The full range of ADF powers under the Aid to Civilian Authorities legislation might not be quite what the people had in mind

By Verona Burgess

Thursday January 16, 2020

An Australian Army loadmaster looks out from an Army Black Hawk helicopter from the 6th Aviation Regiment as they conduct flight training over Sydney Harbour, Friday, September 6, 2019. AAP/Paul Braven

THE OBSERVER: What Scott Morrison has flagged in his interview with the ABC’s David Speers on Sunday January 12 could become a constitutional lawyers’ picnic that could change the fundamental relationships of the federation, says Verona Burgess.

What a fabulous time to have sacked five department secretaries and abolish four departments of the Australian Public Service. Not.

It must have seemed such a clever thing to do politically — to take out the trash or, in Trump’s words, “drain the swamp” — at the end of 2019, including the government’s response to the Thodey review, so that the new cohort of department secretaries wouldn’t start having any clever ideas that went against the government’s political posturing. And so that by the time it all came to pass on February 1 it would already seem (yawn) so last decade.

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Well, it does seem so last decade now — even though it won’t be taking effect for another fortnight.  But not in a good way.

Suddenly we are into a new era that will include grappling with one of the most crucial constitutional issues — the Commonwealth’s unilateral use of the call-out of the Australian Defence Force in aid of civil power.

While the south-eastern seaboard and a chunk of the southern ranges continue to burn, Scott Morrison might now have a teensy inkling that if you are prime minister, having your office lie to the media about your holiday could mean that they won’t believe you on a whole lot of other fronts.

He might have an inkling that the job of the PM is not to be a passive observer of the letter of states’ rights.

Let’s put aside the issue of a royal commission into the bushfires that has commanded the headlines. It’s a smokescreen, if you’ll pardon the pun, because of course there will be a royal commission. It’s hardly the crucial issue at this time because it can’t sensibly happen until the fires are over for this season.

What Morrison has flagged in his interview with the ABC’s David Speers on Sunday [Jan12], however, could become a constitutional lawyers’ picnic that could change the fundamental relationships of the federation. He told Speers that the Commonwealth’s use of the call-out powers had pushed the constitutional authority “to its very edge.”

“This should be one of the important steps going forward,” he said. “This is the first time where I think the Federal government has ever been in a position where we had to take this action. And to ensure that in the future it can be done in a way that is more pre-emptive posturing, that we can do that, I think, more seamlessly.”

Perhaps taking the call-out arrangements to the very edge is as far as they should be taken. It doesn’t prevent the Commonwealth from setting up better coordinating and planning arrangements for national emergencies. It doesn’t stop it from negotiating with the states. Extending that edge, however, would be a different ball game.

It’s one thing for civilians to welcome the involvement of the Australian Defence Force in a national climate emergency whether it be drought, floods, fire or anything else. It would be quite another if members of the ADF started using the powers they actually do have under the legislation — that include powers of search, seizure, detention and use of reasonable and necessary force including to kill people — let alone extending that legislation to give them even more powers. Tanks rolling through city streets and civilians being shot might not be quite what the people had in mind.

Last time a government augmented the call-out arrangements, it began in the dead of night, which tells you a lot about how incendiary an issue it can be.

That was back in 2000 when the government — yes, led by that wily war-horse, then Prime Minister, John Howard, that master of distraction — sneaked the Defence Legislation Amendment (Aid to Civilian Authorities) bill through the House of Representatives on June 28 without issuing any statement in advance. The context was the bipartisan view that it had to be in place before the Sydney Olympic Games, for reasons of national security, and so, despite subsequent controversy, the bill was enacted on September 12 without any sunset clause, with only two independent votes against.

The Act essentially rewrote Section 51 of the Defence Act 1903 in several ways. In a nutshell, it allowed a military call-out where three ministers were satisfied that “domestic violence” (a constitutional term that doesn’t mean wife-bashing) was occurring or likely to occur. The main stipulation is that neither the Emergency Forces or the reserve forces can be called out or used in connection with an industrial dispute.

The act also extended the call-out power to the protection of Commonwealth interests regardless of a request by any state or territory government.

And while it requires an authorising minister to consult a state or territory before the Governor-General makes the order, it doesn’t mean they have to agree — and this requirement can be overridden if the GG thinks that “for reasons of urgency, it is impracticable”.

Whether these provisions contradict Section 119 of the Australian Constitution hasn’t been tested. Don’t be surprised, however, if this becomes a burning topic in 2020.

It will require the parliament to act truly and thoughtfully in the national interest. It will require a mature government that does not see fiddling with the call-out powers simply as a clever political strategy aimed at wedging the Opposition, winning the next election and slipping through a few authoritarian Trojan horses to cheer up Peter Dutton and his squad of acolytes. It will require a government and leader that command credibility and trust, both of which have been tested beyond reasonable limits this summer.

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