The Australian Constitution And The Adf Law Constitutional Administrative Essay

Published Date: 02 Nov 2017

Student ID*

Postal Address (must be completed by all students)

Number & Street

or PO Box

Title

 Mr

5 Shane Ave.

Surname*

McGuire

Suburb / Town

Seabrook

Given Names*

Graham

State

Postcode

3

0

2

8

Preferred Name

(optional)

Country

(if outside Australia)

Are you an International Student*  No

Contact Phone 1

( )0430221311

Date of Birth

0

9

1

0

1

9

5

0

Contact Phone 2

( 03 ) 93277714

Unit Code*

LWA221

Lecturer name*

Simon Lee – Ros Vickers

Unit Name*

Military Law

Assignment Title*

Essay Examination

Charles Darwin University is unable to accept and process assignments without a completed assignment cover sheet.CDU Logo

PLEASE READ THE IMPORTANT INFORMATION ON THE REVERSE OF THIS FORM.

Due date*

Posting date *

Semester

24 /2/13

Summer Semester

Have you applied for an extension? No

Student Comments

Lecturer Comments

Declaration

I declare that all material in this assessment is my own work except where there is a clear acknowledgement and reference to the work of others. I have read the University’s Academic and Scientific Misconduct Policy and understand its implications.*

http://www.cdu.edu.au/governance/documents/3.3academicandscientificmisconduct.pdf

I agree Graham McGuire

Important Information

Keep a copy of your assignment. CDU does not accept responsibility for any lost submissions or missed deadlines.

All areas of this form marked with * are essential information and must be completed.

Incomplete cover sheets will not be processed. We are unable to accept and process assignments without a completed assignment cover sheet. Students will be notified if they make an incomplete submission via email to the student email address. The assignment will be held until the completed assignment cover sheet is received. We accept no responsibility for students who fail to meet an assignment deadline due to incomplete submission.

You may use this form to submit assignments in Learnline, in hard copy, via post or personally to the assignment drop box in the library foyer on Casuarina campus and at the Alice Springs campus Information Centre.

However, you should check with your lecturer that they will accept this type of submission.

Plagiarism is the presentation of the work of another without acknowledgement. Students may use a limited amount of information and ideas expressed by others but this use must be identified by appropriate referencing.

Consequences of Plagiarism is misconduct as defined under the Student Conduct By-Laws. The penalties associated with plagiarism are designed to impose sanctions on offenders that reflect the seriousness of the University’s commitment to academic integrity.

Confirmation of receipt will be made via email to your student email account. It is the responsibility of the student to ensure that they manage their CDU student email. More information about your CDU email account can be found at http://www.cdu.edu.au/itms/student/email.html

Checklist

1

I have completed and submitted the assignment cover sheet.

2

My CDU email address is activated.

3

I have read and understood the important information on this form.

4

I have kept a copy of my assignment.

5

I have completed all sections of this cover sheet.

What happens next?

Once your assignment with a completed cover sheet has been received you will be sent a confirmation email. Your assignment is then sent to the appropriate lecturer. The lecturer will then grade your assignment and will return your assignment to the Flexible Delivery Team (FDT). FDT will then send a confirmation email to you, advising that the graded assignment has been despatched to you.

LWA 221 Final Essay

Question 3

Introduction

Defence assistance to the Civic Community you would think would be an easy process but as with most things in law, there are many things to consider such as the Australian Constitution, Australian Legislation, and Australian Defence Forces (ADF). Australian Governments from all political persuasions have used the ADF for other matters other than defence at certain times. They have been used for things such as flood mitigation, during industrial disputes, assisting State police, and festive fly-overs. There are limits as to when and where Governments can use the ADF; the Australian Constitution sets limits to its use where there is no external threat involved, and there are administrative constraints on how legislation may be lay-out. The ADF has its own legislation and guide lines on how it is to operate or provide assistance for civil operations. The High Court in the case Re Tracey: Ex parte Ryan [1] where Justices Brennan and Toohey said "The most important aspect of the discipline which that law was intended to secure was the control of armed forces to ensure that their existence as a permanent armed body under hierarchical command should not threaten the peace and civil order of the Realm."

