Sydney Morning Herald
Editorial
August 18 2000
When to use troops
In the name of safety for the Sydney Games, a subtle but potentially
far-reaching shift in the distribution of State and Federal power under the
Federal Constitution is proposed. The Defence Legislation Amendment (Aid to
Civilian Authorities) Bill is making its way through the Federal
Parliament, so far with bipartisan support. It would change the rules under
which the armed forces can be called out to help police deal with civil
unrest. At present, the armed forces, under Federal direction, can be
deployed in a State. But, by convention, the State should request the help,
under section 119 of the Constitution, which states: "The Commonwealth
shall protect every State against invasion and, on the application of the
Executive Government of the State, against domestic violence."
It is said that something clearer in the Defence Act is required to define
the "call-out framework" for troops. The bill provides that three ministers
- the prime minister, the defence minister and the attorney-general - may
decide that "domestic violence" is occurring or is likely to occur. If they
also decide a State is "not, or is unlikely to be, able to protect
Commonwealth interests against the domestic violence" the ministers can
authorise the governor-general to call out the defence forces. It does not
matter whether the State Government asks for help or not. The potential for
State-Commonwealth conflict is obvious. For example, would the Federal
Government have found it easier to use such a procedure to send troops in
if it had thought the NSW Police were not up to the mark at the height of
the 1998 waterfront dispute?
On one argument this new law simply expresses what has been true though not
clearly stated in this area all along, that Federal power overrides State
power. Yet the expression of unstated powers can sometimes expand those
powers. That could be the danger here.
Australia has no tradition of soldiers doing police work. It is one of the
strengths of the military tradition that that is so. Where the military
have been used outside the usual role - for example, Chifley's use of
troops to load coal during the miners' strike in 1949 and Hawke's use of
the RAAF during the pilots' dispute in 1989 - it has been exceptional and
controversial. As the Greens' Senator Bob Brown has pointed out, armed
Australian servicemen and women have never directly confronted strikers.
Yet this legislation opens up that possibility.
Safety at the Sydney Games is paramount. But it is not clear this new law
is needed to ensure that. The States have no veto on the use of federally
ordered troops, but the convention of a century matters. As a rule, the
States and their police - who, after all, are better trained than troops
for the job - are the ones to deal with civil disturbances. In extreme
terrorist situations, the Special Air Services will be required. But the
broader use of troops which these changes seem to allow would be a
disturbing development.
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