj, ‘No Doctrine More Pernicious? Emergencies and the Limits of Legality’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 3, 4. 11 Ibid, 6. 12 For more on the extra-legalism debate, see: David Dyzenhaus, ‘Schmitt v Dicey: Are States of Emergency Inside or Outside the Legal Order?’ (2006) 27(5) Cardozo Law Review, 2005; C.L. Rossiter, Constitutional Dictatorship: Crisis Government in Modern Democracies (Transaction Publishers, 2002); Eric A. Posner, Adrian Vermeule, ‘Inside or Outside the System?’ (2013) 80(4) University of Chicago Law Review, 1743; V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008); Karin Loevy, Emergencies in Public Law: The Legal Politics of Containment, (Cambridge University Press, 2016). 13 Stephen Bottomley, Simon Bronitt, Law in Context, (Federation Press, 4th ed., 2012), 5-7. 14 Known as the “Harm Principle”, in J S Mill, On Liberty (Penguin, 1987), 68. former represents human rights or natural law, the latter represents legal positivism.15 Despite this liberal tradition that advocates small government to protect civil rights and personal autonomy,16 the exercise of state power when necessary is uncontroversial because the state exists solely to maintain the security of its people.17 “Freedom and security cannot be understood as mere antipodes” – security cannot be conceived as a function of state coercion, authoritarianism and penal power, but rather as a “task and duty the state cannot completely neglect, delegate, privatize or give up”.18 State security can be manifest in external or internal state force.19 The modern nature of security, both internal and external, creates numerous complex issues for the democratic state, particularly because terrorism threatens the existence of democracy through the intended imposition of incompatible regimes. Governments often present counter-terrorism as a question of state preservation, justifying exceptional measures.20 Special Executive emergency powers are often used to deal with crises, as they are thought to be able to respond to the emergency better than legislators.21 Most modern states turn to the law in times of crisis; however, they create laws that not only empower the state, but also try to constrain it.22 Emergencies therefore pose a unique challenge to modern governance and law. The ensuing competition between sovereign decree and rule of law represents a central conflict in Western legal thought between the law as a formal regulatory system and state sovereignty.23 These issues culminate to the perpetual issue of balancing freedom and security – states are expected to guarantee security and defend themselves, while individuals who lose their freedoms through state enforcement of security challenge them.24 Nazi philosopher Carl Schmitt criticised liberal constitutionalism for its failure to deal with emergencies sufficiently, making such forms of government susceptible to such occurrences. It places too much faith in the technical framework of existing institutions and fails to prepare for extraordinary occurrences because formalistic constitutional techniques are assumed sufficiently suited to a status free of the extraordinary.25 As such, modern constitutionalists leave no room for extraordinary emergencies, because they believe all legitimate government action must fit the framework of written law.26 Although liberal states try to accommodate for emergencies through legal or constitutional regulations on who can exercise
15 Tom Campbell, ‘The Rule of Law, Legal Positivism and States of Emergency’, in Simon Bronitt, Miriam Gani, Saskia Hufnagel (eds), Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Hart Publishing, 2012) 3, 4-8. 16 Bottomley and Bronitt, above n 13, 42. 17 Andrew Vincent, ‘Can States Commit Crimes?’, in Simon Bronitt, Miriam Gani, Saskia Hufnagel (eds), Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Hart Publishing, 2012), 65, 66. 18 Markus Thiel, ‘Introduction: A Weak Flank of Democracy – Vital Questions of Democratic Self-Defence’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Routledge, 2016), 11, 11-12. 19 Vincent, above n 17, 66. 20 Mariona Llobet-Anglí, Aniceto Masferrer, ‘Counter-Terrorism, Emergency, and National Laws’, in eds Genevieve Lennon, Clive Walker, Routledge Handbook of Law and Terrorism (Routledge, 2015) 38, 39. 21 Mark Tushnet, ‘The Political Constitution of Emergency Powers: Parliamentary and Separation-Of-Powers Regulation’, (2007) 3(4) International Journal of Law in Context, 275, 275-276. 22 Ramraj, above n 10, 3. 23 Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the Rule of Law, (University of Michigan Press, 2009), 7. 24 Thiel, above n 18, 11. It should be noted that there is substantial critique surrounding the liberty-security debate, and as such the dichotomy is contested and not mutually exclusive. 25 John P. McCormick, ‘The Dilemmas of Dictatorship: Carl Schmitt and Constitutional Emergency Powers’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press, 1998), 217, 220-221. 26 Douglas Casson, ‘Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative’, (2008) 36(6) Politics and Policy, 944, 950. emergency powers and when, they do not consider the unanticipated nature of emergency. These limitations on power in a state of emergency make the state vulnerable to downfall.27 Schmitt opposed Hans Kelsen’s legal positivism, which denied that states can act extralegally, or contrary to formal law, as such acts were “antithetical to their very nature”.28 For Schmitt, legality is possible because the state can continue its existence when faced by enemies through the sovereign exception, characterising state authority as “a power to enforce the law, separated from the norms of law themselves”.29
C State of Exception For Schmitt, the falsehood of the rule of law comes clear in the state of emergency, or in German, the state of exception. In the state of exception, the entire legal order is threatened, revealing the primacy of “rule of man” over “rule of law”. Schmitt’s state of exception, in Hobbesian fashion, reflects the breakthrough of political sovereignty, “that is, a sovereign decision uninhibited by any normative principles”.30 So, when a state commits a lethal act of violence which exceeds specified limitations, it acts in its state of exception.31 The exception is a norm-less – or nearly norm-less – space.32 Traditionally states of exception referred to national emergencies, like foreign invasion, civil war, or natural disasters, encompassing a wide range of events which threaten the state’s existence.33 To preserve the state in such a situation, the entire legal framework may need to be suspended, but the state, that is, the sovereign, must still exist irrespective of that suspension.34 Schmitt confirms that in emergencies, “the state remains, whereas law recedes”.35 Schmitt’s state of exception therefore concerns the subordination of legal norms to the sovereign, or executive.36 When considering executive supremacy in a state of exception, Schmitt “adopted a conservative rather than revolutionary posture”, elevating sovereign power above abstract norms while remaining a representative of unity.37 From this, Schmitt often likens the state of exception to dictatorship, where the sovereign dictator makes an extralegal decision with the force of law to unite legal and non-legal, such that juridical order remains despite law itself being suspended.38 His preference for “temporary technical-authoritarianism of dictatorship in the Roman sense” was inspired by Machiavellian thought; however, Machiavelli advocated political dictatorship in normal politics, thus
27 Robert Howse, ‘From Legitimacy to Dictatorship – and Back Again: Leo Strauss’s Critique of the Anti- Liberalism of Carl Schmitt’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism, (Duke University Press, 1998), 56, 60. 28 François Tanguay-Renaud, ‘The Intelligibility of Extralegal State Action: A General Lesson for Debate on Public Emergencies and Legality’, (2010) 16 Legal Theory, 161, 169. 29 Daniel McLoughlin, ‘The Fiction of Sovereignty and the Real State of Exception: Giorgio Agamben’s Critique of Carl Schmitt’ (2016) 12(3) Law, Culture and the Humanities, 509, 524. 30 Heiner Bielefeldt, ‘Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism, (Duke University Press, 1998), 23, 26. 31 Vincent, above n 17, 72. 32 Johan Geertsema, ‘Exceptions, Bare Life and Colonialism’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 337, 337. 33 Marc de Wilde, ‘Locke and the State of Exception: Towards a Modern Understanding of Emergency Government’ (2010) 6 European Constitutional Law Review, 249, 254; Tanguay-Renaud, above n 28, 161. 34 Howse, above n 27, 60. 35 Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, (G. Schwab, 2005), 12. 36 Kam Shapiro, Carl Schmitt and the Intensification of Politics, (Rowman & Littlefield Publishers, 2008), 5. 37 Ibid, 5-6. 38 Stephen Humphreys, ‘Legalizing Lawlessness: On Giorgio Agamben’s State of Exception’, (2006) 17(3) European Journal of International Law, 677, 680. losing its essential extraordinary characteristic.39 For Schmitt, emergencies necessitated a unitary institution with full decision-making control to minimise confusion stemming from overcomplicated checks and balances,40 allowing the executive to act “in a purely decisionistic and instrumental-rational fashion to the state of emergency”.41 This contextualises Schmitt’s famous quote, “sovereign is he who decides on the state of exception”.42 In an emergency, legal norms are suspended and give rise to the sovereign’s political act, “pure decision” or judgment – a decision that distinguishes friend and enemy through levels of association or dissociation.43 From this, Schmitt conceptualises war as an exception that “need not be a common occurrence, nor something normal, neither must it be an ideal or something to be longed for; but it must persist as a real possibility”.44 The enemy should be understood “as a real threat to the continued existence of a concrete people”45 – a public threat to their unity. There are clear similarities with modern terrorism here. Because the state of exception cannot be determined according to norms or formalistic procedures, the true nature of sovereign power is revealed as a supreme political authority that operates outside of and without being constrained by constitutional or legal limits.46 Using this, Tushnet, like Schmitt, categorises emergency responses as either legal or political, and finds political controls on emergency power preferable. However, his rationale differs from Schmitt’s, by viewing political controls as a democratic means to avoid the weakness of the courts in times of emergency.47
