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Review 2018-2019 - Volume 57

A Soldier by Any Other Name: A Reappraisal Of The ‘Citizen in Uniform’ Doctrine in Light of Part IIIAAA of the Defence Act 1903 (Cth)
SAMUEL C. DUCKETT WHITE *
Captain, Australian Army Legal Corps, currently posted to the Directorate of Operations and International Law

Table of Contents
  1. Introduction
  2. A “Citizen in Uniform”
    1. Duty to Assist in Keeping the Peace of the Realm     
    2. A Duty to Obey
    3. The Profession of Arms
  3. Legislative Framework
    1. Call Out Process
    2. Threshold Requirements for a Call Out
    3. Various Divisions of Part IIIAAA
      1. Division 3
      2. Division 4
      3. Division 5
  4. Use of Force
    1. Reasonable and Necessary
      1. Protect life or prevent serious injury
      2. Declared Infrastructure
      3. Use of force against an aircraft
      4. Attempting to flee
  5. Defence of Superior Orders
  6. Conclusion
 2
4
5
8
9
10
11
13
15
15
17
22
23
24
25
26
26
27
29
32

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

A.V. Dicey
Introduction to the Study of the Law of the Constitution 1

* This paper is part of a thesis written whilst studying for a Master of Laws at Melbourne Law School, the University of Melbourne. I would like to express my thanks to my two supervisors, Professor Bruce Oswald CSC and the late Major General the Hon. Richard Tracey AM RFD QC for their direction, advice and comments. I would further like to thank the Hon. Justice John Logan RFD of the Federal Court of Australia, and current President of the Defence Force Discipline Appeals Tribunal, to whom I was Associate to and who guided me towards this topic. All opinions and errors herein are mine alone, and do not represent that of the Australian Defence Force or the Department of Defence. Back
1 (Macmillan, 1959, 10th ed.), p. 303. Back

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It is no longer a credible position for a civilised society to take that a soldier in times
of urban guerrilla warfare should be regarded as a special constable and in time of
conventional warfare as an extra-legal being. A soldier is a soldier is a soldier.

D.B. Nichols
‘Untying the Soldier by Refurbishing the Common Law’ 2

I. Introduction

On 15 December 2014, Man Haron Monis held eighteen hostages in the Lindt Café, Sydney. One hostage, at the direction of Monis, alerted the civil authorities that “an Islamic State operative armed with a gun and explosives … had stationed collaborators with bombs in other locations in the city”. 3 While New South Wales Police Officers acted as first responders, members of the Australian Defence Force’s (ADF) counter-terrorism unit, Tactical Assault Group (East) (TAG(E)) were concurrently rehearsing methods by which to resolve the hostage situation. 4 After a sixteen hour siege, Monis executed a hostage, which triggered the New South Wales Police to enter the premises, resulting in the death of Monis and a second hostage. 5 The subsequent Coroner’s report canvassed, inter alia, the role of the ADF in the siege, 6 and concluded that the “challenge global terrorism poses for State Police Forces calls into question the adequacy of existing arrangements for the transfer of responsibility for terrorist incidents to the ADF”. 7 On 27 November 2018, the Defence Amendment (Call Out of the Australian Defence Force) Act 2018 (Cth) (2018 Amendments) was passed by Commonwealth Parliament, with bipartisan support. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) (Defence Act) (Part IIIAAA) aimed to “streamline the legal procedures for call out of the ADF and to enhance the ability of the ADF to protect states, self-governing territories, and Commonwealth interests, onshore and offshore, against domestic violence, including terrorism”. 8

International and domestic terrorism, 9 with indiscriminate attacks on civilians and property, has influenced, globally, the way governments approach constitutional and legal parameters of counter-terrorism. 10 Whilst the domestic use of armed forces has been subject to commentary in foreign jurisdictions, 11 Defence Force Aid to the Civil Authority (DFACA) has received sporadic academic
2 Crim LR 1976, p. 190. Back
3 Coroners Court of New South Wales, Inquest into the Deaths Arising from the Lindt Café Siege: Findings and Recommendations (Glebe, NSW Department of Justice, May 2017), p. 3. Back
4 Id. , p. 342. Back
5 Id. , p. 3. Back
6 Id. , pp. 383 – 392. Back
7 Id. , p. 385. Back
8 Explanatory Memorandum to Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth), p. 2 (Explanatory Memorandum 2018); as corroborated in the Second Reading Speech for the Bill by the Attorney-General, House of Representatives, Hansard, 28 June 2018, p. 674. Back
9 Insofar as there is a single definition: see Bruce Hoffman, Inside Terrorism (New York, Columbia University Press, 1998); see further Helen Duffy, The ‘War on Terror’ and the Framework of International Law (Cambridge, Cambridge University Press, 2015). Back
10 Specifically, see for Canada National Defence Act c184; for New Zealand see their relevant provisions under the Defence Act 1971 (NZ) which may be reformed in light of terror attacks in Christchurch in 2019; see further the United States of America’s constitutional guarantee in Article 4; see Robert M Hope, Protective Security Review (unclassified) (Parliamentary Paper No 397/1979) (Canberra, Australian Government Publishing Service, 1979) (Hope Report), p. 156 for examples of non-Commonwealth heritage nations such as in the Netherlands and the Federal Republic of Germany. Robert Hill, Minister for Defence, Australia’s National Security: A Defence Update 2003 (Commonwealth of Australia, 2003), p. 5. The current National Terrorism Threat Level is PROBABLE. Back
11 For India, see Simon Bronitt and Ashutosh Misra, ‘Use of Lethal Force and Military Aid to the Civil Power in India and Australia: Sharing Lessons in Counter Terrorism’ in Uttam Jumar Sinha (eds) Emerging Strategic Trends in Asia (New Delhi, Pentagon Press, 2015); for the United Kingdom, ‘2015 to 2020 Government Policy: Military Aid to the Civil Authorities for activities in the UK’ (Ministry of Defence Policy Paper, published 04 August 2016); and for Italy, see Carlo Cabigioni, ‘The Role of Italy’s Military in Supporting the Civil Authorities’, Vol. 4 No.3 Connections 2005, p. 59. Back

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attention domestically. 12 This is unsurprising, considering its limited use. When used within Australia though, DFACA has been characterised by “deeply held, even if imperfectly understood, reservations”. 13 This perhaps reflects the isolated nature of the ADF from civilian society 14 or historical aversion that Anglo-Saxon cultures have held towards the military who – prior to the creation of a standing army – were primarily “the dregs of society… the rouges and vagabonds, the destitute, the condemned felons and the prisoners from the gaols”. 15

Although only contingent call out orders under Part IIIAAA have been made to date, the 2018 Amendments have lowered the barriers for ADF members to be called out, and it is foreseeable that the new regime, in effect from 10 June 2019, will increasingly become an option for Commonwealth, State or Territory governments. Although the legislation raises some particularly pertinent areas for practical and academic debate, 16 this paper focuses specifically on whether ADF personnel should be viewed as “citizens in uniform” whilst aiding the civil authority. The notion of a soldier as a citizen in uniform comes from Lord Tindal CJ, who in 1832 noted in in his much-quoted Charge to the Bristol Grand Jury on a Special Commission, “the law acknowledges no distinction… between the soldier and the private
12 See David Letts and Rob McLaughlin, ‘Call-Out Powers for the Australian Defence Force in an Age of Terrorism: Some Legal Implications’, Vol. 85 AIAL Forum 2016, pp. 63 - 83; David Letts and Rob McLaughlin, ‘Military Aid to the Civil Power’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds.), Military Law in Australia (Alexandria, The Federation Press, 2019), p. 112; Elizabeth Ward ‘Call out the Troops: an examination of the legal basis for Australian Defence Force involvement in ‘non-defence’ matters’ (Research Paper No 8/1997-98, Laws & Bills Digest Group); John Sutton, ‘The increasing convergence of the role and functions of the ADF and civil police’, No. 202 Australian Defence Force Journal 2017, p. 38; Cameron Moore, ‘The ADF and Internal Security: Some Old Issues with New Relevance’, Vol. 28 No. 2 UNSW Law Journal 2005, p. 523; Michael Head, ‘The Military Call-Out Legislation: Some Legal and Constitutional Questions’, Vol. 29 Federal Law Review 2001, p. 271; Margaret White, ‘The Executive and the Military’, Vol. 28 No. 2 UNSW Law Journal 2005, p. 438; Andrew Hiller, Public Order and the Law (Sydney, Sweet & Maxwell Ltd, 1983); Norman Charles Laing, ‘Call-Out the Guards: Why Australia should no longer fear the deployment of Australian troops on home soil’, Vol. 28 No. 2 UNSW Law Journal 2005, p. 508; and Hoong Phun Lee, ‘Military Aid to the Civil Power’ in Michael Adams and Colin Campbell (eds.), Emergency Powers in Australia (Cambridge, Cambridge University Press, 2018, 2nd ed.), pp. 218 – 231. Back
13 White, supra note 12, p. 438. DFACA is not, however, the imposition of martial law. For an unparalleled legal history of martial law, as is often the case, one need only read Sir Victor Windeyer’s opinion in Hope, supra note 10, Appendix 9; see further Hoong Phun Lee, Emergency Powers (Sweet & Maxwell Ltd, 1984). Back
14 Both geographically and culturally; see Tony Fitzgerald, The Commission of Inquiry into Possible Illegal Activities and Associated Police Misconduct (Inquiry, 3 July 1989), pp. 199-213 and synonymous traits between police and military culture; see further Edgar Scheine, ‘Organisational Culture’, Vol. 45 American Psychologist 1990, p. 111. On the development of internal cultures, see relevantly the ‘total’ institutional character of the armed forces in reflecting Ervin Goffman, Asylum, Essays on the Social Situation of Mental Patients and Other Inmates (Amorrotu, 1997) where Goffman’s studies of psychiatric institutions concluded they comprised of closed worlds. Back
15 Anthony Babington, Military Intervention in Britain: From the Gordon Riots to the Gibraltar Incident (London, Routledge, 1990), p. 2. Back
16 Such as the viability of a call out for judicial review, see Samuel C. Duckett White and Andrew Butler, ‘Reviewing a Decision to Call Out The Troops (2020) 99 AIAL Forum (forthcoming); see generally Simon Bronitt and Dale Stephens, ‘Flying Under the Radar – the use of lethal force against hijacked aircraft’, Vol. 7 No. 2 Oxford University Commonwealth Law Journal 2007, p. 266; Lee, supra note 13, pp. 252 – 322.
Further research areas include whether the ADF can realistically be utilised (and in what capacity) against industrial actions by operation of Defence Act 1903 (Cth) (Defence Act), ss 33(4), 35(4) and 36(4) which note that ‘the Reserves must not be called out or utilised in connection with an industrial dispute’. However, the 2018 Amendments have provided additional circumstances under which the ADF may be used in connection with an industrial action (namely, serious damage to property) as per the Defence Act, s 39. It is the opinion of this author that use of the ADF in industrial actions remains a viable and legal option for the Executive Government especially if an industrial action touched on an area that the Commonwealth has an interest in – such as overseas trade and commerce – see Samuel C. Duckett White, ‘Military intervention in Australian industrial action’ (2020) 33 Public Law Review (forthcoming); High Court of Australia, Victoria v Commonwealth (1975) 134 CLR 338, 396-8 (Mason J).
Finally, the use and utilisation of ADF’s organic cyber capability in aiding State and Territory governments against cyberspace threats is submitted to become increasingly important when considering Part IIIAAA. For general commentary on what actually constitutes the use of force in cyber realm, see Michael Gervais, ‘Cyber Attacks and the Laws of War’, Vol. 30 Berkley Journal of International Law 2012, p. 525; and further Antonia Chayes, ‘Rethinking Warfare: The Ambiguity of Cyber Attacks’, Vol. 6 Harvard National Security Journal 2015, p. 474. Back

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individual. The soldier is still a citizen, lying under the same obligation and invested with the same authority to preserve the peace of the King as any other subject.” 17

This paper posits that it is inaccurate to advocate that a soldier is no more, no less than a citizen in uniform. Accordingly, this paper will first cover the doctrine of a citizen in uniform, before canvassing the history and use of military personnel in aiding the civil power in an Anglo-Saxon context, the dual duties to assist in keeping the Peace of the Realm, and the duty to obey orders. It will then outline the legislative framework of Part IIIAAA, focusing on the threshold requirements for calling out the ADF, and the corresponding powers granted to ADF members under Part IIIAAA, before noting the distinctions between ADF members and constabulary forces in the use of force. Finally, a defence available under Part IIIAAA – the defence of superior orders – will be discussed to highlight an apparent Parliamentary intent to maintain the exceptionalism of the ADF. 18

II. A “Citizen in Uniform”

The position this paper seeks to promote – that ADF members are more than simply “citizens in uniform” whilst called out to aid the civil power – was a central issue for the British military in their deployments in Northern Ireland. Specifically, between 1970 and 1979, the British military in Northern Ireland killed 186 individuals, and 28 British soldiers were prosecuted for offences, 13 of whom were convicted. One was found guilty of manslaughter, with his conviction quashed on appeal. 19 The House of Lords were subsequently requested by the Attorney-General to provide an advisory opinion on the matter. Lord Diplock commented thus:
There is little authority in English law concerning the rights and duties of a member of the armed forces of the Crown when acting in aid of the civil power… Where used for such temporary purposes it may not be inaccurate to describe the legal rights and duties of a soldier as being no more than those of an ordinary citizen in uniform. But such a description is in my view misleading in the circumstances… in theory it may be the duty of every citizen when an arrestable offence is about to be committed in his presence to take whatever reasonable measures are available to him to prevent the commission of the crime; but the duty is one of imperfect obligation and does not place him under any obligation to do anything by which he would expose himself to risk of personal injury, nor is he under a duty to search for criminals or seek out crime. In contrast to this a soldier who is employed in aid of the civil power in Northern Ireland is under a duty, enforceable under military law, to search for criminals if so ordered by his superior officer and to risk his own life should this be necessary in preventing terrorist acts. 20
To date, the High Court of Australia has not directly engaged with the doctrine of citizens in uniform, and it remains open for debate. 21 The question of the legal status and construction of members of the armed forces, operating domestically, is an important question for all countries.

