2015
Head, Michael — “Calling Out the Troops – Disturbing Trends and Unanswered Questions” [2005] UNSWLawJl 33; (2005) 28(2) UNSW Law Journal 479 ‘During the passage of the call-out legislation, the Government and the Labor Party combined to defeat an amendment that would have required the tabling in Parliament of the manuals and protocols that would apply to military interventions. This proposal was raised after Greens Senator Bob Brown read out extracts from the Australian Army Manual of Land Warfare.
This secret manual, produced in 1983, had been leaked to the media in 1993. The leaked document asserted an extremely wide and highly-political role for the ADF, with an Introduction that stated: ‘[c]ivil disobedience, mass violence and terrorism have become common methods of dissent throughout the world in recent years’. It indicated that the ADF may be involved in countering the threat posed by the activities of dissidents, including riots, mass demonstrations, and industrial, political and social disturbances. It referred to establishing detention centres and to opening fire on ‘unlawful assemblies’. The latter section stated:
As a last resort troops may be required to open fire on the crowd to disperse it. The principles of minimum force must be kept in mind by the commanders. Therefore, initially, only selected individuals should be nominated to fire upon selected agitators in the crowd.
Senator Brown quoted s 543 of the Manual, which instructed military personnel in how to then cover up the killing or wounding of ‘dissidents’. The section stated:
Dead and wounded dissidents, if identifiable, must be removed immediately by the police … When being reported, dissident and own casualties are categorised merely as dead or wounded. To inhibit propaganda exploitation by the dissidents the cause of the casualties (for example, ‘shot’) is not reported. A follow-up operation should be carried out to maintain the momentum of the dispersing crowd.
Responding to Senator Brown, Special Minister of State Chris Ellison said the Manual was ‘under revision’ and would be replaced with a new version once Part IIIAAA of the Act was passed. He refused, however, to give any assurance that a similar clause would not appear in the rewritten document. Defence Minister Hill’s aforementioned letter to this author confirms that the revised Manual will not be released to the public, but provides no reasons for that secrecy. Concerns remain therefore that the Manual may still contain instructions permitting ADF personnel to open fire on demonstrators.
According to Senator Hill’s letter, it would be left to force commanders to translate the rules of engagement issued by the Chief of the Defence Force into ‘situation-specific orders for the use of force’. The letter argues that rules of engagement cannot be released into the public domain for reasons of operational security. It states that ‘[p]recise knowledge by an adversary of the limitations that have been placed on the use of force by ADF members could endanger their lives’. This contention applies battlefield considerations directly to civilian contexts, depicting members of the public as potential ‘adversaries’
……Overall, there are many reasons for concern about the call-out laws and the increasing engagement of the ADF in dealing with civilian opposition, or resistance, to Australian government decisions and actions. Given the seriousness of the issues, remarkably little academic or media attention has been paid to them. The operations carried out against asylum seekers, in the ‘war on terror’ and overseas confirm this author’s warning that the call-out legislation signalled an underlying political, legal and constitutional shift. These operations also increase the likelihood that the political conditions can be created to invoke the call-out powers in the event of serious social unrest, or other perceived threats of a political or industrial kind to the stability of the socio-economic order. Moreover, after the experience of such fabrications as the ‘children overboard’ affair and ‘weapons of mass destruction’ there is little cause to trust the Howard Government, or any future Commonwealth government, with the safe or democratic utilisation of these powers.
There is much is at stake here. As Commissioner Wootten observed in the Gundy case, cited earlier, the traditional view in legal and political circles is that empowering the armed forces to suppress internal conflicts is associated with dictatorships or military juntas and is accompanied by all the dangers they bring:
In numerous other countries, particularly newly established democracies without a strong tradition of parliamentary control, we have seen the difficulty of keeping military authority under civil control. Typically the military in such countries has a conviction of its own purity and righteousness, an impatience with values that fall outside its normal sphere of operation and a tendency to see the controversy and disputation which are the essence of democracy as a lack of national discipline.
This is not to suggest that the people of Australia are threatened by the immediate prospect of military rule. But, in some respects, more insidious and troubling tendencies are at work. While the framework of parliamentary democracy and civil power remains, a legitimisation of military call-out is taking place, albeit under specific legislation or the executive authority of the government of the day.
