Australia: Vague Emergency Plans

Chapter 9
Australia: Vague Emergency Plans

In Australia too, vast scope has been retained for the invocation of emergency powers, both by legislation and non-statutory means. There is no federal emergency legislation; but the vagaries of the legal doctrines inherited and utilised from Britain, including the application of royal prerogative powers and martial law, can be combined with equally amorphous and expansive powers attributed by the 1901 Australian Constitution to the federal executive, including the Governor-General (such as the defence and ‘aliens’ powers).

As seen in Chapter 2, martial law was declared several times in the early years of the British colonisation of the continent and, as in Britain, resort to this authoritarian form of rule remains legally possible. Since the formation of the Australian Commonwealth in 1901, the use of emergency powers on a large scale has been confined to periods of war. Emergency powers were adopted nationally during both world wars, and were used to arbitrarily intern thousands of people and suppress socialist and anti-war dissent and activities.

However, such measures have also been prepared during peacetime. As discussed in Chapter 2, it is now known from the first volume of the official history of the Australian Security Intelligence Organisation (ASIO), published in 2014, that detailed plans for similar sweeping emergency measures were drawn up in the 1950s, during the ‘Cold War’ directed against the Soviet Union (Horner 2014). These preparations were said to be necessary for an ‘emergency’ in connection with a possible war; but it seems that they could have been activated without any formal declaration of war.

Moreover, new peacetime scope for the defence power was opened up by the High Court in 2007 in the context of the ‘war on terrorism’. In the first decade of the twenty-first century, federal governments also invoked executive powers to deploy the military domestically, for example against refugee arrivals, and legislation was adopted to facilitate military call-outs by the executive to counter undefined ‘domestic violence’. Further, in 2009, in the wake of the global financial crisis that erupted in 2008, the High Court opened the way for wider executive powers to be exercised in response to ‘financial’ emergencies and potentially other events judged to threaten the national state. The full scope of these and other executive powers remains unclear, as can be seen by numerous High Court judgments.

In addition, state and territory legislation provides for sweeping powers to be handed to governments and police forces in many other emergency or emergency-type measures. The early years of the twenty-first century saw more frequent exercise of those powers, particularly at the state level, in the context of dealing with incidents of social unrest or alleged terrorism. This chapter primarily focuses on the federal arena; but two emergency declarations in the northern state of Queensland during the first 15 years of the current century are examined as contemporary examples of the resort to emergency provisions by state governments.

No Federal Emergency Powers Legislation

Successive governments have declined to introduce federal emergency or disaster management legislation in Australia – that is, except for the Defence Act 1903 (Cth), which provides for the military to be called out to deal with undefined ‘domestic violence’ and gives the government and military commanders extraordinary powers when a call-out occurs (Head 2009). The role and implications of that legislation, which are potentially vast, are briefly considered below.

As a result of the lack of specific emergency powers legislation, the preparations for responding to national crises – including severe political crises, terrorism and natural disasters – rest on the assumed executive powers of the Australian Commonwealth, as well as cooperation with the state governments. This creates a situation of considerable murkiness about emergency powers, a legal lacuna that has been maintained despite calls – such as by the federal government-funded Australian Strategic Policy Institute (ASPI) (Templeman and Bergin 2008) – for legislation or some other legal instrument to clarify the arrangements.

As a consequence, the Australian situation resembles that of the United States, where federal emergency powers largely rest on the allegedly elastic executive powers of the president (as discussed in Chapter 8).

In part, Australia’s legal vacuum can be explained by the constitutional division of powers, which leaves many responsibilities in emergency management in the hands of the states. Issues of disaster and emergency management are not mentioned in the 1901 Constitution, and therefore, as ‘residual’ powers, remain with the states. And there are doubts about the extent of the applicability of s 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’ (see the discussion below on the military call-out powers.)

The federal government could seek a referral of powers from the states under s 51 (xxxvii) of the Constitution, as it has done in the field of terrorism. Or it could rely on various other powers that are assigned to the Commonwealth by s 51 of the Constitution – such as ‘defence’, ‘external affairs’, ‘trade and commerce’, ‘telegraphic, telephonic and other like services’, ‘meteorological observations’ and ‘insurance’ as well as the ‘incidental’ power. The Commonwealth also has full constitutional legislative power over the territories: the Australian Capital Territory (ACT – the seat of federal government), the Northern Territory and offshore Australian territories in the Indian and Pacific oceans and Antarctica.