D Schmitt and Locke John Locke provides a means of appreciating Schmitt’s exception theory while preventing a descent into authoritarianism, reconciling liberal traditions with Schmitt’s emergency jurisprudence. Locke, like Schmitt, acknowledged that both written law and political judgment are part of legitimate constitutional government. Sometimes the executive must use their judgment to go beyond legal powers even if it exceeds or conflicts with written law, making it extralegal but valid through incident of executive power. Locke recognised the tension between the rule of law and the fact that in exceptional cases the executive may have to depart from the law.48 It is Locke’s commitment to the rule of law that demonstrates his willingness to recognize the possibility of exceeding the law in extreme cases and acting extra-legally.49 Despite not mentioning “state of exception”, Locke recognises its existence through unanticipated
39 McCormick, above n 25, 221-222. 40 Ibid, 226. 41 Ingeborg Maus, ‘The 1933 “Break” in Carl Schmitt’s Theory’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism, (Duke University Press, 1998), 196, 202. 42 Schmitt, above n 35, 11. 43 Casson, above n 26, 944-945; Volker Neumann, ‘Carl Schmitt’, in Arthur Jacobson, Bernhard Schlink (eds), Weimar: A Jurisprudence of Crisis (University of California Press, 2001), 280, 283; Ellen Kennedy, ‘Hostis Not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press, 1998), 92, 100. 44 Carl Schmitt, Der Begriff des Politischen (Dunker & Humblot, 1979), 33. 45 Kennedy, above n 43, 101. 46 Bielefeldt, above n 30, 26. 47 Tushnet, above n 21, 276-277. 48 De Wilde, above n 33, 250. 49 Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006), 123. accidents and necessities that prevent normal legal operation, suggesting derogation from such laws is justified to protect society.50 However, Schmitt and Locke differ on the nature of prerogative. Locke views prudential executive power as “neither arbitrary nor irresistible” and limited to the purpose of mitigating existing problems. Locke’s prerogative emergency power is “power to act according to discretion, for the publick good, without the prescription of the law and sometimes even against it”.51 As such, the prerogative should aim to restore the legal order required for civil liberty and public benefit; if the extralegal prerogative undermines rather than restores that order, it becomes an unconstitutional tyranny which justifies a sovereign people’s response to restore power in legitimate government. Therefore, both prerogative and revolution are justified extralegal events for legitimate, constitutional governments. Schmitt can be distinguished from Locke: where Schmitt envisions the limitless sovereign to subvert constitutional democratic constraints, Locke views prerogative as a protector of public good and liberty. Schmitt better reflects Hobbes in his view of the state of emergency being unconstrained by law and liberal legality. Hobbes views civil law as being constituted by the sovereign and thus a declaration of sovereign will.52
E Contemporary Approaches Contemporary resurgence of interest in Schmitt comes with increased interest in executive powers and counter-terrorism. The state of emergency commonly describes modern security politics.53 Schmitt is considered a disillusioned realist who explains the importance of arbitrary power in constitutional governments that are prima facie guided by legal norms.54 Contemporary appeal of extralegalism, especially post-9/11, has made the state of exception the “dominant paradigm of government in contemporary politics”.55 However, Agamben cautions against reading Schmitt strictly, because it allows executives to encompass the non-legal within the law and deny the existence of extralegality.56 Agamben understands Schmitt’s emergency actions as legalising lawlessness, and distinguishes two parts of law: the “normative element” through constitutional norms, and the “anomic” element which is a supplement necessary for its application. When constitutional/normative law is suspended in an emergency, executive political actions that are not formal laws nonetheless acquire force, allowing the law to “exist in an attenuated and anomic form” even when the constitution is suspended.57 The law maintains itself when faced with an exteriority, conceptualising the exception as the extreme relation where “something is included solely through its exclusion”.58 Agamben identifies two sources of modern legality. The first is positive law through an autonomous legal source such as international law with codified derogation principles, 59 operating similarly to a fiduciary duty from states to citizens and providing an intermediate position between universal human rights and Schmitt’s complete executive
50 De Wilde, above n 33, 254. 51 John Locke, Two Treatises of Government, (Cambridge University Press, 1988), 375. 52 Casson, above n 26, 947-951. 53 McLoughlin, above n 29, 511. 54 Casson, above n 26, 946. 55 Giorgio Agamben, State of Exception, (Chicago University Press, 2005), 2. 56 Humphreys, above n 38, 682. 57 McLoughlin, above n 29, 514. 58 Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998), 18. 59 E.g. International Covenant on Civil and Political Rights (ICCPR; entered into force 1976), Art. 4; European Convention on Human Rights (ECHR; entered into force 1950), Art. 15; American Convention on Human Rights (ACHR; entered into force 1978), Art. 27. discretion by allowing some suspension of law while limiting executive discretion to protecting and safeguarding freedoms.60 The second is “essentially extrajuridical”,61 that is, something outside of or other than law. However, Agamben warns against categorising the state of exception as internal or external, as this imposes unnecessary thresholds, instead preferring to understand the exception as a condition that both binds and abandons the law.62 Gross and Dyzenhaus offer contrasting perspectives on emergencies. Gross believes de facto emergencies permit governments to act outside strict legal limits, while Dyzenhaus believes emergency responses should fit within limits of legality.63 Inspired by the American constitution’s silence on emergency powers and derogation,64 Gross believes it necessary for the executive to combat emergencies in ways outside of the constitution and law to do everything necessary to save the nation.65 He advocates extralegal executive powers because going outside the law preserves the law, legal system and its obedience better than constant bending of the law to accommodate emergencies.66 There are Australian parallels, since Australia’s Constitution is similarly silent on government emergency powers and its usage.67 Gross, despite supporting Schmitt’s extra-legalism, also utilises Locke’s recognition that “fixed laws can help restrain prerogatives to a certain extent but cannot transform the irrational and unpredictable nature of political life nor eliminate the discretionary power necessary to respond to it”.68 Dyzenhaus characterises Gross’s extralegal model as a “lawless void”,69 preferring Kelsen’s positivist approach.70 He believes states’ authority must be exercised through law, providing its moral basis.71 Recognising that sometimes the law can depart from a morally legitimate position,72 he uses substantive legality to create a positive, normative framework in emergency situations.73 This demonstrates Dyzenhaus’s commitment to substantive rule of law to restrain states. However, this relies more on legislative power than executive, so in an emergency it may not respond efficiently. Today, demarcations between normalcy and emergency are difficult, if not impossible, leading to the view that “the exception is hardly an exception at all”.74
60 Evan J. Criddle, Evan Fox-Decent, ‘Human Rights, Emergencies and the Rule of Law’, (2012) 34 Human Rights Quarterly, 39, 40-44, 79-80. 61 Agamben, above n 55, 23. 62 Humphreys, above n 38, 678-690. 63 Campbell, above n 15, 3-4. 64 Ian Zuckerman, ‘One Law for War and Peace? Judicial Review and Emergency Powers between the Norm and the Exception’, (2006) 13(4) Constellations, 522, 529. 65 Oren Gross, ‘Extra-legality and the ethic of political responsibility’, in VV Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 60. 66 De Wilde, above n 33, 250; Gross, above n 65, 62. 67 Helen Irving, ‘Australia’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Routledge, 2016), 23, 24. 68 Casson, above n 26, 948. 69 David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006), 1. 70 Tanguay-Renaud, above n 28, 162. 71 David Dyzenhaus, ‘Compulsion of Legality’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 33, 37. 72 Tanguay-Renaud, above n 28, 164. 73 Campbell, above n 15, 6; Colm Campbell, ‘Law, Terror and Social Movements: the Repression-Mobilisation Nexus’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 172, 187. 74 Oren Gross, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’, (2002) 112 Yale Law Journal, 1011, 1022. Contemporarily, emergency laws and procedures are often ad hoc75 and, unlike traditional emergencies, not reactionary but preventative.
