DAVID SOLOMON.- Morrison’s scary words on deployment of troops..

Although you can no longer believe everything Scott Morrison says, its necessary to take everything he says seriously and examine his utterances carefully – just in case in a particular instance he will follow through on what he has said.

 Sometimes what he says is just rubbish. For example, just before Christmas, the full court of the Federal Court, acting on a case remitted to it by the High Court acting as the Court of Disputed Returns, rejected petitions challenging the election of Treasurer Josh Frydenberg and Liberal MP Gladys Liu.

 The Prime Minister’s reaction was that he was not surprised by the result because of the nature of the case. To which he added, ‘It was a smear job and its been chucked out.’

 The ‘smear’ was by the Prime Minister.

 While the petitions were unsuccessful, the court found  that the Liberal Party had erected signs that were plainly misleading or deceptive – as the petitioners had pleaded. The signs were in Chinese and purported to be a sign of, and convey a message from, the independent Australian Electoral Commission. They purported to tell electors ‘that a correct or valid vote must be by voting for the Liberal Party and that they must vote for the Liberal Party, irrespective of what their preferred choice might be.’

 The petitions were unsuccessful in challenging the two elections however, because there was no real chance that the result in the elections was affected.

 But that is not the end of the matter. The petitions also sought declarations from the court that the man who was responsible for the signs, the then acting director of the Victorian branch of the Liberal Party, Simon Frost, committed an illegal practice, exposing him to a possible punishment of up to six months in gaol, or a $2,100 fine, or both.

 Because Mr Frost was not personally represented by a lawyer, the court decided to give him the chance to make submissions (by 7 February) as to why the court should not find he committed an illegal practice. If the court makes such a finding, the matter will then find its way to the responsible Minister, who happens to be Mathais Cormann‎, to take the next step in any prosecution. During the hearing of the case Mr Frost was on the ministerial staff of Mr Cormann’s colleague, Josh Frydenberg. (A test for Senator Cormann?)

 Moving on from talk of smears, the Prime Minister has an interesting way of avoiding admitting that he has made a mistake. Take this example from his extended interview with David Spears on the ABC when asked whether his Hawaiian holiday was a mistake. ‘In hindsight,’ he said, ‘I would not have taken that trip knowing what I know now.’

 Given the public denunciation of his actions, its hardly surprising that knowing what he now knows, he wouldn’t have taken the trip. But he didn’t concede that on the basis of the bushfire crisis that existed before he left, he made a serious mistake in deciding to go to Hawaii – and in trying to stop people finding out about it.

 Now on to something else he said in the interview that needs to be looked at much more carefully. This was his discussion of the use of the defence forces during the fire emergency and how that should be controlled.

 The Prime Minister acknowledged that what has happened and is still happening with the use of the defence forces in the fire emergency ‘have pushed the constitutional authorities for us to act to its very edge’.  That is absolutely correct. Indeed, it would probably be correct to say ‘over’ the edge.

 The problem is there are constitutional limits on the way the defence forces can be employed. Almost certainly, those limits are being exceeded – though of course no-one is objecting, yet.

 The Constitution in section 51(vi) empowers the Parliament to make laws for the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth. This is the general defence power. What ‘defence’ means depends on the circumstances, according to the High Court. During wartime this is a very broad power that can allow the Commonwealth to determine anything from consumer prices to how the civilian workforce is deployed.

 There is a second provision included in the Constitution because the former colonies (now States) had to give up their own military forces. Section 119 says ‘The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence.’ In peacetime the power is more confined.

 First, the State has to ask before the defence forces can be supplied. Second, this can occur in cases (only) of ‘domestic violence’. That last term is not defined. It is unlikely to include natural disasters (unless rioting is a consequence of the disaster).

 The Defence Act recognises and adopts the limitation in s. 119 in a part of the Act entitled, ‘Calling out the Defence Force to protect Commonwealth interests, States and self‑governing Territories’. It provides for States and Territories to be able to ask for protection against domestic violence and additionally for the deployment of the defence forces in States and Territories to protect Commonwealth interests, though it requires the States and Territories to be consulted before the Governor-General makes the relevant order.

 Curiously, there is another section of the Defence Act involving a call out of forces where ‘call out’ is defined differently. This is s.28, and it provides for the calling out of the reserves. The effect of this call out is to bring some or all of the reserves into continuous full-time service.

 This can be done where there is a need associated with the defence of Australia and the States and Territories, or for ‘civil aid, humanitarian assistance, medical or civil emergency or disaster relief.’ This last provision is what was referred to in the order signed by the Governor-General early in January to call out up to 5,000 reservists.

 Clearly, the reserves are being used for this purpose – ‘civil aid, humanitarian assistance, medical or civil emergency or disaster relief’. But that was merely the reason quoted by the Governor-General for them being called up. The legislation doesn’t actually provide any authority or legitimacy for the reserves to be used in this way. It may not be able to.

 And that is the constitutional problem, the ‘very edge’ that the Prime Minister thought was being pushed.

 Now, as he also said, the Commonwealth was acting under a ‘very agreeable environment’. None of the States is going to complain about the help the reserves and permanent defence forces provide – so long as everything is done with the considered concurrence of the States. And this appears to be the case. No-one seems to want special legislation (permitted by the Constitution) where one or more States could give conditional legislative approval for the Defence Force to be used within their jurisdictions in circumstances other than in relation to ‘domestic violence’.

 It appears, however, that the Prime Minister wants the Defence Force to be able to act of its own initiative. As I noted at the beginning, there are times when it is necessary to look very carefully at what Mr Morrison is saying. Here he said, ‘this is the first time where I think the Federal Government has ever been in a position where we had to take this action. To ensure that in the future it can be done in a way that I think is in a more pre-emptive posture, that we can do that I think more seamlessly’.

