A Shield for the Tip of the Spear

Article A Shield for the Tip of the Spear Federal Law Review 2021, Vol. 49(2) 210–230 ª The Author(s) 2021 Article reuse guidelines: sagepub.com/journals-permissions DOI: 10.1177/0067205X21993147 journals.sagepub.com/home/flr Samuel White* Abstract The defence of superior orders is not new. However, within Australia, its statutory codification is lamentably underexplored. The 2018 Amendments to Part IIIAAA of the Defence Act 1903 (Cth) provides a neat catalyst to expand the defence and look at possible manners in which it can be constructed. Utilising a theoretical case study of Australian Defence Force members killing a possible terrorist, ‘this article addresses’ the key elements of the defence—what an order is, when can it be constructed as being manifestly unlawful and what does reasonable and necessary force mean for Australian Defence Force members. The Scenario At 09:00 hours, a group claiming to want to purge Australia of tourists commit concurrent terror attacks across Melbourne, utilising improvised explosive devices. It would appear the bombs are only detonated, via mobile phone, when there are enough people around. In total, the group kill 48 people. Three of the group are killed by civilian police and one is captured and arrested. The arrested individual claims that additional attacks will occur. A request from the Victorian Government for Australian Defence Force (‘ADF’) members to assist with controlling vulnerable areas under Part IIIAAA of the Defence Act 1903 (Cth) (Part IIIAAA) (‘Defence Act’) goes to the Commonwealth Government. Being satisfied that domestic violence is likely to occur and noting the ADF will enhance the domestic security operations, the Prime Minister authorises an expedited Division 4 call-out, declaring Melbourne CBD a specified area. ADF members, armed with rifles, are called out to assist civilian police establish vehicle checkpoints. Three days into Operation FLINDERS STREET ASSIST, an ADF Corporal notices an unaccompanied duffel bag near a narrow point filled with people. Looking around, he notices an individual on top of a roof adjacent to and overlooking the unaccompanied duffel bag, holding a mobile phone. The individual appears agitated and is pacing around the rooftop, looking back towards the duffel bag and the CBD. The Corporal, fearful that the bag contains explosives and can be triggered by the mobile phone, raises his weapon and fires at the individual on the mobile phone. * M War Studies (UNSW), LLM (Hons I) (Melbourne), BA (Classics)/LLB (Hons) (UQ). Captain, Australian Army Legal Corps, currently posted to the Directorate of Operations and International Law. The author may be contacted at samuel. [email protected]. The opinions and errors expressed herein are those solely of the author’s and do not reflect those of the Australian Defence Force nor the Department of Defence. White 211 It jams. In a sense of urgency, he orders the nearest ADF member, a Private, to shoot the individual holding the mobile phone. The Private fires a single shot, killing the man instantly. The duffel bag is empty. There is no evidence found suggesting that the individual with the mobile phone was linked to the terror group. I Introduction It has been noted that the position of a soldier is in theory and may be in practice a difficult one. He may, as it has been well said, be liable to be shot by a court-martial if he disobeys an order, and to be hanged by a judge and jury if he obeys it.1 One solution, then, to this conflict of laws is the defence of superior orders. This defence is not new. Indeed, in many instances of Greco-Roman history, actions by individuals could be absolved if they were remotion criminis or metastasis.2 But the degree of culpability, and the effect the defence had for individuals, varied amongst Roman jurists. There were two fundamental schools of thought about the defence. Auctor held that the action did not shift the crime but merely the culpa or causa;3 Cicero held that superior orders shifted the factum, or the res ipsa—that is, the behaviour had no link to the subordinate, as they were merely a subordinate.4 Quintilian wavered between the two. Although he advocated to interpret superior orders as transferre crimen (a passing of the crime), he stressed that it was only a question of deflecting the culpa.5 On this basis, the defence of superior orders was similar to stating you were simply following the law.6 The High Court of Australia has, importantly, not accepted that there exists any common law defence of superior orders. The facts of A v Hayden (No 2)7 merit recounting. 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 owners, staff and occupiers of the hotel and a subsequent investigation identified 21 serious criminal offences arising as a result of the exercise.8 The High Court accepted that the Commonwealth itself was immune from criminal prosecution, and only individual intelligence officers could be culpable. These individuals claimed that they were acting under a lawful authority, being under the orders of the 1. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 10th ed, 1959) 303. 2. Metastasis relates to the Greek concept of obeying one’s father. See Aulus Gellius, Attic Nights (John C Rolfe trans, Harvard University Press, 1927) bk 2, ch 7. 3. See Appian, Civil Wars (Horace White trans, Macmillan & Co, 1899) bk 5, ch 5, s 43; Lucius Annaeus Seneca, Troades (Frank Miller trans, Harvard University Press, 1917) 290. 4. Rhetorica Ad Herennium (Harry Caplam trans, Harvard University Press, 1954) bk 3, ch 2, s 3. 5. Quintilian, Institutes of Oratory (Harold Edgeworth Butler trans, Harvard University Press, 1921) bk 3, ch 6, s 78. 6. On the topic more generally, see David Daube, The Defence of Superior Orders in Roman Law (Clarendon Press, 1956). 7. (1984) 156 CLR 532 (‘A v Hayden’). Whilst providing guidance, this case related to an ASIS training exercise rather than the exercise of powers under a call-out order. 8. Robert M Hope, Protective Security Review—Report of Mr Justice Hope, 15 May 1979 (Unclassified Version) (Parliamentary Paper No 397, May 1979) 18 (‘Hope Report’). 212 Federal Law Review 49(2) Commonwealth. The individual obiter dictum of their Honours provides helpful guidance on the defence. Chief Justice Gibbs noted that [i]t 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.9 Justice Deane agreed, suggesting that ‘the criminal law of this country has no place for a general defence of superior orders or of Crown or executive fiat.’10 Justice Murphy held: In Australia it is no defence to the commission of a criminal act or omission that it was done in obedience to the orders of a superior or the government. Military and civilians have a duty to obey lawful orders, and a duty to disobey unlawful orders.11 Yet the defence of superior orders is found throughout the statute books.12 Although the defence was introduced in 2006, the 2018 Amendments to Part IIIAAA of the Defence Act through the Defence Amendment (Call Out of the Australian Defence Force) Act 2018 (Cth) present a timely opportunity to reflect upon the little discussed defence of superior orders. This article suggests that any interpretation of the defence of superior orders should consider the exceptional nature of the ADF being called out under Part IIIAAA, the necessary requirement for a disciplined body of troops and the nature of the profession of arms. Such a position is based on the premise that ADF members are not simply ‘citizens in uniform’ but should hold a distinct, and separate, legal status.13 Accordingly, this article will first address the legislative framework of Part IIIAAA, canvassing the threshold requirements for calling out the ADF. It will then focus specifically on s 51Z and provide a suggested interpretation of certain key elements of the defence, with consideration given to the duty of ADF members to obey orders and the nature of military service, utilising the above fictional scenario. The liability of the Corporal will not be discussed. II Legislative Framework: Part IIIAAA Part IIIAAA focuses upon the immediate and short-term resolution of domestic violence incidents, requiring repeated assessments of the suitability to have troops deployed. There is no definition of domestic violence under Part IIIAAA nor s 119 of the Constitution. At its best, the Addendum to the Explanatory Memorandum to the Act notes that domestic violence: refers to conduct that is marked by great physical force, and would include a terrorist attack, hostage situation, and widespread or significant violence. Part IIIAAA uses the term ‘domestic violence’ as this is the term used in section 119 of the Constitution, which deals with state requests for assistance in responding to domestic violence.14 9. 