The Australian Government has today announced new powers, to clarify and expand the role the Australian Defence Force may play in responding to domestic terrorism threats. The exact details, and how these new powers are to be expressed in legislation, are yet to be revealed. But already they have provoked a strong and varied range of responses.
Barrister Greg Barns, writing for The Guardian, rightly raises questions about the potential for abuse of power and infringement of human rights. Both Barnes and Monash University law lecturer Melissa Castan have suggested the potential for “martial law”, a situation that has not existed in post-colonial Australia. Others, not as well versed in the law, have gone further, the Twittersphere lighting up with references to fascism, juntas, and executions on the street by the SAS.
Suggestions like those about juntas are beyond the pale, they’re paranoid, and yet they also speak to the genuine fear some people have at the prospect of troops playing a role in domestic security. It’s not a sight we’re used to in Australia. The scope for such activity has always been controversial and a bit vague, despite it being contemplated since the earliest days of nationhood. Section 119 of the Constitution specifically provides for the provision of Commonwealth defence assistance at the request of states, to deal with ‘domestic violence.’ To date no state has successfully invoked this provision, nor has it limited arguably the activities of the Commonwealth.
None the less the Commonwealth has justified the deployment domestically of defence personnel and assets on other Constitutional grounds, from a broad justification of it being necessary to protect the Commonwealth’s interests, to complying with international obligations under the External Affairs Power. These have seen troops deployed to protect foreign dignitaries, to protect defence establishments, to break strikes, and the Air Force used to spy on a state’s hydro-electric dam project. Not all these of course contemplate the ADF using force.
The Australian Defence Force already works with state police forces. They train and deploy to cover important events. The ADF’s Tactical Assault Groups engage in training and exercises with state police, and provided liaisons to the NSW Police during the Sydney Lindt Cafe siege. That the role of liaisons was vague, and the bar for military intervention was set so high, meant that in the case of the Lindt siege, the ADF’s contribution was hampered short of a devastating situation arising that was beyond the capability of NSW Police. This vagueness and the need for clarification of roles were the subject of recommendations in the NSW State Coroners report into the siege.
No one wants to see soldiers on street corners in the heart of Australian cities. Nor do we want to see the States’ rightful authority over law enforcement matters in their jurisdictions usurped by the Commonwealth, relying on some expansive interpretation of Commonwealth interests.
And despite more than a decade of terrorism being referred to in terms of war, the response to terrorism and mass violence, must always be treated as a social and law enforcement issue, with all the protections of human rights including due process.
Right now, powers and capabilities exist along side some vagueness and doubt. As a result, expertise and advice may continue to go unused, as was the case during the Lindt siege. It is also conceivable that were a situation to arise so dire, that Commonwealth intervention is warranted, ADF members would be operating without adequate guidance and protection.
Any new definitions of ADF powers to deal with domestic threats must clearly articulate criteria and boundaries for their use, preserve the decision making power of States, and ensure that purpose and oversight is sufficient to protect the rights of the public.
Image: Simon Clancy, December 2008 – CC BY 2.0