Armed forces from around the world have evolved along a spectrum, stretching from where soldiers have “identical rights and duties to those of civilians (civilian soldiers) to where the armed forces are
17 Court of Common Pleas, R v Pinney (1832) 5 Car & P 254, 263 (Lord Tindal CJ); as approved by the High Court of Australia in Groves v Commonwealth (1982) 150 CLR 113. Back
18 The notion of military exceptionalism, is gratefully adopted from work of Jacoba Brasch, ‘More Martial than Court: From Exceptionalism to Fair Trial Convergence in Australian Courts Martial’ (PhD Thesis, University of New South Wales, 2011). This exceptionalism includes, but in no way is limited to, exemptions from providing procedural fairness on the basis of the contingencies of service – see Millar v Bornholt (2009) 177 FCR 67, 72 (Logan J); workplace health and safety – Work Health and Safety Act 2011 (Cth) s 12D(2); exception from the requirements of the civil law system under Freedom of Information Act 1982 (Cth) s 7; the requirement for State or Territory licenses and/or registration to operate a ‘vehicle, vessel, animal, firearm or other thing belonging to the Commonwealth’, Defence Act s 123; this principle is similar to the sale of intoxicating liquors under Defence Act s 123A; and absolute immunity for negligence whilst undertaking combat operations and training activities directed to the conduct of such operations - Groves v Commonwealth (1982) 150 CLR 113, 134 (Stephens, Mason, Aickin and Wilson JJ). On the topic see also David Letts and Rob McLaughlin, ‘Intersection of Military Law and Civil Law’ in Robin Creyke, Dale Stephens and Peter Sutherland (eds.), Military Law in Australia (Alexandria, The Federation Press, 2019), p. 100. Back
19 Stephen Livingstone, ‘The House of lords and the Northern Ireland Conflict’, Vol. 57 No. 3 The Modern Law Review 1994, pp. 333-360. Back
20 U.K. House of Lords, Attorney-General for Northern Ireland’s Reference (No. 1 of 1975) [1977] AC 105 (HL) 136, p. 137 (A-G Reference). Back
21 High Court of Australia, Groves v Commonwealth (1985) 150 CLR 113. Back

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kept quite separate (militarised soldiers)”. 22 The concept of a citizen in uniform has been argued to ground, at the common law, military personnel within society. 23 But to accept that argument is to assume that the civilian population is “homogenous and that soldiers themselves will see all citizens as equally worthy of protection”. 24 Experiences outside Australia have suggested that it may not be the case. 25 It further, incorrectly, treats all armed forces members as a homogenous group, without difference or deference to rank. 26

What this paper proposes is that, using the ADF as an example, when called out to aid the civil power, the doctrine of a “citizen in uniform” is antiquated and inappropriate. This is demonstrated through acknowledging the ADF’s duty to assist in Keeping the Peace of the Realm, duty to obey orders, and proficiency in the weapon systems fundamental to the Profession of Arms. The paper will then look specifically at the ADF’s ability to use force whilst called out under Part IIIAAA. Such considerations posit that when deployed domestically, armed forces members operate under a separate legal status, a privilege gained through military training, duty and subjugation to discipline, which was once summarised as serving “to separate the soldier from the mass of other citizens, and to nourish a particular character in him, and a higher jealousy of disgrace or affront”. 27

1. Duty to Assist in Keeping the Peace of the Realm

An ADF member, upon enlisting in their respective service, takes an oath or affirmation to serve Her Majesty the Queen, swearing “I will resist her enemies and that in all matters appertaining to my service I will faithfully discharge my duty according to law”. 28 Until 1964, this affirmation additionally included the words “and that I will cause Her Majesty’s peace to be kept and maintained”. 29 Although not formally undertaken on attestation, this duty remains for ADF members, by virtue of their obligations to provide aid to the civil power and aid to the civil community.

It merits to explore the historical use of the military in the Anglo-Saxon context to understand the development of the positive duty to assist in keeping the Peace of the Realm. Insofar as States have existed, there has existed a prerogative right to use the military both externally and internally. 30 With regards to the latter, in the Anglo-Saxon tradition, able-bodied men were obliged to serve in the fyrd, aiding the suppression of riots in accordance with the principle that “each civic grouping should be responsible for the maintenance of order within its own area”. 31 This tradition continued unchanged after the Norman Conquest, 32 and was subsumed by the positions of Justice of Peace, and Lord
22 Peter Rowe, ‘The Soldier as a Citizen in Uniform: A Reappraisal’, Vol. 7 New Zealand Armed Forces Law Review 2007, p. 1. Germany, as an example of the earlier, encourages its soldiers to think and act as citizens in uniform through promoting and developing Innere Fuhrung (internal leadership). The German Parliamentary Commissioner for the Armed Forces has commented that his role was ‘to ensure that… the concept of soldiers as citizens in uniform and the principles of Innere Fuhrung will remain decisive criteria governing all action taken’: see Rowe, p. 7. Back
23 Id. Back
24 Id., p. 4. Back
25 See ECtHR (Grand Chamber), Nachova v Bulgaria, Appl. No. 43577/98, 43579/98, 6 July 2005, (2006) 42 EHRR 43 in relation to the treatment of Roma. Back
26 See Yedidiah Groll-Ya’ari, ‘Towards a Normative Code for the Military’, Vol. 20 Armed Forces & Society 1994, pp. 457, 459 who argues that there is no difference between soldiers and officers. Back
27 Baron Hume, Commentaries on the Law of Scotland Respecting Crimes (Edinburgh, Bell & Bradfute, 1844), p. 205. Back
28 Hope, supra note 10, Annex 9, p. 278 (Sir Victor Windeyer). Back
29 Id. Back
30 The nature of this right is best summarised in the Latin maxim, salus populi supremea es lex or safety of the people is the supreme of law. Back
31 Babington, supra note 15, p. ix. Back
32 Id. Back

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Lieutenant 33 who could utilise the possee comitatus – the power of the County – to suppress riots and insurrections 34 and keep the “Peace of the Realm”. 35

This Anglo-Saxon, localised governance continued unchanged until the civil administration of Britain under Oliver Cromwell. Under the Lord Protector, the eponymously named “London Scheme” was introduced, establishing a military commission in London with authority to raise troops for the suppression of “rebellions, insurrections, tumults and unlawful assemblies”. 36 This scheme was quickly adopted in major population centres. 37 In 1688, the “Glorious Revolution” culminated in the subjugation of the military to Parliament. 38 The new regent, William III, utilised the troops stationed in London in an attempt to disband highwaymen who plagued the countryside. 39 Equally, the use and direction of soldiers and sailors remained at the Crown’s discretion. 40 Both the military and naval position at this time was that they did not fall under civilian jurisdiction, but were directly answerable to the Crown. 41

Progressively, the conditions of the eighteenth-century fuelled mass protests, with the now British military being increasingly used as riot controllers. 42 Rarely of national or political character, these civil disturbances were often in protest to a local grievance or food shortage. 43 The death of Queen Anne in 1714 led to government apprehension of riots over the accession of George I. Accordingly, a statute was introduced which imposed a duty on public officer holders (such as magistrates, sheriffs or mayors), whenever twelve or more individuals were gathered, to read the following:
Our Sovereign Lord the King chargeth and commandeth all persons being assembled, immediately to disperse themselves and peaceably to depart to their habitations or their lawful business, upon the pains contained in the Act made in the first year of King George for preventing tumultuous and riotous assemblies. God save the King! 44
The Riot Act of 1715 (UK) (Riot Act) – as the statute was – equally imposed a duty on any of the King’s subjects of age and ability to seize individuals who remained for more than an hour after the proclamation was read. This duty was positive for members of the armed forces. 45 The Secretary at War informed the Attorney-General in 1732 that all magisterial requests for military assistance would be granted after the proclamation was read. 46 Accordingly, implementation changed over time from a near “obsessional emphasis… on civil authorities remaining in control” 47 of troops, to an approach that placed responsibility on the military, and in particular the junior officer at the scene, for determining the necessary actions required to achieve the intent of the Riot Act. Although granted a large discretion
33 Id. Back
34 For a matter of specificity it would also appear that a Justice of the Peace might raise the posse comitatus, see William Hawkins, Pleas of the Crown (Maxwells, 8th ed, 1824), pp. 513-4; see also William Blackstone, Commentaries on the Laws of England (Bancroft-Whitney Publishing) Bk 1, p. 343. Back
35 Blackstone, supra note 34., p. 2. Back
36 Id., 3. Back
37 Over the course of its history, the etymology of the phrase ‘call out’ has developed: see Hope, supra note 10, Annex 9 (Sir Victor Windeyer). In the United States, the phrase remains ‘calling forth’ – as per American Constitution cl 15: see further Supreme Court of the United States, Martin v Mott (1827) 12 Wheat. 19. Back
38 Bill of Rights [1688] ses II c II, s 6 ‘that the raising or keeping a standing army within the Kingdom in time of peace, unless it be with the consent of Parliament, is against the law.’ Back
39 Babington, supra note 15, p. 3. Back
40 Id., p. 5. Back
41 Id., p. 4. Back
42 Id., p. 3. Back
43 Id. Back
44 In 1830, a charge of failing to disperse after the Riot Act of 1715 (UK) was read apparently failed due to the omission of the magistrate to read proclaim ‘God save the King!’; see ‘Reports from Commissioners’, Vol. 5 Criminal Law 1840, pp. 100-101. Back
45 A historical search has suggested the first instance of the Riot Act being read was in Southern Ireland in 1717, and remained on the Statue Book until 1967: see Babington, supra note 15. Back
46 Which, in turn, led to standing orders to be issued to military authorities that on requisition from magisterial office they were to assist: see Hope, supra note 10, Appendix 16. Back
47 Babington, supra note 15, p. 6. Back

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to judge what was necessary to preserve peace, the military personnel were tried in the civilian court. 48 In 1781, the Chief Magistrate of London was charged with criminal breach of duty in failing to order a military invention with respect to the Gordon Riots. 49 The difficulty of the position was expounded by Littledale J in R v Pinney:
Now a person, whether a magistrate or a peace officer, who has the duty of suppressing a riot, is placed in a very difficult situation for if, by his acts, he causes death, he is liable to be indicted for murder or manslaughter, and if he does not act, he is liable to an indictment on an information for neglect; he is, therefore, bound to hit the precise line of his duty: and how difficult it is to hit that precise line, will be a matter for your consideration, but that, difficult as it may be, he is bound to do. 50
It can be seen that whilst this duty relates to a magistrate, and not an ordinary subject of the Crown, it can by extension apply to members of the military who fall under their control. As such, it is a mistake to assume that the “position of a member of the (armed) Forces when ordered out to aid the civil power is in no way different from that of other citizens”. 51 The duty for citizens, as noted by Lord Diplock, is one of imperfect obligation – the average citizen has no obligation to do anything that would expose them to risk or harm, nor need the citizen to go in search of criminals. 52 Conversely, there is a positive duty imposed upon members of the armed forces to help the Crown restore order. 53

The effect of this historical and legislative evolution was imposed on the British colony of New South Wales after settlement in Sydney. During the first 100 years of British settlement in Australia, troops aided the civil power in a variety of ways – from guarding penal colonies and convict labourers to operations at the Frontier. 54 Colonial courts were mostly comprised of British military personnel, and instigated courts martial to individuals regardless of military or civilian status. 55 The scope and role of the British Army personnel posted to the colony remained relatively constant, until after the establishment of police forces in the nineteenth century, 56 at which time it shifted to “acting in support of the civil power… rather than being the only effective instrument of that power”. 57

The duty to assist in keeping the Peace of the Realm not only reflects the overarching common law duty to assist keeping the peace, but specifically the positive obligation on ADF members when aiding the civil power. As Lord Diplock noted, citizens are imposed with an imperfect obligation; conversely, members of the ADF who are on duty with their respective units cannot be required to aid the civil power until authorisation under Part IIIAAA has been given. 58 Once called out, however, the positive duty imposed on ADF members to maintain the Peace of the Realm surpasses that of a citizen, or a police officer.
48 Michael Head, Calling Out The Troops (Sydney, The Federation Press, 2009), p. 40. Back
40 Court of Common Pleas, R v Pinney (1832) 5 Car & P 254. Back
50 Id., § 270. Back
51 Hope, supra note 10, Annex 9, p. 285 (Sir Victor Windeyer). Back
52 A-G Reference, supra note 20, p. 141 (Lord Diplock). Back
53 See Oskar Teichman, ‘The Yewomanry as an Aid to the Civil Power, 1795 – 1867’, Vol. 19 Journal of the Society for Army Historical Research 1940, p. 127. Lieutenant-Colonel Thomas Brereton was court martialled for leniency, having failed to charge the mob in the Bristol Riots under which the mayor, Charles Pinney, was also charged. LTCOL Brereton committed suicide before the conclusion of the court martial. Back
54 See Timothy Bottoms, Conspiracy of Silence – Queensland Frontier Killing Times (Allen & Unwin, 2013); Richard J Fox and Jodie E Lydeker, ‘The Militarisation of Australia’s Federal criminal justice system’, Vol. 32 Criminal Law Journal 2008, p. 290; and David Mackay, ‘Far-Flung Empire: A Neglected Imperial Outpost at Botany Bay 1788 – 1801’, Vol. 9 No. 2 Journal of Imperial and Commonwealth History 1981, p. 135. Back
55 Victor Windeyer, ‘A Birthright and Inheritance: The Establishment of the Rule of Law in Australia’, Vol. 1 No. 5 Tasmanian University Law Review 1962, p. 641. Back
56 Gary Mason and Keith Skinner, The Official History of The Metropolitan Police (Carlton Press, 2004). Back
57 Hugh Smith, ‘The Use of Armed Forces in Law Enforcement: Legal, Constitutional and Political issues in Australia’ Vol. 33 Australian Journal of Political Science 1998, p. 222. Back
58 Hope, supra note 10, p. 167. Back

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2. A Duty to Obey

A second, and more permanent, duty applicable to ADF members is the duty to obey lawful orders. This duty applies to all members of the ADF. Specifically in respect to officers, from the moment of assuming command within the ADF, their commission notes, “I (name of the Governor-General)… Charge and Command you faithfully to discharge your duty as an officer and observe and execute all such orders you may receive from your superior officer…”. 59

The Defence Force Discipline Act 1982 (Cth) (DFDA) provides that lawful orders, 60 and lawful commands, 61 need to be obeyed. Failure to do so constitutes an offence of strict liability. 62 ADF members are expected not only to follow explicit orders, but implicit orders from superior commanders as well, through understanding and enacting their superior officers’ intent. This expectation was considered in the recent Defence Force Discipline Appeals Tribunal (DFDAT) decision of Randall v Chief of Army, 63 where a Warrant Officer Class 2, although prima facie committing breaches of the Criminal Code by accessing emails without authorisation, was acquitted when the Tribunal held that such actions could have been an implied order due to his job role (as the internet service manager). 64 Thus, whilst not only can an ADF member be expected to follow explicit orders, they may further be expected to follow implicit orders.

