1

The Commonwealth government has offered the assistance of the Australian Defence Force (ADF) to the states from time to time.

Most recently the New South Wales Government has accepted that offer of Army personnel to assist NSW Police in the enforcement of health orders in response to the covid delta-strain outbreak. Previously, the Victorian government had also used Army personnel on border checkpoints. Similarly, back in the bushfire crisis of 2019 (it's been a good few years, hasn't it?), the Navy was used to evacuate communities cut off by fire.

  • What law allows the ADF to be used in this way?
  • Who has command of the operation?
  • What powers do ADF personnel have in interacting with the population?
1
  • What law allows the ADF to be used in this way?

Part IIIAAA of the Defence Act 2003 (Cth) enables "Calling out the Defence Force to protect Commonwealth interests, States and self‑governing Territories".

It allows the Govenor-General on the advice of the Prime Minister, the Minister of Defence and the Attorney-General to make a call-out order. This may be at the request of the executive government of a State against "domestic violence" under s119 of the Constitution (or to protect the state from foreign invasion without such a request).

Now, the "domestic violence" envisioned by the Constitution is not how the term is used today: it means civil disorder, insurrection, rebellion, breakdown of law and order etc. However, because the current usage is so prevalent, I cannot find any case law on how or if this term has been interpreted.

However, this 1998 Parliamentary Research Paper concluded:

  • there are legal difficulties inherent in nearly all uses of the defence forces for 'non-defence' purposes
  • successive Commonwealth Governments have used the defence forces without prior consideration of the legal steps involved
  • the defence forces have often responded to requests without regard for their own operational instructions, and
  • on a legal basis, the deployed troops are found to be largely unprotected.

However, this report predates 60 subsequent amendments to the Act including the Defence Amendment (Call Out of the Australian Defence Force) Act 2018 which completely rewrote Part IIIAAA, so this conclusion is probably no longer valid.

Notwithstanding, given the temper of the Australian judiciary, it is highly likely that the courts would defer to the discretion of a State government in deciding what was and what was not "domestic violence".

  • Who has command of the operation?

As far as reasonably practicable, the Chief of the Defence Force must assist, and cooperate with, the police force of a State or Territory that is affected by a call out of the Defence Force.

Further s40(1)(b) requires that "the Defence Force is not utilised for any particular task in any of those States and Territories (except in relation to airborne aircraft) unless a member of the police force of that State or Territory requests that the Defence Force be so utilised."

However, s40(3) is clear that the law "does not require or permit the Chief of the Defence Force to transfer to any extent command of the Defence Force to a State or Territory, or to a police force or member of the police force of that State or Territory."

So, Defence Force Personal operate under their own, independent command but can only do so when requested by police.

  • What powers do ADF personnel have in interacting with the population?

s46 gives Defence Force personnel the following powers if the Minister of Defence has authorised them (which they normally does) or if the Defence Force personnel reasonably believe they have been authorised:

(5) The member may take any one or more of the following actions:

(a) capture or recapture a location (including a facility) or thing;

(b) prevent, or put an end to:

(i) acts of violence; or

(ii) threats to any person’s life, health or safety, or to public health or public safety;

(c) protect any persons from:

(i) acts of violence; or

(ii) threats to any person’s life, health or safety, or to public health or public safety;

(d) take measures (including the use of force) against an aircraft (whether or not the aircraft is airborne) or vessel, up to and including destroying the aircraft or vessel (subject to subsection (6));

(e) give an order relating to the taking of measures referred to in paragraph (d) of this subsection (subject to subsection (6)).

...

(7) The member may, in connection with taking any action mentioned in subsection (5), do any one or more of the following:

(a) free any hostage from a location (including a facility) or thing;

(b) control the movement of persons or of means of transport;

(c) evacuate persons to a place of safety;

(d) search persons, locations or things for things that may be seized, or persons who may be detained, in relation to the call out order;

(e) 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;

(f) detain any person found in the search that 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;

(g) 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;

(h) 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);

(i) 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).

...

(9) The member may do anything incidental to anything in subsection (5) or (7), including enter any place or premises or board an aircraft or vessel.

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.