 ‘Pre-emptive’? ‘Seamlessly’? Does he actually mean unilaterally? The States would have a fit if the Federal Government could decide of its own initiative to send in the army, the navy or the air force. They would similarly resist any attempt by the Commonwealth to take over natural disaster management in their own backyards.

 And when should defence assets be deployed, according to the Prime Minister? ‘Where the Chief of the Defence Force believes there is a risk to life and safety…’ That’s certainly not in the Constitution.

 And on that point, whatever happened to responsible government where such decisions are ultimately taken by Ministers (and ticked by the Governor-General) on the advice of the relevant generals or police or fire commissioners?

 You’ve got to worry about some of the things our Prime Minister says.

 David Solomon is a retired political and legal journalist.

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David Solomon is a former legal and political correspondent. He has degrees in Arts and Law and a Doctorate of Letters. He was Queensland Integrity Commissioner 2009-2014.

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9 Responses to DAVID SOLOMON.- Morrison’s scary words on deployment of troops..

  1. Avatar Ken Birch says:

    It is the difficult to see why the PM used sec 28 of the Defence Act (to call out the Reserves), but I suspect the answer is simply to appear to be doing something on a large scale. That’s because the defence forces were already supporting the states in firefighting. The prime minister insisted that that was the case in his first attempts to defend himself from the torrents of criticism after he returned from Hawaii. That support by the defence forces was quite normal and, if questioned, would probably be characterised as the exercise of the commonwealth’s powers under section 61. It happens all the time. What the PM needed was something that looked much bigger and shinier, men and women in uniforms, brigadiers standing with premiers and those damned fire commissioners. The Liberal Party video was a first clumsy attempt to show what he wanted and needed. The commonwealth could have ramped up its assistance without the call out of Reserves – indeed, that’s what it did when it sent Navy ships and Army Black Hawk and Chinook helicopters to assist the states. That didn’t require any request to the governor-general, just co-ordination with the states. What the PM needed, though, were things that showed him taking charge. An expansion of what the defence forces were already doing wasn’t enough. He wanted a more dramatic demonstration of national leadership. Call out the Reserves!

  2. Avatar Michael Rogers says:

    We must not forget the first significant domestic deployment of the nation’s military against an ‘internal enemy’.
    https://www.australiangeographic.com.au/topics/wildlife/2016/10/on-this-day-the-emu-wars-begin/

    Also before the Parliament at Westminster legislated into existence the glorified customs union of six self-governing British settler colonies under the Crown of the U.K at the ‘arse-end of the Earth’, the Victorian ‘Mounted Rifles’ were deployed against striking wharfies.

    The curious should head over to ‘Trove’ and do an ‘advanced search’ of Victorian newspapers from 1890 for the phrase, ‘Colonel Tom Price’.

  3. Avatar Peter Fraser says:

    Hmmm.

    I do recall Hawke flying some planes over Tasmania in the Franklin Dam episode. How does that fit in?

  4. Avatar Hans Rijsdijk says:

    Maybe it is because of the reasons explained in the article that regular defence troops were not deployed. However, some in the army told me that leave was cancelled for regular troops in anticipation of deployment on the bush fires. Nevertheless, Morrison calls up the reservists, some who had to cancel their overseas leave.

  5. Alison Broinowski Alison Broinowski says:

    Good and timely points, David, as always. I wonder if the obiter dicta in Morrison’s confused statement was his recollection of the talk last year about the ADF being called out in the event of a terrorist attack which police couldn’t handle. He may be warming us up for this. And then: wait for it, for the ADF to be allowed to fire upon ‘lock the gate’ protesters, or people opposing the construction of new military bases in Darwin. Bypassing the Governor-General and the State governments would fit the current pattern: ever since Vietnam, troops have been dispatched for overseas service repeatedly without the Commander in Chief’s consent.

  6. Avatar Sandra Hey says:

    I seem to recall Prime Minister Scott Morrison had given his full approval to the Chief of Defense, General Angus Taylor, to do whatever he deemed as necessary to keep Australians safe. That raises the question, under that scenario who is more powerful, the Prime Minister or the ADF under the command of General Angus Taylor or General David Hurley, Governor General of Australia.
    No Bill of Rights in the Australian Constitution? Australia is considered by some overseas observers as the beginnings of a Banana Republic. Dual Citizenship may become a life saver in the event our Democracy starts to hemorrhage.

    • Avatar Michael Rogers says:

      “Banana Republic” – more likely a ‘Banana Absentee Monarchy’ into the foreseeable future .

  7. Avatar Kevin Bain says:

    The author notes Morrison’s suggestions of “nothing to see here” in the Federal Court decision, and that the military have “pre-emptive” and “seamless” authority in civil disasters. Meanwhile public service advisors, sidelined last December, take a back seat next to the quiet Australians. See a pattern?

    Where are the interrogative barrister types in our MSM, prepared to not just play 20 questions, but have followup questions to evasive answers, and a demeanour to debate? Madeleine Morris at the ABC might be one, will she serve it up to govt talking heads as she did to Tony Burke the other day? Without fear or favour.

  8. Avatar Jim KABLE says:

    Thanks for this close attention to the legalities and to the carefully stated words of the PM. In the same way that the Commonwealth rode roughshod over Indigenous communities in the NT with John Howard’s carefully “manufactured” response to lies propagated by his Minister Mal Brough and office and the ABC’s Tony Jones – we could find the PM sending in the troops against a state with an opposing political government to the PM’s own – nothing to do with natural disasters – which should be the time State Premiers/governments might wish for such assistance – and far better than sending out troops overseas as now and still – where they are unwanted – at the behest of murderer Trump – in Iraq and Syria – and other parts – patrols in the South China Seas for example. Bring them home! Thanks, David Solomon.

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