Failure to follow a lawful command is punishable by up to two years’ imprisonment 65 and failure to obey a lawful general order by up to one year. 66 With relevance to Part IIIAAA, ADF members are obliged to abide by the rules of engagement (ROE) they are issued. ROE are best summarised as:
Directions to operational and tactical level commanders that delineate the circumstances and limitations within which armed forces may be applied by the ADF to achieve military objectives. ROE are issued both in peace and armed conflict. ROE will be issued by the Chief of Defence Force to Command Australian Theatre (COMAST). Joint Force Commanders and Australian Contingent Commanders will also receive ROE from COMAST. The factors that influence the formulation of ROE are diplomatic, political, operational, and international and domestic law. Any ROE issued will include legal consideration of these factors. 67
The phrase ROE came to the fore due to its use by the United States during the Korean War. 68 ROE have expanded to cover all forms of armed conflict. 69 For the purposes of Part IIIAAA, ROE constitute a lawful general order and must be adhered to. 70 Any non-compliance with such orders is thus “not just an individual breach of discipline, but jeopardises the implementation of national policy as reflected in the rules”. 71

Whilst civilians usually “view the command function as one that comes to the fore during combat” 72 it is axiomatic that a military must train for war, not peace. 73 Accordingly, orders must be followed at all
59 Rhonda M Wheate and Nial J Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’, No. 160 Australian Defence Force Journal 2003, p. 21. Back
60 Defence Force Discipline Act 1982 (Cth) ss 27, 29 (DFDA). Back
61 Id., s 29. Back
62 Id., ss 27, 29. Back
63 Defence Force Discipline Appeal Tribunal, Randall v Chief of Army (2018) 335 FLR 260. Back
64 Id., see in particular 271-2. Back
65 DFDA, s 27(1). Back
66 Id., s 29(1). Back
67 Royal Australian Air Force, Australian Air Publication 1003, Operations Law for RAAF Commanders 2004, p. 45. Back
68 Jeffrey F Addicott, ‘The Strange Case of Lieutenant Waddell: How Overly Restrictive Rules of engagement Adversely Impact the American War Fighter and Undermine Military Victory’ Vol. 45 St Mary’s Law Journal 2013, pp. 14-15. Back
69 Jon Moran, ‘Time to Move Out the Shadows? Special Operations Forces and Accountability in Counter-Terrorism and Counter-Insurgency Operations’, Vol. 39 No. 3 UNSW Law Journal 2016, p. 1251. Back
70 See Moore, supra note 12; and DFDA ss 15F, 27 and 29. Back
71 Justice Paul Brereton, ‘The Director of Military Prosecutions, the Afghanistan Charges and the Rule of Law’, Vol. 85 No. 2 Australian Law Journal 2010, p. 101. Back
72 See Dr Matthew Groves, ‘The Civilianisation of Australian Military Law’ Vol. 28 No. 2 UNSW Law Journal 2005, p. 371. Back
73 See generally Justice John Logan, ‘Military Court Systems: Can They Still be Justified in This Age?’ (Speech, Commonwealth Magistrate and Judges Association Triennial Conference, 10 September 2018). Back

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times – whether in a barracks environment, on training exercises in the field, or on deployment. 74 Put more expansively by Sir David Fraser, a career officer whose experience spanned combat operations in World War Two, Malaya, Suez and Cyprus, as well as formation command during the Cold War:
Few men are born heroes. Few are incorrigible cowards. Most can be either; and to help them towards the former rather than the latter state an army uses leadership, discipline and training – a mix which produces confidence and pride. The man well-led can believe there is sense in what he is ordered to do, and that his commander both cares for him and knows his own job. The disciplined man knows that the habit of obedience and united action distinguishes a self-respecting body of soldiers from a mob. The trained man knows his profession enough to do what he has to do, and do it by instinct amidst great dangers. Without these characteristics in the body to which they belong soldiers cannot behave well in battle; and when they fail the fault is not theirs but lies in the system which has placed them there unprepared.

…

No army can function on the basis that its members require rational explanations before they obey: obedience must be absolute, immediate and enforced. But although, in practice, men had “blindly” to obey, they needed to feel they were not blind – that they knew as much as could be managed, and that it made sense. They needed to know, above all, that their destinies were in good hands. 75
Simply, in the military, an enforced disciplinary system underpinned by obedience to orders is a corollary of command. It reflects the unique relationship that ADF members have as an institution. But it further serves to distinguish ADF members from members of civil society, including their constabulary counter-parts.

3. The Profession of Arms

When considering the use of the ADF in domestic operations, one must bear in mind the training and weapon systems employed by ADF members as part of their proficiency in the Profession of Arms. Although the Commonwealth Government has re-tasked the ADF to pursue counter-terrorism, this is not its raison d'être since the advent of contemporary warfighting. This staple of the ADF is best highlighted through the role of the Royal Australian Infantry Corps: “to seek out and close with the enemy, to kill or capture him, to seize and hold ground and to repel attack, by day or night, regardless of season, weather or terrain”. 76 Each other Corps within the Australian Army, in effect, exists to support or complement the infantry. A similar point may be made with respect to the RAN and RAAF.

The distinction of ADF members is particularly evident when compared to the role and training of the constabulary forces of a nation. Policing as a concept exists along what is commonly called the “security/justice continuum”, 77 which at one end aims to provide stability and security to the community and on the other aims to develop a community. 78 Where a police force sits on the continuum is reflective of the nation it serves, and within Australia it can be seen as being used to protect and serve the community. 79 Lethal force is used as a last resort by State and Territory police personnel, and when employed must be proportionate, reasonable and necessary. 80 The Australian Federal Police (AFP), for example, is bound by its Commissioner’s Order on operational safety, which states that conflict de-escalation is the primary consideration. 81 Equally, the National Guidelines for police personnel training
74 The latter of which acts as an aggravating factor: see DFDA Sch 3. Back
75 David Fraser, And We Shall Shock Them, A History of the British Army in World War Two (London, Hodder & Stoughton, 1983), pp. 41, 99; see also Niccolo Machiavelli, The Prince (Penguin Publishing, 2002), pp. 38-41 when Fabrizio comments to Cosimo: ‘discipline drives away fear from men, lack of discipline makes the bold act foolishly… for a courageous army is not so because the men in it are courageous, but because the ranks are well disciplined’. Back
76 Australian Army, ‘Royal Australian Infantry Corps’, 19 December 2016, https://www.army.gov.au/our-people/corps/royal-australian-infantry-corps . Unless indicated otherwise, all urls cited were last accessed on 15 March 2020. Back
77 William Terrill and Eugene Paoline, ‘Examining Less Lethal Force Policy and the Force Continuum: Results from a National Use-of-Force Study’, Vol. 16 No. 1 Police Quarterly 2013, pp. 38-65. Back
78 Id., p. 41. Back
79 Id. Back
80 Simon Bronitt, ‘Rethinking Police Use of Force: Linking Law Reform with Policy and Practice’, Vol. 26 Criminal Law Journal 2012, p. 72. Back
81 Australian Federal Police Commissioner, The AFP Commissioner’s Order on Operational Safety, Order 3 (1 June 2012), § 5.1. Back

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raise ten Operational Safety Principles, emphasising the overarching considerations of safety of the police, public, and offenders. Force is to be avoided unless necessary 82 and reflects the position that protection of the public is paramount. 83 As such, the role of the constabulary forces has been described to keep the Queen’s peace, and the ADF’s role to kill the Queen’s enemies. 84

Generally speaking, armed forces members, and soldiers in particular, are trained “to shoot reflexively and instantly and a precise mimicry on the act of killing on the modern battlefield… Every aspect of killing on the battlefield is rehearsed, visualised and conditioned”. 85 To achieve this, in 2017 the Australian Army Headquarters established a new “Combat Shooting Cell” aimed at qualifying all serving members of the Australian Army (regardless of Corps or service category) with advanced Special Forces training through enhanced realistic training of actual combat scenarios. 86 This is achieved, in part, through the use of robotics to simulate moving targets in a complex terrain environment. 87

III. Legislative Framework

In addition to the specific duty to assist the civil authority in times of unrest, and the constant duty to obey orders and the nature of the Profession of Arms, it is submitted that Part IIIAAA has empowered soldiers to such an extent that it is a misnomer to describe them merely as “citizens in uniform” whilst called out. Rather, Part IIIAAA reflects a statutory intent to distinguish soldiers from being merely “citizens in uniform” as suggested by Lord Tindal CJ.

The Australian Constitution aimed to provide control over military and naval forces to the Commonwealth, whilst allowing the various States to retain residual authority over domestic law and order. 88 There are instances, however, where State and Territory law enforcement agencies lack the necessary resources or capabilities to resolve an imminent, or immediate, threat. In many situations, police may “lack the highly sophisticated military hardware to cope with extremely dangerous emergencies”. 89 As such, it may fall upon ADF members to aid the civil authority, due to their unique capabilities for responding to incidents offshore and in the air. 90

For a majority of Australian history, calling out the ADF has been dictated through four administratively focused sections of the Defence Act. 91 In 2000, in light of the Sydney Olympic Games (Operation Gold) and threat of terrorist activities, Part IIIAAA was introduced to the Defence Act, replacing the previous s 51 with 27 new sections. 92 The focus of Part IIIAAA was on land-based counter-terrorism and hostage recovery situations, and provided a statutory footing for “the mechanics for the deployment of the ADF in aid of the civil authorities”. 93
82 Bronnit, supra note 80, p. 73. Back
83 Australian Federal Police Act 1979 (Cth), s 8. Back
84 Paraphrased from Paul Sieghart, ‘Harmless Weapons: A Threat to Liberty?’ New Scientist (London, 30 March 1978), p. 840 who wrote that ‘the job of the soldier is to kill the Queen’s enemies in war-time; that of the policeman to protect the Queen’s subjects in peacetime.’ Back
85 David Grossman, On Killing (New York Little, Brown & Company, 2010), p. 254. Back
86 Katherine Ziesing, ‘Robotics enlisted to sharpen soldiers’ skill’ The Australian (online), 2 March 2017, https://www.theaustralian.com.au/nation/defence/robotics-enlisted-to-sharpen-soldiers-skills/news-story/c456e3fba1505939f82bbf1348d8aefe. Back
87 Id. Back
88 Military power was transferred to the Commonwealth under s 51(vi) of the Constitution; the colonial defence force was transferred under s 69; States were forbidden to raise military or naval forces without the consent of Commonwealth Parliament under s 114. Back
89 Lee, ‘Military Aid to the Civil Power’, supra note 12, p. 223. Back
90 See Australia and New Zealand Counter-Terrorism Committee, National Counter-Terrorism Plan (Commonwealth of Australia, 2017, 4th ed.), p. 35. Back
91 Letts and McLaughlin, ‘Call-Out Powers for the Australian Defence Force in an Age of Terrorism’, supra note 12, p. 69. Back
92 Letts and McLaughlin, ‘Military Aid to the Civil Power’, supra note 12, p. 114. Back
93 Lee, ‘Military Aid to the Civil Power’, supra note 12, p. 226. Back

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It merits to look at the process and threshold for calling out the ADF, prior to canvassing the various powers available whilst aiding the civil power, so as to demonstrate the extraordinary circumstances that must occur to predicate a call out order, and thus that it is incongruous to construct ADF members as simply “citizens in uniform”. 94

1. Call Out Process

Part IIIAAA is predicated on the need to resolve domestic violence incidents, or a threat thereof, as quickly and efficiently as possible. Thus “the threshold (for calling out the troops)… recognises that calling out the ADF to respond to an incident is a significant and exceptional act, and ensures that it is not to be done in relation to incidents that are within the ordinary capability of police”. 95

This threshold will be explored in more detail below. A call out order is generally made by the Governor-General, on the satisfaction of the Authorising Ministers. The Authorising Ministers are the Prime Minister, the Attorney-General and the Minister for Defence. 96

An order by the Governor-General requires the Chief of the Defence Force (CDF) to utilise the ADF in “such a manner as is reasonable and necessary, for the purpose specified in the order”. 97 Importantly, this does not transfer operational command or control of ADF members to constabulary forces. 98

Table 1: Type of Call Out Orders

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


A call out order under ss 33 or 35 is effective for up to twenty days, unless revoked earlier. 99 If the Authorising Ministers are still satisfied that circumstances exist which constitute the threshold for a call out order, the order may be extended for up to another twenty days, and there is no restriction on the number of times an order may be varied. 100 Contingent call out orders cease to be in force at the end of the timeframe specified in the order, unless revoked earlier. 101 A call out order must also specify which Division, as per Table 2 below, it authorises, dictating the powers that might be utilised by ADF members. 102 More than one Division may be in effect at one time.