10. 11. 12. A v Hayden (n 7) 540. Ibid 593. Ibid 562. Criminal Code Act 1995 (Cth) div 268.116; for Queensland, refer to Criminal Code 1899 (Qld) s 31; for Western Australia, refer to Criminal Code 1913 (WA) s 31; for Tasmania, refer to Criminal Code 1924 (Tas) s 38. 13. Samuel White, ‘A Soldier By Any Other Name: A Reappraisal of the Citizen in Uniform Doctrine in Light of Part IIIAAA of the Defence Act 1903’ (2019) 57(2) Military Law and Law of War Review 279. 14. Addendum to the Explanatory Memorandum, Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) 2 (emphasis added) (‘Addendum to the Explanatory Memorandum’). 213 White Thus, [t]he threshold [for calling out the troops] . . . recognises that calling out the ADF to respond to an incident is a significant and exceptional act, and ensures that it is not to be done in relation to incidents that are within the ordinary capability of police.15 A call-out order is generally made by the Governor-General, on the satisfaction of all three authorising Ministers that the relevant mandatory considerations are met. The authorising Ministers are the Prime Minister, the Attorney-General and the Minister for Defence.16 An order by the Governor-General requires the Chief of the Defence Force (‘CDF’) to utilise the ADF in ‘such a manner as is reasonable and necessary, for the purpose specified in the order.’17 With the exception of an offshore area, when utilising the ADF under Part IIIAAA, the CDF must, as far as is reasonably practicable, ensure that ADF members cooperate with the police force of the relevant State or Territory.18 This does not transfer operational command or control of ADF members to constabulary forces.19 There are two ‘limbs’ to call-outs under Part IIIAAA, as outlined in Table 1—the first is a Commonwealth interest call-out and the second is a State or Territory protection call-out. A call-out order under ss 33 and 35 is effective for up to 20 days, unless revoked earlier.20 If the authorising Ministers are still satisfied, the order may be extended for up to another 20 days, without restriction on the number of times an order may be varied.21 Contingent call-out orders cease to be in force at the end of the time frame specified in the order, unless revoked earlier.22 Table 1. Type of call-out orders. Section Call-out order type 33 34 35 36 Commonwealth interest Commonwealth interest—contingent call-out Protection of States and Territories Protection of States and Territories—contingent call-out A Commonwealth Interests Call-Out Order Although not relevant to the scenario, the ADF may be used without a State or Territory request when domestic violence would, or would be likely to, affect a Commonwealth interest.23 They further can also be called out when there is a threat to a Commonwealth interest in the offshore 15. 16. 17. 18. 19. 20. 21. 22. 23. Ibid 3. Defence Act 1903 (Cth) s 31 (‘Defence Act’). Ibid s 39(2). Ibid s 40(1)(ii). Ibid s 40(3). Ibid ss 33(5)(d)(ii), 35(5)(d)(ii). Ibid s 37(2). Ibid ss 34(5)(d)(ii), 36(50(d)(ii). Ibid s 33(1). 214 Federal Law Review 49(2) area.24 Part IIIAAA does not provide a definition for the phrase ‘Commonwealth interest’, but some interpretive help is found again in the Addendum to the Explanatory Memorandum to the Act, where the term is to be read as including ‘the protection of: Commonwealth property or facilities; Commonwealth public officials; visiting foreign dignities or heads of state; and, major national events, including the Commonwealth Games or G20’.25 Indeed, bearing in mind that there has been no judicial consideration of the phrase, nor any statutorily binding definition, one academic has suggested that where Commonwealth laws or property are affected then, ipso facto, a Commonwealth interest has been affected.26 Although this academic line of thinking was posited prior to the 2006 and 2018 Amendments, it is submitted that this assessment may remain valid. It is probable that Commonwealth interests expand to include instances under the common law maxim of salus populi surprema lex.27 If such an interpretation was accepted, it would not be necessary for a Commonwealth law to be affected, in order for a Commonwealth interest call-out to be valid. For a Commonwealth interest call-out, the Governor-General may make an order to call out the ADF, on the satisfaction of the authorising Ministers, that: (a) any of the following applies: (i) domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia; (ii) there is a threat in the Australian offshore area to Commonwealth interests (whether those interests are in that area or elsewhere); (iii) domestic violence that would, or would be likely to, affect Commonwealth interests is occurring or is likely to occur in Australia, and there is a threat in the Australian offshore area to those or any other Commonwealth interests; and (b) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the Commonwealth interests against the domestic violence or threat, or both; and (c) one or more of Divisions 3, 4 and 5 should apply in relation to the order.28 Whilst there is nothing to prevent a State or Territory from requesting a Commonwealth interests order, the Commonwealth can also make one of its own initiatives to protect Commonwealth interests, within a State or Territory. Where a Commonwealth interests call-out order is made that a State or Territory has not requested, there is a requirement for authorising Ministers to consult with the State or Territory before the order is made (unless, for reasons of urgency, it is not practicable to do so).29 B State or Territory Protection Call-Out Order For a State or Territory protection call-out, the Governor-General may make an order to call out the ADF, if: 24. Ibid s 33(1)(a)(ii). 25. Addendum to the Explanatory Memorandum (n 14) 3. 26. See Michael Head, ‘Calling Out the Troops—Disturbing Trends and Unanswered Questions’ (2005) 28(2) UNSW Law Journal 479. 27. The welfare of the people is the paramount law. 28. Defence Act (n 16) s 33(1). 29. Ibid ss 38(2)–(3). White 215 (a) a State Government or Government of a self governing Territory applies to the Commonwealth Government to protect the State or Territory against domestic violence that is occurring, or is likely to occur, in the State or Territory; and (b) the authorising Ministers are satisfied that: (i) the Defence Force should be called out and the Chief of the Defence Force should be directed to utilise the Defence Force to protect the State or Territory against the domestic violence; and (ii) one or more of Divisions 3, 4 and 5 should apply in relation to the order.30 For both Commonwealth interests and State or Territory protection call-out orders, Part IIIAAA allows for a mechanism by which the Governor-General may pre-authorise an order for a call-out, triggered by specified circumstances, where for reasons of urgency a normal call-out is impracticable.31 These are known as contingent call-out orders. C Expedited Call-Out Orders However, situations emerge that even the best laid plans cannot foresee. Expedited action is thus required. Machiavelli, when advising The Prince in 1513, noted that: I hold it to be true that Fortune is the arbiter of one half of our actions, but that she still leaves us to direct the other half, or perhaps a little less . . . So it happens with Fortune, who shows her power where valour has not prepared to resist her, and thither she turns her forces where she knows that barriers and defences have not been raised to constrain her.32 Part IIIAAA accommodates for these situations. Under Division 7, in ‘sudden and extraordinary emergencies’ where it is not practicable to make an order under the section it would be otherwise made, an expedited call-out order, authorisation or declaration may be made by the authorising Ministers, or alternative authorising Ministers, in lieu of the Governor-General, to call out the ADF.33 Such an order may simply be made verbally34 but must be confirmed in writing to take effect.35 What constitutes a sudden or extraordinary set of circumstances is undefined, necessarily so, to afford flexibility. It is not contentious that the above scenario would fall validly under an expedited call-out. There are three different levels of authority by which an expedited call-out may occur, and a decision-maker may only progress in authority levels if the preceding option cannot be satisfied. In the first instance, the Prime Minister may unilaterally make an order or declaration.36 Where the Prime Minister is unavailable to be contacted for the purpose of considering or making such an order or declaration, then the two remaining authorising Ministers (the Minister for Defence and 30. 