To Kill The Queen’s Enemies (And Keep the Peace As Well)
Samuel White
23.02.2022
The issue
In January 2020, the Prime Minister of Australia announced that the Australian Defence Force (ADF) would move from ‘respond to request’ to ‘move forward and integrate’, signalling increased domestic deployments in response to the devastating bushfires over the summer of 2019/2020. Two months later, Operation COVID-19 Assist was established and constituted the largest deployment – domestic or external - of the ADF since World War Two.
Domestic uses of the military in Australia are conducted under a binary policy framework, which is divided according to the idea of ‘use of force’. If there is any likelihood of force being used, it is characterised as Defence Force Assistance to the Civil Authority (DFACA). If there is no likelihood of force, then it is Defence Assistance to the Civil Community (DACC), the arrangements for which are now publicly available in the 2020 Defence Assistance to the Civil Community Manual. Operation COVID-19 Assist was characterised by the Minister for Defence as a DACC operation.
This binary policy likely reflects the conventional divide in Anglo-Saxon culture between police and military in domestic operations. As The Honourable Justice John Logan, of the Federal Court of Australia and current President of the Defence Force Discipline Appeals Tribunal recently wrote:
In a constitutional monarchy of British heritage such as Australia, the essential difference between the military and the police may be succinctly stated. The role of the military is to kill the Queen’s enemies. The role of the police is to maintain the Queen’s peace.
His Honour captures the modern convention that divides military personnel and civilian constabulary. The former exists for emergencies, to utilise lethal force against declared enemies, often external to the nation. The latter exists to maintain peace domestically, using only (as far as possible) non-lethal force against residents and citizens.
Yet this is not to say that police have a monopoly on the authority for the use of force domestically. Even though policy has constrained domestic deployments to DACC/DFACA, there still exist instances where the ADF may be deployed under statute. Part IIIAAA of the Defence Act 1903 (Cth) provides a statutory footing for the ADF to respond to instances of domestic violence (in the constitutional meaning of the word). Yet, as has been covered elsewhere, domestic violence is a rather high threshold. What then for instances that require a little force to be used by the ADF domestically, but not against threats of domestic violence? Public health enforcement (maintaining a quarantine system, undertaking surveillance flights, etc) would fall squarely within that remit.
The confusion in policy and public debate seems to implicitly revolve around the extent of federal power, and specifically whether or not s 119 of the Constitution acts as a bulwark for the states. The provision reads:
The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.
Now, there is clearly a manner in which the Commonwealth can intervene: on state request. But by no means does s 119 forbid unilateral intervention; the provision does not contain the phrase ‘only on the application’.
The provision could also be read to grant federal power, in such a manner:
The Commonwealth shall protect every State against invasion and [must], on the application of the Executive Government of the State, against domestic violence [but may protect the State and itself against domestic violence without an application if it so wishes].
The confusion is complicated by a lack of judicial commentary on the provision, for whilst general public order is a matter for the states, s 119 also clearly assumes that some internal disturbances, namely domestic violence, can flow into the Commonwealth’s area of responsibility. This is outside the ambit of the defence power under s 51(vi), which provides a legislative head of power. Section 119 is concerned with constitutional executive power (as the Full Federal Court has suggested we call it). This is a power that enables the Commonwealth to act outside of statute. It is necessary therefore to look to the breadth and depth of constitutional executive power, to utilise George Winterton’s model. Specifically, it is necessary to look at whether or not there exists a non-statutory authority for domestic operations, and to ascertain what thresholds (if any) exist for its enactment.
The United Kingdom has recognised a prerogative power that allows the Government to establish such operations: the Royal Prerogative of Keeping the Peace of the Realm. This is important. The Royal prerogative is the residual powers and privileges of the Crown – it is recognised by the common law, but not created by it. This residue is to be assessed from the moment that Parliament gained supremacy over the Monarchy in the Glorious Revolution of 1688; as the British Courts have held, ‘it is 350 years and a civil war too late for the Queen’s court to broaden the prerogative’. The prerogative in Australia can only include those prerogative powers that the Crown in the United Kingdom had, to the extent those powers have survived in Australia. Otherwise, the perverse result of creating a new prerogative could occur. It will, of course, be modified by the specific constitutional frameworks of the various nations it applies in – such as federalism in Australia. That will be covered below. But once being recognised, it is impossible to deny it exists on the basis of being normatively undesirable (as at least one Australian author has).