Table 2: Part IIIAAA Divisions

Number Division
3 Special powers generally authorised by the Minister
4 Powers exercised in specified areas
5 Powers to protect declared infrastructure
94 Defence Act, s 41. Back
95 Addendum to the Explanatory Memorandum to the Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth), (Addendum to the Explanatory Memorandum 2018). Back
96 Defence Act, s 31. Back
97 Id., s 39(2). Back
98 Id., s 40(3). Back
99 Id., ss 33(5)(d)(ii), 35(5)(d)(ii). Back
100 Id., s 37(2). Back
101 Id., ss 34(5)(d)(ii), 36(5)(d)(ii). Back
102 Id., ss 33(5)(c), 34(5)(c), 35(5)(c), 36(5)(c). Back

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For a Commonwealth interest call out, the Governor-General may make an order to call out the ADF, on the satisfaction of the Authorising Ministers, that:
  1. any of the following applies:
    1. domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia;
    2. there is a threat in the Australian offshore area to Commonwealth interests (whether those interests are in that area or elsewhere);
    3. domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia, and there is a threat in the Australian offshore area to those or any other Commonwealth interests; and
  2. the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the Commonwealth interests against the domestic violence or threat, or both; and
  3. one or more of Divisions 3, 4 and 5 should apply in relation to the order. 103
Whilst there is nothing to prevent a State or Territory from requesting a Commonwealth interests order, the Commonwealth can also make one of its own initiative to protect Commonwealth interests, within a State or Territory. Where a Commonwealth interests call out order is made that a State or Territory has not requested, there is a requirement for an Authorising Minister to consult with the State or Territory before the order is made (unless, for reasons of urgency, it is not practicable to do so). 104

Part IIIAAA does not provide any definition for the phrase “Commonwealth interest”. Some interpretive help is found in the Addendum to the Explanatory Memorandum to the Act, which specifies that the term is to be read as including “the protection of: Commonwealth property or facilities; Commonwealth public officials; visiting foreign dignities of heads of state; and, major national events, including the Commonwealth Games or G20”. 105

Indeed, bearing in mind that there has been no judicial consideration of the phrase, nor any statutorily binding definition, one academic has suggested that where Commonwealth laws or property are affected then, ipso facto, a Commonwealth interest has been affected. 106 Although this position was posited prior to the 2006 and 2018 Amendments, it may still be legally correct.

For a State or Territory protection call out, the Governor-General may make an order to call out the ADF, if:
  1. a State Government or Government of a self governing Territory applies to the Commonwealth Government to protect the State or Territory against domestic violence that is occurring, or is likely to occur, in the State or Territory; and
  2. the Authorising Ministers are satisfied that:
    1. the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the State or Territory against the domestic violence; and
    2. one or more of Divisions 3, 4 and 5 should apply in relation to the order. 107
For both Commonwealth interest and State or Territory protection call outs, Part IIIAAA allows for a mechanism by which the Governor-General may essentially pre-authorise an order for a call out, triggered by specified circumstances, where for reasons of urgency a normal call out is impracticable. 108 These are known as contingent call outs. Although the usefulness of a contingent call out has been
103 Id., ss 33(1). Back
104 Id., ss 38(2), (3). Back
105 Addendum to the Explanatory Memorandum 2018, p. 3. Back
106 Hope, supra note 10, Annex 9; see also Michael Head, ‘Calling out the Troops – Disturbing Trends and Unanswered Questions’, Vol. 28 No. 2 UNSW Law Journal 2005, p. 528. Back
107 Defence Act, s 35(1). Back
108 Id., ss 34(1), 36(1). Back

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questioned, 109 it would appear Parliament has considered it necessary in light of, particularly, aviation threats (which, if they were to materialise, require immediate action).

Additional to the above, in sudden and extraordinary emergencies, an “expedited order” may be made by Authorising Ministers, or alternative Authorising Ministers, in lieu of the Governor-General, to call out the ADF. 110 Such an order may simply be made verbally, 111 or be an electronically signed email. 112 What constitutes a sudden or extraordinary set of circumstances is undefined, affording necessary flexibility to the provision’s operation.

There are three different methods by which an expedited order can be made. The second and third methods can only be utilised if the preceding option cannot be satisfied. In the first instance, the Prime Minister may unilaterally make an order or declaration. 113 Where the Prime Minister is unavailable to be contacted for the purpose of considering or making such an order or declaration, then the two remaining Authorising Ministers may make an order or declaration. 114 In the event that one of the aforementioned Authorising Ministers are unavailable, the remaining Authorising Minister may jointly, with an alternative Minister, make an order or declaration. 115 An alternate Authorising Minister is any one of the following Ministers: the Deputy Prime Minister; the Foreign Affairs Minister; the Treasurer; or the Minister for Home Affairs. 116 An expedited call out can only last up to five days. 117

2. Threshold Requirements for a Call Out

As aforementioned, when deciding to call out the troops for any of the above situations, the Governor-General’s decision is based upon the satisfaction of the Authorising Ministers. This satisfaction is different for Commonwealth interests, and State or Territory protection call outs. For a Commonwealth interest call out, or Commonwealth interest contingent call out, the Authorising Ministers:
  1. must consider the nature of the domestic violence; and
  2. must consider whether the utilisation of the Defence Force would be likely to enhance the ability of each of those States and Territories to protect the Commonwealth interests against the domestic violence; and
  3. may consider any other matter that the authorising Ministers consider relevant. 118
This is compared to the test for a State or Territory protection call out, which requires that the Authorising Ministers:
  1. must consider the nature of the domestic violence; and
  2. must consider whether the utilisation of the Defence Force would be likely to enhance the ability of the State or Territory to protect the State or Territory against the domestic violence; and may consider any other matter that the authorising Ministers consider relevant. 119
109 For example, whilst preceding Part IIIAAA, in 1979 Mr Justice Robert Hope commented that:
the past has established in many parts of the world a great variety of emergent circumstances, some of which would have fallen within a predictable pattern but some of which would not. The last two decades have shown how quickly different situations can develop, thereby creating entirely new challenges to law enforcement authorities. The prescription of the circumstances in which the Defence Force can be used, or of the criteria to be applied in deciding whether that use should be approved, is impracticable and would impose too great an inflexibility upon a situation, which although unusual, of its very nature requires flexibility: Hope, supra note 10, p. 161. Back
110 Defence Act, s 51U. Back
111 Id., s 51U(3). If this is the case, then a written record of its particularity must be made and signed by the decision-maker(s) and the CDF, as per s 51U(3). Failure to comply with this requirement will affect the validity of the order or declaration, by implication of Defence Act, s 51U(3). Back
112 Id., ss 51(U)(3)(a)(b). This could allow, theoretically, for an expedited call out in under five minutes. Back
113 Id., s 51U(2)(a). Back
114 Id., s 51U(2)(b). Back
115 Id., s 51U(2)(c). Back
116 Id., s 51U(2)(c). In an era of rapidly changing political portfolios, the Minister for Home Affairs is defined as the Minister who administers the Australian Federal Police Act 1979 (Cth), as per s 31. Back
117 Id., s 51V(4)(b). Back
118 Id., ss 33(2)(a)(b), 34(2)(a)(b). Back
119 Id., ss 35(2)(a)(b), 36(2)(a)(b). Back

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The language used in Part IIIAAA aims to reflect s 119 of the Australian Constitution - the “wallflower of the Constitution”. 120 Viewed through the prism of a continual cycle of industrial struggles in the 1890s, 121 Sir Samuel Griffiths, as Premier of Queensland, is thought to have inserted the original provision on or around March 1891 122 in light of his deployment, two months earlier, of 1,442 troops to break the Shearer’s Strike. 123 The provision of the Constitution reads that “the Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence”.

The term ‘domestic violence’ finds no definition in the Constitution nor the Defence Act, nor has it received any jurisprudential commentary. The Addendum to the Explanatory Memorandum to the Act notes that:
‘domestic violence’ … refers to conduct that is marked by great physical force and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence. Peaceful protests, industrial action or civil disobedience would not fall within the definition of ‘domestic violence.’ 124
When considering the nature of the domestic violence, consideration could include:
matters such as the type of violence, the types of weapons used, the number of perpetrators involved, as well as the scale of domestic violence (or anticipated domestic violence), where such information is available. For example, the ADF could be called out in response to unique types of violence, such as chemical, biological, radiological or nuclear attack The ADF could also be called out where the type of violence is not unique – for example an active shooter – but where the violence is so widespread, or there are so many shooters involved, that law enforcement resources are in danger of being exhausted. 125
This direction, however, is merely advisory. There is a large ambit of discretion granted to Authorising Ministers to be satisfied in making their recommendation to the Governor-General.

The second mandatory consideration requires an assessment of the differing capabilities and capacity of the various States or Territories. 126 The constabulary forces of New South Wales, for example, require less assistance than those of Tasmania. This is ostensibly aimed at ensuring that the ADF is called out in situations: where the ADF has relevant specialist capabilities that could be brought to bear… (allowing for) greater flexibility for the ADF to be used to provide the most rapid, effective or appropriate specialist support to the states and territories, while respecting the states’ and territories’ position as first responders. 127 Arguably, one ADF member equipped with a service rifle could enhance the capabilities of a State or Territory constabulary forces; equally, a lack of training and communication systems could hinder the effectiveness of co-ordinated responses. 128 Although a balancing act, the use of the ADF is a significant and exceptional act not intended to respond to “incidents ordinarily and easily dealt with by police”. 129

The same follows for contingent call outs. As noted above, contingent call outs may occur for a Commonwealth interest or State or Territory protection call out, and are triggered by “specified circumstances”. 130 Contingent call out orders, under s 34, will typically be:
120 Peta Stephenson, ‘Fertile Grounds for Federalism – Internal Security, the States and Section 119 of the Constitution’, Vol. 43 Federal Law Review 2015, p. 291. Back
121 Head, supra note 48, p. 45. Back
122 See John A La Nauze, The Making of the Australian Constitution (Carlton, Melbourne University Press, 1972). Back
123 Which the Queensland Government viewed as amounting to an insurrection and troops were called in to suppress it: see Hope, supra note 10, p. 330. Back
124 Explanatory Memorandum 2018, p. 6 (emphasis added). Back
125 Id., p. 36 (emphasis added). Back
126 Anthony Blackshield, ‘The Siege of Bowral – The Legal Issues’, Vol. 4 No. 9, Pacific Defence Reporter 1978, p. 36. Back
127 Explanatory Memorandum 2018, p. 25. Back
128 Army Knowledge Centre ‘Working with Police’, No. 56 Smart Soldier 2019, pp. 29 – 32. Back
129 Explanatory Memorandum 2018, p. 6. Back
130 Defence Act, ss 34(1), 36(1). Back

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used as part of a request for ADF security support for major international events hosted within Australia, where there is a foreseeable or anticipated threat against Commonwealth interests. Such orders have been regularly made as part of security measures to protect major Commonwealth events including the 2014 G20 Leaders’ Summit in Brisbane, the 2018 Gold Coast Commonwealth Games and the 2018 ASEAN-Australia Summit, from circumstances involving air threats. 131 This is shared for contingent call outs under s 36, in relation to State or Territory protection orders. 132 Specifically, a contingent call out under s 36 may occur where “the relevant State or Territory may have limited, or no, capability to respond to such an attack”. 133

These specified circumstances must be “sufficiently particular to allow Authorising Ministers to make the assessment required” 134 and are not intended to be made “on the basis of vague or indefinite specified circumstances”. 135 But what exactly constitutes “specified circumstances”, and the level and reliability of the intelligence required for offshore and land contingencies, was a significant issue in the drafting stages. 136 The Explanatory Memorandum notes that there “are a range of circumstances that could give rise to a contingent call out order. What constitutes specified circumstances will depend on the situation in question”. 137

A contingent call out order could be made, for example, to protect Commonwealth interests during a major international summit where there is a foreseeable risk, based on intelligence, of a chemical, biological, radiological or nuclear (CBRN) attack at a summit venue. It would be appropriate for a contingent call out order to be in place to deal with this foreseeable risk, empowering the ADF to use its specialist capabilities should the specified circumstances of an imminent or actual CBRN attack at the summit arise without having to use the normal or expedited call out process when the specified circumstances actually arise. 138 This moreover applies to possible aviation or maritime threats.

It can be seen that a decision to call out the ADF under Part IIIAAA is a significant and exceptional act, and recognises the remarkable circumstances which must occur before ADF members are called out. Although the 2018 Amendments aimed to reduce the threshold requirements for use of the ADF, 139 the twofold requirements that Authorising Ministers must consider not only the nature of the domestic violence, but the enhancement the ADF may offer, highlights that not every instance of domestic violence, or threat of domestic violence, will result in a call out.