31. 32. 33. 34. Ibid s 35(1). Ibid ss 34(1), 36(1). Niccolò Machiavelli, The Prince (W K Marriott trans, Penguin Publishing, 1952) 35. Defence Act (n 16) s 51U(1)(a). Ibid s 51U(3). If this is the case, then a written record of its particularity must be made and signed by the decision-maker(s) and the CDF, as per s 51U(3). Failure to comply with this requirement will not affect the validity of the order or declaration, by implication of s 51U(3). 35. Ibid ss 51U(3)(a)–(b). This could allow, theoretically, for an expedited call-out in under five minutes. 36. Ibid s 51U(2)(a). 216 Federal Law Review 49(2) Table 2. Part IIIAAA Divisions. Number Division 3 4 5 Special powers generally authorised by the Minister Powers exercised in specified areas Powers to protect declared infrastructure the Attorney-General) may make an order or declaration.37 In the event that one of the aforementioned authorising Ministers is unavailable, the remaining authorising Minister may jointly, with an alternative Minister, make an order or declaration.38 An alternate authorising Minister is any one of the following Ministers: the Deputy Prime Minister; the Foreign Affairs Minister; the Treasurer; or the Minister for Home Affairs.39 A call-out order must also specify which Division, as per Table 2 below, it authorises, dictating the powers that might be utilised by ADF members.40 More than one Division may be in effect at one time. The above framework dictates which Divisions are to be authorised to apply in relation to the order. Although not central to the topic at hand, from a holistic perspective it is important to understand. Generally speaking, Division 3 powers may only be exercised when authorised by an authorising Minister.41 The powers under Division 3 are focused primarily on ‘preventing, ending, and protecting people from, acts of violence and threats.’42 Whilst there is no limitation on the Corps or service categorisation of the ADF members to be used (Regular or Reserve), realistically any landbased call-out of the ADF under Division 3 will utilise Australian Special Forces, which include Tactical Assault Group (East) (‘TAG-E’) or (West) (‘TAG-W’). TAG-E is constituted by members of the 2nd Commando Regiment (‘2CDO’) and is responsible for assisting Australia’s eastern seaboard.43 TAG-W is constituted by members of the Special Air Service Regiment (‘SASR’) and is responsible for Australia’s western seaboard. Personnel in TAG-E or TAG-W are members of Special Operations Command (‘SOCOMD’). Qualified members of SOCOMD are highly trained and experienced in urban combat, being considered the apex of combat soldiers-the so called ’tip of the spear’. They are, even within the isolated institution of the ADF, removed both geographically and culturally44 from their identities, for the tenure of their posting in SOCOMD, protected (in policy) from both the public and their 37. Ibid s 51U(2)(b). 38. Ibid s 51U(2)(c). 39. Ibid. In an era of rapidly changing political portfolios, the Minister for Home Affairs is defined in s 31 as the Minister who administers the Australian Federal Police Act 1979 (Cth). 40. Ibid ss 33(5)(c), 34(5)(c), 35(5)(c), 36(5)(c). 41. Ibid s 41. 42. Explanatory Memorandum, Defence Amendment (Call Out of the Australian Defence Force) Bill 2018 (Cth) 54 [297] (‘Explanatory Memorandum’). 43. Sebastian Beurich, ‘Commandos Ready for Anything’, Defence News (online, 19 July 2019) <https:// news.defence.gov.au/capability/commandos-ready-anything>. 44. Inspector-General of the Australian Defence Force Report of Inquiry into Questions of Unlawful Conduct Concerning the Special Operations Task Group in Afghanistan (Inquiry Report, 19 November 2020) 119–22 (‘IGADF Inquiry into SOTG’). White 217 peers (protected identity herein referred to as ‘PID’). Accordingly, there is no requirement for soldiers to wear uniform or to have any form of identification whilst operating under Division 3. The justification for this is: The requirement to wear uniforms and identification applies to proposed Division 4, but not to proposed Division 3. This is because the tasks that the ADF will be required to perform under Division 3 are higher end military actions and may involve the Special Forces. These tasks may require the ADF to operate in a covert manner where uniforms would be detrimental. ADF Special Forces soldiers have protected identity status because they are associated with sensitive capabilities. Protected identity status is required to maintain operational security and the safety of the individual and their family. By virtue of their protected identity status, ADF Special Forces soldiers are able to exercise powers under proposed Division 3 without being required to produce identification or wear uniforms. Tasks under Division 4 are more likely to be related to securing an area with, or in assistance to, the police. When carrying out Division 4 tasks, the ADF is more likely to need to display a visible presence and therefore uniforms will assist the conduct of these tasks.45 Division 3 evidently envisages situations which require extreme, deliberate and potentially lethal force to be used and protected identification may be needed so they can operate covertly in a civilian setting and also protect their families from retribution. It further provides a lawful authority for the use of lethal force against Australian citizens. In our Operation FLINDERS STREET ASSIST, Division 3 has not been authorised. There is therefore no prima facie lawful authority for the use of lethal force, outside of self-defence. Division 4 work is in the public eye and a uniform is an advantage, showing who they are and that they have authority and abilities to help civilians if needed. Under Division 4, the authorising Ministers may declare a ‘specified area’.46 The intent of such a declaration by the authorising Ministers is to empower an ADF member to search premises, means of transport and persons in the specified area and to control the means of transport.47 This is better known as a cordon and search. The search powers under the specified area are divided into two subdivisions: one relating to premises (Subdivision C)48 and the other to means of transport and people (Subdivision D).49 Division 4 provides no prima facie lawful authority for the use of lethal force. Division 5 expands further on the powers of the ADF when protecting ‘declared infrastructure’ and is focused primarily on ‘preventing and ending damage or disruption to the operation of declared infrastructure, and on preventing, ending and protecting people from acts of violence and threats.’50 Under Part IIIAAA, the authorising Ministers may, in writing, declare particular infrastructure, or part thereof, as ‘declared infrastructure.’51 Separately, an expedited infrastructure declaration can be made under Division 7.52 The criteria by which the authorising Ministers may declare infrastructure require belief, on reasonable grounds, that: 45. 46. 47. 48. 49. 50. 51. 52. Explanatory Memorandum (n 42) 60 [332]. Defence Act (n 16) s 51. Explanatory Memorandum (n 42) 16 [68]. Defence Act (n 16) s 51A. Ibid s 51D. Explanatory Memorandum (n 42) 72 [406]. Defence Act (n 16) s 51H. Ibid s 51F. 218 Federal Law Review 49(2) (a) either: (i) There is a threat of damage or disruption to the operation of the infrastructure or the part of the infrastructure; or (ii) If a contingent call out order is in force—if the circumstances specified in the order were to arise, there would be a threat of damage or disruption to the operation of the infrastructure or part of the infrastructure; and (b) The damage or disruption would directly or indirectly endanger the life of, or cause serious injury to, any person.53 The Explanatory Memorandum makes it clear that declared infrastructure is not intended to cover or: protect nationally significant buildings such as the Opera House in the absence of any concomitant risk to life. The type of infrastructure intended to be declared includes, for example, power stations, water treatment plants, nuclear power stations and hospitals.54 But can and should be read to include: physical facilities, supply chains, information technologies, and communication networks which if destroyed, degraded or rendered unavailable for an extended period, would significantly impact on the social or economic wellbeing of the nation, or affect Australia’s ability to conduct national defence and ensure national security.55 Whether or not infrastructure such as the Sydney Harbour Bridge—which, if destroyed, would impact on the economic wellbeing of Sydney through significant disruption to its flow of trade and transport—could be deemed declared infrastructure remains open. A declared infrastructure declaration may be either within Australia or in the offshore area and can be made whether a call-out is in force or not.56 Pertinently, it may relate to infrastructure in a State or Territory whether or not the relevant State or Territory government has requested it.57 A declared infrastructure declaration may only operate whilst the call-out order is on foot.58 When making an order to call out the ADF, the Governor-General must also specify the exact nature of the domestic violence or threat, the specific interest affected in each jurisdiction and the date on which the call-out order comes into force and ends.59 D Prosecutorial Body Part IIIAAA provides little guidance as to the proper prosecutorial and jurisdictional approach to be taken with respect to ADF members. The legislation notes members are liable for civilian 53. Ibid s 51H(2). 