A potential solution
The inner-city riots of the early 1980s in the United Kingdom caused fear within the Home Office of insufficient resources in case of serious public disorder. Accordingly, plastic batons and tear-gas were cached in central stores. In a Home Office Circular 40/1986, the Home Secretary announced that the store may be made available to those in need (the intent being for military personnel) without the approval of the local police authority. Internal petitioning to have the policy overturned was unsuccessful and the Northumbria Police Authority applied for a declaration that the granting of police stores to military personnel was ultra vires.
The case was first heard before a Divisional Court. Justice Mann (with whom Watkins LJ concurred) wrote the primary judgment, rejecting the application on the basis that the Royal prerogative included a power to do whatever ‘was necessary to meet either an actual or an apprehended threat to the peace’ (at 999). The Divisional Court moreover held that relevant statutory provisions (in the Police Act 1964 (UK)) did not ‘confer a monopoly power so as to limit the prerogative by implication’ (at 999). Such reasoning would extend in Australia that the respective police acts (state and federal) do not, by implication, limit the power of military personnel to exercise the prerogative.
On appeal to the Court of Appeal of England and Wales the primary decision was upheld, with the Court agreeing that the circular could be justified under the Royal prerogative (R v Home Secretary; Ex parte Northumbria Police Authority [1989] 1 QB 26 (Northumbria)). The Court referred to a dictum of Lord Campbell CJ a century earlier, in Harrison v Bush (1855) 5 E & B 344, that ‘in practice, to the Secretary of State for the Home Department … belongs peculiarly the maintenance of the peace within the Kingdom, with the superintendence of the administration of justice as far as the Royal prerogative is involved in it’ (at 353).
The Court of Appeal in Northumbria placed significant weight on the Crown’s duty to keep those under its allegiance safe from physical attack within its dominions (at 32). This duty was found to correspondingly require a prerogative power. Importantly, the duty and power were applicable at all times and not simply linked to emergencies. Arguing through the omission of evidence to the contrary, Nourse LJ opined that ‘a prerogative of keeping the peace within the realm existed in mediaeval times, probably since the Conquest [of William I]’ (at 59) and that ‘there is no historical or other basis for denying to the war prerogative a sister prerogative of keeping the peace within the realm’ (at 58). The war prerogative has no limits to its depth – it can authorise the killing of individuals, collateral damage, and wilful destruction of property. It moreover provides a lawful authority for combatant immunity. Indeed, Nourse LJ explicitly noted that the armed forces could exercise the prerogative to keep the peace just as readily as the war prerogative (at 51).
His Lordship continued that, with the exception of statutory abridgement, the prerogative to keep the peace ‘has not been surrendered by the Crown in the process of giving its express or implied assent to the modern system of keeping the peace through the agency of independent police forces’ (at 59). Although there is no approval for this case or its findings so far within Australia, such a position would seem supported by other Commonwealth nations, such as Fiji. In 2009, the Court of Appeal of Fiji overturned the High Court of Fiji’s decision that the coup d’etat in Fiji was valid under the reserve powers of the President, on the basis that the Fiji Constitution dealt expressly with reserve powers, which had displaced any relevant prerogative. The Australian Constitution, by contrast, does not contain such provisions, and would appear to retain the relevant prerogative.
Some civil libertarians have taken issue with the finding in Northumbria. One issue they have raised is the lack of historical justification for the finding that the prerogative exists. Robert Ward argued that the sources used to justify the Court’s position in the Northumbria case should earn ‘full marks […] for creative thinking’ but that the result was erroneous (at 156). However, simply because a court has not been asked to make a determination on the existence of a prerogative does not mean that prerogative power does not exist, and unfortunately for Ward there is clear historical evidence both within the United Kingdom and Australia of the use of the prerogative (33-81).
Australian Application
Within Australia, there have been clear instances of this power being utilised – as an authority for counter-industrial strikes, air patrols at Commonwealth events, and in surveillance against states. Yet, as Heydon J in Pape stated decisively (at [598]):
Executive and legislative practice cannot make constitutional that which would otherwise be unconstitutional. Practice must conform with the Constitution, not the Constitution with practice. The fact that the executive and legislative practices may have generated benefits does not establish that they are constitutional.
The difficultly within Australia is that no courts have engaged with the Northumbria case since its findings, and prior Australian case law appears inconsistent. The two key cases are R v Kidman (1915) 20 CLR 425 and A v Hayden (1984) 156 CLR 532.
