Keeping the Peace of the Realm. By Samuel White. ISBN: 9780409354379. Lexis Nexis Australia
Reviewed by David Letts*
The domestic profile of the Australian Defence Force (ADF) has been at the forefront of public consciousness for a number of years due to the involvement of the ADF in numerous, and seemingly continuous, operations within Australia. These operations have been a mixed bag of security operations for major events as well as ADF response to natural disasters and events that have plagued the nation recently.
Examples of recent domestic operations include ADF security support for the 2018 Gold Coast Commonwealth Games, relief operations during the 2019-20 bushfires, ongoing support as part of Operation COVID-19 Assist, and at the time of writing this review the ADF assistance being provided to the victims of the floods in Queensland and Northern New South Wales. Other domestic operations conducted by the ADF include Operation Resolute which protects Australia’s maritime regions and Operation SOUTHERN DISCOVERY which is described as ‘an enduring peace-time activity in support of the Australian Antarctic Division.’ All of these deployments raise a large number of legal issues, starting with the constitutional basis for using the ADF in the first place, and ranging through to issues regarding the amount of force that the ADF may use in any particular situation.
Sam White’s short book picks up the complexity and legal imprecision that is a central part of the use of the ADF in domestic operations, from both a constitutional law perspective and through the examination of relevant legislation. Sensibly, the book does not attempt to cover the entire spectrum of legal issues that come into play when the ADF is deployed on domestic operations, as such a task would be almost impossible to achieve.
The manner in which the author has structured the book, with a short introduction in chapter one followed by five substantive chapters and a conclusion, reflects the variety of public law issues that arise from the domestic deployment of the military in Australia.
Chapter one poses the question ‘what is the issue here’ and lays out the question that the author unpacks in the remainder of the book. The Foreword, by The Honourable Justice JA Logan RFD, supplements chapter one nicely, and is a welcome inclusion in the book as Justice Logan is uniquely placed to comment on the need for the book. It is noted in this chapter that the use of the ADF in Australia can be broadly understood through the lens of two distinct concepts. The first of these, Defence Assistance to the Civil Community (DACC) covers benign situations where use of force by the ADF is not likely. The other concept is called Defence Force Aid to the Civil Authority (DFACA) and it is under this framework that the use of the ADF might include situations where force, including potentially lethal force, is needed. The remainder of this introductory chapter skips through some constitutional authorities that might authorise the use of the ADF in domestic operations, and also briefly looks at the provisions under Part IIIAAA of the Defence Act 1903 that do provide such authority.
Chapter two examines the extent of Commonwealth executive power as described in s61 of The Constitution. The author undertakes a survey of the nature and extent of the executive power wielded by the Commonwealth by tracing its historical antecedents from English case law and then assessing how these principles have been applied in Australia. Prerogative powers available to the Commonwealth are looked at in some detail, and the impact of the Canon Law of the Roman Catholic Church is also thrown into the mix. The author spends some time assessing what ‘the Crown’ really is, and how a proper understanding of the meaning of that term is essential to understand the limits that exist on the exercise of prerogative power. The chapter concludes with brief discussion of what the author considers is a ‘controversial’ aspect of Commonwealth executive power: the ‘wider and more nebulous concept of implied, or inherent, nationhood power.’ More detailed assessment of the extent of that power is contained in Chapter six.
The third Chapter looks, through a historical lens, at the history behind keeping the peace of the realm and in particular the use of military forces for this purpose. Most of the detail contained in Chapter three is relatively uncontroversial as it surveys the history and traditions of ancient and modern European use of military forces to keep good order and peace within domestic boundaries. However, the assertion by the author at paragraph 3.4 that martial law ‘… has been extinguished by the statutory framework of Part IIIAAA of the Defence Act 1903 (Cth)’ might be questioned by some readers (notwithstanding the discussion on this topic in Chapter 5), as the two concepts are fundamentally distinct. Martial law is commonly understood as referring to temporary military rule of a territory or part of a territory in lieu of the normal civil authority. It is typically invoked when the civil authorities are unable to cope or function with the circumstances prevailing at the time, such as during a war, rebellion or significant natural disaster. The regime established under Part IIIAAA of the Defence Act does not contemplate the ADF ruling or controlling any territory in the way that such rule could occur under martial law.