54. Explanatory Memorandum (n 42) 71 [398]. 55. Australian Government Critical Infrastructure Centre, What is Critical Infrastructure Centre? (Fact Sheet) 1. This is mirrored by similar provisions in the Australia and New Zealand Counter-Terrorism Committee, National Counter-Terrorism Plan 4th edition (Intergovernmental Counter-Terrorism Plan, 2017) 32. 56. Defence Act (n 16) s 51H(1). 57. Ibid s 51H(6)–(7). 58. Ibid s 51H(5)(ii). 59. Ibid ss 33(5), 34(5), 35(5), 36(5). 219 White criminal punishment60 and vests control of the prosecutorial process in the Commonwealth Director of Public Prosecutions (CDPP) to the exclusion of State or Territory prosecutors.61 Although the CDPP is currently empowered under Part IIIAAA to prosecute ADF, it does not necessarily follow that this should be the case. Although not within the remit of this article, it raises an interesting question of whether a military jurisdiction or civilian jurisdiction would be more appropriate in prosecuting members of the armed forces for conduct whilst called out under Part IIIAAA. The High Court has consistently recognised the unique and necessary nature of a separate military jurisdiction, noting that ‘while there may be an area of concurrent jurisdiction between civil courts and service tribunals, there is no warrant in the constitutional text for treating one as subordinate or secondary to the other.’62 Although not completely analogous the recent recommendation of the Inspector-General of the Australian Defence Force Report into Questions of Unlawful Conduct Concerning the Special Operations Task Group in Afghanistan was for prosecution within civilian criminal courts.63 This is merely a suggestion. III Defence of Superior Orders Having covered the extraordinary thresholds and triggers that must be met in order to allow authorising Minsiters to call out the ADF, it logically now turns to the defence of superior orders. The defence of superior orders under the current iteration of Part IIIAAA states: Section 51Z—Defence of superior orders in certain circumstances (1) The fact that a criminal act was done, or purported to be done, by a member of the Defence Force under this Part under an order of a superior does not (subject to subsection (2)) relieve the member of criminal responsibility. (2) It is a defence to a criminal act done, or purported to be done, by a member of the Defence Force under this Part that: (a) (b) (c) (d) the criminal act was done by the member under an order of a superior; and the member was under a legal obligation to obey the order; and the order was not manifestly unlawful; and the member had no reason to believe that the circumstances had changed in a material respect since the order was given; and (e) the member had no reason to believe that the order was based on a mistake as to a material fact; and (f) the action taken was reasonable and necessary to give effect to the order.64 As aforementioned, the provision was inserted into Part IIIAAA of the Defence Act following legislative reforms in 2006 and was subsequently renumbered in 2019.65 The defence was 60. 61. 62. 63. 64. Through the application of the criminal law of the Jervis Bay Territory: ibid s 51Y(1). Ibid s 51Y(3). Private R v Cowen [2020] HCA 31 [51] (Kiefel CJ, Bell and Keane JJ). IGADF Inquiry into SOTG (n 44) 171. The language in s 51Z is reflective of the same provision, namely s 51WB of the Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006 (Cth). 65. Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth). 220 Federal Law Review 49(2) introduced to provide additional protections for ADF members, as reflected in the Explanatory Memorandum to the 2006 Amendments: The nature and effectiveness of military service and the operation of a Defence Force demands teamwork, mutual support and personal reliability underpinned by individual and collective discipline. On occasion this will require unhesitating compliance with orders. However, the requirement for unhesitating compliance with orders is not absolute. The circumstances in which the defence of superior orders to a criminal act may be raised include that the order was made by a superior, that the ADF member was under a legal obligation to obey the order and that the order was not manifestly unlawful.66 There are near mirror provisions within the Commonwealth Criminal Code as a defence against war crimes.67 These, to date, have not been tested. Accordingly, arising from the paucity of Australian precedent, it follows that foreign authorities should be sought. Common law cases on the use of military in assisting law enforcement date ‘from the period of Empire when places such as Palestine, Australia, New Zealand, South Africa and India shared a greater formal legal affinity.’68 As such, obiter dictum and ratio decidendi from these cases are acknowledged to not be binding. It is unlikely, however, that in a scenario relating to the use of force by an ADF member under Part IIIAAA that ‘the UK experience would not feature strongly in the search for jurisprudential guidance—at least, as a minimum, with respect to the broader philosophical-legal issues at play.’69 Utilising the fictional scenario outlined at the outset of this article this article will now explore how the defence of superior orders might be interpreted. Although a land-centric scenario, the legal reasoning below would apply just as readily to a pilot ordered to shoot down a suspected hijacked civilian aeroplane, or vessel.70 Although the defence of superior orders would appear to have many elements, this article will only address sub-ss (b) and (c). It is clear that the Corporal, in giving a verbal instruction to the Private to shoot the man on the cell phone, was giving an order. Section 51Z(2)(a) is thus satisfied. Further, there is nothing in the factual scenario that leads to questioning whether or not the circumstances had changed in a material respect as per sub-s (d) (such that the man on the roof had thrown his mobile off the building). Given the near instantaneous nature of the order and the shot occurring, there would be no time for the Private to question whether or not it was based on a mistake to material fact per sub-s (e) (such as if the Private was ordered to shoot an individual holding a bag, but then the individual placed the bag on the ground and backed away from it). Finally, in this scenario, the concept of reasonable and necessary force, under sub-s (f), is an inherent part of discussing whether or not the order was manifestly unlawful; this is not necessarily the case for all situations where the defence could be raised. 66. Explanatory Memorandum, Defence Legislation Amendment (Aid to Civilian Authorities) Bill 2005 (Cth) 25 [172]. 67. Criminal Code Act 1995 (Cth) div 268.116. 68. Rob McLaughlin, ‘The Use of Lethal Force by Military Forces on Law Enforcement Operations—Is There a “Lawful Authority”?’ (2009) 37(3) Federal Law Review 441, 446. 69. Ibid 447. 