Alternative Law Journal
In a recent article in this Journal, I raised concerns about the police-military buildup for the Sydney Olympic Games. Since that article was written there has been an even more ominous development.
Without any initial publicity whatsoever, the Howard government is using the Olympics to enact legislation allowing the military to be called out against domestic unrest. Innocuously titled the Defence Legislation Amendment (Aid to Civilian Authorities) Bill, the law seeks to pave the way, politically and legally, for the use of troops to suppress political disturbances, repudiating a centuries-old principle of English law that the armed forces should not be mobilised against civilians.
With the bipartisan support of the Labor Party Opposition, the Bill was passed through the House of Representatives in just one day — 28 June — and is due to be finalised in the Senate by August, in time to deal with incidents during the Olympic Games. Speaking in the lower house, Labor’s shadow defence minister, Steven Martin, referred to the Olympics as the ‘catalyst’ for the Bill.
Under the pretext of ensuring public safety during the Olympics, the government and the Opposition have combined to rush through legislation that will permanently and fundamentally alter the military’s role. In the words of Mr Martin’s colleague, shadow Attorney-General Robert McClelland: ‘These measures should not be seen as simply a short-term measure that can be sunsetted after the Olympics. They are in themselves important measures that are certainly required.’
The Bill authorises the Prime Minister, the Defence Minister and the Attorney-General to advise the Governor-General (the Commander-in-Chief of the armed forces under the Constitution) to call out military personnel to deal with ‘domestic violence’ that is considered a threat to the nation or one of Australia’s States or Territories.
The term ‘domestic violence’ does not refer to conflicts within families or households. It is a vague and undefined expression derived from s.119 of the Constitution, which was intended to cover civilian disorder that the State police forces prove incapable of putting down. Section 119 provides that the federal government shall protect each State against domestic violence, but only on the application of the State’s government.
In the brief debate in the House of Representatives, the Labor Party spokesmen echoed Defence Minister John Moore in seeking to justify the Bill as a necessary measure to deal with ‘terrorism’. But clearly ‘domestic violence’ extends far beyond terrorism. Quick and Garran’s Annotated Constitution refers to ‘riots’. Justice Dixon cited this reference with approval in R v Sharkey  HCA 46; (1949) 79 CLR 121 at 151 and also discussed it in the Communist Party dissolution case, where he spoke of ‘putting-down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government’.
In the early tumultuous years of the 20th century, State governments requested military intervention on at least six occasions, to deal with fears of such incidents as ‘general strike riot and bloodshed’, ‘disturbances’, wharf strike ‘violence’, ‘labour troubles’ and the 1923 Victorian police strike. On each occasion, it seems, the federal government declined on the basis that the State police were capable of dealing with the threat (although troops were sent to guard federal buildings, including post offices, during the Victorian police strike). Nevertheless, the extent of the requests points to the breadth of the term ‘domestic violence’ under conditions of labour militancy and political upheavals.
Section 51A of the Bill goes well beyond the existing s.51 of the Defence Act 1903 (Cth), which merely mirrors s.119 of the Constitution. In the first place, the new section will allow a military callout where the three ministers are satisfied that domestic violence is occurring ‘or is likely to occur’. Secondly, it extends to the protection of ‘Commonwealth interests’ (also undefined) — removing the need for a request by any State or Territory government.
Section 51B retains an existing proviso in s.51 that reserve and emergency forces cannot be used to deal with an industrial dispute, but no such restriction applies to the use of the armed forces to protect Commonwealth interests in an industrial dispute. Section 51G will prevent military personnel being utilised to ‘stop or restrict any lawful protest or dissent’ but that limitation is for all practical purposes meaningless. Almost any political demonstration can be rendered ‘unlawful’ by refusal of official permission (as for example under the Olympic security legislation).
Once deployed, the military forces will have wide- ranging powers under ss.51I to 51Y to seize premises, places and means of transport; detain people; search premises; and seize things. If the three ministers declare a ‘general security area’ these powers will be expanded to provide for wider searches, including personal searches; the erection of barriers; and the stopping of means of transport. If a ‘designated area’ is declared, the powers will increase further to include stopping and controlling all movement, and issuing directions to people.
The most disturbing measures, however, are those contained in s.51T on the use of ‘reasonable and necessary force’. In essence, the section will allow military personnel to shoot to kill. They will be permitted to cause death or grievous bodily harm where they believe ‘on reasonable grounds’ that such action is necessary to protect the life of, or prevent serious injury to, another person, including the military personnel.
In recent years, police killings of civilians have become virtually commonplace in a number of States, with the police authorities invariably claiming that the killings were required for self-defence. The Bill will see the same power extended to troops, armed with even more deadly weapons, operating under conditions of serious domestic unrest.
Both the government and the Labor Party have claimed that the Bill merely codifies the law that already exists. But the purpose of this section is to shield military personnel from actions or prosecution for assault, false imprisonment and homicide. As text writers have warned, without such legal protection, soldiers could, for example, face murder charges if they killed someone in the course of quelling a civil disturbance, even if they were acting under superior orders.
The aim of the Bill is to both legalise and legitimise what is termed ‘military aid to the civil power’ — the use of the armed forces in political or industrial emergencies to enforce order and suppress challenges to authority that erupt out of police control.
For decades successive governments have backed away from introducing such legislation because, to use the words of Mr McClelland in the House of Representatives: ‘The public will always be apprehensive when they see the defence forces used in any number in that sort of situation’.
Perhaps this nervousness explains why the Bill was introduced without a single media release from the Defence Minister or his department. Nor was it mentioned in launching the current public consultations on defence policy. Indeed, the defence discussion paper Defence Review 2000, issued on 27 June, makes no reference to the Bill. And, despite its historic character, the Bill received no coverage in the media.