III MARTIAL LAW A Introduction Martial law is one form of emergency response. Part IIIAAA does not correspond to a declaration of martial law or a handover of command and control to the military.76 It is accepted that deploying the ADF should not result in superseding civil authority.77 Nonetheless, it is useful to consider the historical use of martial law as a response to emergencies, and its scope within liberal democracies. Although not invoked in modern democracies, it is analogous to states of emergency.78 This links with questions of legality and extra-legalism. The notion of a factual danger or emergency validating a temporary suspension of regular law has existed for centuries, through martial law, the state of siege, and the state of exception.79 Martial law is unique in that it is considered both a legal question and an indicator of the law’s absence.80
B Dicey and Legality Dicey’s position on legality and extra-legalism is important, in that he generally views emergency powers within the legality framework,81 although extra-legalist proponents also reference him. His intermediate position is evident through his discussion on martial law, and his consideration of ex-post ratification or parliamentary indemnification of illegal/extra-legal executive action as a convention or unwritten obligatory political norm.82 Dyzenhaus, who prefers Dicey’s model of emergency powers constrained by legality over Schmitt’s, describes Dicey’s approach. In an emergency, Dicey prefers statutory backing to provide executive officials the requisite authority to act in a “spirit of legality”.83 Should there be insufficient time, officials must do what they think necessary to respond, leaving two options: prospective authorisation through common law defence of necessity, or retrospective action through an Act of Indemnity. Dicey intended that Acts of Indemnity indemnify action that “could and should have been authorised in advance, had there been time”, as it is meant to secure, not undermine, the rule of law.84 Similarly, Gross notes Dicey’s acknowledgement that the Executive’s expectation of an Act of Indemnity being passed has historically been satisfied when required; however, indemnity is always determined by the Act’s terms.85 Gross, while appreciating Schmitt’s executive extra-legality and Locke’s prerogative, adopts Dicey’s retrospective response to cure official action.86 Like Dicey, he recognises both that
75 Nasser Hussain, ‘Hyperlegality’, (2007) 10(4) New Criminal Law Review, 514, 514-515. 76 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, 507, 517. 77Richard G Fox, Jodie E Lydeker, ‘The Militarisation of Australia’s Federal Criminal Justice System’ (2008) 32 Criminal Law Journal 287, 302. 78 David Dyzenhaus, ‘The Puzzle of Martial Law’, (2009) 59 University of Toronto Law Journal, 1, 2. 79 Nasser Hussain, ‘Beyond Norm and Exception: Guantánamo’, (2007) 33(4) Critical Inquiry, 734, 739. 80 Hussain, above n 23, 102. 81 Dyzenhaus, above n 71, 34. 82 Posner and Vermeule, above n 12, 1768. 83 A. V. Dicey, Introduction to the Study of the Law of the Constitution (MacMillan, 1915), 224–33 and 280–90. 84 Dyzenhaus, above n 71, 47. 85 Gross, above n 65, 73; Dicey, above n 83, 145. 86 Dyzenhaus, above n 71, 42. emergency legislation may authorise exceptional executive powers prior to their exercise,87 and that ex post ratification may be necessary to justify extra-legal acts.88 However, there is a distinction between excusing and justifying an act.89 For this reason, Nardin criticises Dicey’s model of retrospective action to make unlawful acts lawful. Adopting a natural law approach, Nardin criticises Dicey’s model because it focusses on acts breaking written law, and does not recognise the wrong in ratifying breaches of moral law. Excusing an act means “defeat[ing] a charge of culpability” because the offender, though acting wrongfully, is not responsible because of an excusing condition which may lessen the penalty but does not justify it or make it lawful. “You cannot legalise an illegal act by excusing those who commit it from responsibility for violating the law”.90 The fear is that illegality and ratification could become routinized in the constitutional order.91 However, Nardin relies on the subjectivity of morality within the rule of law, and demonstrates what Schmitt criticised in liberalism as an inability to recognise the necessity in emergencies for the executive to break written law to protect itself. One notable example of executive emergency power is martial law.
C Martial Law Responses to emergencies vary across legal traditions – Dicey claimed the English system of martial law at common law was superior to the French “state of siege”. However, the commonality of all emergency powers is restriction in space and time. The common law tradition has particular rules surrounding executive emergency powers.92 Common law emergency mechanisms were inspired by Lockean prerogative, while utilising the institutional mechanism of martial law to manage the shift from irregularity to normalcy that was “necessarily bound by positive regular law and judicial doctrine”.93 Martial law is often associated with arbitrary state power and suspension of normal law.94 In medieval times, martial law was considered a prerogative power recognised by law and expressed by the “Court of the Constable and the Marshal”.95 However, the 1628 Petition of Right asserted that billeting, martial law, arbitrary taxation and arbitrary imprisonment were unlawful.96 Since then, military tribunals could only be used in times of war, restricting the Crown’s involvement in judicial processes to times of war.97 This was reflected in the parliamentary debates prior to passing the Petition of Right, where it was stated that “martial law is merely for necessity where the common law cannot take place”.98 It is also marked the
87 Kent Roach, ‘The Ordinary Law of Emergencies and Democratic Derogation from Rights’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 229, 234. 88 Geertsema, above n 32, 341. 89 Terry Nardin, ‘Emergency Logic: Prudence, Morality and the Rule of Law’, in VV Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 97, 116. 90 Ibid, 116-117. 91 Posner and Vermeule, above n 12, 1767-1768. 92 Hussain, above n 79, 739. 93 Loevy, above n 12, 44. 94 McCulloch, above n 3, 311. 95 Campbell, above n 73, 192. 96 W. J.V. Windeyer, Lectures on Legal History, (The Law Book Company of Australasia Pty Ltd, 2nd Ed., 1957), 210. 97 Hussain, above n 79, 739. 98 G. G. Phillimore, ‘Martial Law in Rebellion’, (1900) 2(1) Journal of the Society of Comparative Legislation, 45, 47. unconstitutionality of Crown prerogative-imposed martial law on civilians.99 As the royal prerogative diminished and parliamentary sovereignty emerged, emergency powers moved towards legislative control.100 Prerogative martial law was unavailable, resulting in the emergence of non-statutory powers to fill this gap. This relied on common law’s “repelling force by force”, which was much more malleable and acted as a martial law variant.101 After the fall of the absolute monarchy in 1688, until the 19th century, martial law was considered “an emergency suspension of the rule of law” confined to times of war and unavailable when ordinary courts were open in peacetime.102 During extreme times of invasion or rebellion where courts were closed, “civilian agencies could resort legally to military power to protect life and property.”103 After the Glorious Revolution, the first Mutiny Act of 1689 was enacted to ensure armed services discipline. It allowed the trial and punishment of servicemen through courts-martial, and allowed the King to proclaim martial law to govern the army during peace and war. However, civilians were not subject to it, and the common law government authority to use force to repel force remained separate. Since military law separated from martial law through the 1689 Mutiny Act, the latter was associated with the “law of necessity promulgated by the Crown” in instances of domestic danger, under which both civilians and military personnel are both subject.104 Grant v Gould held prerogative martial law had no place in the realm, so, "where martial law is established and prevails in any country, it is of a totally different nature from that which is inaccurately called martial law, merely because the decision is by a court martial..."105 Therefore, martial law in England only existed at common law or qualified by the Mutiny Act. Blackstone admitted the rules surrounding martial law were unclear and capricious, saying it was “built upon no settled principle, but is entirely arbitrary in its decisions”, operating not as law but “a temporary excrescence bred out of the distemper of the state”.106 Dicey describes it as “the suspension of ordinary law and the temporary government of a country or parts of it by military tribunals” or “military force”– a concept akin to the French Declaration of the State of Siege, where ordinary authority of civil power passes entirely to the military, but is “unknown to the law of England”.107 However, the claim that martial law is unknown to English law is misleading.108 While the prerogative theory, which represented continental models of martial law, became redundant and was considered “unknown”, the same effect was achieved under common law theory.109 Dicey states martial law can refer to the Crown’s common law right to repel force by force during “invasion, insurrection, riot, or generally of any violent resistance to the law”, which is an essential right and power for orderly government and is recognised under British law, but has no prescribed connection to the armed forces.110 So, if “martial law” refers to the government’s power, or that of loyal citizens, to restore public order despite necessary cost of life or property, “martial law is assuredly part of the law of England”. In this way, martial law is a means to