Kidman was concerned with the validity of a retrospective crime, and is perhaps most often cited in that capacity. But Isaacs J neatly dealt with the authority for this ‘implied executive power’ (at 440):
It will, therefore, be clearly observed that where an executive body is created, and has among other functions, that of safe-guarding the revenue and making contracts under which that revenue is to be paid, it has an inherent right of self-protection, and of defending from invasion by direct interference the revenue and the actual making of its contracts. A man attempting to steal Commonwealth treasure may be resisted to death; a man obstructing any Commonwealth officer in the performance of his duty may be thrust aside with all the force necessary to enable the officer to perform his duty.
It is, in essence, a power to keep the peace.
Kidman is often forgotten in the debate around constitutional executive power, thrust aside in favour of the misunderstood case of Hayden. The facts of the case are as follows. In 1983, an Australian Secret Intelligence Service (ASIS) training operation, involving heavily armed ASIS employees, stormed Melbourne’s Sheraton Hotel. Complaints were made by the staff, owners and civilians and a subsequent investigation found that 21 serious criminal offences that had potentially arisen as a result of the exercise. The High Court accepted that the Commonwealth itself was immune from criminal prosecution, and only individual intelligence officers could be culpable. Chief Justice Gibbs (with whom Deane J agreed) stated (at 540):
it is fundamental to our legal system that the Executive has no power to authorise a breach of the law and that it is no excuse for an offender to say that he acted under the orders of a superior officer.
There is no inconsistency with Northumbria here – the British case does not suggest there is a defence of superior orders; simply that there is (if any prosecution was raised) a defence of lawful authority as is attached to military operations under the war prerogative.
More relevantly, then, is the decision of Murphy J. His Honour held (at 562):
The Executive power of the Commonwealth must be exercised in accordance with the Constitution and laws of the Commonwealth. The Governor-General, the Federal Executive Council and every officer of the Commonwealth are bound to observe the laws of the land… I restate these elementary principles because astonishingly one of the plaintiffs asserted through counsel that it followed from the nature of the executive government that it is not beyond the executive power, even in a situation other than war, to order one of its citizens to kill another person. Such a proposition is inconsistent with the rule of law. It is subversive of the Constitution and the laws. It is, in other countries, the justification for death squads.
Now, Murphy J must have meant to include here the clear constitutional authority under s 119 for lethal force to be used. Yet Hayden was decided in 1984 – four years before Northumbria. As noted above, a court finding a prerogative does not create it anew; it simply recognises it. It is held to have existed since 1688 AD (and, in the case of Northumbria, 1066 AD). The simple result is that Hayden stopped being good law in 1989 and now is an outlier without any real strength in Australian constitutional analysis.
Now common sense – that this power, existing, should be heavily regulated – does not make common law. There are no legal thresholds for its use, only policy. Although some British academics have accused the decision of being ‘more policy than principle’ these criticisms are lex ferenda (what the law might be) rather than lex lata (what the law is). It is clear that both the Divisional Court and the Court of Appeal believed that the Crown held a prerogative power to Keep the Peace of the Realm, importantly, where no emergency exists. This has been confirmed in later British policy documents, Ministerial reviews and has been the basis for a suite of British domestic operations.
The only distinguishable threshold, on my reading of the cases, is that it is concerned purely with public order and would not authorise intrusions into the home. A reading in this line makes sure that Northumbria Police Authority remains consistent with Entick v Carrington – the very old common law proposition that the Royal prerogative does not extend to entering private property for the purposes of keeping the peace. How this applies within the era of a global public commons in social media and the internet is an emerging area of research.
It is clear that the Commonwealth has an inherent right to self-protection: constitutional executive power extends not only to execute the laws of the Commonwealth but also to maintain the laws of the Commonwealth. The extent to which a law of the Commonwealth is effected must necessarily be assessed case by case, as must any legislation that may have covered the field. This I have analysed elsewhere with respect to the Defence Act 1903 (Cth) and leave it to others to continue the discussion with respect to potential domestic operations.
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Samuel White is an Adjunct Research Fellow at the University of New England, as well as an Adjunct Lecturer and PhD Candidate at the University of Adelaide. In 2018, he was Associate to the Hon. Justice John Logan RFD of the Federal Court of Australia, Supreme and National Courts of Papua New Guinea and President of the Defence Force Discipline Appeals Tribunal. His most recent book is Keeping the Peace of the Realm, published by LexisNexis in 2021. This blog post is in his own personal capacity and does not reflect the positions of his affiliate organisations.
Suggested citation: Samuel White, ‘To Kill the Queen’s Enemies (And Keep the Peace as Well)’ on AUSPUBLAW (23 February 2022) <https://www.auspublaw.org/blog/2022/02/2022/02/to-kill-the-queens-enemies-and-keep-the-peace-as-well>