3. Various Divisions of Part IIIAAA

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

A. Division 3

Generally speaking, Division 3 powers may only be exercised when authorised by an Authorising Minister. 140 The powers under Division 3 are focused primarily on “preventing, ending, and protecting people from, acts of violence and threats”. 141 Although separate divisions, powers under Division 3 may also be utilised under Division 4. If a power could be used under both, it is taken to be exercised under
131 Addendum to the Explanatory Memorandum 2018, p. 3. Back
132 Id., 5. Back
133 Id., 4. Back
134 Addendum to the Explanatory Memorandum, p. 4. Back
135 Id., p. 3. Back
136 See Senate Legal and Constitutional Affairs Committee, Report, Defence Legislation Amendment (Aid to the Civilian Authorities) Bill 2005, February 2006, p. 44. Back
137 Addendum to the Explanatory Memorandum 2018, p. 5. Back
138 Explanatory Memorandum 2018, p. 36. Back
139 This was arising from the Review of Defence Support to National Counter-Terrorism Arrangements, which considered the Lindt Café. Back
140 Defence Act, s 41. Back
141 Explanatory Memorandum 2018, p. 59. Back

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Division 3. 142 Specifically, for ADF soldiers operating under Division 3, and with reference to Table 3, ADF members may be authorised to do any of the following things:

Table 3: Powers of ADF troops under Division 3

Section Power
46(5)(a) Capture or recapture a location, prevent or put an end to violence
46(5)(b)(i) Prevent, or put an end to, acts of violence
46(5)(b)(ii) Prevent, or put an end to, threats to any person’s life, health or safety, or to public health or public safety
46(5)(c)(i) Protect any person from acts of violence
46(5)(c)(ii) Protect any person from threats to any person’s life, health or safety, or to public health or public safety
46(5)(d) Take measures (including the use of force) against an aircraft (whether the aircraft is airborne) or vessel, subject to restrictions


Importantly there are, however, situations where Ministerial authorisation is not required for ADF members to utilise Division 3 powers. Any ADF member who believes on reasonable grounds that there is insufficient time to obtain authorisation due to the existence of a sudden and extraordinary emergency, may take an action under the powers outlined in Table 3 or the additional powers under Table 4 below. 143 One such emergency could be “where the ADF have been called out to respond to a siege, but while preparing to take action to end the siege a separate armed attack breaks out nearby”. 144 The empowerment of ADF members by Parliament to, for example, utilise lethal force, take measures against an aircraft, or search a premises of their own initiative, is clearly incompatible with the position that they are “citizens in uniform”.

Whilst operating under Division 3, ADF members are equally empowered to utilise the powers outlined in Table 4. An Authorising Minister need only authorise one power in Table 3 to validate the remaining powers under subsection 7 and 9, outlined in Table 4 below. 145

Table 4: Additional powers under Division 3

Section Power
46(7)(a) Free any hostage from a location (including a facility) or thing
46(7)(b) Control the movement of persons by means of transport
46(7)(c) Evacuate persons to a place of safety
46(7)(d) Search persons, locations, premises, transport or things for items that may be seized
46(7)(d) Search persons, locations, premises, transport or things for people who may be detained
46(7)(e) Seize any item the member believes on reasonable grounds is a thing that may be seized in relation to the call out order
46(7)(f) Detain any person that the member believes on reasonable grounds may be detained, for the purpose of placing the person in custody at the earliest practicable time
46(7)(g) Provide security (whether armed or not, and whether with police or not) including by patrolling or securing an area or conducting cordon operations
46(7)(h) Direct a person to answer a question, or produce a document, that is readily accessible to the person (including requiring identification)
46(7)(i) Direct a person to operate machinery or a facility
142 Defence Act, s 41. Back
143 Defence Act, s 46(1)(b). Back
144 Explanatory Memorandum 2018, p. 55. Back
145 Id., p. 56. Back

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ADF members may also do anything incidental to anything under subsection (5) or (7). 146

Whilst there is no limitation on the Corps or service categorisation of the ADF members to be used (Regular or Reserve), realistically any land-based call out of the ADF under Division 3 will utilise Australian Special Forces, which include Tactical Assault Group (East) (TAG(E)) or (West) (TAG(W)). TAG(E) is constituted by members of the 2nd Commando Regiment (2CDO) and is responsible for assisting Australia’s eastern seaboard. 147 TAG(W) is constituted by members of the Special Air Service Regiment (SASR) and is responsible for Australia’s western seaboard. 148

Personnel in TAG(E) or TAG(W) are members of Special Operations Command (SOCOMD). Qualified members of SOCOMD are highly trained and experienced in urban combat, and are considered the apex of combat soldiers. They are, even within the isolated institution of the ADF, removed both geographically and culturally, 149 with their identities, for the tenure of their posting in SOCOMD, protected (in policy) from both the public and their peers (protected identity herein referred to as (PID)). Accordingly, there is no requirement for soldiers to wear uniform or have any form of identification whilst operating under Division 3. Whilst lengthy, the justification merits replication:
The requirement to wear uniforms and identification applies to proposed Division 4, but not to proposed Division 3. This is because the tasks that the ADF will be required to perform under Division 3 are higher end military actions and may involve the Special Forces. These tasks may require the ADF to operate in a covert manner where uniforms would be detrimental. ADF Special Forces soldiers have protected identity status because they are associated with sensitive capabilities. Protected identity status is required to maintain operational security and the safety of the individual and their family. By virtue of their protected identity status, ADF Special Forces soldiers are able to exercise powers under proposed Division 3 without being required to produce identification or wear uniforms. Tasks under Division 4 are more likely to be related to securing an area with, or in assistance to, the police. When carrying out Division 4 tasks, the ADF is more likely to need to display a visible presence and therefore uniforms will assist the conduct of these tasks. 150
Division 3 evidently envisages situations which require extreme, deliberate and potentially lethal force to be used. It gives wide discretion to ADF members on the ground, in the air or on the water, to prevent or put an end to violence.

B. Division 4

Under Division 4, the Authorising Ministers may declare a “specified area”. 151 The intent of such a declaration by the Authorising Ministers is to empower an ADF member to search premises in the
146 Defence Act, s 46(8). Back
147 Michael Brisseden, ‘Sydney Siege: Counter-terrorism specialist questions weapons’ Australian Broadcasting Corporation (online), 25 January 2015, https://www.abc.net.au/news/2015-01-29/counter-terrorism-specialist-questions-sydney-siege-weapons/6053706. Back
148 Id. Back
149 The effect of this isolation on the culture of SOCOMD was addressed in an internal review by sociologist Dr Samantha Crompvoets: see Dan Oakes, ‘Claims of illegal violence, drugs and alcohol abuse in leaked Australian Defence report’ Australian Broadcasting Corporation (online) 9 June 2018, https://www.abc.net.au/news/2018-06-08/allegations-of-australian-soldier-misconduct-detailed-in-report/9815182. Back
150 Explanatory Memorandum 2018, p. 60. Back
151 Defence Act, s 51. Back

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specified area, and to also search means of transport and persons in the specified area. 152 The search powers under the specified area Division are accordingly divided into two subdivisions: one relating to premises (Subdivision C), 153 and the other to means of transport and people (Subdivision D). 154 The authorisation process for these subdivision search powers differs subtly.

A declaration of a specified area can relate to a part of the mainland Australian territory, or an offshore area. 155 Importantly, a specified area declaration can occur with respect to a contingent call out, whether or not the circumstances specified have arisen. 156 Reasonably, a specified area is three-dimensional and includes both the airspace and underground – such as subway areas – within the boundaries. 157 The intention of the provisions is to remove the distinction between the previous General Security Areas and Designated areas, and “allow for the full suite of powers to be exercised within a single specific area”. 158

If a specified area declaration is made, the Authorising Minister must arrange for a statement to be prepared in respect of the declaration. A copy of the statement must be given to the Presiding Officer 159 of each House of Parliament within 24 hours of the declaration being made, and each House is to sit within six days of the Presiding Officer receiving the statement. 160 When relating to onshore areas, the statement, including a description of the specified area and its boundaries, must be broadcast publicly, by television, radio or electronic means, so as to be capable of being received within the specified area. 161 The 2018 Amendments have removed the need to publish declarations in the Gazette. 162

With respect to Subdivision C, whilst called out under Part IIIAAA, the CDF or an authorised Defence officer 163 may give a search authorisation if the officer believes on reasonable grounds that on any premises within the specified area there is:
  1. a person who is likely to pose a threat to:
    1. any person’s life, health or safety; or
    2. public health or public safety; or
  2. a thing that is likely to:
    1. pose a threat to any person’s life, health or safety; or
    2. pose a threat to public health or public safety; or
    3. cause serious damage to property; or
  3. a person or thing connected with domestic violence or threat specified in the order. 164
Subdivision C is of more interest, as a cornerstone for the exceptional powers being granted to ADF members, than Subdivision D. Practically, the delegation of an authorised Defence officer allows for operational flexibility, and reflects the fact that the CDF will not always have accurate, on the ground information as a situation develops. 165 It moreover demonstrates a clear level of responsibility being granted, by Parliament, to a class of Defence officers on the ground. Noting that subparagraph (c) allows for the ADF to search for individuals who have not committed an offence, but may seek to assist
152 Explanatory Memorandum 2018, p. 16. Back
153 Defence Act, s 51A. Back
154 Id., s 51B. Back
155 Id., s 51. Back
156 Id., s 51(2). Back
157 Explanatory Memorandum 2018, p. 61. Back
158 Id., p. 59. Back
159 Presiding Officer means the President of the Senate or the Speaker of the House of Representatives: Defence Act, s 31. Back
160 Defence Act, s 51(9). Back
161 Id., s 51(7). Back
162 Id., s 62. Back
163 Authorised Defence Officer carries the definition under s 31 of the Defence Act. Back
164 Defence Act, s 51A(1). Back
165 Explanatory Memorandum 2018, p. 65. Back

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others, 166 it is clear that the scope is wide and inconsistent with the perspective that an ADF member is simply a citizen in uniform. Equally, a search authorisation may be given to confirm that an individual or thing is not located within the area (“search to exclude”). A search authorisation may be given generically, relating to an area, kind of premises, or individual premises. 167 This is justified by a need for flexibility in locating and pursuing perpetrators quickly. 168 There is no requirement under the legislation that the power be used in response to terrorism. The ability for the ADF to conduct dragnet searches is a departure from other Anglo-American nations and remains a remarkable power. 169

There are also further procedural requirements granted to the occupiers of a premises being searched. A member of the ADF conducting a search must provide the occupier with a document establishing the necessary authority. 170 The occupier – to the extent they do not impede the search 171 – is entitled to observe the search. 172 This right of the occupier does not, however, impact on the freedom of the ADF to search rooms concurrently. 173 A search authorisation must not last longer than 24 hours. 174 There is no limitation on consecutive search authorisations. 175

Subdivision D empowers ADF members to conduct operations centred on search and seizure “in relation to a dangerous thing and persons who are believed to have committed offences related to the domestic violence or who pose a threat”. 176 These powers are as follows:

51D Powers relating to means of transport and persons in specified area
  1. This section applies if a member of the Defence Force who is being utilised under a call out order believes on reasonable grounds that there is in a specified area:
    1. a person who is likely to pose a threat to:
      1. any person’s life, health or safety; or
      2. public health or public safety; or
    2. a person who has in the person’s possession a thing that is likely to:
      1. pose a threat to any person’s life, health or safety; or
      2. pose a threat to public health or public safety; or
      3. cause serious damage to property; or
    3. a person connected with the domestic violence or threat specified in the order; or
    4. a thing that is likely to:
      1. pose a threat to any person’s life, health or safety; or
      2. pose a threat to public health or public safety; or
      3. cause serious damage to property; or
      4. a thing connected with the domestic violence or threat specified in the order.
166 Id., p. 64. Back
167 Defence Act, s 51A(2). Back
168 Explanatory Memorandum 2018, p. 64. Back
169 In no instance has a dragnet search been upheld as legal within the United States in a civilian court: see Nicholas B Waranoff, ‘Federal Judicial Control of the National Guard’, Vol. 52 Boston University Law Review 1972, p. 16. For the only instances in which it has been upheld has been within military courts see United States v Schafer, 13 USCMA 83, 32 CMR 85 (1962). Back
170 Defence Act, s 51B(1). Back
171 Id., s 51C(2). Back
172 Id., s 51C(1). Back
173 Id., s 51C(3). Back
174 Id., s 51A(2)(e). Back
175 Id., 51A(4). Back
176 Explanatory Memorandum 2018, p. 59. Back

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Powers relating to any means of transport or person, and other general powers
  1. Any member of the Defence Force who is being utilised under the call out order may do any one or more of the following:
    1. erect barriers or other structures, at the border of, or in any part of, the specified area;
    2. stop any person (including a person mentioned in subsection (1)), or means of transport, in the specified area (whether or not barriers were erected);
    3. direct any person:
      1. not to enter the specified area; or
      2. to leave, or not to leave, the specified area; or
      3. to move from a place in the specified area to another place in the specified area; or
      4. not to move from a place in the specified area to another place in the specified area;
    4. direct a person in charge of any means of transport:
      1. not to bring the means of transport into the specified area; or
      2. to take, or not to take, the means of transport out of the specified area; or
      3. to take the means of transport from a place in the specified area to another place in the specified area; or
      4. not to take the means of transport from a place in the specified area to any other place, or to a specified place, in the specified area;
    5. if there is no person in charge of a means of transport that is in a specified area—take any action that is reasonable and necessary for either of the following purposes:
      1. taking the means of transport out of the specified area;
      2. taking the means of transport from a place in the specified area to another place in the specified area;
    6. direct a person in charge of a means of transport not to move the means of transport within the specified area (including by bringing it into or taking it out of that area) unless the person agrees to a member searching:
      1. the person; and
      2. the means of transport and any thing in or on the means of transport;
    7. direct any person not to move within the specified area (including by coming into or going out of that area) unless the person agrees to a member searching the person;
    8. if a person agrees to a search under paragraph (f) or (g)—conduct the search and:
      1. seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order; or
      2. detain the person, if the member believes on reasonable grounds that the person is a person who may be detained in relation to the call out order, for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time;
      3. direct a person in the specified area to answer a question put by the member, or to produce to the member a particular document that is readily accessible to the person, (including by requiring the person to provide identification to the member);
    9. operate, or direct a person to operate, a facility, machinery or equipment (including electronic equipment) in a particular manner (whether or not the facility, machinery or equipment is on a facility or means of transport), if the member believes on reasonable grounds that doing so is reasonable and necessary for the purpose of:
      1. preserving the life or safety of any person in the specified area; or
      2. protecting against the threat of the person or thing mentioned in subsection (1).
    Note 1: For the definitions of person who may be detained, search and thing that may be seized, see section 31.
    Note 2: See also sections 51E (general provisions relating to section 51D), 51P (persons to be informed of certain matters if detained), 51Q (actions to be taken if things seized) and 51R (offence for failing to comply with a direction).