99 Michael Head, ‘The Military Call-Out Legislation – Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review, 273, 278. 100 George M. Dennison, ‘Martial Law: The Development of a Theory of Emergency Powers, 1776-1861’, (1974) 18 American Journal of Legal History, 52, 52. 101 Campbell, above n 73, 192. 102 Michael Head, Crimes Against the State: From Treason to Terrorism, (Ashgate, 2011), 264. 103 Dennison, above n 100, 53. 104 Phillimore, above n 98, 48-49. 105 2 Henry Blackstone's Reports 68-108 (1792). 106 William Blackstone, Commentaries on the Laws of England (Routledge-Cavendish, 2001), 413. 107Dicey, above n 83, 182-186. 108 A. W. B. Simpson, Human Rights at the End of Empire: Britain and the Genesis of the European Convention (Oxford University Press, 2001), 60. 109 Campbell, above n 73, 193. 110 Dicey, above n 83, 183. restore state authority and “save” the state by “re-creating the conditions for the possibility of its existence”.111 Through Dicey’s reference to the necessity of common law martial law, the operation of the maxim salus populi suprema est lex112 rationalises emergency measures through martial law. Likewise, the maxim inter arma silent leges explains why in times of war the law was silent: while an emergency act is permitted, there is “no room for a prior legal authority to military adjudication in an ideology of a rule of law”.113 Therefore, there are two primary interpretations of “martial law”: a “common law right” that exists within the rule of law to prevent attacks on the state and reinstate order, or where “military tribunals… more or less supersede the jurisdiction of the courts” – only the latter is “unknown to the constitution”.114 However, military tribunals still superseded courts in British colonies.115 Martial law, like other emergency mechanisms, rested not merely on formal authorisation, but also on salus populi suprema est lex. As such, “martial law is the manifestation of both the highest law and of no law at all.”116 If force is used during martial law, once the crisis ends ordinary courts will determine if the force was necessary or excessive and if martial law was employed correctly.117 This reveals the temporal and restorative nature of martial law. Although the legal basis for martial law is uncertain, as either royal prerogative or common law right to dispel force, the Marais case held martial law could be extended to times when ordinary civilian courts were still sitting.118 Marais also held that when martial law is imposed while the war continued, ordinary Courts had no jurisdiction to question acts of military authorities, although after the war ends persons may be liable for acts in wartime unless covered by an Act of Indemnity.119 This raises issues surrounding the doctrine of immunity: where an army officer, in their military operations against invasion, must override ordinary rights out of necessity, and does not incur liability because a civil Court is unable to judge the discharge of military duties. No Court would, or could, interfere with acts bona fide done in the course of military operations as they are outside ordinary Court’s jurisdiction, not only in wartime but also in peace. In wartime, when ordinary law is suspended, no actions in common law Courts would lie against a bona fide acting officer carrying out his military operation. However, Dicey criticises this doctrine for relying on vague principles and lacking sufficient case authority. It is also inconsistent with Acts of Indemnity. Historically, Courts undoubtedly had jurisdiction in peacetime to hear of acts done during wartime which were prima facie a breach of law.120 Since the Bill of Rights, the military has been subject to civilian law.121 Nonetheless, the issue of armed forces discipline is beyond the scope of this paper, as it concerns the wider issue of military law and justice. Arguably the power to invoke martial law still exists in Australia through common law. While legislation is better, martial law should still exist “for in the face of an extraordinary crisis it may come in useful… it may be better to rely on a ‘shadowy, uncertain,
111 Hussain, above n 23, 124. 112 “Safety of the people is the supreme law”. 113 Hussain, above n 23, 103. 114 Dicey, above n 83, 284-287. 115 Geertsema, above n 32, 339. 116 Hussain, above n 23, 102. 117 Loevy, above n 12, 51; Dicey, above n 83, 185. 118 D F Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony [1902] AC 109 119 Geoffrey Wilson, Cases and Materials on Constitutional and Administrative Law (Cambridge University Press, 2nd Ed., 1976), 783. 120 Dicey, above n 83, 410-412. 121 Fox and Lydeker, above n 77, 290. precarious something’ than nothing at all”.122 Indeed, martial law intends not only to restore order, but to restore the general authority of the state,123 illustrating the fundamentally conservative nature of emergency action.124
IV EXAMPLES A Jamaica Affair The relationship between the executive’s voluntary suspension of normal law and Acts of Indemnity is clarified through the 1865 “Jamaica affair”.125 The colonial governor, Eyre, and his officials, suppressed a rebellion with unreasonable and cruel means. In the context of white colonial rule over a large black impoverished population, they believe it both constitutionally appropriate and politically necessary to exercise prerogative authority to declare martial law to suppress the rebellion. The local statute confirmed this, and Eyre ensured an Act of Indemnity was passed to cover the acts during the rebellion. However, in England, the Jamaica Committee aimed to bring Eyre to account by disproving his interpretation of the constitutional authority for martial law. The attempted prosecutions failed due to unwillingness to depart from the imperial side, but nonetheless showed that foreign colonial officials were subject both to formal law and the wider rule of law.126 A key factor in the decision stemmed from fears about the effects of martial law on domestic political opposition.127 Although an Act of Indemnity is legislation of illegality, it is still law, and retains an essential character distinct from proclamations of martial law, a state of siege or other executive suspension of law. Acts of Indemnity are still an exercise of arbitrary sovereign power, but where Parliament holds legal sovereignty, executive acts are encompassed in regular legislation, reinforcing the supremacy of the law.128 This retrospective indemnification reconciles executive power with the rule of law, by bringing necessary extralegal acts within the law, and providing executive accountability to Parliament and parliamentary accountability to the people through legislation.
B UK Examples A demonstration of the supremacy of law against illegal enforcement of martial law is evident in Wolfe Tone’s Case,129 where Wolfe Tone, an Irish rebel, was involved in a French invasion of Ireland, and was tried by court-martial in Dublin and sentenced to be hanged. He said his only commission was from the French Republic, not as an Englishman. He applied to the Irish King’s Bench for habeas corpus, on the basis that he not being of military personnel in Britain, was not subject to Irish court-martial punishment and was subject to illegal enforcement of martial law. The writ was granted, despite Wolfe Tone’s admitted substantial guilt, because the rule of law protected him from courts-martial. This illustrates a “no
122 H. P. Lee, Emergency Powers, (Law Book Company, 1984), 224. 123 Hussain, above n 23, 124. 124 John Ferejohn, Pasquale Pasquino, ‘The Law of Exception: A Typology of Emergency Powers’, (2004) 2(2), International Journal of Constitutional Law, 210, 210. 125 Dicey, above n 83, 145. 126 Dyzenhaus, above n 71, 48. 127 Kanishka Jayasuriya, ‘Struggle over Legality in the Midnight Hour: Governing the International State of Emergency’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 360, 378. 128 Dicey, above n 83, 145. 129 (1798) 27 State Trials 624. more splendid assertion of the supremacy of the law”,130 where the law remains constant even when suspended, illustrating Agamben’s theory that exceptions are both inside and outside the law. The last English case to consider military call-outs was R v Pinney.131 There, a riot broke out in Bristol causing soldiers to be dispersed, killing 12 and wounding around 100. The Mayor of Bristol and nine aldermen were prosecuted for breaching their common law duty to suppress that 3-day civilian riot using sufficient assembled forces. Lord Tindal held that the soldiers had a duty to do their best to “put down riot and tumult” – two officers who refused to order troops to fire were found guilty of neglect of duty. Another was acquitted of manslaughter after a fatal shooting because the shot was “discharged in the fair and honest execution of his duty”, amounting to a justified killing and accidental death.132 This exhibits the executive force permitted in a time of emergency, and also that failure to exercise it could amount to negligence, due to the necessity of that force.
C Colonial Australia Australia has not experienced martial law since Federation, though there are colonial examples.133 In the 19th century, martial law was declared several times to put down riots and rebellions – last time the military-civil relationship merged was in 1891 when the Queensland Government employed the military to aid the police in a sheep shearers’ strike.134 Likewise, in 1824, in the Bathurst Emergency, martial law was declared by Major-General Sir Thomas Brisbane in response to escalating clashes stemming from Aborigines’ resistance to British settlement. The details of the campaign are largely unknown, however it resulted in numerous deaths and injuries. Brisbane was concerned about justifying martial law to London, and so admitted the number of Aborigines killed. Brisbane officially repealed his martial law declaration four months later.135 Among other instances, in 1830 full martial law was declared in the infamous “black drive”, and in 1838, Governor Arthur declared limited martial law against Aboriginal people in the centre of Tasmania.136 In the first 100 years of the New South Wales colony, defence and internal policing were governed by the British Army.137 Colonial courts were mostly comprised of military personnel, and followed court-martial procedures that represented a military garrison following the rules and discipline of war.138 Despite honourable military careers, the officers were unqualified to administer law to civilians. Eventually, due to the military officers’ lack of discipline, and in light of the quarrel between Governor Bligh and John Macarthur, the 1808 rebellion began, resulting in the arrest and disposition of Bligh. For two years the Corp ruled the colony until 1810 when Colonel Lachlan Macquarie took over government from Colonel
130 Dicey, above n 83, 187. 131 (1832) 5 Car & P 254; 170 ER 962. 132 Head, above n 102, 28-29. 133 Margaret White, ‘The Executive and the Military’, (2005) 28(2) UNSW Law Journal, 438, 439. 134 Michael Head, ‘Calling Out the Troops – Disturbing Trends and Unanswered Questions’, (2005) 28(2) UNSW Law Journal, 479, 483; Christopher Doogan, 'Defence Powers Under the Constitution: Use of Troops in Aid of State Police Forces – Suppression of Terrorist Activities', (1981) 31 Defence Force Journal, 3. 135 Chris Clark, The Encyclopaedia of Australia’s Battles (Allen & Unwin, 2010), 3. 136 Jeffrey Grey, A Military History of Australia, (Cambridge University Press, 2008), 33-35. 137 Fox and Lydeker, above n 77, 290; 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; Victor Windeyer, ‘“A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia’ (1962) 1(5) Tasmanian University Law Review, 635, 641. 138 Windeyer, above n 96, 301. Paterson.139 There were multiple causes for the coup, including opposition from Major Johnson and the military of Bligh’s ban on importing spirits.140 Moreover, Major Johnson owned land, and his lease, with other landowners, was about to be revoked by Bligh. In the eyes of such landowners, Bligh exercised his executive authority, without parliamentary authority, to undermine property rights, which were held in great value.141 Martial law as such responded various emergencies in the colonies.