Yet, none of these avenues appear to have been explored by successive governments. Recommendations for legislation have been made for many years, including by Lee in his treatise Emergency Powers (Lee 1984: 193). Nevertheless, not even the federal agency formally responsible for disaster prevention and management has been given any legislative foundation. An ASPI report noted:

The states and territories have constitutional responsibilities for emergency management and control most of the functions essential for effective disaster prevention, response and recovery. There is still some uncertainty, however, on who will be in charge in the situation of a major national disaster in Australia and how the response would be coordinated across borders … The Commonwealth agency seen to be responsible for this, Emergency Management Australia (EMA), has no mandate, legislation or Cabinet endorsement with which to take command. (Templeman and Bergman 2008: 7)

Another summary of the legal position noted:

In Australia, the Commonwealth Attorney-General is responsible for the Commonwealth’s counter-disaster arrangements. Notwithstanding this, the Attorney-General has no statutory mandate to require other government departments, responders or the private sector to prepare emergencies nor is there a specific power to coordinate the Commonwealth response to an emergency. The Attorney-General has no specific mandate or authority to bring the states and their agencies together or to require Commonwealth agencies to release resources for the response to an emergency. (Eburn 2014: 147)

In its 2008 report, ASPI called for ‘an instrument of delegation issued by the federal government, with the constitutional agreement of jurisdictions’. This authority, ASPI said, would be two-fold: first, to direct action within the Commonwealth’s jurisdiction; and, second, when a state or states agreed that the severity of an emergency warranted overall federal command and control (Templeman and Bergin 2008: 8). The exact form such an ‘instrument’ would take was not specified.

Significantly, ASPI’s report proposed a greater role for the military in disasters. It suggested that the government consider:

[Whether] contemporary approaches to securing the nation now require disaster response by our military to be regarded as core business, along with its war-fighting role and if so what would that mean for the selection of military equipment and dispersal and interoperability of military assets around Australia. (Templeman and Bergin 2008: 12)

This call relates to the potential use of the military call-out powers, discussed below.

Vague Existing Emergency Plans

Judging by the existing national emergency plans, or at least those that are open to public scrutiny, two features stand out. One is the assumption that virtually open-ended emergency powers exist. The second is that successive governments and the emergency agencies have deliberately not sought to clarify precisely on which legal or constitutional powers they rely.

The ASPI report referred to the Commonwealth Government Disaster Response plan (COMDISPLAN), which provides a structure for inter-jurisdictional requests, approval authority and coordination mechanisms (Templeman and Bergin 2008: 21). However, according to ASPI, that plan does not detail the precise national authorities, roles and responsibilities in a major disaster. ASPI added that a 2008 meeting of the federal-state Ministerial Council for Police and Emergency Management endorsed Australian Emergency Management Arrangements, but these did not ‘confer any additional authority’ (Templeman and Bergin 2008: 21). The ASPI report also mentioned a ‘National Emergency Protocol’ that describes the communications arrangements, between the prime minister, state premiers and territory chief ministers ‘designed to ensure leaders coordinate key messages to the public during a national emergency’ (Templeman and Bergin 2008: 17).

COMDISPLAN is certainly a vague and brief (16-page) document. Its coverage is not confined to natural disasters, but could extend to any serious civil unrest or political crisis. It states that the plan can be activated for ‘any disaster or emergency regardless of the cause’ (Australian Government 2014: 6). The only proviso is that before a request is made for federal assistance, ‘a jurisdiction must have exhausted all government, community and commercial options’ (Australian Government 2014: 6). Requests are made by designated state or territory emergency controllers, and can be approved by the federal Attorney-General or minister responsible for emergency management (Australian Government 2014: 7–9).

Military assistance is part of the plan, but only under the rubric of ‘assistance to the civil community’ (and seemingly not military call-out for ‘aid to the civil power’ as discussed below). That can include the deployment of aircraft, engineers, search and support teams and communications (Australian Government 2014: 14).