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Search and seizure powers relating to specific means of transport
  1. Any member of the Defence Force who is being utilised under the call out order may do any one or more of the following if the member believes on reasonable grounds that a person or thing mentioned in subsection (1) is in or on a means of transport in the specified area:
    1. detain the means of transport;
    2. search the means of transport, and any thing found in or on the means of transport;
    3. seize any thing (including a means of transport) found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order;
    4. detain any person found in the search who the member believes on reasonable grounds is a person who may be detained in relation to the call out order for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time.
  2. A member who detains a means of transport under paragraph (3)(a) must not detain the means of transport for longer than is reasonable and necessary to search it and any thing found in or on it, unless the means of transport is seized in accordance with paragraph (3)(c).
Search and seizure powers relating to the suspect
  1. Any member of the Defence Force who is being utilised under the call out order may do any one or more of the following if the member believes on reasonable grounds that a person (the suspect) mentioned in paragraph (1)(a), (b) or (c) is in the specified area:
    1. search the suspect;
    2. seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order;
    3. detain the suspect if the member believes on reasonable grounds that the suspect is a person who may be detained in relation to the call out order for the purpose of placing the suspect in the custody of a member of a police force at the earliest practicable time. 177
The powers outlined are natural corollaries of the ADF’s ability to establish and manage cordons. The powers aim to “fill gaps in the powers provided under [previously] existing legislation”. 178 The operational experience of the ADF in the Greater Middle East region can be seen in the powers to control and stop a vehicle-borne improvised explosive device. It further allows for soldiers to move and remove vehicles that might inhibit movement or allow for a getaway. 179 It is important to note in some circumstances, searches may occur without consent, if the ADF member reasonably believes the individual or means of transport fall under s 51D(1). The provisions are similar to those outlined under Division 3.

The 2018 Amendments removed the need for soldiers to provide the name, rank and service number of the ADF member commanding the search under the justification that it is “impractical”. 180 In lieu thereof, Part IIIAAA now requires soldiers operating under Division 4 to be in uniform and have clear identification. 181 Failure to abide by these statutory requirements is a civilian offence punishable by an acknowledged “relatively low penalty” 182 of 30 penalty units. 183 The CDF moreover has a positive obligation to ensure ADF troops abide by the requirement. 184 There are two exceptions to this requirement: the first relates to where the contravention was because of an act of another person, who is not an ADF member, done without consent; 185 and the second being when the power used is within Division 3, and is therefore held to operate under those provisions. 186
177 Defence Act, s 51D. Back
178 Explanatory Memorandum 2018, p. 67. Back
179 Id., p. 67. Back
180 Id., p. 65. Back
181 Defence Act, s 50(1)(c). Back
182 Explanatory Memorandum 2018, p. 60. Back
183 Defence Act, s 50(1). Back
184 Id., s 50(3). Back
185 Id., s 50(2)(a). Back
186 Id., s 43. Back

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

C. Division 5

Division 5 develops further the powers of the ADF when protecting “declared infrastructure” and is focussed primarily on “preventing and ending damage or disruption to the operation of declared infrastructure, and on preventing, ending and protecting people from acts of violence and threats”. 187 Under Part IIIAAA the Authorising Ministers may, in writing, declare particular infrastructure, or part thereof, as “declared infrastructure”. 188 Separately, an expedited infrastructure declaration can be made under Division 7. 189 The criteria by which the Authorising Ministers may declare infrastructure requires belief, on reasonable grounds, that:
  1. Either:
    1. There is a threat of damage or disruption to the operation of the infrastructure or the part of the infrastructure; or
    2. If a contingent call out order is in force – if the circumstances specified in the order were to arise, there would be a threat of damage or disruption to the operation of the infrastructure or part of the infrastructure; and
  2. The damage or disruption would directly or indirectly endanger the life of, or cause serious injury to, any person. 190
The Explanatory Memorandum makes clear that the provision is not intended to cover or:
… protect nationally significant buildings such as the Opera House in the absence of any concomitant risk to life. The type of infrastructure intended to be declared includes, for example, power stations, water treatment plants, nuclear power stations and hospitals. 191
But is linked to:
… physical facilities, supply chains, information technologies, and communication networks which if destroyed, degraded or rendered unavailable for an extended period, would significantly impact on the social or economic wellbeing of Australia, or affect Australia’s ability to conduct national defence and ensure national security. 192
Whether or not infrastructure such as the Sydney Harbour Bridge which, if destroyed, would impact on the economic wellbeing of Sydney through significant disruption to its flow of trade and transport, could be deemed declared infrastructure, remains open. Declared infrastructure may be either within Australia or the offshore area; and such declaration may be made whether a call out is in force or not. 193 Pertinently, a declaration may be made in respect of infrastructure in a State or Territory even in circumstances where the relevant State or Territory government has not requested the making of a declaration. 194 If an infrastructure declaration specifies a period of operation, the declaration ceases to be in force at the end of the specified period. If not, it ceases to operate when revoked. The period specified in an infrastructure declaration can differ from a period specified in a call out order to which the declaration relates. 195 The powers of the ADF to protect declared infrastructure are as follows:

51L Powers to protect declared infrastructure
187 Explanatory Memorandum 2018, p. 72. Back
188 Defence Act, s 51H. Back
189 Id., s 51F Back
190 Id., s 51H(2). Back
191 Explanatory Memorandum 2018, p. 71. Back
192 National Counter-Terrorism Plan, supra note 89, p. 32. Back
193 Defence Act, s 51H. Back
194 Id., 51H(6)(7). Back
195 Id., 51H(5)(b). Back

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  1. A member of the Defence Force who is being utilised under a call out order may, under the command of the Chief of the Defence Force, take any of the actions in subsection (2), or exercise any of the powers in subsection (3) or (5), for the purpose of protecting declared infrastructure.
  2. The member may take one or more of the following actions:
    1. prevent, or put an end to, damage or disruption to the operation of the declared infrastructure;
    2. prevent, or put an end to:
      1. acts of violence; or
      2. threats to any person’s life, health or safety, or to public health or public safety;
    3. protect any persons from:
      1. acts of violence; or
      2. threats to any person’s life, health or safety, or to public health or public safety.
  3. The member may do any one or more of the following in connection with taking any such action:
    1. control the movement of persons or of means of transport;
    2. evacuate persons to a place of safety;
    3. search persons, locations or things for any thing that may be seized, or any persons who may be detained, in relation to the call out order;
    4. seize any thing found in the search that the member believes on reasonable grounds is a thing that may be seized in relation to the call out order;
    5. detain any person found in the search that the member believes on reasonable grounds:
      1. is a person who may be detained in relation to the call out order; or
      2. is a person who is likely to pose a risk to the operation or integrity of declared infrastructure;
      3. for the purpose of placing the person in the custody of a member of a police force at the earliest practicable time;
    6. provide security (whether or not armed, and whether or not with a police force) including by patrolling or securing an area or conducting cordon operations;
    7. direct a person to answer a question put by the member, or to produce to the member a particular document that is readily accessible to the person, (including by requiring the person to provide identification to the member);
    8. operate, or direct a person to operate, a facility, machinery or equipment (including electronic equipment) in a particular manner (whether or not the facility, machinery or equipment is on a facility or means of transport). 196
ADF members may also do anything incidental to anything under subsection (2) or (3). 197

The scope for what could potentially be declared infrastructure is intended to be qualified by the Explanatory Memorandum’s four examples (physical facilities, supply chains, information technologies, and communication networks). Yet, the Explanatory Memorandum further notes that “terrorists may deliberately target persons who are essential to the operation of declared infrastructure in order to damage that infrastructure”. 198 Such a position would seem to place individuals in a separate category of declared infrastructure (support). It is the position of this paper that it is legally plausible that an individual, who is fundamental to the maintenance of a particularly critical piece of infrastructure, could be found by the Authorising Ministers as a declared infrastructure (support). However, their protection could equally be guaranteed under Division 3 or 4 powers.

IV. Use of Force
196 Defence Act, s 51L(1) – (3). Back
197 Id., s 51L(5). Back
198 Explanatory Memorandum 2018, p.73. Back

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Whilst there are some exceptional powers granted to the ADF which may not find comparable scope to civilian constabulary forces, 199 the legislative scope for the use of force – lethal and non-lethal – by ADF members whilst called out under Part IIIAAA illustrates that the notion of a “citizen in uniform” is wholly inapplicable.

Use of force works along a continuum, and “may involve sequential actions that begin with non-deadly force measures and may graduate to deadly force measures”. 200 As such, the mere presence of an ADF member may constitute force – be it threat of force or force projection; equally, force may constitute soft physical pressure, non-lethal weapon systems (such as tear gas or batons) or lethal weapons (such as firearms). 201 As a general rule, force should be graduated when applicable. It is important to note, though, that minimum force does not imply a minimum number of troops. 202

1. Reasonable and Necessary

Under Part IIIAAA the use of force must be reasonable and necessary. 203 Below, in Table 5, are six key instances, by way of example, in which a member of the ADF, being utilised as part of a call out, may use force.

Table 5: Permitted instances for use of force when it is reasonable and necessary to do so

Section Power
51N(3)(i) To protect the life of another person
51N(3)(i) To prevent serious injury to another person
51N(3)(ii) To protect declared infrastructure
46(5)(d) Against an aircraft (whether or not it is airborne)
46(5)(d) Against a vessel
51N(3)(b) When an individual attempts to escape being detained by fleeing


However, the standard for what is reasonable and necessary force by military members may not necessarily be the same as for civilian police. An example of this is shown in the nature of a call out, authorising Division 3 powers, which may require the deliberate, planned use of force by ADF members to retake a building in order to prevent domestic violence. For civilian police to engage in “deliberate, planned targeting operations against certain categories of people…would likely be murder”, 204 yet this is a fundamental element of any military operation.
199 Such as the ability to detain an individual, on reasonable grounds, who fits the definition as per Defence Act, s 31. This is predicated on a threat likelihood, as distinct from a citizen’s power of arrest which requires the criminal act being performed by the detainee to be viewed by the detainer. Further, ADF members have the power to demand an answer to a question or for an individual to produce a document. Such a legislative grant mirrors actions taken by the British Government in Northern Ireland through the enactment of Crim. L.R. 405: see John D Jackson ‘Curtailing the right of silence: lessons from Northern Ireland’, Vol. 42 Criminal Law Review 1991, p. 404 on the lack of effect the legislation had. Further, ADF members under Division 3 have the power to patrol, secure an area or conduct cordon operations, whilst armed, and without police assistance or escort: see Defence Act, s 46(7)(g). Back
200 International Institute of Humanitarian Law, San Remo Handbook on Rules of Engagement (San Remo, International Institute of Humanitarian Law, 2009), Appendix 5 to Annex A, §5.2. Back
201 Id. Back
202 Ward, supra note 12, p. 12. Back
203 Defence Act, s 51N. Back
204 Rob McLaughlin, ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations – Is there a ‘Lawful Authority’?, Vol. 37 No. 3 Federal Law Review 2009, p. 446. Back

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What constitutes reasonable force by a soldier will always be a question of fact, and “cannot be predetermined by rigid rules of law”. 205 As one academic has noted, however:
Frankly the great amount of detail set out in the Act, while reasonable from a legal point of view, makes it difficult for the members of armed forces themselves when caught up in the heat of a dangerous and violent situation. Even though they are usually exposed to a range of scenarios during training exercises to tease out legal nuances, if something unexpected occurs they are hardly then in the position to seek detailed legal advice about the meaning and effect of s 51T. 206
The reference to s 51T above relates to Part IIIAAA as it was prior to the 2018 Amendments, and which is now identical to the requirements for reasonable and necessary under the current s 51N(3). The effect of this is that whilst what constitutes reasonable force for the protection of life or prevention of serious injury might be claimed to be the same for ADF members as civilian police, consideration needs to be had to the various weapon systems and training differences. As posited elsewhere, when asking what constitutes reasonable force by a member of the armed forces operating domestically, “justice requires a higher allowance of his forwardness in maintaining his service, whatsoever it is for the time; and they are withal a warning to everyone, not to molest or meddle with him therein”. 207

This position is submitted be current still, albeit in need of a more modernised framing: justice requires a higher allowance for the use of force by armed forces members, acknowledging their training and duties, and the stress of service.