D US Emergency Powers In Ex Parte Milligan,142 Milligan was convicted by military commission. This was reversed by the US Supreme Court due to the commission’s lack of jurisdiction. Of issue was the status of emergency powers under the US Constitution. The majority held any law was to be determined in light of the Constitution, which was always applicable irrespective of whether in war or peace, thus rejecting the notion that military personnel might have power to suspend constitutional rights in times of war. “Emergency was, from a legal perspective, non-existent”.143 The court found the President lacked authority, even if congress approved, to remove civilian courts’ protections outside the main combat zone where federal courts were still operating because they were not in rebellion.144 However, Wilson v New,145 without explicitly overruling Milligan, supported an “emergency-sensitive interpretation to constitutional arrangements, structures, powers, and rights”, allowing government powers to expand and civil rights protections to reduce to effectively address the crisis.146 Later, it was held that “while emergency does not create power, emergency may furnish the occasion for the exercise of power”.147 Today, the US exemplifies extra-legal executive emergency powers. The US differs from other democracies in its approach to anti-terrorism due to its reliance on executive warlike powers.148 The US’s approach encourages extra-legal acts which are “based more on a war model than a crime model”.149 The US anti-terrorist legislation was mild compared to other democratic countries, due to the willingness to use executive extra-legal powers instead. Such approaches “allow the executive to break the law in real or perceived emergencies while at the same time maintaining legal restraints without legislative amendments or emergency derogations”.150 The AUMF151 and Military Commissions Act place few, if any, restrictions on state power in the war on terror, representing an unusual mixture of the laws of war and crime,152 and increasing hybridization. Some fear expanding presidential powers contribute to the normalisation of exceptional, discretionary authority in ordinary law.153 Alternatively, Posner convincingly commends the extralegal approach, saying it offers “tighter constraints on the president than the legal approach of
139 Ibid, 305. 140 John Brown, ‘Intrigue: In 1808, New South Wales’ Governor William Bligh Faced Another Mutiny: The Rum Rebellion’, (2003) 19(6) Military History, 12, 74. 141 J. J. Spigelman, ‘The Coup of 1808 and the Rule of Law’, (2008) 52(3) Quadrant, 85, 86-87. 142 71 U.S. (4 Wall.) 2 (1866) 143 Gross, above n 74, 1053-1055. 144 Ronald A. Cass, ‘The Rule of Law in Time of Crisis’, (2008) 51 Howard Law Journal, 653, 661. 145 243 U.S. 332 (1917) 146 Gross, above n 74, 1062. 147 Home Building & Loan Ass'n v. Blaisdell 290 U.S. 398 (1934) at 426; Gross, above n 74, 1063. 148 Kent Roach, The 9/11 Effect: Comparative Counter-Terrorism (Cambridge University Press, 2015), 4. 149 Ibid, 10. 150 Ibid, 163. 151 “Authorisation of the Use of Military Force” 152 Roach, above n 148, 161-165. 153 Zuckerman, above n 64, 523. amending the Constitution to authorize suspending constitutional rights in emergencies”.154 Similarly, Tushnet praises the efficacy of political processes in emergencies, compared with legal controls,155 as it ensures efficient, coordinated and informed decision-making, while political democratic controls prevent civil rights violations.156
V DEFENCE ACT 1903 (Cth) A Constitutional Framework The ADF is regulated by the Defence Act, under the Commonwealth’s power to legislate for the defence forces through s 51(vi) of the Constitution. Section 51(vi), the defence power, also allows parliament to legislate to call out forces for the maintenance of Commonwealth laws.157 Section 61 of the Constitution vests executive power in the monarch as exercisable by the Governor-General; however s 61 does not define executive power,158 rather, executive power “is described but not defined in section 61”.159 Section 69 of the Constitution gives the Commonwealth control of all military defence, and s 68 states the Governor-General is the Commander-in-Chief of the defence forces. As such, the ADF is part of the Executive.160 The states cannot raise their own defence forces,161 and the Commonwealth must protect states from domestic violence.162 Although s 68 appears unambiguous in vesting military command in the Governor-General, the command and control of the defence forces customarily requires ministerial advice and parliamentary confidence due to responsible government and the apolitical role of the Governor- General and ADF.163 As such, the Commonwealth can deploy the military domestically through ss 51(vi), 119 and 61 of the Constitution.164 This contrasts with the US Posse Comitatus Act (1878), which prohibits federal military involvement in domestic disasters and prioritises state civil policing powers.165
154 Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford University Press, 2006), 154. 155 Campbell, above n 15, 14-15; Tushnet, above n 21, 275. 156 Tushnet, above n 21, 276-277. 157 Australian Constitution s 51(vi); Fox and Lydeker, above n 77, 291. 158 Cameron Moore, ‘“To Execute and Maintain the Laws of the Commonwealth”: The ADF and Internal Security – Some Old Issues with New Relevance’, (2005) 28 UNSW Law Journal 523, 525. 159 Isaacs J in Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421, Isaacs J at 440. See George Winterton, ‘The Limits and Use of Executive Power by Government’, (2003) 31 Federal Law Review, 421 for an in-depth discussion on the issues surrounding the nature and scope of Executive power in Australia; Max Spry, ‘The Executive Power of the Commonwealth: its Scope and Limits’, (Research Paper No 28) Parliamentary Library, Parliament of Australia, 1995-1996. 160 White, above n 133, 440. 161 Australian Constitution s 114 162 Ibid, s 119 163 Ninian Stephen, ‘Address on the Occasion of the Graduation of Couse No.27/83 of the Joint Services Staff College, Canberra on Tuesday, 12 June 1983’ (1984) 14 Melbourne University Law Review, 563, 565; Victor Windeyer, ‘Opinion of Sir Victor Windeyer KBE CB DSO on Certain Questions Concerning the Position of Members of the Defence Force When Called Out to Aid the Civil Power Appendix 9', (1979) Hope Protective Security Review, 281. 164 Laing, above n 76, 511-512. 165 Roach, above n 148, 175. Section 51(vi) is an elastic power,166 applying differently depending if used in peacetime or wartime.167 In wartime, wide-ranging legislation is permitted,168 but during peacetime Commonwealth legislative power is restricted.169 The extent and nature of the threat facing Australia is central in determining legislative validity under the defence power. 170 R v Sharkey171 confirmed the Commonwealth’s right to intervene in state jurisdictions. In Thomas v Mowbray, the court allowed the defence power to be used both externally and domestically in peacetime.172 Similarly, Thomas demonstrated how the Commonwealth could use the defence power for greater military presence in domestic matters.173 In Church of Scientology v Woodward,174 Mason J considered “security” as attributable to the constitutional concept of defence. As courts are reluctant and ill-suited to determine matters of national security, such instances should be left to the Minister's understanding of national security.175 Those responsible for national security, the Executive, must decide what security requires – it is undesirable for such issues to be subjects of public Courts176 due to the political risk and sensitivity surrounding security. This gives the Executive substantial defence and security powers.