70. See generally Simon Bronitt and Dale Stephens, ‘“Flying Under the Radar”—The Use of Lethal Force Against Hijacked Aircraft: Recent Australian Developments’ (2007) 7(2) Oxford University Commonwealth Law Journal 265. White 221 A Legal Obligation to Obey an Order Section 51Z(2)(b) requires that the member be under a legal obligation to obey the order. This legal obligation is twofold: the first, arising from statutory provisions, is that ADF members are required to obey orders from superior officers. This obedience, however, is not automatic and unthinking; there is only a legal obligation to obey an order that is lawful. Both elements will be discussed. When viewing the defence of superior orders, it is important to start with the foundation that every military system demands obedience, by inferiors, to the orders of their superiors. This is a truism not only of contemporary militaries but historically as well. In his Digest, Emperor Justinian stipulated that: ‘in wartime anyone who has done something forbidden by his commanding officer or has not obeyed his orders suffers capital punishment, even if his action is successful.’71 This tradition has continued through the Dark and Medieval Ages,72 was reinforced in the late 1700s73 and continues to underlie military service today. All ADF members, upon enlisting in their respective service, take an oath or affirmation to serve Her Majesty the Queen, swearing inter alia that ‘I will resist Her enemies and faithfully discharge my duty according to law.’74 Particularly to officers, from the moment of appointment to the ADF, their commission is absolutely clear on this point, noting: ‘I (name of the Governor-General) . . . charge and command you faithfully to discharge your duty as an officer and observe and execute all such orders you may receive from your superior officer . . . ’.75 The logical starting point in unpacking what an order constitutes is the Defence Force Discipline Act 1982 (Cth) (‘DFDA’) which provides the statutory framework for discipline within the ADF. An order is defined as being either a general order or a command given to a member of the Defence Force by a superior officer.76 In Leith v Chief of Army, the Defence Force Discipline Appeals Tribunal (‘DFDAT’) held that: [a]n order may be lawful even though the person giving it does not use formal language. What is critical is that the words used are reasonably capable of conveying and being understood as conveying a direction to do or not do some act. In making this determination it will be relevant to have regard to the relationship between the person giving the order and the person to whom it is given, the terms in which they converse in relation to work related matters and the common understandings of terms and expressions used in their workplace environment.77 ADF members are expected to follow not only explicit orders but implicit orders from superior commanders as well. Implicit orders are a mechanism by which mission command is achieved— mission command being the cornerstone of Australia’s manoeuvre warfare doctrine.78 Mission command aims to place trust within junior members of the ADF to achieve the intent of their 71. 72. 73. 74. 75. 76. 77. 78. Justinian, Digest of Justinian (Alan Watson trans, University of Pennsylvania Press, 1985) vol 4, Book XLIX, Title xvi. Maurice Keen, Laws of Medieval War (Routledge, 1965). As aptly summarised in Boyson v Chief of Army [2019] ADFDAT 2 [20] (Logan J). Defence Regulation 2016 (Cth) sch 1. Commission certificate from Sir Peter Cosgrove to Samuel Camden Duckett White, 16 September 2016. Defence Force Discipline Act 1982 (Cth) s 3(1) (‘DFDA’). (2013) FLR 31, 43 [74] (Tracey, Cowdroy and Logan JJ). See Department of Defence, ADDP 00.1 Command and Control (Canberra, 2009) iii; see further the discussion of mission command and command responsibility in IGADF Inquiry into SOTG (n 44) 31. 222 Federal Law Review 49(2) superior officer’s orders, providing the junior members with the choice of means in order to reach a specified end. An example of an implicit order arose in the 2018 DFDAT decision of Randall v Chief of Army79 where a Warrant Officer Class 2, although prima facie committing breaches of the Criminal Code by accessing emails without authorisation, was acquitted when the Tribunal held that such actions could have been an implied order due to his job role (as the internet service manager).80 In our scenario, the Corporal outranks the Private.81 The Private was thus under a prima facie legal duty to obey the order, subject to it, inter alia, being lawful.82 The potential legality of the order is discussed below. The Private is not under a legal duty to obey an order, however, which is unlawful. This reflects that soldiers are not expected to follow orders mechanically, without thought. Here, the largest shift in the defence of superior orders from the Roman jurists aforementioned is found. It is a safe assumption that ADF members called out under Part IIIAAA will be briefed on the powers they are, and are not, entitled to use and the legal justification for them. This is the role of the ADF’s Military Legal Service, constituted by admitted legal practitioners together with the chain of command. Under Division 4, ADF members are only able to use lethal force in self-defence. Pre-deployment training would make this clear to members. The Private, therefore, in ascertaining whether or not the order to shoot the individual was a lawful order relies upon the implicit assumption, and trust, that the order given was one that was lawful (and thus based in self-defence). But is this a fair assumption? How readily can individuals identify lawful, and unlawful, orders? Helpfully, a study was undertaken in 2001 that looked at the ability of new entrants into the ADF to identify lawful, and unlawful, orders. The study looked at the ability of trainee officers to identify an unlawful order and their subsequent reactions.83 The majority of participants reported that orders were not prima facie presumed to be lawful,84 with 77 per cent reporting that they would disobey an order they thought to be unlawful.85 A large proportion of participants reported that they would seek clarification regarding an order by seeking clarification from their superiors.86 The study’s authors noted that it is important to acknowledge that none of the participants had seen active combat and that operational experience may result in individuals obeying orders more readily.87 The study further did not address whether members of the ADF Reserve forces, who are only legally obliged to follow orders when on duty, would be more or less likely to identify and disobey an unlawful order. This qualitative study should be compared to the statutory framework and policy guidelines behind the DFDA. The DFDA provides that lawful commands and general orders need to be obeyed.88 An order is to be interpreted as lawful and an ADF member ‘disobeys it at peril.’89 79. 80. 81. 82. 83. 84. 85. 86. 87. 88. 89. (2018) 335 FLR 260. Ibid. See in particular at 271–2. Defence Act (n 16) sch 1. Other relevant considerations include ibid s 51Z(2)(d)–(e). Rhonda M Wheate and Nial J Wheate, ‘Lawful Dissent and the Modern Australian Defence Force’ (2003) 160(1) Australian Defence Force Journal 20. Ibid 29. Ibid 25. Ibid 29. See Dr John Shay, Achilles in Vietnam (Scribner, 1994) for a medically trained classicist’s overview of the ancient and modern effects of combat on soldiers. DFDA (n 76) ss 27, 29. Head (n 26) 499, quoting Australian Defence Force Discipline Act 1982 Manual, 4–33. White 223 This is an important part of the ADF structure. Whilst some civilians may ‘view the command function as one that comes to the fore during combat,’90 it is axiomatic that the ADF must train for war, not peace.91 Accordingly, orders must be followed at all times—whether in a barracks environment, on field training exercises, or whilst on deployment.92 Put more expansively by Sir David Fraser, a career officer whose experience spanned combat operations in World War II, Malaya, Suez and Cyprus, as well as formation command during the Cold War: Few men are born heroes. Few are incorrigible cowards. Most can be either; and to help them towards the former rather than the latter state an army uses leadership, discipline and training—a mix which produces confidence and pride. The man well-led can believe there is sense in what he is ordered to do, and that his commander both cares for him and knows his own job. The disciplined man knows that the habit of obedience and united action distinguishes a self respecting body of soldiers from a mob. The trained man knows his profession enough to do what he has to do, and do it by instinct amidst great dangers. Without these characteristics in the body to which they belong soldiers cannot behave well in battle; and when they fail the fault is not theirs but lies in the system which has placed them there unprepared. ... No army can function on the basis that its members require rational explanations before they obey: obedience must be absolute, immediate and enforced. But although, in practice, men had ‘blindly’ to obey, they needed to feel they were not blind—that they knew as much as could be managed, and that it made sense. They needed to know, above all, that their destinies were in good hands.93 Simply put, obedience to orders is a corollary of command. Thus, ADF members carrying out orders have to trust that such orders are lawful; to question it would almost certainly undermine . . . their willingness to obey the command of those superiors. This could, in turn, undermine the constitutional principles of military obedience and military subordination to the civilian government.94 Accordingly, it is arguable that the Private in following the orders of the Corporal did so on the implicit assumption, and trust, that the order given was one that was lawful (and thus based in selfdefence). He had no time to reassess or to question the factual scenario. It should be that s 51Z(2)(b) is satisfied. 