The focus of Chapter four is on s119 of The Constitution, and it achieves this through examining the major incidents where the military has been used to protect the States since the late 1890s. Issues that are looked at in this chapter include the nature of ‘federalism’ in the Australian context and the meaning of the term ‘domestic violence’ as used in s119. White also explores the relatively recent adoption of the concept of ‘a Commonwealth interest that has begun to litter Commonwealth legislation’ especially in relation to the use of the ADF. The chapter questions how far that interest can extend in situations where domestic violence occurs in what might, at first glance, appear to be a matter that falls squarely within the responsibility of a state or territory. The final part of the chapter looks at whether disuse, as embodied by the principle of desuetude, impacts upon the Commonwealth’s internal security prerogative. Seven pages of the book are devoted to this task which is achieved by looking at selected examples of the ADF being used to address internal security issues since the 1949 coalminers strike and concluding with the current Operation COVID-19 Assist. It is not immediately clear why the author has spent so much time looking at this issue, as the examples provided, along with many others that have not been listed, seem to quickly dissolve any notion that desuetude might be at play.
It is possible for a prerogative to be impacted by the Parliament’s actions and Chapter five analyses whether this has happened in the case of calling out the ADF to deal with domestic situations in Australia. The authorities examined in this chapter represent the key decisions that deal with this topic and the author’s treatment of them is reasoned and thorough. Detailed analysis of Part IIIAAA of the Defence Act 1903 is necessarily undertaken in this chapter in order to answer the question posed regarding ‘abridgement’ of the prerogative, with the conclusion being reached that this has occurred. The chapter completes its analysis by looking at two other possible sources of abridgement: declarations under the National Emergency Declaration Act 2020 (Cth) and the impact of the Defence Regulation 2016. In the former case, the author states that the ‘only inescapable conclusion is that the NED Act does not replace a prerogative power to Keep the Peace, but supports it.’ The opposite conclusion is reached in relation to regulation 69 of the Defence Regulation 2016 where the author concludes that the ‘clear, unambiguous wording of the provision, which identifies the non-statutory power it is seeking to regulate’ supports that outcome.
Perhaps somewhat out of sequence, Chapter six picks up discussion of the ‘nationhood power’ including the fundamental question of whether or not such a power actually exists. Sam White explores the different approaches taken to this question, from a narrow interpretation favoured by some scholars and early High Court decision through to his preferred wide interpretation as reflected in more recent cases such as Pape v Commissioner of Taxation [2009] HCA 23. It is not necessary to regurgitate the arguments either way in this review, other than to note the conclusion reached by the author that the existence of the nationhood power, and the performance of activities by the ADF in keeping the peace of the realm are cloaked in ambiguity that might ultimately benefit the maintenance of the peace and security of Australia.
The book’s short conclusion in Chapter seven neatly summarises the preceding chapters and emphasises the subordinate nature of the military in Australia, while emphasising that the need for the military to play a role in a wide variety of domestic situations will continue. The ADF’s response to the current flood crisis mentioned earlier is testament to this assessment.
The book has been written in a style that makes reading each chapter an easy task, supplemented in places with useful tables that summarise important facts and figures. It will make a useful addition to current academic literature and is likely to appeal to public law scholars, military historians and practitioners with an interest in the legal boundaries that apply to the use of the ADF in Australia, regardless of how that use is ultimately authorised from a constitutional and legal perspective.
*Associate Professor David Letts is Director, Centre for Military and Security Law, Australian National University College of Law, Canberra
