With the ADF set to patrol the streets of Sydney to enforce restrictions, this is what they can and cannot do.
Last night, NSW Police Commissioner Mick Fuller requested The Australian Defence Force (ADF) to patrol the streets of Sydney. The move was purportedly inspired by “thousands of complaints” Fuller received about people breaking COVID restrictions. It is believed that the troops will be deployed in western and south-western Sydney, but not the eastern suburbs. But with fear already on the rise, will this exacerbate things further, and what are they legally allowed to do?
— Gavin Coote (@GavinCoote) July 29, 2021
The ADF can provide assistance to the Civil Authorities or Assistance to the Civil Community. Defence Aid to the Civil Authorities is where the ADF deploys onto the Australian streets armed or at least with the expectation that they may use force. This is governed by the Defence Act 1903 and the Australian Constitution.
The Constitution provides that the Commonwealth may make laws with respect to “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” (s 51(vi)). Further “The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence” (s 119).
The ADF may be used to protect commonwealth interests and, when requested, to assist the States to quell ‘domestic violence’. Section 51B says that the ADF may be used to protect a State against domestic violence if that violence is occurring or likely to occur and the is unlikely to protect itself.
To ‘call out the troops’ various steps are required. Section 30 of the Defence Act provides a simplified guide to the process. It says:
“The Defence Force can be called out under a call out order made under this Part. A call-out order is made by the Governor-General if the Prime Minister, the Minister and the Attorney-General (who are called the authorising Ministers) are satisfied with various matters.
“There are two general kinds of call out orders: Commonwealth interests orders and State protection orders.
“Under a Commonwealth interests order, the Defence Force is called out to protect Commonwealth interests in Australia or the Australian offshore area. The order might apply in a State or Territory, or in the Australian offshore area, or in more than one of those places. Each State or self-governing Territory in which domestic violence is occurring, or is likely to occur, must generally be consulted before the Governor-General makes a Commonwealth interests order.
“A State or self-governing Territory can apply for a State protection order to protect the State or Territory from domestic violence.”
We saw the ADF ‘called up’ during the 2019-2020 bushfires crisis. To the best of my knowledge, there has been no formal order such as the one we saw in January. Further, the use of the ADF in hotel quarantine is not protecting the states from domestic violence; it is therefore not an example of a state protection order. Nor is there ‘domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia’ (s 33) so this is not a Commonwealth interests order. In short, the ADF has not been called out under Part IIIA and is not providing Defence Aid to the Civil Authorities.
This must, therefore, be an example of Defence Aid to the Civil Community. DACC is not provided for in the Defence Act, rather it is governed by the DACC Manual. I would infer that the current use of the ADF is either DACC category 4 or 6 that is:
Category 4—significant non-emergency assistance provided to other Government departments or authorities, to Local, State or Territory Government or other authorities or organisations, commercial enterprises, not-for-profit organisations, individuals or bodies in the general community.
Category 6—law enforcement non-emergency assistance to civil authorities in the performance of law enforcement related support. As is the case with all DACC categories, there must be no likelihood that Defence personnel will be required to use force.
Under those categories, the members of the ADF have no particular power. They cannot use force nor compel compliance with directives. They are in the same position that the SES or a private security guard would be in if they were asked to help maintain the quarantine. They are an effective labour force but as guards at hotels, the most they could do is ask (with some moral authority) people not to leave and report them to the police if they do. It’s no offence to disobey the soldier but it may be an offence under relevant public health orders and the Biosecurity Act 2015 (Cth) to leave the hotel or otherwise not comply with the directions that have been given.
They have a power of arrest, just as any citizen does, but it would be ‘brave’ (as Sir Humphrey Appleby might say in ‘Yes, Minister’ for those old enough to remember) for an ADF member to try to arrest someone who failed to comply with a requirement under a public health direction.