B 1978 Call-Out Before Part IIIAAA, call-outs were regulated by unclear rules that were last used in 1978 – the first ADF call-out since Federation for a domestic security threat.177 Despite several State attempts to request military assistance domestically, the federal government has been reluctant to order their deployment.178 In 1978, a bomb exploded at the Sydney Hilton Hotel, where several visiting heads of state were staying for a meeting scheduled to visit Bowral, killing two people and injuring eight.179 The Prime Minister, with Cabinet and the New South Wales Premier’s concurrence, called out the ADF to secure Bowral, despite no formal State government request. Commonwealth officials were divided over the relevant constitutional power that initiated the call-out.180 Although uncertain, it was retrospectively said that s 61 was the basis, due to the “power and duty of the Commonwealth Government to protect the national interest and to uphold the laws of the Commonwealth”,181 and as incidental to nationhood.182 However, reliance on executive power was criticised for circumventing s 119 of the Constitution and bypassing
166 Rob McLaughlin, ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations – is there a Lawful Authority?’ (2009) 37 Federal Law Review 441, 441. 167 Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1, Fullagar J. 168 Lloyd v Wallach (1915) 20 CLR 299 169 Shipping Board Case (1926) 39 CLR 1; Communist Party Case (1951) 83 CLR 1 170 Stenhouse v Coleman [1944] HCA 36, Dixon J. 171 (1949) 79 CLR 121, 151 (Dixon J). 172 [2007] HCA 33; Head, above n 1, 14-15. 173 Hernan Pintos-Lopez, George Williams, ‘“Enemies Foreign and Domestic”: Thomas v Mowbray and the New Scope of the Defence Power’, (2008) 28(1) University of Tasmania Law Review 83, 110. 174 [1982] HCA 78, at 60. 175 Alister v The Queen (1984) 154 CLR 404, Wilson and Dawson JJ at 435. 176 The Zamora [1916] 2 AC 77, 107; Chris Finn, ‘The Justiciability of Administrative Decisions: A Redundant Concept?’ (2002) 30(2) Federal Law Review 239. 177 Kate O’Donnell, Simon Bronitt, ‘Phillips’ Brief: The Hilton Bombing, Calling Out the Troops and Turning Points in History’ (2014) 38 Criminal Law Journal 59, 59. 178 Laing, above n 76, 510. 179 Moore, above n 158, 526. 180 O’Donnell and Bronitt, above n 177, 60. 181 Windeyer, above n 163, 282. 182 Ibid, 279. State rights. Arguably, s 119 would have been used if there were more time for the State government to meet.183
C Part IIIAAA and Emergency Powers Part IIIAAA was introduced to the Defence Act in 2000184 in light of the Sydney Olympics and related security concerns. It came after years of security and anti-terrorism discussions that began with the Protective Security Review following the 1978 bombing. Numerous recommendations were made, including the creation of legislation to provide processes, powers and accountability of the ADF if called out.185 Part IIIAAA streamlined these call-out procedures.186 In Parliament, there were concerns that allowing the military greater domestic powers to aid civil authorities challenged longstanding traditions, such as the separation between the executive and legislature, and the public and military. There was uncertainty about how the military might act if called out, because there was so little historical evidence of it occurring.187 Likewise, the legislation potentially threatened civil liberties through increased state authority, encouraging arbitrary state power.188 Conversely, the necessity to address civil order was addressed. Prior to the Bill, there was no legislative framework for Commonwealth call-outs, and providing states with assistance was based on 18th century English goals of riot control189 with very few safeguards, making the previous system “woefully antiquated”.190 Consequently, the national anti-terrorist plan was created, allowing Commonwealth-initiated call-outs. Part IIIAAA provides protocols for appropriate and effective running of the ADF in light of the uncertainty of terrorism,191 modernising call- out procedures and specifying ADF powers when assisting police for counter-terrorism and public safety.192 In 2006, in response to the Commonwealth Games,193 a statutory review, and terrorist activity in the US, London and Madrid, Part IIIAAA was amended.194 The amendment allowed greater flexibility for an ADF response to terrorism, clarified accountabilities of ADF personnel, and provided safeguards for ADF personnel when involved in domestic security operations, 195 by amending nine areas. These included the use of reserve forces, identification of ADF personnel, the notification requirement for broadcasting, redefining siege or hostage incidents more broadly, expedited call-outs in cases of rapidly evolving
183 O’Donnell and Bronitt, above n 177, 60-62. 184 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 (Cth) 185 Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2000 (Sharman Stone). 186 Laing, above n 76, 508. 187 Commonwealth, Parliamentary Debates, Senate, 4 September 2000 (Barney Cooney) 188 Commonwealth, Parliamentary Debates, Senate, 28 August 2000 (Andrew Murray) 189 E.g. through the Riot Act 1715 (UK); Simon Bronitt, Dale Stephens, ‘Legislative Note: ‘Flying Under the Radar’ – the Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments’, (2007) 7(2) Oxford University Commonwealth Law Journal, 265, 265. 190 Commonwealth, Parliamentary Debates, Senate, 28 August 2000 (Chris Ellison); Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2000 (Sharman Stone). This was exemplified through the Australian Military Regulations 1927 which involved an alarm sound on a bugle to call attention before a magistrate’s command for silence while a proclamation was made. 191 Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000 (Cameron Thompson) 192 Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000 (Ryan Moore) 193 Michael Head, ‘Australia’s Expanded Military Call-Out Powers: Causes for Concern’, (2006) 3 University of New England Law Journal, 125, 125. 194 Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006 (Cth); see Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2006 (Robert McClelland) 195 Bronitt and Stephens, above n 189, 271. threats, protection of critical infrastructure, cross-jurisdictional call-outs overseen by the Commonwealth DPP, expansion to air and maritime situations, and offshore areas.196 Part IIIAAA has not been amended since 2006. Under Part IIIAAA, the military may be called out by authorising Ministers if satisfied that domestic violence that affects Commonwealth interests exists or may arise,197 in case of a threat to an Australian offshore area,198 or if domestic violence threatens the states199 or territories.200 The term “domestic violence” also appears in s 119 of the Constitution; however, it is undefined legislatively and judicially. It was borrowed from Article IV of the US Constitution, where it means “insurrection”.201 Expedited call-outs are available in “sudden and extraordinary emergency” cases.202 The ADF assists state or territory police, which remains paramount.203 There are restrictions on Defence Force actions204 and special powers of Force members to recapture premises,205 protect critical infrastructure,206 and in general security areas.207 Michael Head expresses concern that Part IIIAAA allows an expansion of military usage, despite Part IIIAAA not yet being invoked.208 Specifically, he worries about the widening military presence in civilian instances, such as against asylum seekers, in the domestic “war on terrorism”, and in overseas deployments post-9/11.209 He criticises Part IIIAAA for providing “even less certainty and protection for civil liberties than the previous obscure mixture of common law, delegated legislation and constitutional doctrine”.210 However, as 1978 demonstrated, “the original constitutional powers were so vague and amorphous they could mean almost anything the government wanted them to mean”, so Part IIIAAA better defines the powers and rights of service personnel.211 Later, Head argues there should be serious cause for concern over Part IIIAAA and the military’s domestic involvement, because it enhances government’s unilateral powers212 and aims to accustom people to society’s militarisation, contributing to domestic unrest due to increasing social and international tension.213 He fears the growing use of the ADF, whether or not called out under Part IIIAAA.214 A significant criticism is that Part IIIAAA involves the military with policing functions, threatening of over-militarisation; however, Head fails to provide any alternatives to military empowerment,215 and fails to acknowledge the correlation between increased
196 Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2006 (Brendan Nelson) 197 Defence Act 1903 (Cth), ss 51A, 51AB 198 Ibid, s 51AA 199 Ibid, s 51B 200 Ibid, 51C 201 Statutory embodiment in Civil Disturbance Statutes 10 USC § 331 (1964); Head, above n 134, 481. 202 Defence Act 1903 (Cth) s 51CA 203 Ibid, s 51F; Nathan Hancock, ‘Terrorism and the Law in Australia: Supporting Materials,’ (Research Paper no 13) Parliamentary Library, Parliament of Australia, 2001-2002, 42. 204 Defence Act 1903 (Cth) s 51G 205 Ibid, s 51I 206 Ibid, s 51IB 207 Ibid, s 51K 208 Head, above n 134, 479. 209 Ibid, 484. 210 Head, above n 99, 294. 211 Hugh Smith, ‘Review Essay: Calling Out the Troops’ (2010) 7(2) Australian Army Journal, 145, 151. 212 Head, above n 193, 126-127. 213 Head, above n 1, 221. 214 Smith, above n 211, 145. 215 Cameron Moore, ‘Book Review: Calling Out the Troops — The Australian Military and Civil Unrest: The Legal and Constitutional Issues by Michael Head (Sydney: Federation Press, 2009)’, (2009) 33 Melbourne University Law Review 1022, 1027. military involvement and the necessity for stronger security measures in counter-terrorism. The public trust and support for the ADF also remains high, especially during times of conflict or tension.216 Because Part IIIAAA allows the ADF to use lethal force217 to protect lives and property,218 there is particular interest in the use of such force and related defences. At common law, the defence of necessity is not available for murder.219 However, it is unclear whether that principle applies to Part IIIAAA, since Part IIIAAA has not been tested in courts.220 Common law necessity requires consideration of the kind of threat, its imminence, and proportionality, involving a difficult balancing act of life values. This seems inappropriate for Executive exercises of lethal force, since the person using the force is not the person in extremis, but rather calculates “the least worst outcome”.221 In federal criminal law, the defence of “sudden or extraordinary emergency”222 seems better, by reducing the issues with calculating life values and risks. This is available to ADF members acting through Part IIIAAA per s 51WB(3).223 There is no definition for “sudden or extraordinary emergency” in the Defence Act, but under the expedited call-out provisions, an order can be made by the Prime Minister alone in such circumstances.224 Sudden or extraordinary emergency therefore functions as both an enabling and defensive mechanism in the Act. At common law it is a complete defence, with wide scope that invites the jury to interpret the emergency itself. It allows individuals to better characterise how people act in such situations, since it is irrational to expect rational actions in an emergency. "From an explanatory perspective, basing a defence on emergency rather than necessity has the advantage of being more psychologically credible”.225 Part IIIAAA hybridises necessity, sudden and extraordinary emergency, and acting under lawful authority defences.226 Despite hostility towards Part IIIAAA, there is a greater expectation, due to current terrorism threats, that people will be protected against terrorist attacks or other threats, regardless of the agency through which this is afforded.227 Therefore, there is scope for greater domestic military involvement. Part IIIAAA is preventative against future attack, yet reactionary to global terrorism. Schmitt’s criticisms of liberalism are valid, demonstrated by the Lindt Café Siege emergency, where due to parliamentary conventions and institutions, the military was not called out. The legislation of Part IIIAAA consisting of call-out procedures and sudden or extraordinary emergency exemptions and defences, and the allowance
