An enormous amount of fuss has been generated over the call-out-the troops legislation that passed Federal Parliament on Thursday night. The fuss has been directed the wrong way. Those opposing the legislation (the Democrats, Greens and One Nation and civil liberties groups) have grounded their objections along the lines that the legislation allows the Commonwealth Government too much power in calling out the troops. They have presented strong imagery. They have expressed fears that the Commonwealth will call out the troops to suppress innocent and peaceful demonstrators and use troops to break strikes and use force against strikers. The One Nation fears have been tinged with US-style hatred of Government.
Most of those fears are fanciful, but even if they were real, they are misdirected. The legislation passed last week adds virtually nothing to powers already existing in the Constitution.
On a legal and constitutional level, the Commonwealth has quite awesome power and the law that passed this week was largely unnecessary. Section 61 of the Constitution provides, “”the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-general as the Queen’s representative, and extends to the execution and maintenance of this Constitutional and of the laws of the Commonwealth”.
That is a fairly wide-sweeping power for the Governor-General on the advice (read instruction) of the Prime Minister to send in the troops whenever the Prime Minister feels that Commonwealth interests might be affected. The power is couched in very broad terms and its seems unlikely that any court could regulate it during or after the event.
The other Constitutional provision is that the Commonwealth must protect a state against domestic violence if the state requests it and must protect a state against invasion. But it is the Commonwealth which decides what is domestic violence whether there is an invasion and it is unlikely any court will intervene. In short, the Commonwealth can do what it wants, ignoring states’ pleas for help or ruling there is an “”invasion” requiring Commonwealth intervention on the flimsiest of grounds.
If anything the concern should have been directed at the broad executive power laid down in the Constitution, rather than the legislation being debated last week which does not add to that existing power.
Much of the complexity about using troops in civilian situations arises from the fact that Australia is a federation of six states and two self-governing territories. The states have civilian police forces. What happens if the state forces cannot cope? In what circumstances can a state demand help from the Commonwealth? In what circumstances can the Commonwealth say we will send in the troops whether the state likes it or not? What fiscal, criminal and civil-law consequences flow from Commonwealth intervention or failure to intervene? Are individual members of the Australian armed forces, acting under orders, liable under state criminal law for assault, murder and manslaughter if the Commonwealth intervenes and it is later found that the Commonwealth intervention was not lawful?
These questions only arise in the context of the Commonwealth being seen as somehow external to a state and its people running their own affairs. The questions pit Commonwealth forces as verging on the foreign. In a unitary state, no-one questions the power of a government to use troops once police forces are not adequate to the task.
In Australia’s federal structure, much of the debate has been on a civil-liberties level. How can the use of Commonwealth troops against Australian civilians be regulated to ensure that they are not used to quell dissent or industrial action?
Moreover, the debate has been on a highly legalistic and theoretical level, quite divorced from reality.
The reality has been far different. The fact is that calling out the troops has been a rare event in Australia and despite the hoopla of the S11 event coming up in Melbourne and Olympics in Sydney it is likely to remain so.
The Commonwealth has refused pleas for help by Queensland in 1912 to quell domestic violence in a general strike, by Tasmania in 1916 during the conscription debate, by WA in 1919 and 1921 arising from strikes and by SA in 1928. In 1949 troops were used to work in NSW coal mines, but not to impose law and order, just to work the mines.
The only time Commonwealth troops have been used was when the Commonwealth decided that it should do so to protect its own interests, in 1978 after the Hilton bombing.
Don’t expect troops on the streets in Melbourne at the world-trade meeting or in Sydney at the Olympic Games. The debate has been much ado about nothing.
And that is before you come to the very practical question that because Australian troops are so unlikely to fire on their own people, no commander will face the prospect of disobedience so will not order them to do so.
The fears arising from the debate reveal a grave mistrust of politicians and people in power – that they might abuse it – but on a practical level they are unfounded.