(Image: AAP/David Mariuz)

The prime minister has conceded that deploying the military in response to the bushfire crisis has “pushed, I think, the constitutional authorities for us to act to its very edge“.

What does he mean? And should we be worried?

On January 5, the Army Reserves were deployed to areas affected by the bushfires to assist. So far this is fine, constitutionally speaking.

Anne Twomey, Professor of Constitutional Law at the University of Sydney, told Crikey the deployment of the reserves “may be done for defence reasons, but also for civil aid, humanitarian assistance, medical or civil emergency or disaster relief”.

“So even though I’m not a great fan of the nationhood power, I think this use of it is OK.”

But there is a give and take here. Power for the federal government to send in the military could be increased through cooperative legislation, such as the states referring their powers. But the states and the Commonwealth need to talk.

“The key thing is to avoid pre-emptive or uncoordinated action. It needs to be recognised that it is the states that have the knowledge and expertise regarding land management and bush fires,” Twomey said. 

“The Commonwealth defence forces, however, have the resources and expertise for dealing with disaster recovery and evacuation. Systems need to be worked out to ensure coordinated and effective action during a disaster.”

But when it comes to the deployment of actual army personnel, there are more worrisome powers the government could invoke, and the PM’s language has raised some concerns.

Morrison suggested to Insiders‘ David Speers that he wanted to expand the government’s power to send in the military: “To ensure that in the future it can be done in a way that I think is in a more preemptive posture, that we can do that I think more seamlessly.”

Section 51 of the Defence Act gives the federal government the power to call out the armed forces on domestic soil against perceived threats to “Commonwealth interests”, with or without the agreement of a state government.

These powers were originally rushed through the parliament by then-prime minister John Howard back in 2000, under the context of preparing for the 2000 Olympics. The powers were further expanded in 2006, this time in preparation for the Melbourne commonwealth games.

In both cases scrutiny was perfunctory — in 2000 the changes were not even announced before they passed. Labor waved the legislation through.

As Verona Burgess points out in The Mandarin, the powers to quickly deploy troops to Australian streets may not raise any eyebrows when it’s being put to use for disaster recovery.

But, once deployed, military officers have remarkable and worrisome power; able to order troops to open fire on civilians, shoot to kill someone escaping detention, warrantless searches, detainment without formal arrest and more.

Twomey said it was unclear whether the bushfires would qualify as domestic violence as per the Defence Act. Indeed, exactly what law authorises this has been a source of speculation since the deployment of the army.

Section 119 of the constitution provides for the Commonwealth to “protect every state, on the application of the state, from invasion or against domestic violence”.

The constitutional validity of Section 51 of the Defence Act is yet to be tested. Any further expansion of these powers would need close scrutiny, and history tells us it wouldn’t come from Labor.

Peter Fray

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