An exploration of historical instances of the use of lethal force, and where it was deemed reasonable and unreasonable, may allow for the boundaries to be drawn. Some limitations on the below case studies should be acknowledged from the outset. Arising from the paucity of Australian precedent, it follows that foreign authorities must be sought. Common law cases on the use of the military in assisting law enforcement “dates from the period of empire when places such as Palestine, Australia, New Zealand, South Africa and India shared a greater formal legal affinity”. 208 As such, obiter and ratio from these cases are acknowledged to not be binding. It is unlikely, however, that in a scenario relating to the use of force by an ADF member under Part IIIAAA that “the UK experience would not feature strongly in the search for jurisprudential guidance – at least, as a minimum, with respect to the broader philosophical-legal issues at play”. 209

A. Protect Life or Prevent Serious Injury

In the matter of R v Clegg, 210 Private Clegg was convicted of murder by the trial judge for the use of lethal force, whilst on duty with a patrol in Northern Ireland. Use of force by British soldiers in Ireland followed relatively synonymous powers with that applicable to ADF soldiers under Part IIIAAA, allowing force to be used “as is reasonable in the circumstances”. 211 The intent of the mission was to catch joyriders, but this had not been conveyed to the soldiers. As a stolen car approached at speed, Private Clegg shot three rounds into the windscreen; as it passed and drove away, he fired a fourth round that struck and killed a passenger. 212 The first three shots were accepted as self-defence. The fourth shot, however, was found to have no viable defence. On appeal, PTE Clegg’s conviction for murder was upheld, to the apparent dismay of the Court, which submitted that legislative reform should been enacted to allow the trial judge discretion, taking into account the soldier’s weapon system, training and duty to assist the Crown. 213 Relevantly to the question of whether military personnel in Northern Ireland
205 Hope, supra note 10, Annex 9, p. 295. Back
206 Michael W. Duckett White, Australian Offshore Laws (Annandale, The Federation Press, 2009, 2nd ed.), p. 121. Back
207 Scottish High Court of Justiciary, HM Advocate v Sheppard (1941) JC 67, p. 72 (Lord Robertson). Back
208 McLaughlin, supra note 204, p. 446. Back
209 Id., p. 447. Back
210 House of Lords, R v Clegg [1995] 1 AC 482. Back
211 Criminal Law Act (Northern Ireland) 1967, s 3. Back
212 House of Lords, R v Clegg [1995] 1 AC 482. Back
213 Id. Back

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were merely “citizens in uniform”, Lord Lloyd of Barwick, citing and agreeing with the House of Lord’s advisory opinion outlined at the start of this chapter, added:
For the performance of this duty [a soldier] is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death.

In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force. The only choice lay between firing a high-velocity rifle which, if aimed correctly, was almost certain to kill or injure, and do nothing at all. 214
As noted by Lord Lloyd, the weapon systems employed by military personnel cannot be compared to those utilised by constabulary forces; and when viewed against the backdrop of the aforementioned combat shooting and combat mindset instilled in ADF members from recruit training, what is deemed reasonable and necessary must, naturally, differ from that of civilian constabulary forces. Although the principle of proportionality in the National Guidelines for the AFP may make allowances for lethal force, it does not seem to reflect the principle of proportionality as it applies to the ADF in domestic security. The leaked Australian Army Manual of Land Warfare suggested that:
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. 215
It is not proposed that this Manual at all remains current, or the instructions within. But it is, importantly, not permitted by civilian constabulary forces. 216

B. Declared Infrastructure

The authorisation for use of lethal force to protect declared infrastructure is a monumental distinction between military and civilian personnel. As noted above, the use of force under Part IIIAAA must always be reasonable and necessary. Specifically in relation to the use of force under Division 5, use of force may be authorised to protect the declared infrastructure, against the domestic violence or threat specified in the call out order. 217

Use of force under Division 5 not only envisages factoring in property damage when calculating necessity, but also the consequences to public health and safety. 218 Whilst safely assuming this to include a CBRN attack on waterways, or destroying a nuclear reactor, the nature of what constitutes declared infrastructure means that it is impossible to quantify the number of situations in which property will supersede the right to life. 219 The ability to use force to protect property finds no equivalent in Australian law outside of Part IIIAAA, and serves as an important distinction between the ADF and the rest of civil society. 220

C. Use of Force Against an Aircraft

Despite historic instances of civilians being called upon to aid the civil authority, maritime and air space threats are spheres where civilian agencies may, reasonably, never be called upon to aid the civil power. 221 Accordingly, it serves to distinguish the ADF from both its civilian and civilian law enforcement counterparts. This will not be covered in depth, however, in this paper.
214 Id., pp. 497 – 498 (Lord Lloyd). Back
215 Jude McCulloch, Blue Army: Paramilitary Policing in Australia (Carlton, Melbourne University press, 2001), p. 183. Back
216 See Sutton, supra note 12. Back
217 Defence Act, s 51N(3)(ii). Back
218 Explanatory Memorandum 2018, p. 73. Back
219 Id., - bearing in mind that it may potentially include individuals. Back
220 Criminal Code Act 1995 (Cth) – s 10.4(3) specifically provides that whilst self-defence may authorise use of force to protect property, it cannot be a defence for intentional force that inflicts death or serious injury. Back
221 Although some State or Territory constabulary forces may maintain an ability to intercept a maritime threat, the use of force against vessels raises its own considerations, as unique to the particularities of maritime law as use of force against an aircraft is to aviation law: see New South Wales Police Force, Organisation Structure: Marine Area Command, https://www.police.nsw.gov.au/about_us/organisational_structure/units/marine_area_command. Back

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In making a call out order under Division 3, the Authorising Ministers must have regard to Australia’s international obligations 222 which include, inter alia, the application of Article 3bis to the Convention on International Civil Aviation (Chicago Convention):
The contracting States recognize that every State must refrain from resorting to the use of weapons against civil aircraft in flight and that, in case of interception, the lives of persons on board and the safety of aircraft must not be endangered. This provision shall not b e interpreted as modifying in any way the rights and obligations of States set forth in the Charter of the United Nations. 223
The reference to “rights and obligations” refers to the rights of national self-defence 224 and the national security prism through which it is to be interpreted. 225 Consequential to the September 11 attacks on the United States, various nations have brought, or attempted to bring in, legislation that deals with airspace threats. Germany provides an interesting example of where such legislation was struck down as being disproportionate and unreasonable, and violating the right not to be arbitrarily deprived of one’s life. 226 The German jurisprudence was replicated in a recommendation by Australia’s first Independent National Security Legislation Monitor. 227 The possibility of multiple, innocent civilian casualties is acknowledged in the 2018 Amendments’ Statement of Compatibility:
There will be some circumstances where the use of lethal force would require a decision to destroy an aircraft or vessel, which may be carrying large numbers of innocent people, in order to save the lives of other people. There may be other circumstances where only the person causing or threatening the domestic violence may be killed or injured. 228
With regard to the right to life, some academics, such as Professor Bohlander, neatly dispose of any argument. Whilst morally difficult to agree with, it is pragmatic in its treatment of the matter:
A harsh – but in my view ultimately correct – approach to that sort of case [a hijacked plane] would suggest that their doomed lives cannot be used as one side to a balancing exercise, when trying to decide whether necessity could be applied as a means of justification or excuse. The outwardly cynical, but logically proper approach is that necessity does not enter into it at all because there is no balancing exercise; they are, to put it bluntly, already dead. If the lives of the passengers will be lost in any case, then it would be a mere academic exercise to weigh the relatively minor shortening of their lives by shooting down the plane against the possibility of saving the otherwise endangered lives of the people on the ground. 229
The use of force with respect to an aircraft is completely different than any situation canvassed above. Air combat and interception has no ability to apply intermediate levels of force, such as a cordon. As such, there can only be warnings, or lethal force. 230 Such actions cannot fall under the duty of a citizen or civilian agencies – imperfect or not – as a normal citizen, let alone State or Territory law enforcement, as they do not possess the necessary equipment or weapon system to do so. 231

D. Attempting to Flee

ADF members may further be required to use force against individuals attempting to flee. As for all use of force within the Part IIIAAA construct, it must be reasonable and necessary. There are, from the outset, crucial differences in the application of the use of force between police force and soldiers when dealing with arrests. The Part IIIAAA scheme reflects existing principles in civilian law for
222 Defence Act, s 45. Back
223 International Civil Aviation Organization, Convention on International Civil Aviation, Chicago, 7 December 1944, U.N.T.S. No. 15. The legal instrument which gives effect to this in Australia is the Air Navigation Act 1920 (Cth). Back
224 Charter of the United Nations (1945), Art. 51. Back
225 Bronitt and Stephens, supra note 16. Back
226 Bundesverfassungsgericht, 1 BvR 357/05; see also Oliver Lepsius, ‘Human Dignity and the Downing of Aircraft’, Vol. 7 German Law Journal 2006, p. 761. Back
227 Bret Walker SC, Independent National Security Legislation Monitor, Annual Report (28 March 2014), Recommendation II/1, p. 7. Back
228 Statement of Compatibility to Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth), p. 9. Back
229 Michael Bohlander, ‘In Extremis – Hijacked Airplanes, Collateral Damage, and the Limits of Criminal Law’, Crim LR 2006, pp. 579, 580. Back
230 Cameron Moore, Crown and Sword (Acton, ANU Press, 2017), p. 199. Back
231 This position may be different, say, in certain areas in the United States of America, where civilians have access to weapon systems that may cause such an effect. Back

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synonymous circumstances under s 3ZC(2)(b)(ii) of the Crimes Act 1914 (Cth), and provides that a member of the ADF may use force against a person which is likely to cause the death of, or grievous bodily harm to, the person - in circumstances where the reasonable and necessary threshold test is made out, and “if a person against whom force is to be used is attempting to escape being detained by fleeing – the person has, if practicable, been called on to surrender and the member believes on reasonable grounds that the person cannot be apprehended in any manner”. 232

Whilst this provision applies essentially the same standard to civilian police and ADF members, there are a few nuanced differences. Part IIIAAA authorises ADF members to use force against detainees. 233 This is distinct from the ability and powers of civilian police to arrest an individual. Moreover, ADF members are equipped with weapon systems that are more lethal, at a longer range, than civilian police.

This provision codifies a long running common law power for ‘sentries’ to shoot, if necessary, to prevent an escape. As noted above, the lack of cases in Australian jurisdiction relating to these powers requires an excursion into dually the past, as well as foreign, jurisprudence. A place to start is 1944 Palestine, where a Polish soldier shot a fleeing suspect he was ordered to guard. The UK Court of Criminal appeal held in Hajdamovitz v A-G that “the appellant [Hajdamovitz] was entitled to, and in fact, bound, to obey (the order to guard the deceased), and he was therefore in the position of any other sentry, properly and duly appointed”. 234

That Court went on to find that the Polish soldier had acted upon the “general rule which a sentry should follow”, 235 which recognises that “if firing is the only or reasonable means available to him, then he is entitled to fire”. 236 Such a distinction is so negligible for a soldier on the ground, who may act “in the agony of the moment… intuitively or instinctively without foreseeing the likely consequence of his act beyond preventing the deceased from getting away”, 237 to render it useless in practice.

A second case worth considering, when reflecting on the policy need to provide leniency when assessing the actions of soldiers using force against a fleeing detainee, is HM Advocate v Sheppard, arising in the Scottish jurisdiction. 238 This case related to an almost comical, if not tragic, set of circumstances relating to a deserter by his sole guard. The deserter had twice previously attempted to escape, after watching a soccer match and sharing a “considerable quantity of beer” with his guard. 239 The guard had been ordered to shoot, if necessary, the individual if he attempted to escape. 240 As Lord Robertson explained to the jury:
The accused was on duty, and his immediate duty was to keep in custody, and to deliver up, the man whom he was escorting. In such a case it is obviously not impossible by any means for a jury to take the view that, if the circumstances were such as to require the accused, for the due execution of his duty, to shoot in order to keep the man in custody, then the homicide was justifiable, and so acquit the accused entirely … In considering [guilt], it will be right for you to keep in view the situation in which the accused was placed. He was a soldier on duty in charge of a deserter and under obligation to deliver up the body of the deserter to headquarters. It would be altogether wrong to judge his actings, so placed, too meticulously — to weigh them in fine scales. If that were to be done, it seems to me that the actings of soldiers on duty might well be paralysed by fear of consequences, with great prejudice to national interests. 241
The end result was a unanimous verdict of not guilty. Whilst both Hajdamovitz and Sheppard were decided over 80 years ago, they demonstrate the difficult position that ADF members will be placed in under Part IIIAAA, especially in the context of an “all or nothing” scenario as outlined above. Indeed, Part IIIAAA compounded with the weapon systems the ADF are called out with places the ADF in a
232 Defence Act, s 51N(3). Back
233 Who, to reiterate, are not arrested: see Defence Act, s 46(7)(f). Back
234 Hajdamovitz v A-G (1944) 11 Palestine Law Reports 140. Back
235 Id. Back
236 Id., p. 145. Back
237 A-G Reference, supra note 20, p. 139 (Lord Diplock). Back
238 Scottish High Court of Justiciary, HM Advocate v Sheppard (1941) JC 67. Back
239 Id., p. 68. Back
240 Id., p. 67. Back
241 Id., p. 71. Back

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unique position when faced with a detained individual who, on reasonable grounds, they believe they cannot apprehend in any other manner.

V. Defence of Superior Orders

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

The defence of ‘superior orders’ is available for criminal acts purported to be done whilst called out under Part IIIAAA, regardless of “the limitations on such use of lethal force that are manifested in more specific and detailed provisions of Part IIIAAA”. 242 The defence of superior orders, and its criticisms, are neither novel nor unique and it is not the intent of this section to argue for or against its application; merely, it is intended to demonstrate another limb of distinction between ADF members and civilian counterparts by virtue of their military status. Whilst the defence applies in certain circumstances to civilian law enforcement bodies, 243 there are a few necessary distinctions when compared to the defence as it applies to Part IIIAAA.