216 Ian McAllister, ‘Public Opinion Towards Defence and Foreign Affairs: Results from the ANU Poll’, (Report No 4, ANU Poll, 2009), 2. 217 Defence Act 1903 (Cth) s 51T “Use of Reasonably and Necessary Force” – cannot use force likely to cause death or grievous bodily harm unless the ADF member believes on reasonable grounds it is necessary to protect another’s life or prevent injury. Also s 51D – if called out, the Chief of the Defence Force “must… utilise the Defence Force in such manner as is reasonable and necessary for the purpose…”, which allows scope for lethal force. See also Defence Act s 51SE; Saskia Hufnagel, ‘Fundamental Rights and Fundamental Difference: Comparing the Right to Human Dignity and Criminal Liability in Germany and Australia’, in Simon Bronitt, Miriam Gani, Saskia Hufnagel (eds.), Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Hart Publishing, 2012), 193, 196. 218 Smith, above n 211, 148. 219 R v Dudley and Stephens (1884) 14 QBD 273; Simon Bronitt, ‘The Common Law and Human Dignity: Australian Perspectives’, in Jürgen Bröhmer (ed.), The German Constitution Turns 60: Basic Law and Commonwealth Constitution – German and Australian Perspectives, (Peter Lang, 2011), 77, 82. 220 Hufnagel, above n 217, 205. 221 Bronitt, above n 219, 83. 222 Criminal Code Act 1995 (Cth) s 10.3 223 Hufnagel, above n 217, 198. 224 Smith, above n 211, 148; Defence Act 1903 (Cth) s 51CA 225 Bronitt, above n 219, 84-85. 226 E.g. s 51SE Defence Act 1903 (Cth); Bronitt, above n 219, 85-86. 227 Laing, above n 76, 509. of special executive/military powers through that legislation, illustrates a fusion of legislative and executive emergency action. Given Australia’s Constitution’s silence on emergency powers, the rule of law tradition, and Part IIIAAA powers, both Gross’s extra-legal model and Dyzenhaus’s positivist model are exemplified. In this way, Part IIIAAA may be characterised as a hybridised crime-war mechanism, mixing legislative and executive action and giving primacy to emergency military action that would otherwise be excessive. Where Part IIIAAA is not invoked, but force is necessary, such as the Lindt Café, extralegalism may be necessary. Like Locke’s theory, this should be confined to mitigating emergencies. This highlights Gross’s extralegal model’s efficacy, which avoids the contamination of internal law and constant policy adjustment like that currently being considered, while allowing efficient responses to emergencies that address the unforeseen nature of emergencies and are cured with retrospective ratification.228 The similar strength of Agamben’s characterisation of emergency powers as both inside and outside the law lies in placing executive action in a position to simultaneously utilise its force and expediency in emergency response, while existing under anomic legality. This provides dual-ended benefits: efficient emergency action, and operation through legality, even if not formalistic law. Nonetheless, Dyzenhaus’s model of legality underpins the passing of Part IIIAAA in the first place, demonstrating the importance of formalistic law. Australia’s historical experience demonstrates the political imperative for anti-terror measures unconstrained by formal human rights protection, allowing the passage of extra such legislation.229 Operationally, Lynch believes courts should restrain executive emergency powers, while the traditional role of the legislature and its ability to ensure strengthened formal law ensures that judges do not have complete control.230 This trust he places in the courts to oversee executive action in emergencies stems from the criticism that emergency or anti-terror legislation is presented to legislatures under the assertion of urgency and necessitating a timely passing.231 Due to Australia’s absence of a Bill of Rights, judges have little scope to assessing anti-terror or emergency laws, so their role is limited to the context of statutory interpretation rather than rights determination.232 Moreover, given the unforeseen nature of emergency as explained by Schmitt and Locke, the efficiency of passing such legislation represents not an overly hasty decision but the strength of the legislative process to respond to and prevent potential threats. This ensures the relevant executive powers are formally valid, while allowing efficient executive response. Dicey’s view is relevant, acknowledging both legislative means of emergency powers and executive discretion to supersede such law in emergencies. Here, Part IIIAAA takes an intermediate/hybridised position between American extra-legalism and British parliamentary sovereignty. Another potential model justifying expanded executive powers might come from reading in prerogative emergency powers through s 61 of the Constitution. This would stem from common law powers inspired by Locke, or a broad interpretation of s 61 to authorise Executive extralegality to restore the law. Australian Courts have considered broader s 61 powers in light of “national emergency”,233 though have fallen short of recognising particular emergency powers, instead preferring implied nationhood powers to
228 Retrospective ratification is discussed in Part IV. 229 George Williams, ‘Anti-Terror Legislation in Australia and New Zealand’, in eds. V. V. Ramraj et al, Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed., 2012) 541, 545. 230 Andrew Lynch, ‘Legislating Anti-Terrorism: Observations on Form and Process’, in eds. V. V. Ramraj et al, Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed., 2012) 151, 155-156. 231 Ibid, 166-167. 232 Williams, above n 229, 544-545. 233 Pape v Commissioner of Taxation (2009) 238 CLR 1, Gummow, Crennan and Bell JJ protect democratic rights.234 If a constitutionally-recognised prerogative emergency power held supremacy over common law and statute in times of crisis, the practical result would be no different to Gross’ extralegal model, but may confine emergency action within legality. However, this relies on courts’ recognition and interpretation of such a power which, as Tushnet claims, may be more problematic than political measures. As such, Part IIIAAA represents a hybridised approach to emergency action, consisting of both Gross/Schmitt and Dyzenhaus through its exceptional emergency military powers, formally recognised by law.
VI CONCLUSION After the Lindt Café Siege, the Commonwealth considered amending Part IIIAAA of the Defence Act to better respond to emergencies using military force. However, Part IIIAAA has been criticised for its perceived overstepping of state power. Nevertheless, it is accepted in liberal democracies that Executive power, during exceptional times of crisis, may need to exceed conventional boundaries to ensure effective emergency response and protection of citizens. Various jurisprudential approaches to emergencies demonstrate the necessity in allowing expanded Executive powers, such as military powers, to respond. Although Part IIIAAA does not create martial law, its theoretical scope remains, due to common law rights in times of extreme emergency. Historical examples demonstrate that emergency responses may take various forms but remain common in their intention to preserve the state. Gross’s extralegal view and Dyzenhaus’s positivism offer contrasting positions, whereby Part IIIAAA is situated somewhere in the middle, by virtue of the legislative avenue of providing for expanded military powers in emergencies. As such, the expansion of military domestic powers is justified in an emergency, due to the hybridised war- crime and executive-legislative model under Part IIIAAA, and such force should not be feared.
Bibliography
A Articles/Journals/Books
Agamben, Giorgio, Homo Sacer: Sovereign Power and Bare Life (Stanford University Press, 1998) Agamben, Giorgio, State of Exception, (Chicago University Press, 2005) Bielefeldt, Heiner, ‘Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism, (Duke University Press, 1998), 23
234Anne Twomey, ‘Pushing the Boundaries of Executive Power – Pape, the Prerogative and Nationhood Powers’, (2010) 34(1) Melbourne University Law Review, 313, 315, 325-7. Blackstone, William, Commentaries on the Laws of England (Routledge-Cavendish, 2001) Bottomley, Stephen, Simon Bronitt, Law in Context, (Federation Press, 4th ed., 2012) Bronitt, Simon, ‘The Common Law and Human Dignity: Australian Perspectives’, in Jürgen Bröhmer (ed.), The German Constitution Turns 60: Basic Law and Commonwealth Constitution – German and Australian Perspectives, (Peter Lang, 2011), 77 Bronitt, Simon, Dale Stephens, ‘Legislative Note: ‘Flying Under the Radar’ – the Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments’, (2007) 7(2) Oxford University Commonwealth Law Journal, 265 Brown, John, ‘Intrigue: In 1808, New South Wales’ Governor William Bligh Faced Another Mutiny: The Rum Rebellion’, (2003) 19(6) Military History, 12 Campbell, Colm, ‘Law, Terror and Social Movements: the Repression-Mobilisation Nexus’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 172 Campbell, Tom, ‘The Rule of Law, Legal Positivism and States of Emergency’, in Simon Bronitt, Miriam Gani, Saskia Hufnagel (eds), Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Hart Publishing, 2012), 3 Cass, Ronald A., ‘The Rule of Law in Time of Crisis’, (2008) 51 Howard Law Journal, 653 Casson, Douglas, ‘Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative’, (2008) 36(6) Politics and Policy, 944 Clark, Chris, The Encyclopaedia of Australia’s Battles (Allen & Unwin, 2010) Criddle, Evan J., Evan Fox-Decent, ‘Human Rights, Emergencies and the Rule of Law’, (2012) 34 Human Rights Quarterly, 39 De Wilde, Marc, ‘Locke and the State of Exception: Towards a Modern Understanding of Emergency Government’ (2010) 6 European Constitutional Law Review, 249 Dennison, George M., ‘Martial Law: The Development of a Theory of Emergency Powers, 1776-1861’, (1974) 18 American Journal of Legal History, 52 Dicey, A. V., Introduction to the Study of the Law of the Constitution (MacMillan, 1915) Doogan, Christopher, 'Defence Powers Under the Constitution: Use of Troops in Aid of State Police Forces – Suppression of Terrorist Activities', (1981) 31 Defence Force Journal, 3 Dyzenhaus, David, ‘Compulsion of Legality’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 33 Dyzenhaus, David, ‘Schmitt v Dicey: Are States of Emergency Inside or Outside the Legal Order?’ (2006) 27(5) Cardozo Law Review, 2005 Dyzenhaus, David, ‘The Puzzle of Martial Law’, (2009) 59 University of Toronto Law Journal, 1 Dyzenhaus, David, The Constitution of Law: Legality in a Time of Emergency (Cambridge University Press, 2006) Ferejohn, John, Pasquale Pasquino, ‘The Law of Exception: A Typology of Emergency Powers’, (2004) 2(2), International Journal of Constitutional Law, 210 Finn, Chris, ‘The Justiciability of Administrative Decisions: A Redundant Concept?’, (2002) 30(2) Federal Law Review 239.