15.5.17
‘At warming of 1.5 degrees, the odds of such a summer with its heat extremes and bush fire-conducive weather increases from about 44 per cent now to 57 per cent. The chance rises to 77 per cent in a 2-degree warmer world, the researchers found.’ https://www.smh.com.au/environment/climate-change/alarming-keeping-warming-to-15-degrees-to-shield-australia-from-big-extremes-20170515-gw4so1.html
24.5.17
Coroner’s findings Lindt café. http://www.lindtinquest.justice.nsw.gov.au/
17.7.17
Prime Minister Malcolm Turnbull gives Defence Force power to help police during attacks https://www.abc.net.au/news/2017-07-17/australian-defence-force-given-call-out-powers-terrorism/8715878
17.5.18
Implications of climate change for Australia’s national security https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Foreign_Affairs_Defence_and_Trade/Nationalsecurity/Final_Report
Australian agencies may be required to undertake domestic and international operations relating to conflict, crime and terrorism exacerbated by climate change. American Rear Admiral David Titley (retired) told the committee the ‘rapidly changing climate may create, accelerate and exacerbate already unstable situations throughout the world’. He warned the ‘security of both our nations rests on a stable world order’ and ‘[c]limate change has the potential to disrupt that stability on a scale rarely seen’. Conflict may result from food and water scarcity, pressures on social welfare and HADR agencies, and maritime border disputes.
Defence submission outlined how climate change can contribute to conflict:
When climate impacts are combined with ethnic or other social grievances, they can contribute to increased migration, internal instability or intra-state insurgencies, often over greater competition for natural resources. These developments may foster terrorism or cross-border conflict.
21.5.18
Adam Bandt questions to the Minister for the Environment and Energy in relation to the ‘What lies beneath’ report. Later response – https://www.environment.gov.au/system/files/190905.pdf
28.6.18
#7News Twitter – Defence Minister @MarisePayne won’t say whether the new military call-out powers would have made a difference to the outcome of the deadly Lindt Café siege in 2014. The federal government today introduced draft laws to parliament updating military call-out powers.
28.6.18
The Senate referred the provisions of the Defence Amendment (Call out of the Australian Defence Force) Bill 2018 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 3 September 2018.
31.7.18
CLA submission to the Senate. file:///C:/Users/User/Downloads/sub07_CLA.pdf
It is questionable whether the law, if passed, would survive a Constitutional challenge.
Constitution s119 Protection of States from invasion and violence. The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
The constitutional position seems clear: states must apply for protection. The proposed law over-rides the Constitution. It permits over-ride of state/territory control of their own policing responsibilities.
Involvement of federal troops should be only when and where a state (or territory) is unable or unwilling to respond to a situation. It is difficult to see the Senate – the states’ House – permitting such a major centralisation of power to the detriment of states’ being in charge of their own policing matters.
CLA understands a driver for a change to the call out law was the Lindt siege in Sydney. What that situation required was clearer legal exposition of how the particular skills of a small number of specialist troops could be used to augment deficiencies or inexperience among state or territory police. This bill takes that contained issue, and produces a solution on steroids, where the entire armed forces of Australia can be turned out domestically throughout the nation on the say-so of the federal government.
It seductively slides Australia from an exemplary democracy towards a potential autocracy.
[Defence Amendment (Call Out of the Australian Defence Force) Act 2018
Act allows:
- a call out request to be actioned, when it’s decided that ADF personnel can “enhance” the ability of state police in dealing with an incident;
- the PM and other authorised ministers to send in the troops when state authorities haven’t requested assistance, but Commonwealth interests are at stake. And it provides ADF members with enhanced search capabilities and limited shoot-to-kill powers. There are three authorised ministers: the prime minister, the attorney general and the defence minister. And the home affairs minister will be added as an alternative minister;
- call out powers don’t just apply to terrorism. They target “domestic violence.” This is a broad term set out under section 119 of the Australian Constitution, which provides that the federal government should protect states and territories against invasion and rebellion;
- the ADF could be sent in to quell widespread rioting;
- the government to call out the ADF to protect declared infrastructure (ie coal-fired power stations and ports that export coal);
- that military personnel can use lethal force during certain civilian incidents in the protection of an individual’s life, to take action against an aircraft or vessel, as well as in the protection of declared infrastructure;
- powers to detain, search and question Australians; and
- authorising ministers can send out the ADF to protect Commonwealth interests in circumstances where states haven’t requested assistance.