The first accounts of the defence of superior orders can be traced to the military laws and regulations of Republican Rome in 113BC. 244 Various jurisdictions and individuals raised the defence leading up to the Nuremburg Trials 245 from which the defence of superior orders gained its colloquial name of the “Nuremburg Defence”. The defence, after it was raised by German officers at the International Military Tribunal as a justification for their actions in World War Two, was overwhelmingly dismissed. The 1945 Charter of the International Military Tribunal set down that “the fact that the Defendant acted pursuant to order of his Government or of a superior shall not free him from responsibility, but may be considered in mitigation of punishment if the Tribunal determines that justice so requires”. 246

The Australian common law, significantly, has failed to accept any defence of superior orders. 247 The matter was considered by the High Court in A v Hayden 248 but was not found to be successfully raised. The facts of the case are as follows. In 1983, an Australian Secret Intelligence Service (ASIS) training operation, involving heavily armed ASIS employees, stormed Melbourne’s Sheraton Hotel. Complaints were made by the staff, owners and civilians and a subsequent investigation found that 21 serious criminal offences that had potentially arisen as a result of the exercise. 249 The High Court accepted that the Commonwealth itself was immune from criminal prosecution, and only individual intelligence officers could be culpable. 250 The individual obiter of their Honours provides helpful guidance on the defence. Chief Justice Gibbs noted that “it is fundamental to our legal system that the Executive has no
242 Rob McLaughlin, Submission to Senate Standing Committee on Legal and Constitutional Affairs Re: Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) [Provisions] Submission 1 (10 July 2018). Back
243 For Queensland, refer to Criminal Code 1899 (Qld) s 31; for Western Australia, refer to Criminal Code 1913 (WA) s 31; for Tasmania refer to Criminal Code 1924 (TAS) s 38. Back
244 David Daube, The Defence of Superior Orders in Roman Law (Oxford, The Clarendon Press, 1956), p. 7; it came to the forefront of international legal minds in 1799 through the case of Captain George Little, of the American Navy, who argued his privateering was in accordance with President John Adam’s instructions – see Little v Barreme (1804) 6 Cranch, pp. 177-178. Back
245 Regina v Smith (1900) 17 Special Courts Reports of Good Hope, p. 56. See further George G Battle, ‘The Trials Before the Leipzig Supreme Court of Germans Accused of War Crimes’, Vol. 8 Virginia Law Review 1921, p. 18; see also James Edward Edmonds and Lassa Oppenheim, ‘Land Warfare: An Exposition of the Laws and Useage of War on Land for the Guidance of Officers of His Majesty’s Army’, His Majesty’s Stationary Office 1929, p. 95. Back
246 Charter of the International Military Tribunal, London, 8 August 1945, U.N.T.S. No. 251, Art. 8. Back
247 Adopting the position of the English courts: see Rex v Thomas, Judges’ Note Books, Crown Cases Reserved 1757-1845; 4 M. & S., p. 448. Back
248 High Court of Australia, A v Hayden (1984) 156 CLR 532. Back
249 Parliament of the Commonwealth of Australia, Parliamentary Paper No. 1/1984, Royal Commission on Australia’s Security and Intelligence Agencies: Report on the Sheraton Hotel Incident, (Canberra, Australian Government Publishing Service,1984), p. 18. Back
250 High Court of Australia, A v Hayden (1984) 156 CLR 532. Back

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power to authorise a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer”. 251

Justice Deane agreed, suggesting that “the criminal law of this country has no place for a general defence of superior orders or of Crown or executive fiat”. 252 Finally, Justice Murphy held:
In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders. 253

…

The Executive power of the Commonwealth must be exercised in accordance with the Constitution and laws of the Commonwealth. The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land… I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads. 254
Yet, Part IIIAAA, notwithstanding judicial caution and academic commentary has revived the defence of superior orders. The relevant provision is as follows:

Section 51Z – Defence of superior orders in certain circumstances
  1. The fact that a criminal act was done, or purported to be done, by a member of the Defence Force under this Part under an order of a superior does not (subject to subsection (2)) relieve the member of criminal responsibility.
  2. It is a defence to a criminal act done, or purported to be done, by a member of the Defence Force under this Part that:
    1. the criminal act was done by the member under an order of a superior; and
    2. the member was under the legal obligation to obey the order; and
    3. the order was not manifestly unlawful; and
    4. the member had no reason to believe that the circumstances had changed in a material respect since the order was given; and
    5. the member had no reason to believe that the order was based on a mistake as to a material fact; and
    6. the action taken was reasonable and necessary to give effect to the order. 255
The legislation may be a trap to the unwary, especially with regards to subsections (2)(c)-(e). Whilst some terms are couched in the objective, others are in the subjective, and will inevitably require judicial interpretation. There are three basic interpretations of the defence of superior orders: an absolute defence, 256 an absolute liability, 257 or a via media between the two. The compromise is the position as adopted by Australia, 258 and has the “advantage of striking a balance between the reality and needs of military structure and the supremacy of law”. 259
251 Id., p. 540. Back
252 Id., p. 592. Back
253 Id., p. 562. Back
254 Id., p. 562. Back
255 Defence Act, s 51Z(1) – (2). Back
256 Gerhard Werle, Principles of International Criminal Law (The Hague, Asser Press, 2005), p. 458. Back
257 See generally Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (Leiden, A.W. Sijthoff, 1965). The United Kingdom has adopted this position: see British Manual of Military Law (Ministry of Defence, 1944, 8th ed.). Back
258 With very limited debate. See Commonwealth, Parliamentary Debates, Senate, 8 February 2006, p. 15-17 (Bob Brown). Back
259 Sunita Patel, ‘Superior Orders and Detainee Abuse in Iraq’, Vol. 5 New Zealand Yearbook of International Law 2008, p. 93. Back

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Whilst this paper is not the place to question the legal ambiguities arising from the above section, 260 it is useful to highlight the unique nature of the superior orders defence and its application to ADF members. For the defence of superior orders to prevail, relevant to distinguishing between ADF and civilian police, the orders must not have been manifestly unlawful from the perspective of a reasonable person. The inclusion of the ‘manifestly unlawful’ qualification has been argued as “controversial and arguably a retreat from the standard applied at the post-World War II Nuremburg trials”. 261 But equally the phrase lacks any discernible judicial direction in Australia. Professor Dinstein noted that the test is “objective in its character and is based on the intelligence of the reasonable man”. 262 Two potential situations thus arise where the defence may be raised:
the first is where a soldier commits an offence following the orders not manifestly unlawful from the perspective of a reasonable man. The second is where a soldier committed a criminal act which is manifestly unlawful for any reasonable man, but due to his personal inadequate abilities, he himself is not aware of the illegality of his act. 263
This test is controversial, particularly in relation to whether the objective person test applies the standard of a regular civilian or a reasonable person with military experience. This lack of clarity is compounded by the aforementioned lack of jurisprudence marking its limits. It is the submission of this paper that insisting that ADF defendants fit within a purely objective, reasonable standard is unrealistic and unjust. Failing the adoption of a subjective approach, what follows is that ADF members should be held to the standard of a “reasonable soldier”.

What actions a reasonable soldier, sailor or airperson would consider to be manifestly unlawful was studied in 2003, with respect to cadets and midshipmen at the Australian Defence Force Academy. The study looked at the potential officers’ ability to identify, and reaction when given, an unlawful order. 264 The majority of the participants reported that orders were not prima facie presumably lawful 265 and 77 per cent reported that they would disobey an order they thought to be unlawful. 260 A large proportion of the participants reported they would seek clarification regarding the orders through questioning their superiors. 267 The authors of the study noted that none of the participants had seen active combat, and acknowledged that operational experience may well result in individuals being more willing to obey an order of questionable legality. 268

Identifying a manifestly unlawful order is thus one that is subjective to the individual, albeit an act that would be acknowledged objectively by every individual. In the trial of Adolf Eichmann, the Israeli Supreme Court held:
The distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above a given order, as a warning reading ‘Prohibited!’ Not mere formal illegality, hidden or half-hidden, not the kind of illegality discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself; the clearly criminal character of the order or of the acts ordered, an illegality clearly visible and repulsive to heart, provided the eye is not blind and the heart is not stony and corrupt – that is the extent of ‘manifest illegality’ required to release a soldier from the duty of obedience and make him criminally responsible for the acts. 269
More succinctly, a manifestly unlawful order may be defined as being “so palpably atrocious as well as illegal that one ought to instinctively feel that it ought not be obeyed”. 270 It does not, however, allow
260 See Zoe Lippis and Samuel White ‘Easier said than done? The defence of superior orders under Part IIIAAA’, Defence Legal: In House 2019, pp. 19-32. Back
261 Head, supra note 48, p. 171. Back
262 Dinstein, supra note 257, p. 26. Back
263 Natalia M Restivo, ‘The Defence of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England’, Cornell Law School J.D. Student Research Papers 2006, p. 18. Back
264 Wheate and Wheate, supra note 59. Back
265 Id., p. 29. Back
266 Id., p. 25. Back
267 Id., p. 29. Back
268 See Dr John Shay, Achilles in Vietnam (Scribner, 1994) for a medically trained Classicist’s overview of the ancient and modern effects of combat on soldiers. Back
269 District Court of Jerusalem, Attorney General of the Government of Israel v Eichmann, 36 ILR 5, 1961, pp. 257-258. Back
270 Circuit Court, California, McCall v McDowell, 1867, 15 F. Cas, p. 1241. Back

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for an ADF member to disobey an order based on their “conscience, religious beliefs, moral judgment or personal philosophy”. 271

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

It may be that in situations ADF members train for, rehearse and clearly understand the demarcations of in a theatre, they will be more vocal with their hesitancy to obey orders. 272 But for ADF members called out under Part IIIAAA, this will not necessarily be the case. Whilst some rehearsals may be undertaken for potential, likely call out scenarios, 273 an exigent call out may occur without training and rehearsals, and thus will place soldiers out of their depth, reliant on their instinctive training and conditioned by military discipline to obey orders.

VI. Conclusion

The cumulative effect of Part IIIAAA would demonstrate an intent to maintain and expand the distinction between the ADF and civilian, civilian agencies and civilian police in Australia. 274 A decision to call out the ADF to aid the civil authority is not one taken lightly. This is clear from the mandatory considerations that the Authorising Ministers must have regard to, and particularly the need for the domestic violence threshold to be met. Yet, the ability for ADF members to utilise Division 3 powers where a sudden and extraordinary circumstance is occurring, without Ministerial authorisation, would seem to distinguish ADF members from civilian agencies.

ADF members can, and do, undertake a variety of roles ranging from humanitarian assistance, to counter-terrorism, to combat operations against the enemy. Yet such roles are always prepared for with mission-specific rehearsal scenarios, legal and ROE briefs, with an emphasis on fire control and understanding who may, and may not, be targeted. An expedited call out of the ADF under Part IIIAAA, necessarily immediate due to a security threat, does not provide sufficient time for in-depth training to occur. It may require deployment of members of TAG(E) or TAG(W) on the ground or RAAF assets in the air at short notice. Accordingly, the base-line training that ADF members receive, including instinctive and reflexive shooting, serves to further distinguish them from civilian police, and reflects their different roles – the role of civilian police being to preserve the Queen’s peace, compared to the ADF’s primary role of killing the Queen’s enemies.

Some of the ADF’s powers have no civilian equivalent, such as use of lethal force against aircraft and vessels, or in defence of declared infrastructure. Whilst outside the scope of this paper, the ability of ADF members to rely upon ‘incidental powers’ (under Divisions 3 and 5) as a basis for further actions outside Part IIIAAA requires further exploration.

Professor Rob McLaughlin, a Royal Australian Navy Reserve Legal Officer and a leading academic in ADF aid to the civil authority, is emphatic that no broader power exists in Australia or the United Kingdom to allow armed forces to use lethal force, whilst operating domestically or in a peacekeeping
271 Gary Solis, ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’, Vol. 15 American University International Law Review 2000, p. 520. Back
272 This is in addition to the basic obligation that all military commanders must instruct their soldiers on LOAC: GC I, Art. 47; GC II, Art. 48; GC IV Art. 144. Back
273 Such as has occurred in Exercise Southern Magpie 19, between ADF members, Victorian police and emergency services: see ‘Counter Terrorism Training Exercise in the Labtrobe Valley’ 19 October 2019, https://gippslandsgold.com.au/articles/terrorism-exercise/ and Army Knowledge Centre, supra note 128, pp. 29-32. Back
274 See generally Dennis Pearce, Statutory Interpretation in Australia (Chatswood, LexisNexis Butterworths, 2019, 9th ed.); it does, however, seem to evidence ‘lingering confusion as to the precise justification for the use of lethal force outside situations of immediate self-defence’ in Letts and McLaughlin, ‘Military Aid to the Civil Power’, supra note 12, p. 129. Back

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role, beyond self-defence. 275 This reflects the commonly held position that a soldier is no more, and no less, than a citizen in uniform. But, it is the submission of this paper that while such a position may be superficially satisfying and have some political merit, 276 it is in reality, legally questionable. Put more simply, “the attempt to apply the same principles of criminal liability to ordinary members of the public and security forces is defeated when the latter are equipped with deadly weapons and placed in circumstances when they may be under a duty to use them”. 277

When reviewing the position during the Hope Report, after acknowledging that the position of an ADF member purely as a citizen was irrational and unworkable in the civilian security context, 278 Mr Justice Hope reached the conclusion that ADF members should be granted the status of a special Commonwealth police officer. It is submitted that the conclusion reached – of an extra-legal status – was correct, albeit that the solution of a special Commonwealth police officer is untenable considering the increasing divergence of powers even since the report. When viewed in light of the proficiency in the Profession of Arms that ADF members train towards from their enlistment, it seems incongruous to view the two categories as the same. 279
275 See generally McLaughlin, supra note 204. Back
276 Rowe, supra note 22, p. 14. Back
277 Kader Asmal, ‘International Law and Practice’, Proceedings of the Annual Meeting (American Society of International Law) 2000 103, p. 134. Back
278 Hope, supra note 10, p. 171. Back
279 Colin Greenwood, ‘The Evil Choice’ Crim LR 1975 pp. 6-7. Back

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