Fox, Richard G., Jodie E Lydeker, ‘The Militarisation of Australia’s Federal Criminal Justice System’ (2008) 32 Criminal Law Journal 287
Geertsema, Johan, ‘Exceptions, Bare Life and Colonialism’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 337 Grey, Jeffrey, A Military History of Australia, (Cambridge University Press, 2008) Gross, Oren, ‘Chaos and Rules: Should Responses to Violent Crises Always Be Constitutional?’, (2002) 112 Yale Law Journal, 1011 Gross, Oren, ‘Extra-legality and the ethic of political responsibility’, in VV Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008) Gross, Oren, and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge University Press, 2006) Hancock, Nathan, ‘Terrorism and the Law in Australia: Supporting Materials,’ (Research Paper no 13) Parliamentary Library, Parliament of Australia, 2001-2002
Hart, H L A., Punishment and Responsibility: Essays in the Philosophy of Law, (Oxford University Press, 2nd edition, 2008) Head, Michael, ‘Australia’s Expanded Military Call-Out Powers: Causes 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, 479 Head, Michael, ‘The Military Call-Out Legislation – Some Legal and Constitutional Questions’ (2001) 29 Federal Law Review, 273 Head, Michael, Calling Out the Troops: The Australian Military and Civil Unrest (The Federation Press, 2009) Head, Michael, Crimes Against the State: From Treason to Terrorism, (Ashgate, 2011) Howse, Robert, ‘From Legitimacy to Dictatorship – and Back Again: Leo Strauss’s Critique of the Anti- Liberalism of Carl Schmitt’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism, (Duke University Press, 1998), 56 Hufnagel, Saskia, ‘Fundamental Rights and Fundamental Difference: Comparing the Right to Human Dignity and Criminal Liability in Germany and Australia’, in Simon Bronitt, Miriam Gani, Saskia Hufnagel (eds.), Shooting to Kill: Socio-Legal Perspectives on the Use of Lethal Force (Hart Publishing, 2012), 193 Humphreys, Stephen, ‘Legalizing Lawlessness: On Giorgio Agamben’s State of Exception’, (2006) 17(3) European Journal of International Law, 677 Hussain, Nasser, ‘Beyond Norm and Exception: Guantánamo’, (2007) 33(4) Critical Inquiry, 734 Hussain, Nasser, ‘Hyperlegality’, (2007) 10(4) New Criminal Law Review, 514 Hussain, Nasser, The Jurisprudence of Emergency: Colonialism and the Rule of Law, (University of Michigan Press, 2009) Irving, Helen, ‘Australia’, in Markus Thiel (ed.), The ‘Militant Democracy’ Principle in Modern Democracies (Routledge, 2016), 23 Jayasuriya, Kanishka, ‘Struggle over Legality in the Midnight Hour: Governing the International State of Emergency’, in V. V. Ramraj (ed.), Emergencies and the Limits of Legality (Cambridge University Press, 2008), 360 Kennedy, Ellen, ‘Hostis Not Inimicus: Toward a Theory of the Public in the Work of Carl Schmitt’, in David Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism (Duke University Press, 1998), 92 Laing, Norman Charles, ‘Call-Out the Guards – Why Australia Should No Longer Fear the Deployment of Australian Troops on Home Soil’ (2005) 28(2) UNSW Law Journal, 507 Lee, H. P., Emergency Powers, (Law Book Company, 1984) Llobet-Anglí, Mariona, Aniceto Masferrer, ‘Counter-Terrorism, Emergency, and National Laws’, in eds Genevieve Lennon, Clive Walker, Routledge Handbook of Law and Terrorism (Routledge, 2015) 38 Locke, John, Two Treatises of Government, (Cambridge University Press, 1988) Loevy, Karin, Emergencies in Public Law: The Legal Politics of Containment, (Cambridge University Press, 2016) Lynch, Andrew, ‘Legislating Anti-Terrorism: Observations on Form and Process’, in eds. V. V. Ramraj et al, Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed., 2012), 151 Mackay, David, ‘Far-Flung Empire: A Neglected Imperial Outpost at Botany Bay 1788-1801’, (1981) 9(2) Journal of Imperial and Commonwealth History, 125 Maley, Paul, Secret Review: Special Forces to get Call if Terrorists Strike, (29 August 2016) The Australian,
White, Margaret, ‘The Executive and the Military’, (2005) 28(2) UNSW Law Journal, 438 Williams, George, ‘Anti-Terror Legislation in Australia and New Zealand’, in eds. V. V. Ramraj et al, Global Anti-Terrorism Law and Policy (Cambridge University Press, 2nd ed., 2012), 541 Wilson, Geoffrey, Cases and Materials on Constitutional and Administrative Law (Cambridge University Press, 2nd Ed., 1976) Windeyer, Victor, ‘“A Birthright and Inheritance”: The Establishment of the Rule of Law in Australia’ (1962) 1(5) Tasmanian University Law Review, 635 Windeyer, W. J.V., Lectures on Legal History, (The Law Book Company of Australasia Pty Ltd, 2nd Ed., 1957) Winterton, George, ‘The Limits and Use of Executive Power by Government’, (2003) 31 Federal Law Review, 421 Zuckerman, Ian, ‘One Law for War and Peace? Judicial Review and Emergency Powers between the Norm and the Exception’, (2006) 13(4) Constellations, 522
B Cases
Alister v The Queen (1984) 154 CLR 404
Australian Communist Party v Commonwealth (Communist Party Case) (1951) 83 CLR 1
Church of Scientology v Woodward [1982] HCA 78
Commonwealth and the Central Wool Committee v Colonial Combing, Spinning and Weaving Co Ltd (1922) 31 CLR 421
Communist Party Case (1951) 83 CLR 1
D F Marais v The General Officer Commanding the Lines of Communication and the Attorney-General of the Colony [1902] AC 109
Ex Parte Milligan 71 U.S. (4 Wall.) 2 (1866)
Grant v Gould 2 Henry Blackstone's Reports 68-108 (1792)
Home Building & Loan Ass'n v. Blaisdell 290 U.S. 398 (1934)
Lloyd v Wallach (1915) 20 CLR 299
Pape v Commissioner of Taxation (2009) 238 CLR 1
R v Dudley and Stephens (1884) 14 QBD 273
R v Pinney (1832) 5 Car & P 254; 170 ER 962
R v Sharkey (1949) 79 CLR 121
Shipping Board Case (1926) 39 CLR 1
Stenhouse v Coleman [1944] HCA 36
The Zamora [1916] 2 AC 77 Thomas v Mowbray [2007] HCA 33
Wilson v New 243 U.S. 332 (1917)
Wolfe Tone’s Case (1798) 27 State Trials 624
C Legislation
Australian Constitution
Australian Military Regulations 1927
Civil Disturbance Statutes 10 USC § 331 (1964)
Criminal Code Act 1995 (Cth)
Defence Act 1903 (Cth)
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2000 (Cth)
Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2006 (Cth)
Mutiny Act 1689
Posse Comitatus Act 1878 20 Stat 152
Riot Act 1715 (UK)
Sedition Act 1918
D Treaties
American Convention on Human Rights European Convention on Human Rights International Covenant on Civil and Political Rights
E Other
Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2006 (Robert McClelland)
Commonwealth, Parliamentary Debates, House of Representatives, 13 February 2006 (Brendan Nelson)
Commonwealth, Parliamentary Debates, House of Representatives, 28 August 2000 (Sharman Stone)
Commonwealth, Parliamentary Debates, House of Representatives, 28 June 2000 (Cameron Thompson)
Commonwealth, Parliamentary Debates, House of Representatives, 7 September 2000 (Ryan Moore)
Commonwealth, Parliamentary Debates, Senate, 28 August 2000 (Andrew Murray)
Commonwealth, Parliamentary Debates, Senate, 28 August 2000 (Chris Ellison)
Commonwealth, Parliamentary Debates, Senate, 4 September 2000 (Barney Cooney)
Gormly, Jeremy, ‘Statement by Jeremy Gormly SC, Counsel Assisting, Regarding Commonwealth Australian Defence Force Issues’, Inquest into the Deaths Arising from the Lindt Café Siege, 13 May 2016
Law Council of Australia, Ongoing Concerns Expressed in Defence Act Submission, (2014)
Law Council of Australia, Submission to Independent National Security Legislation Monitor’s February 2014 Inquiry, Part IIIAAA of the Defence Force Act 1903 (Cth) Supplementary Submission, 28 February 2014
Windeyer, Victor, ‘Opinion of Sir Victor Windeyer KBE CB DSO on Certain Questions Concerning the Position of Members of the Defence Force When Called Out to Aid the Civil Power Appendix 9', (1979) Hope Protective Security Review