Legal academics have raised concerns about the constitutional validity of these powers for some time. The Senate Committee touches on the fact that the issue of constitutional validity is raised but nothing further appears to have been explored.]
7.8.18
People Are Worried Peter Dutton Might Get The Power To Call In The Army In Australia – The legislation enables states and territories to request the assistance of the Australian Defence Force in relation to terrorist incidents, sieges and other acts of “domestic violence” as defined in section 119 of the Australian Constitution, but also allows the federal government to use the army to protect Commonwealth interests. Under the legislation, in cases where a quick response is needed, the prime minister, or jointly the attorney-general and defence minister, can call in the army. It also establishes the minister for home affairs as an “alternative minister” who can authorise an expedited call-out with one of the other ministers. https://www.buzzfeed.com/joshtaylor/people-are-worried-peter-dutton-might-get-the-power-to-call
7.8.18
Dot point brief for VCDF Climate and Security Advice by Ian Cumming. ‘…Commence planning for significant sea-level rise. Defence should consider planning for an orderly, dignified and deliberate retreat from Defence infrastructure at or close to the sea level, including the cessation of further investment in bases, and there potential disposal, that will be affected by sea level rise within the period of the useful life of new or refurbished buildings…Prepare for significantly more disaster support operations and potentially operations involving support to the civil power such as policing of population under exaggerated stresses such as food and water shortages. This should include mobilisation discussions…Prepare to provide intelligence support to internal operations associated with stressed communities…’ [I note his concerns about duty of care.] https://www.defence.gov.au/FOI/Docs/Disclosures/417_1920_Document.pdf
27.11.18
Senate debate. Linda Reynolds didn’t realise the amendments removed the threshold requirement that the states are not or are unlikely to be able to protect themselves. https://www.openaustralia.org.au/senate/?id=2018-11-27.8.1
16.1.19
Earth in 2050: This is what a world warmed by 1.5°C looks like
https://www.newscientist.com/article/mg24132130-500-earth-in-2050-this-is-what-a-world-warmed-by-1-5c-looks-like/#ixzz6WMvZzCAS
June 2019
General Campbell’s speech – “In about 10 years from now global warming above pre-industrial levels is set to rise by 50%. At 1.5 degrees of warming we can expect more significant impacts. Particularly in regards to oceans, low-lying areas and human health. The poor and most vulnerable will be hardest hit. Livelihoods lost. Food scarce. Populations displaced. Diseases spreading. And this now looks like our best-case scenario…” https://www.defence.gov.au/FOI/Docs/Disclosures/009_1920_StatementOfReasons-IR.pdf
2019
Michael Head’s paper ‘Another expansion of military call-out powers in Australia: Some critical legal, constitutional and political questions.’ A decade ago, in discussing the 2000 and 2006 legislation, this author drew attention to the underlying likelihood of these powers being employed to deal with convulsive social and political unrest under conditions of worsening social inequality, economic breakdown and rising global geo-strategic tensions. Those concerns have been amplified by the latest amendments. http://www.unswlawjournal.unsw.edu.au/wp-content/uploads/2019/05/2019-5-HEAD.pdf
5.8.19
FOI response from Department of Energy & Environment in relation to ‘What lies beneath’ report. They acknowledge receiving the paper saying we would be at 1.5C by 2030, but no specific refutation of that point. Raises the issue of public sector duty of care. https://www.environment.gov.au/system/files/190606.pdf
5.10.19
Peter Dutton has described protesters as ‘a scourge’ https://www.theguardian.com/world/2019/oct/06/incredibly-worrying-legal-fight-looms-around-australia-over-clampdown-on-protest
21.10.19
Exercise Austral Shield, a combined ADF and Victoria Police exercise, concluded in the La Trobe Valley this weekend, testing the new and enhanced arrangements for responses to domestic security incidents. “Support included the establishment of joint Victorian Police and Defence checkpoints, joint patrols and searches, and the controlling of access to a major facility such as the AGL Loy Yang power facility.” https://www.australiandefence.com.au/defence/joint/adf-and-vic-police-wrap-up-counter-terrorism-training