90. See Matthew Groves, ‘The Civilianisation of Australian Military Law’ (2005) 28(2) UNSW Law Journal 364, 371. 91. See generally Justice John Logan, ‘Military Court Systems: Can They Still Be Justified in This Age?’ (Speech, Commonwealth Magistrate and Judges Association Triennial Conference, 10 September 2018). 92. The latter of which acts as an aggravating factor when charging soldiers: DFDA (n 76) sch 3. A recent decision of the High Court of Australia—Private R v Cowen [2020] HCA 31—makes clear that merely being military personnel is sufficient for military jurisdiction to be conferred (‘the service status test’). Such a position, whilst not directly relevant to the defence of superior orders under Part IIIAAA, simply reinforces that ADF members are not simply citizens in uniform, but hold a separate legal status. 93. David Fraser, And We Shall Shock Them: A History of the British Army in World War Two (Hodder & Stoughton, 1983) 41, 99; see equally Niccolo Machiavelli, The Prince (Penguin Publishing, 2002) 38–41 when Fabrizio comments to Cosimo: ‘discipline drives away fear from men, lack of discipline makes the bold act foolishly . . . for a courageous army is not so because the men in it are courageous, but because the ranks are well disciplined’. 94. Cameron Moore, Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force (ANU Press, 1st ed, 2017) 125. The DFDA s 14 provides a defence of superior orders for military offences. It would not extend to a civilian jurisdiction. 224 Federal Law Review 49(2) B Manifestly Unlawful The tension that s 51Z(2)(b) creates, however, of implicitly assuming orders are lawful is addressed in s 51Z(2)(c) under the concept of ‘manifestly unlawful’. Within Australia, the phrase ‘manifestly unlawful’ lacks any discernible judicial direction. Given the lack of jurisprudence on the issue, sub-s 51Z(2)(c) of Part IIIAAA raises some interesting legal considerations. It merits then to undergo a historical search. The term is found within the Queensland Criminal Code.95 The draftsperson Sir Samuel Griffith declared in a marginal note alongside the relevant provision that it was a pronouncement of the common law at the time.96 The relevant common law at the time was a statement by Willes J in Keighly v Bell, who wrote: an officer or soldier acting under the orders of his superior—not being necessarily or manifestly illegal—would be justified by his orders.97 The term manifestly unlawful at the time was interchangeable with ‘obviously contrary to law’98 that one ‘knows, or ought to know to be illegal’99 or that which was an ‘apparent and palpable illegal order’.100 The adjective ‘manifestly’ thereby related to a reasonableness of such a belief, a concept relative to the times. An example of a shift is found in the successful pleading of the defence in 1900, where a British soldier fighting in the Boer War, on orders from his superior officer, killed a native farmhand for failing to load the horse quickly enough.101 He pled that he was acting under the defence of superior orders, and the Court finding that the order was not manifestly unlawful, acquitted the soldier. In academic commentary, there are two clear approaches for identifying a manifestly unlawful order. The first approach relies on reason-based judgement—an assessment that is ‘objective in [its] character, and based on the intelligence of the reasonable man.’102 Therefore, two potential situations arise when the defence is raised: in the first one the soldier committed an international offense following the order not manifestly illegal from the point of view of a reasonable man . . . Another issue is if a soldier committed a criminal act which is manifestly illegal for any reasonable man, but due to his personal inadequate intellectual abilities, he himself is not aware of the illegality of his act.103 95. 96. 97. 98. 99. 100. 101. 102. For Queensland, refer to Criminal Code 1899 (Qld) s 31. Journals of the Legislative Council of Queensland VOL XLVII (pt 1) CA 89-1897, 16. (1866) 4 F & F 763, 790. As used by Justice Brereton in IGADF Inquiry into SOTG (n 44) 110. United States v Jones, 36 Fed Cas 653 (No 15494) (CCD Pa 1813). Stanley Yeo, ‘Mistakenly Obeying Unlawful Superior Orders’ (1993) 5(1) Bond Law Review 1, 7. R v Smith (1900) 17 SC 561. Yoram Dinstein, The Defence of ‘Obedience to Superior Orders’ in International Law (Oxford University Press, 2nd ed, 2012) 27. 103. Natalia M Restivo, ‘The Defence of Superior Orders in International Criminal Law as Portrayed in Three Trials: Eichmann, Calley and England’ (Graduate Student Papers No 18, Cornell Law School, 9 December 2006) 4. White 225 This reason-based test is controversial, particularly in relation to whether the objective person test applies the standard of a reasonable person or a reasonable person with military experience.104 Insisting ADF members fit within a purely objective, ‘reasonable person’ standard is potentially unrealistic and unjust. This is because, arising from their training and unique duty to follow orders, they can never be constructed as simply a ‘person’. They all have different ranks, training and experiences. This difference is recognised within Australia’s own military jurisdiction, where it is held that in order to accurately assess whether an ADF member was reckless or negligent, regard must be given to their individual training and experience.105 This should not be thought of as creating a more lenient defence. To the contrary, an ADF member will be judged by ‘the standards of the community plus the higher standards imposed on military personnel as a result of her or his being an official arms bearer of the State.’106 The second approach is that manifestly unlawful orders can be identified through emotionbased analysis.107 The best example of this is from Israel, in the Military District Court case of Chief Military Prosecutor v Melinki. There, it was held, noting the genesis of the phrase of ‘manifestly unlawful’ in Keighly v Bell, that: [t]he distinguishing mark of a ‘manifestly unlawful order’ should fly like a black flag above a given order, as a warning reading ‘Prohibited!’ Not mere formal illegality, hidden or half-hidden, not the kind of illegality discernible only to the eyes of legal experts, but a flagrant and manifest breach of the law, certain and necessary illegality appearing on the face of the order itself; the clearly criminal character of the order or of the acts ordered, an illegality clearly visible and repulsive to heart, provided the eye is not blind and the heart is not stony and corrupt—that is the extent of ‘manifest illegality’ required to release a soldier from the duty of obedience and make him criminally responsible for the acts.108 This definition was later endorsed by the Military Court of Appeal and crystallised into Israeli criminal law in Attorney-General of Israel v Eichmann.109 Based upon this second approach, a manifestly unlawful order is one being ‘so palpably atrocious as well as illegal that one ought to instinctively feel that it ought not be obeyed.’110 It is more than mere unlawfulness. It does not, however, allow for an ADF member to disobey an order based on their ‘conscience, religious beliefs, moral judgment or personal philosophy.’111 The 104. Michael Head, Calling Out the Troops (The Federation Press, 2009) 171 argues that the inclusion of ‘manifestly unlawful’ is ‘arguably a retreat from the standards applied post-World War II Nuremburg trials’. 105. DFDA (n 76) s 11. 106. Yeo (n 100) 9. 107. Or Bassok, ‘Missing in Action: The Human Eye’ in Fabbrini Federico, and Jackson C Vicki (eds) Constitutionalism Across Borders in the Struggle Against Terrorism (Edward Elgar Publishers, 2016) 283. 