The prime minister has conceded that deploying the military in response to the bushfire crisis has “pushed, I think, the constitutional authorities for us to act to its very edge“.
What does he mean? And should we be worried?
On January 5, the Army Reserves were deployed to areas affected by the bushfires to assist. So far this is fine, constitutionally speaking.
Anne Twomey, Professor of Constitutional Law at the University of Sydney, told Crikey the deployment of the reserves “may be done for defence reasons, but also for civil aid, humanitarian assistance, medical or civil emergency or disaster relief”.
“So even though I’m not a great fan of the nationhood power, I think this use of it is OK.”
But there is a give and take here. Power for the federal government to send in the military could be increased through cooperative legislation, such as the states referring their powers. But the states and the Commonwealth need to talk.
“The key thing is to avoid pre-emptive or uncoordinated action. It needs to be recognised that it is the states that have the knowledge and expertise regarding land management and bush fires,” Twomey said.
“The Commonwealth defence forces, however, have the resources and expertise for dealing with disaster recovery and evacuation. Systems need to be worked out to ensure coordinated and effective action during a disaster.”
But when it comes to the deployment of actual army personnel, there are more worrisome powers the government could invoke, and the PM’s language has raised some concerns.
Morrison suggested to Insiders‘ David Speers that he wanted to expand the government’s power to send in the military: “To ensure that in the future it can be done in a way that I think is in a more preemptive posture, that we can do that I think more seamlessly.”
Section 51 of the Defence Act gives the federal government the power to call out the armed forces on domestic soil against perceived threats to “Commonwealth interests”, with or without the agreement of a state government.
These powers were originally rushed through the parliament by then-prime minister John Howard back in 2000, under the context of preparing for the 2000 Olympics. The powers were further expanded in 2006, this time in preparation for the Melbourne commonwealth games.
In both cases scrutiny was perfunctory — in 2000 the changes were not even announced before they passed. Labor waved the legislation through.
As Verona Burgess points out in The Mandarin, the powers to quickly deploy troops to Australian streets may not raise any eyebrows when it’s being put to use for disaster recovery.
But, once deployed, military officers have remarkable and worrisome power; able to order troops to open fire on civilians, shoot to kill someone escaping detention, warrantless searches, detainment without formal arrest and more.
Twomey said it was unclear whether the bushfires would qualify as domestic violence as per the Defence Act. Indeed, exactly what law authorises this has been a source of speculation since the deployment of the army.
Section 119 of the constitution provides for the Commonwealth to “protect every state, on the application of the state, from invasion or against domestic violence”.
The constitutional validity of Section 51 of the Defence Act is yet to be tested. Any further expansion of these powers would need close scrutiny, and history tells us it wouldn’t come from Labor.
We should be concerned (and we should have been in 2000 and 2006). Laws don’t get repealed easily and when they are ambiguous, they will always be used for anti-democratic reasons in the end. Always. We can see it in the US, UK and even in Australia, where what the people would assert that a law wasn’t (supposedly) intended for suppressing the general public, end up being used just for that.
Their powers have been building along with all those national security legislation passed since 2001 and an authoritarian regime is just around the corner. “Legally”.
It would have been better to use a cruise ship to evacuate the Mallacoota evacuees. Any passing cruise ship could have picked them up much more efficiently and dropped them in Melbourne. The weather was not extreme and a cruise ship could have stationed itself off Mallacoota and used its multiple tenders to take 1000 persons aboard at a rate of 150 per tender trip. The cruise ships move people quickly between small jetties and the ships all the time. The evacuees could have been housed in the public areas of the ship e.g. theatres, casinos etc. for the short journey and fed at the buffet. This would have left the naval vessel free to focus on delivering supplies and equipment.
A point that needs repeating.
The first ship off Mallacoota was NOT THE NAVY. The FIRST ship was a Merchant Marine vessel. It was an oil rig supply vessel working for Esso. The ship delivered stores. generators and fuel. The crew assisted onshore where they could and I believe carried some people out of the town.
How come that never gets a mention?
Worrisome? Worrisome? Surely the word should be “worrying”.No Yank speak here, please.
Hear, hear. And no “envision”, “gotten” or the wretched “reach out” instead of “contact” which appear from time to time.
To me a surprising thing is that we do not have a national disaster response organisation. In creating such an organisation these legal and procedural issues would be addressed. Unfortunately – or may be for Morrison fortunately – that would take the politicians out of the cycle and put professionals in charge. Coordination between local , state , federal should be seemless in these situations and not on an ad hoc basis.
I believe that was part of the proposal put to the Turnbull government whilst Smoko was treasurer along with the big water bombing planes.
Too expensive, says Smoko and his PM Turnbull. $88,000,000 for something we might never need.
So much easier to splash our money around in the marginals, over $100,000,000, who cares about planes.
Prior to WW2, the army had details of all productive capacity of ICI, BHP etc. which could be used for defence purposes. Also, the railways and ports were under government control and much of the transport infrastructure and electricity generating infrastructure together with things like the MMBW were Australian owned and controlled. Although we have computing and communications capacity beyond the wildest dreams of those fighting WW2, I suspect we have far less organisation and control than existed eighty years ago.
Decisions should be made on the basis of information and skills, not position.
When /if the states ever get past the local power and influence over policy of their civilian fire-fighting forces and lobbies, and when/ if the states refer fire-fighting power to the commonwealth defence force, the states can limit the referral to identifying and fighting bushfires. The states don’t have to give the commonwealth open slather to shoot citizens in the streets.