30.10.19
Climate change protests. Police claimed that their resources were stretched. Public safety concerns. https://www.theage.com.au/national/victoria/force-s-resources-stretched-by-being-dragged-into-cbd-top-cop-says-20191009-p52z62.html https://www.abc.net.au/news/2019-10-13/extinction-rebellion-protests-disrupt-melburne-cost-thousands/11598086
29.4.20
ABC report – Think of coronavirus as a test run: Australian military leaders warn we must prepare for worse – “We saw three main possibilities of that happening: the increasing and escalating effects of climate change and natural disasters; a global power conflict, probably between America and China; and finally a pandemic — one with a much greater death rate than what we’re seeing with the COVID crisis,” Ms Durrant said. https://www.abc.net.au/news/2020-04-29/military-leaders-warn-australia-prepare-for-worse-coronavirus/12193228
4.6.20
Defence response to FOI request for a copy of Defence rules of engagement under the Defence Amendment (Call Out of the Australian Defence Force) Act 2018 http://kellietranter.com/wp-content/uploads/2020/08/DefenceShoottokill.pdf
2.7.20
Defence Strategic Update. https://www.defence.gov.au/strategicupdate-2020/ ‘…Threats to human security – such as pandemics, and growing water and food scarcity – are likely to result in greater political instability and friction within and between countries and reshape our security environment, including in the Indo-Pacific. These threats will be compounded by population growth, urbanisation and extreme weather events in which climate change plays a part. Within Australia, the intensity and frequency of disasters – such as the 2019-20 Black Summer bushfires – will test Australia’s resilience. Disaster response and resilience measures demand a higher priority in defence planning….’
14.8.20
Laws to be changed to deploy the ADF domestically. The Morrison government plans to amend the Defence Act to hand the Prime Minister of the day the power to declare a national emergency or disaster and deploy the ADF within Australia. While states and territories would still need to make a request for ADF support, government sources with knowledge of the potential legislation say the changes will make it easier to deploy the military and clearly set out its roles and responsibilities. This would likely include giving defence personnel greater legal protections in the event they have to help police search a property or detain someone. Federal laws only allow the Commonwealth to deploy the ADF within Australia for incidents of “domestic violence” such as terrorist attacks. Under the changes, the law would be amended so the military could be called out to “national emergencies and disasters”, which would cover events such as bushfires, floods and pandemics. The call-out would occur only if the PM, Defence Minister and Attorney-General agreed a state or territory was not able to protect the Commonwealth or itself against the threat. The government wants to make the changes to the Defence Act ahead of this summer but it will await the findings of the Royal Commission into National Natural Disaster Arrangements, which is due to hand down its report on October 28, before making the changes. https://www.smh.com.au/politics/federal/lack-of-clarity-laws-to-be-changed-to-deploy-the-adf-domestically-20200813-p55lbm.html
[Chaired by Air Chief Marshal Mark Binskin AC (Retd) https://www.pmc.gov.au/sites/default/files/foi-log/foi-2020-150.pdf]
14.8.20
Paul Barratt, Former Secretary of Australian Departments of Defence and Primary Industries & Energy, tweet – ‘This sounds like a very dangerous idea to me. It is difficult to call out the ADF domestically for a very good reason.’
28.8.20
Nation ‘woefully unprepared’ for climate change, business groups warn. https://www.smh.com.au/environment/climate-change/nation-woefully-unprepared-for-climate-change-business-groups-warn-20200827-p55q0m.html
[DI(G) OPS 01–1— Defence Force Aid to the Civil Authority ]
[Defence Assistance to the Civil Community Edition 2.]
[FOI – Copies of documents from 1 June 2017 to 1 August 2017 between the Department of Prime Minister & Cabinet and the Department of Defence and the DIBP and the Department of Defence relating to the proposed plans for the ADF to act against domestic terrorist threats when called in to do so by State and territory governments.]