Even more vague is the National Strategy for Disaster Resilience (COAG 2011), adopted by the Council of Australian Governments (COAG) in 2011. It provides a policy statement on developing ‘community resilience’ to natural disasters, calling for contributions from business, non-government organisations and individuals, without clarifying any of the issues of government power and legality.

Another more detailed and far-reaching plan exists to deal with ‘catastrophic natural disasters’ that overwhelm the existing resources of governments or the capacity of their executives to function. This National Catastrophic Natural Disaster Plan (NATCATDISPLAN) is couched in terms of extreme natural disasters, but refers to the existence of contingency plans, including for unelected officials to assume control of governments (Australian Government 2010). Such contingency, or ‘succession’, planning points to wider arrangements for crises that allegedly threaten to disable governments, and not only natural disasters.

The NATCATDISPLAN defines a ‘catastrophic natural disaster’ as ‘an extreme hazard event that affects one or more communities, resulting in widespread, devastating, economic, health, social and environmental consequences, and that exceeds the capability of existing State or Commonwealth Government emergency and disaster management arrangements’ (Australian Government 2010: 1). That definition, by adopting the generic term ‘extreme hazard event’, is capable of extending beyond purely ‘natural’ disasters. The NATCATDISPLAN’s ‘concept’ is stated as follows:

The great majority of emergencies, including catastrophic disasters, can be managed under existing plans and arrangements. The NATCATDISPLAN specifically provides for those events where the ability of a government to carry out its emergency management responsibilities is significantly affected either through insufficient resources due to the size of the disaster or the incapacity of the Executive. (Australian Government 2010: 2)

The NATCATDISPLAN’s ‘principles’ specify that ‘States have primary responsibility for the management of emergencies within their jurisdictions and are responsible for determining their own internal coordination mechanisms’; and ‘States retain overall responsibility for executive decision making and State legislation remains in place at all times’ (Australian Government 2010: 2). Nonetheless, the plan envisages action that would seem to call upon unstated legal powers to reconstitute ‘executive governments’ that have been ‘incapacitated’.

Without elaborating, the plan states that: ‘The Commonwealth and States have plans for continuity of government. To minimise the disruption to the Executive Government, all continuity of government arrangements should provide necessary succession planning (Australian Government 2010: 3). In order to implement these ‘continuity arrangements’, if necessary, the NATCATDISPLAN states:

Recognising that the law of the affected government(s) remain in place, the NATCATDISPLAN provides for the collaboration of all other governments to support the affected jurisdiction(s) by:

• Supporting the reconstitution or rebuilding the capacity of the Executive Government(s) where it has been incapacitated;

• Coordinating national support in the response to, and recovery from the emergency including in relation to policy, strategy and public messaging, in support of an affected jurisdiction;

• Coordination of public information in line with the Model Arrangements for Leadership during Emergencies of National Consequence and existing arrangements to support the National Crisis Committee (Australian Government 2010: 2–3).

Activation of the NATCATDISPLAN will occur ‘upon agreement between the Prime Minister and the First Minister(s) of the affected jurisdiction(s), or their representative(s)’ or ‘at the direction of the Prime Minister, or most senior elected Commonwealth Government representative or public official, in instances where no legitimate representative of the Executive Government can be readily contacted due to the impact of a catastrophic natural disaster and where it appears to be clear that significant assistance to the jurisdiction is required’ (Australian Government 2010: 3).

Upon activation of the plan, ‘the National Crisis Committee (NCC), chaired by the National Security Adviser, will be convened and will support the Prime Minister and First Ministers in the coordination of strategic support to the affected jurisdiction(s) to assist in the response to and recovery from a catastrophic natural disaster’ (Australian Government 2010: 4).