108. Attorney General of the Government of Israel v Eichmann, 36 IRL 5 (District Court of Jerusalem, 1961) 257–8. This case must be distinguished on the basis that it addressed the defence of superior orders in the context of war crimes during an international armed conflict (World War II), thus lex specialis applied. 109. Attorney General of the Government of Israel v Eichmann, 36 IRL 5 (District Court of Jerusalem, 1961) 257–8. This case must be distinguished on the basis that it addressed the defence of superior orders in the context of war crimes during an international armed conflict. 110. McCall v McDowell, 15 F Cas 1235, 1241 (D Cal, 1867). 111. Gary Solis, ‘Obedience of Orders and the Law of War: Judicial Application in American Forums’ (1999) 15(2) American University International Law Review 481, 520. 226 Federal Law Review 49(2) ‘ought to know’ doctrine is one found in multiple jurisdictions and has been applied historically (at least since 1474)112 and albeit in an oblique manner by some Australian tribunals and courts.113 Both tests have their appeal, and it seems possible to navigate between them by adopting a test that accepts the subjective assessment of the soldier on the ground alongside an objective threshold that a reasonable person ‘ought to know’. This ‘ought to know’ test includes conduct that, if ordered, could never be legal—sexually assaulting an individual, or shooting captured persons. But it also includes objectively what a reasonable soldier, of similar experience, expertise and training, would have determined in the same circumstances.114 This is in fact a higher test, based upon the expertise and experience of military personnel rather than a person on the Clapham omnibus.115 The reasonable soldier would also differ based on Corps (a term that denotes a soldier’s specialisation) and seniority. So, to the scenario. Our Private has been ordered to shoot a man on a phone. As outlined above, he is under a prima facie legal obligation to obey lawful orders. Conversely, the Private is not under a legal duty to obey an order that is unlawful. Pre-deployment training for ADF members called out under Part IIIAAA will involve discussions of what force they may use. They would be briefed that the use of force for all actions taken under Part IIIAAA must be reasonable and necessary.116 Thus, if the Corporal ordered the Private to take an action that was not reasonable and necessary, it may constitute an order that was manifestly unlawful. This requirement is inherent to an exploration of s 51Z(2)(c), even though it is its own element under s 51Z(2)(f). However, what is reasonable and necessary by military standards may be very different to conduct taken by civilians, or civilian constabulary forces. What constitutes reasonable force by a soldier will always be a question of fact and ‘cannot be predetermined by rigid rules of law.’117 In situations of mass rioting, the leaked Australian Army Manual of Land Warfare suggested that: As a last resort troops may be required to open fire on the crowd to disperse it. The principles of minimum force must be kept in mind by the commanders. Therefore, initially, only selected individuals should be nominated to fire upon selected agitators in the crowd.118 112. In 1474, Peter von Hagenback was tried for perpetrating a reign of terror in the name of his liege, Duke Charles of Burgundy. He raised in his defence that he was operating under the orders of superior; it was held that ordering rape was manifestly unlawful. See Georg Schwarzenberger, International Law as Applied by International Courts and Tribunals, vol 2, The Law of Armed Conflict ( Sweet & Maxwell Ltd, 1968) 462. 113. Some migration matters have addressed the concept of the defence of superior orders, although obtusely: see W97/164 and Minister for Immigration and Multicultural Affairs [1998] AATA 618; SHLB v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 254; VWYJ v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCA 658; SRYYY v Minister for Immigration and Multicultural and Indigenous Affairs [2005] FCAFC 42 (‘SRYYY’); SZITR v Minister for Immigration and Multicultural Affairs [2006] FCA 1759. Often the cases arise from individuals being ineligible for protection under the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 150 (entered into force 22 April 1954) art 1F(a). None appear to have directly engaged with the concept of manifestly unlawful—SRYYY (n 111) [132]–[134] would appear nearly to be the closest. There is however clear support for Canadian case law—R v Finta [1994] 1 SCR 701, that in turn reaffirms the view of manifestly unlawful under Eichmann. 114. As is the case within the duty of a director of a corporation to act in good faith: see Bell Group Ltd (in liq) v Westpac Banking Corporation [No 9] (2008) 39 WAR 1. 115. Hall v Brooklands Auto-Racing Club [1933] 1 KB 205, 224 (Greer LJ). 116. Defence Act (n 16) s 51N. 117. Hope Report (n 8) app 9, 295. 118. Jude McCulloch, Blue Army: Paramilitary Policing in Australia (Melbourne University Press, 2001) 183. White 227 And in certain situations, this might be correct. In our scenario, however, the question is whether or not shooting the individual on the phone was reasonable and necessary. Such an assessment is difficult. As one academic has noted: Frankly the great amount of detail set out in the Act, while reasonable from a legal point of view, makes it difficult for the members of armed forces themselves when caught up in the heat of a dangerous and violent situation. Even though they are usually exposed to a range of scenarios during training exercises to tease out legal nuances, if something unexpected occurs they are hardly then in the position to seek detailed legal advice about the meaning and effect of s 51T.119 The reference to s 51T above relates to Part IIIAAA as it was prior to the 2018 Amendments and which is now identical to the requirements for reasonable and necessary force under the current s 51N(3). The effect of this is to ask whether what constitutes reasonable force for the protection of life or prevention of serious injury might be claimed to be the same for ADF members and civilian police. In answering it, one needs to have in mind the more lethal weapon systems and training undertaken by the ADF compared to law enforcement.120 Although the Commonwealth Government may re-task elements of the ADF to pursue counterterrorism, this is not its raison d’être. Warfighting is. This main role of the ADF is best highlighted through reference to the role of the Royal Australian Infantry Corps ‘to seek out and close with the enemy, to kill or capture him, to seize and hold ground and to repel attack, by day or night, regardless of season, weather or terrain.’121 Each other Corps within the Australian Army, in effect, exists to support or complement the infantry. Accordingly, and as posited elsewhere, when asking what constitutes reasonable force by a member of the armed forces operating domestically: ‘justice requires a higher allowance of his forwardness in maintaining his service, whatsoever it is for the time; and they are withal a warning to everyone, not to molest or meddle with him therein.’122 This is submitted to still be current, albeit in need of a more modernised approach: ‘justice requires a higher allowance for the use of force by armed forces members, acknowledging their training and duties, and the stress of service.’ Thus, when approaching the use of the ADF in domestic operations, it must be viewed with a mind to the training and weapon systems employed by ADF members, as part of their proficiency in the Profession of Arms. Focusing now on the distinction of ADF members’ role from that of the constabulary forces. Policing as a concept exists along what is commonly called the ‘security/justice continuum’,123 which at one end aims to provide stability and security to the community and on the other aims to develop a community.124 Where a police force sits on the continuum is reflective of the nation it 119. Michael W Duckett White, Australian Offshore Laws (The Federation Press, 2nd ed, 2009) 121. 120. HM Advocate v Sheppard [1941] JC 67, 72 (Lord Robertson) who held ‘justice requires a higher allowance of his forwardness in maintaining his service, whatsoever it is for the time; and they are withal a warning to everyone, not to molest or meddle with him therein.’ 121. Australian Army, Royal Australian Infantry Corps (Web Page, 19 December 2016) <https://www.army.gov.au/ our-people/organisation-structure/army-corps/royal-australian-infantry-corps>. 122. HM Advocate v Sheppard [1941] JC 67, 72 (Lord Robertson). 123. William Terrill and Eugene Paoline III, ‘Examining Less Lethal Force Policy and the Force Continuum: Results From a National Use-of-Force Study’ (2013) 16(1) Police Quarterly 38. 