It is now almost 22 years since troops were last mobilised in large numbers on Australian streets — in the wake of the bomb blast outside the Sydney Hilton Hotel in 1978. The sight of heavily armed soldiers patrolling urban areas in Sydney and Bowral caused public consternation.
As a result, the Fraser government commissioned a Protective Security Review by Justice Robert Hope, an opinion on military call-outs by retired judge Sir Victor Windeyer and a report on police-military procedures by former British police chief Sir Robert Mark.
Based on his experience with the use of the military in Northern Ireland, Sir Robert advocated the use of troops in critical situations, but recommended a careful division of labour between the armed forces and the police, and the establishment of special centres to coordinate such operations. He warned the government that: ‘Military aid to the civil power can be an unnecessarily emotive procedure in free societies, especially those in which it has rarely been invoked’.
No legislation resulted. Instead the only relevant powers were those under the Australian Military Regulations and internal Defence Instructions. Part 5 of the Regulations, ‘Duties in Aid of the Civil Power During Domestic Violence,’ provides that a magistrate must accompany the defence forces into an area and ‘read the Riot Act’ before the troops move in. This, as MPs discussed in the House of Representatives, is today regarded in official circles as an impossibly cumbersome procedure. The Defence Instructions (General) on Defence Force Aid to the Civil Power are considered to be so sensitive that they remain classified documents.
Now, taking advantage of the Olympics, the government has brought forward the current legislation. Just as the 1978 Hilton bombing became the occasion for claims that Australia had entered the ‘age of terrorism’, various police and military authorities have already claimed that the Olympics will be a ‘magnet’ for terrorists.
I suggest that of greater concern to the federal and State governments, the Olympic authorities and their commercial sponsors is that numerous demonstrations and protest are planned during the Games — on issues ranging from the corruption and corporate profit-making associated with the Olympics to the social cost of the Games and the deplorable conditions of Aborigines.
In any case, clashes between troops and demonstrators are quite possible. At least 4000 troops, including the elite commando units, will be in Sydney on alert throughout the Games, in addition to more than 35,000 police and security guards. Apart from being the largest security operation in Australian history, it will be, by far, the greatest ever deployment of military might in a domestic setting.
Doubts remain about the Constitutional validity of both the military deployment for the Olympics and the Aid to Civilian Authorities Bill. This is not the place to canvass those doubts in detail. The Constitutional issue was examined fairly extensively in a 1997-98 Parliamentary Library Research Paper.
The author of that paper, Elizabeth Ward, reviewed the history of military call-outs in Australia, including the 1949 coalminers’ strike; the 1953 Bowen waterfront stoppage; the 1971 Qantas strike; the 1978 Hilton bombing; the 1989 airline pilots’ strike and the 1989 deployment of troops against anti-war protestors at the Nurrungar military base. With the possible exception of the 1953 Bowen confrontation, Ward concluded that the operations were valid as protecting essential Commonwealth interests, even if the Constitutional grounds were not made clear at the time.
Nevertheless, it is my contention that, apart from the Constitutionally-entrenched powers of the States to request a military call-out, the Bill and the Olympic security operation cannot be fully justified as essential to the ‘discharge of the proper business of government’ (Dixon J’s test in the Communist Party case), even if the defence power (s.51 (vi) of the Constitution) is combined with the external affairs power (s.51 (xxix)) the incidentals power (s.51 (xxxix)), the executive power (s.61) and the Governor-General’s power as commander-in-chief (s.68).
The more serious question, however, is why a federal government is now for the first time systematically invoking such powers to provide for domestic military intervention; a century after the Constitution was adopted. It is apparent that those in the corridors of power anticipate ‘domestic violence’ not just during the Olympics but also in the period ahead.
The introduction of the Bill amplifies the conclusion of my earlier article — that the Olympic security operation ‘will set an expanded legal precedent and provide extensive practice for the future use of “military aid to the civil power” in the event of rising social tensions of the type revealed by the planned Olympic protests’.
An earlier version of this article was posted on the World Socialist Web Site < <http://www.wsws.org/articles/2000/aug2000/olym-a05.shtml> >. Michael Head can be contacted at firstname.lastname@example.org
[*] Michael Head teaches law at the University of Western Sydney.
 Head, M., ‘Olympic Security, Police and military plans for the Sydney Olympics: a cause for concern’, (2000) Alt.LJ 25(3) at 131.
 Second reading speech, Hansard, 28 June 2000.
 Quick J. and Garran R., The Annotated Constitution of the Australian Commonwealth, Angus and Robertson, Sydney, 1901, p.964.
 Australian Communist Party v The Commonwealth  HCA 5; (1951) 83 CLR 1 at 188.
 Lee, H.P., Emergency Powers, Law Book Co., Sydney, 1984, p.201.
 See my earlier article, as at ref 1 above.
 Brett, P. and Waller, L., Brett and Waller’s Criminal Law: Text and Cases, Butterworths, Sydney, 1983, p.654.
 Hope, R., Protective Security Review, AGPS, 1979 and Appendix 9 to that report, Windeyer V., ‘Certain Questions Concerning the Position of Members of the Defence Force When Called Out to Aid the Civil Power’.
 Report to the Minister for Administrative Services on the Organisation of Police Resources in the Commonwealth Area, AGPS, 1978.
 Call Out the Troops: An Examination of the Legal Basis for Australian Defence Force Involvement in ‘Non-Defence’ Matters, Australian Parliamentary Research Paper 8, 1997–98.
 See my earlier article, ref 1 above.
 Call Out the Troops, above.