The NATCATDISPLAN further provides for the appointment of a coordinator to effectively take charge, with unspecified powers:

Where the Executive Government of a State has been incapacitated or severely affected as a result of a catastrophic natural disaster, by agreement between the Prime Minister and First Minister(s) of the affected governments(s), or their legitimate representative(s), a coordinator may be appointed to support the jurisdiction’s administration to ensure that response and recovery needs are met. (Australian Government 2010: 4)

Attached to the NATCATDISPLAN is the Model Arrangements for Leadership in Events of National Consequence. These arrangements replace the ‘National Emergency Protocol of February 2006’. The three-page document is very sketchy. It states that in the event of an ‘emergency of national consequence’: ‘the Prime Minister and the affected First Minister(s) will consult as necessary to coordinate the response to, and recovery, from the emergency including in relation to policy, strategy and public messaging, in support of an affected State or Territory’; and ‘the Prime Minister and the affected First Minister(s) will consult on, and deliver the key leadership messages to be conveyed to the public’ met (Australian Government 2010: 7).

These are extraordinary and potentially dictatorial powers that have no legislative basis whatsoever. Eburn summed up the situation as follows:

In the absence of counter-disaster legislation there is no process for a formal declaration of disaster or emergency at the national level, and no clear authorisation to waive the application of the ‘normal’ law or to take extraordinary action that is warranted by the emergency. The Commonwealth may be forced to rely on the historical prerogative power of the Crown, now encompassed in the phrase ‘the Executive power of the Commonwealth’ and provided for in section 61 of the Australian Constitution. (Eburn 2014: 149)

The Cyclone Tracy Precedent

Eburn pointed to an historical precedent for the assertion of such powers. After the northern city of Darwin was devastated by Cyclone Tracy on Christmas Day 1974, the federal Whitlam government appointed a serving military commander, Major General Alan Stretton, to take supreme command of recovery operations. Stretton had a few months earlier been made Director-General of the newly established Commonwealth Natural Disasters Organisation (NDO) – now the EMA.

Officially, a supreme commander was appointed ‘because the situation in Darwin was a national disaster of major dimensions’ (Eburn 2014: 150). As Darwin was in the Northern Territory, the government could possibly have relied on its power, under s 122 of the Constitution, to make laws with respect to the territories. According to Stretton, however, that was not the basis of his appointment (Eburn 2014: 151). Instead, the government is assumed to have exercised executive or prerogative powers. Stretton was given total command, answerable only to Prime Minister Gough Whitlam (Robertson 1999: 56).

Because of the extreme popular sensitivities to the mobilisation of troops for domestic purposes, Stretton made it clear during Cyclone Tracy that he was acting in his civilian capacity as director of the NDO. He refused to declare martial law, earning him criticism from other military figures at the time (Head 2001a: 273). Another consideration was the legal unclarity surrounding the deployment of soldiers against civilians. Stretton stipulated that troops not carry arms; that they be accompanied by a police officer; and that the soldiers’ authority would stem from a citizen’s supposed duty under common law to assist in maintaining order (Head 2001a: 273).

There is no doubt, however, that Stretton asserted and exercised authoritarian powers. More than 35,000 people were evacuated from the city, not always voluntarily, leaving a skeleton population. Stretton regulated access to the city by means of a permit system. Permits were only issued to those who were involved in either the relief or reconstruction efforts, and were used to prevent the early return of those who were evacuated. Within six days, Darwin’s population had been reduced to 10,500, and the emergency was declared over (Robertson 1999: 58). Stretton recommended that full civilian control should resume in Darwin, ending a short but far-reaching imposition of emergency powers.

The sweeping and uncertain nature and scope of the government’s executive and prerogative powers is discussed below. But first, it is necessary to consider the related question of the extent of the military call-out powers, which have been augmented since 2000 by specific legislation but which also rely on ‘the executive power of the Commonwealth’.

Military Call-Out Powers

The internal use of troops against citizens is normally associated with military dictatorships and other authoritarian regimes. Yet, the opening years of the twenty-first century have been marked by developments in Australia, and comparable countries such as the United States and Britain, that raise serious issues about the domestic use of the armed forces. Alongside a turn to military interventions, most notably in the Middle East and Central Asia, has come a greater use of the defence forces for internal purposes (Head 2009).

In Australia, legislation was introduced in 2000, and extended in 2006, giving federal governments and the chief of the Australian Defence Force (ADF) explicit peacetime powers to call out the troops if ‘domestic violence is occurring or is likely to occur’ that ‘would be likely to affect Commonwealth interests’ or require the protection of a State or Territory.