The Australian Constitution and the ADF

Section 119 of the Constitution "The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence." Under this section a state of domestic violence must exist and the State Government must request assistance (States are not to raise their own military forces sec.114 of the constitution). Section 68 (the Constitution) gives the control of the armed forces to the Governor-General. Constitutional lawyers agree that the Commonwealth to protect its laws, interests and property can use the ADF. The Commonwealth doesn’t have to wait on a state request to act; it acts to protect its self. Quick and Garran (Political commentators) stated this principle in the early part of our Constitutional history. The Federal Government can use any amount of force it deems necessary to protect its self even against a State. Justice Dixon in The King v Sharkey [2] "it is within the necessary power of the Federal government to protect its own existence and the unhindered play of its legitimate activities. And to this end, it may provide for the punishment of treason, the suppression of insurrection or rebellion and for the putting-down of all individual or concerted attempts to obstruct or interfere with the discharge of the proper business of government." [3] 

The Commonwealth’s Power to callout for Domestic Violence

The Commonwealth's has the power to call out the troops using the executive power (Section 61 of the Constitution) also on Section 68 and the legislative powers contained in 51(xxxix) the external affairs power and Sections 51(vi) and (Section 51 (xxix)) supports anti-terrorist measures of the Constitution. The Governor-General may do all matters and things deemed by him to be necessary or desirable for the efficient defence and protection of the Commonwealth or of any State. Para.63 (l) (f), in combination with Sections 51 and 124 of the Act (the latter being the general regulation making power in the Act) provide the legal basis for making the AMRs dealing with Section 119 conduct in domestic violence situations. A provision in both the AMRs and AFRs seeks to apply, those Parts to the situation where the Commonwealth intervenes to protect its own interests. These provisions (AMR 415 and AFR 511) are worth noting since they are a legislative reference to Commonwealth power to protect its own interests. However, the regulations do not provide the source of the power. This comes from the Constitution. [4] 

The Commonwealths Power to use Troops as Strike Breakers

The use of ADF in the field of industrial relations must have considered this when drafted Section 51 of the Defence Act as this section prohibits the use of Emergency and Reserve Forces in connection with industrial relations. They would not have had to exclude them if it was of a concern when it was beyond the regular ADF would be used in an industrial dispute. Sir Robert Mark said "Military aid to the civil power can be an unnecessarily emotive procedure in free societies, especially those in which it has rarely been invoked. Emotion and unease arise almost entirely from two factors. The first is the failure of governments to explain the purpose for which military aid is, or ought to be, acceptable to everyone as representing no threat to civil liberty. The second is the lack of contingency planning which causes military aid to be drawn from sources which even the general public can see are not appropriate." It is was said, that the two causes referred to by Sir Robert Mark are inter-related to a combination of lack of clear legislative guidance, a lack of appreciation of the correct legal jurisdiction and secret internal operating instructions for the ADF. In a free society, there is nothing wrong in using the ADF in dealing with disasters or emergencies such as floods, aircraft crashes, and so on. The public will accept their participation in essential services. But the public consider troops should not be used as strike breakers. There comes a point when legal and political aspects merge into one. Quick and Garran’s analysis would be a Commonwealth interest is to protect, if an industrial law of the Commonwealth had been breached. For example an intervention on the waterfront. The Commonwealth would have an interests relating to legislation using the overseas trade and commerce power (Section 51(i)) that would be affected by the industrial situation e.g., customs matters. And on Hope's analysis the absence of a relevant Commonwealth Legislation this would still not preclude protecting a Commonwealth interest. The Commonwealth would be said to have a legitimate interest in overseas trade and commerce as this is a matter on which the Commonwealth is able to use laws pursuant to Section 51(i) of the Constitution. On the basis of this interest the scope of the Commonwealth's executive power (Section 61) would be sufficient to authorise (in conjunction with other Constitutional provisions) action by the Commonwealth. This action could involve the ADF using force legitimately with or without the State Government agreement. Hope said: the maintenance and execution of the Constitution which Section 61 of the Constitution, this would extend the Executive power, even though that interference might not involve an offence under Commonwealth law; and the Governor-General, with the correct advice would be able to take the necessary steps to ensure there is no such interference. Especially if a minister had statutory authority to deploy the resource, (Hope at 152). H. P. Lee [5] said Australia can use troops in industrial relation situations. As this author's analysis leads to this conclusion of the Commonwealth's power to protect its own interests, then the limits of that power must depend on the content of the executive power, as that is the chief basis for the Commonwealth intervening to protect its own interests. So the executive power would authorise the use of troops if a Commonwealth law was breached. It was noted in Davis v. The Commonwealth [6] that the executive power extends beyond the legislative power set out in Section 51 of the Constitution. Chief Justice Mason, Justice Deane and Justice Gaudron said: The scope of the executive power of the Commonwealth has often been discussed but never defined. By Section 61 of the Constitution it extends to the execution and maintenance of the Constitution. In the words of Section 61, the executive power of the Commonwealth 'extends to the execution and maintenance of this Constitution, and of the laws of the Commonwealth. In Victoria v the Commonwealth [7] Using this authority, it could be argued that the Commonwealth could use its executive power to send troops in as strike-breakers if the industrial dispute or its consequences touched on an area the Commonwealth has power over, e.g., overseas trade and commerce, the existence of a Section 51 power would attract the operation of the executive power. In conclusion the Commonwealth can send in the ADF as strike-breakers intervening in the dispute to protect its own interests but should use this option only after exhausting all other options. [8]