124. Ibid 41. 228 Federal Law Review 49(2) serves, and within Australia it can be seen as being used to protect and serve the community.125 Lethal force is used as a last resort by State and Territory police personnel, and when employed must be proportionate, reasonable and necessary.126 The Australian Federal Police (AFP), for example, are bound by Commissioner’s Order No 3 on operational safety, which states that conflict de-escalation is the primary consideration.127 Equally, the National Guidelines for police personnel training raise 10 operational safety principles, emphasising the overarching considerations of safety of the police, public and offenders.128 Force is to be avoided unless necessary and reflects the position that protection of the public is paramount.129 As such, the role of the constabulary forces has been described as to keep the Queen’s peace, and the ADF’s role is to kill the Queen’s enemies.130 Conversely, armed forces members, and soldiers in particular, are trained ‘to shoot reflexively and instantly’ and training is designed to be ‘a precise mimicry on the act of killing on the modern battlefield’ where ‘[e]very aspect of killing on the battlefield is rehearsed, visualised and conditioned.’131 To achieve this, in 2017 the Australian Army Headquarters established a new ‘Combat Shooting Cell’ aimed at qualifying all serving members of the Australian Army (regardless of Corps or whether the individual is a Permanent or Reserve member) with advanced combat skills training through enhanced realistic training of actual combat scenarios.132 This is achieved, in part, through the use of robotics to simulate moving targets in a complex terrain environment.133 The difference is highlighted in the British case of R v Clegg.134 Private Clegg was convicted of murder by the trial judge for the use of lethal force, whilst on duty with a patrol in Northern Ireland. Use of force by British soldiers in Ireland followed relatively analogous powers with that applicable to ADF soldiers under Part IIIAAA, allowing force to be used ‘as is reasonable in the circumstances.’135 The intent of the mission was to catch joyriders, but this had not been conveyed to the soldiers. As a stolen car approached at speed, Private Clegg shot three rounds into the windscreen; as it passed and drove away, he fired a fourth round that struck and killed a passenger.136 The first three shots were accepted as self-defence. The fourth shot, however, was found to have no viable defence. On appeal, Private Clegg’s conviction for murder was upheld, to the apparent dismay of the court, which submitted that legislative reform should have been enacted to allow the trial judge discretion, taking into account the soldier’s weapon system, training and 125. Ibid. 126. Simon Bronitt, ‘Rethinking Police Use of Force: Linking Law Reform with Policy and Practice’ (2012) 36(2) Criminal Law Journal 71, 72. 127. Australian Federal Police, Commissioner’s Order 3 2017 s 5.5; issued pursuant to Australian Federal Police Regulations 1979 (Cth) reg 33. 128. Bronitt (n 126) 73. 129. Australian Federal Police Act 1979 (Cth) s 14B(2). 130. Adapted from Paul Sieghart, ‘Harmless Weapons: A Threat to Liberty?’ (1978) 77(1) New Scientist 840, 841 who wrote that ‘the job of the soldier is to kill the Queen’s enemies in war-time; that of the policeman to protect the Queen’s subjects in peacetime’. 131. David Grossman, On Killing (Little, Brown & Company, 1995) 254. 132. Katherine Ziesing, ‘Robotics Enlisted to Sharpen Soldiers’ Skills’ The Australian (Canberra, 3 March 2017) 30. 133. Ibid. 134. [1995] 1 AC 482 (‘Clegg’). 135. Criminal Law Act (Northern Ireland) 1967 s 3(1). 136. Clegg (n 134) 489 (Lord Lloyd). White 229 duty to assist the Crown.137 Relevantly to the question of whether military personnel in Northern Ireland were merely ‘citizen[s] in uniform’, Lord Lloyd of Barwick, stated: For the performance of this duty [a soldier] is armed with a firearm, a self-loading rifle, from which a bullet, if it hits the human body, is almost certain to cause serious injury if not death.138 In the case of a soldier in Northern Ireland, in the circumstances in which Private Clegg found himself, there is no scope for graduated force. The only choice lay between firing a high velocity rifle which, if aimed correctly, was almost certain to kill or injure, and do nothing at all.139 As correctly noted by Lord Lloyd, the weapon systems employed by military personnel cannot be compared to those utilised by constabulary forces, and when viewed against the backdrop of the aforementioned combat shooting and combat mindset instilled in ADF members from recruit training onward, what is deemed reasonable and necessary must, naturally, differ from that of civilian constabulary forces. Although the principle of proportionality in the National Guidelines for the AFP may make allowances for lethal force, it does not seem to reflect the principle of proportionality as it applies to the ADF in domestic security. The ADF Private, in being given an order to shoot, was similar to PTE Clegg—he had the choice to either shoot and kill or do nothing at all. The course of action that he took then, in firing a single shot, was reasonable and in giving effect to stopping the individual, noting that he was on the roof of a building and out of distance, would appear prima facie necessary. The order thus being one that was possibly lawful, it is argued, is an order that is not manifestly unlawful. Section 51Z(2)(c) is thus satisfied. IV Concluding Observations On the basis that the Private had no reason to believe that the circumstances had changed in a material respect since the order was given140 and that the member had no reason to believe that the order was based on a mistake as to a material fact,141 it is likely that the defence of superior orders would be fulfilled. This is not, however, a given. As has been discussed, the concept of ’manifestly unlawful’ remains unclear within Australia — and it is not necessarily a given that a relevant court would acknowledge the distinct status of ADF members in applying it. Although not mechanical nor unthinking practitioners of the Profession of Arms, ADF members are under a stronger obligation to obey an order than to disobey one. These obligations are not found in nebulous, non-statutory obligations but through a positive Act of Parliament—the DFDA. Clearly, Australian citizens, through their representatives, have both placed the burden of obedience to orders on ADF members and provided them with a defence of superior orders for when follow them in situations of domestic violence, aid the civil authority. It merits reiterating that these are not day-to-day scenarios but situations where the Chief of the Defence Force has been, through an approved constitutional process involving authorising 137. Ibid 500 (Lord Lloyd). 138. Ibid 497 (Lord Lloyd), quoting Attorney-General for Northern Ireland’s Reference (No 1 of 1975) [1977] AC 105, 137 (Lord Diplock). 139. Ibid 498 (Lord Lloyd). 140. Defence Act (n 16) s 51Z(2)(d). 141. Ibid s 51Z(2)(e). 230 Federal Law Review 49(2) Ministers and most-often endorsed by the Governor-General, ordered to take actions. The CDF in turn, through an exercise of their constitutionally approved command power, has ordered the ADF to achieve the intent of responsible Ministers, and resolve situations marked by great physical force e. Whilst the defence of superior orders applies in certain circumstances to civilian law enforcement bodies,142 there are a few necessary distinctions when compared to the defence as it applies to Part IIIAAA. It is these differences that promote any interpretation of the defence to not be as one applying simply to ‘citizens in uniform’ but to a distinct class of individuals, under a positive duty to obey orders, with serious criminal consequences if they do, or do not, follow orders. To hold otherwise is a shibboleth which may be superficially satisfying and have some political merit143 but in reality legally unfounded. When viewed in light of the weapon systems and instinctive training instilled in soldiers, it seems incongruous to view the two categories as the same.144 ORCID iD Samuel White https://orcid.org/0000-0003-0838-5649 142. See, eg, Criminal Code 1899 (Qld) s 31; Criminal Code 1913 (WA) s 31; Criminal Code 1924 (Tas) s 38. 143. Peter Rowe, ‘The Soldier as a Citizen in Uniform: A Reappraisal’ (2007) 7 New Zealand Armed Forces Law Review 1, 14. 144. Colin Greenwood, ‘The Evil Choice’ [1975] Criminal Law Review 4, 6–7.