‘Domestic violence’ is a vague, anachronistic and seemingly incongruous term which in contemporary parlance normally refers to violence in the home. The expression is taken from section 119 of the Constitution, which states: ‘The Commonwealth shall protect every States against invasion and, on the application of the Executive Government of the State, against domestic violence.’

But ‘domestic violence’ is not defined in the Constitution, or in the Defence Act 1903 (Cth) or regulations. No judicial definition exists either. Likewise, there is nothing in the law about how grave or widespread ‘domestic violence’ must be before the ADF is mobilised. Enormous discretion has thus been placed in the hands of the government and the ADF itself to intervene against civil unrest.

Under Part IIIAAA of the Defence Act, the government has wide powers to call out the ADF. In a ‘sudden and extraordinary emergency’ the prime minister alone, or two other ‘authorising ministers’ acting together, can give the order, which does not even need to be in writing – it can be made via a quick phone call. Moreover, the government can issue standing orders for the activation of the ADF whenever the chief of the armed forces deems it necessary.

The ministers can also call out the ADF in the name of ‘preventing acts of violence’ against ‘critical infrastructure’, even if the relevant state or territory government does not agree to the intervention (in seeming contradiction of s 119 of the Constitution). There is no definition of ‘critical’, except that damage or disruption would ‘directly or indirectly endanger the life of, or cause serious injury to, other persons’. ‘Infrastructure’ is defined broadly enough to cover a vast range of ordinary domestic facilities such as roads, railways, buildings, sporting arenas, schools, universities, hospitals, telephone and power lines, dams and water pipelines, mass media outlets and computer networks.

These provisions give extraordinary powers to a handful of politicians and military officers to launch military mobilisations (Head 2009).

Once deployed, military officers can order troops to open fire on civilians, as long as they determine that it is reasonably necessary to prevent death or serious injury, or to protect or stop a threatened disruption of any ‘critical infrastructure’. Soldiers will have greater powers than the police in some circumstances, including the right to shoot to kill someone escaping detention; search premises without warrants; detain people without formally arresting them; seal off areas; and issue general orders to civilians. They can also shoot down aircraft, sink ships, interrogate civilians and seize documents. (For a detailed outline and analysis of these powers, see Head 2009: 100–118.)

No call-out has yet occurred under the legislation. Nevertheless, military forces, including elite Special Air Services (SAS) units, have been deployed with increasing regularity for major political and sporting events. Growing use has been made of the ADF on many civilian fronts, including the Northern Territory Aboriginal intervention; the turning back of refugee boats; the patrolling of neighbourhoods in Afghanistan, Iraq, East Timor and the Solomon Islands; and counter-terrorism exercises.

It has been generally assumed that these operations have been validly conducted under executive power. It is therefore quite possible that future call-outs could be conducted under a claim of executive power, rather than the Defence Act. This raises two largely neglected issues. One is whether the call-out legislation covers the legal field. Can executive or prerogative powers – derived from common law or the Constitution – still be invoked to deploy the armed forces? If so, can such call-outs exceed or extend the powers defined by the Defence Act? The second major question is: What role can the Governor-General play as the commander-in-chief of the armed forces? No definitive answers exist to these questions.

On the first question, the Defence Act, the Defence Force Regulations and the National Counter-Terrorism Plan all assume that other call-out powers exist. Despite the extensive and intricate drafting of the 2000 and 2006 amendments to the Act, no attempt was made to define or circumscribe these non-statutory powers. Instead, s 51Y of the Act states: ‘This Part does not affect any utilisation of the Defence Force that would be permitted or required, or any powers that the Defence Forces would have, if this Part were disregarded.’

What sources of power could be invoked to trigger these provisions? Three main possibilities seem to exist. One is the executive power of the Commonwealth, formally vested in the Governor-General by s 61 of the Constitution, and possibly augmented by s 68, which nominates the Governor-General as the commander-in-chief of the military forces. Another is the residual prerogative power of the Crown, essentially derived from the history of the British monarchy. The third is common law power, perhaps based upon that exercised by English magistrates and ministers during the eighteenth and nineteenth centuries (Head 2009).

Beyond that, there is another issue: does legal scope still exist to declare martial law, bypassing both the Defence Act and the Regulations?