On Saturday 4 January 2020, after returning from his overseas holiday during the worst bushfires this continent has ever experienced, prime minister Scott Morrison called a joint press conference with former Army Reserves Brigadier, Liberal Party staffer and current defence minister Linda Reynolds, and current Defence Force chief General Angus Campbell.
It was a rare Saturday outing for the prime minister, who – when he is not absent altogether – maintains a strict Monday-to-Friday schedule. For this abject neglect of national leadership, certain press gallery members run cover for him with weak and jaded excuses like ‘he has a young family’. The line plays to a standard model, of all politicians having wives and grown children, which was jettisoned two generations ago.
Apart from the tangential curiosity of the prime minister ‘working’ – from what I can see, he exploits party room hatreds and talks gibberish at media figures in return for his very generous public salary of $550k pa – on the weekend, the purpose of that early January press conference was to announce a compulsory call-out of 3,000 army reserves.
I watched this press conference closely, because I am familiar with the history of Liberal Party attempts to deploy the armed forces against the civilian population from its inception. As eminent scholar on [abuse of] executive power Professor Michael Head has written (Head Mann and Matthews 2015, p. 438, footnotes omitted)
after the 1949 election, in the wake of the coalminers strike, prime minister Robert Menzies claimed a ‘political mandate’ to place Australia on a ‘semi-war footing’ against communism. Against a backdrop of global anti-communism, the Communist Party Dissolution Bill 1950 was the incoming government’s first piece of legislation. The Bill’s recitals claimed that its measures were required for the ‘security and defence of Australia’ in the face of a dire threat of violence, insurrection, treason, subversion, espionage and sabotage. The High Court, however, rejected the use of these reciatls to validate the government’s claim to be exercising the defence, incidental and executive power of the Commonwealth. The judges warned of the corrosive dangers of unfettered executive power. That stand was vindicated when Menzies called a referendum to override the decision and was defeated.
The lunge to foster fear in the populace as cover to expand federal executive power is a constitutive characteristic of the Liberal Party. It was there from day one. The Party had been formed during an actual world war, self-evidently by men who more energy for political strategy than the war effort. Its very first act on taking government was to try and leverage the power of incumbency to outlaw its political opponents. This politic is in their DNA.
They are proud of it: upon successfully knifing his predecessor in 2018, Scott Morrison embarked on a pilgrimage to Albury to try his hand at Menzian oratory, an embarrassment best not mentioned further, lest we do ourselves an injury.
[For more on his mind-bogglingly unillustrious career, see this investigation by Karen Middleton at The Saturday Paper from June 2019; or this recent takedown by YouTube dude Jordan Shanks. My own critique of Morrison dates to his horrific record as Minister for Immigration and Border Protection, which includes escalating militarisation, secrecy and avoidance of accountability in refugee policy; and shockingly punitive and corrupted tenure as Treasurer, also notable for his vast capacity for cruelty and the reflexive dishonesty that is a hallmark of all his positions in public office.]
Morrison government disaster response
Anyway, were we? Oh yes, the political comms strategy of the Liberal Party circa January 2020. The nation was ablaze, some communities in their fifth month of fighting fires. People moved about under a blanket of smoke.
A growing chorus of criticism was countered, as usual, by press gallery cover and the Liberal Party machine. Staffers and backbenchers pump out an endless stream of misinformation on social media behemoth facebook, from where it jumps, via politicians and journalists, to the murdoch mastheads and is then picked up and amplified by apparently serious commentators at ninefax and on the ABC, with the flimsy and irresponsible rationalisation that ‘arsonists’ or ‘Scott Morrison did a thing’ are the dominant narrative of the day. This is despite the fact that they know or ought to know that this is exactly how the Liberal National Party won Queensland and therefore the federal election in May 2019.
Responding to opinion polls rather than appalling misjudgement and catastrophic policy errors, Morrison tried distraction. On 1 January he released a saccharine video of his wife and himself talking barely concealed evangelical gospel on facebook, which was distributed by pay-walled murdoch mastheads. The same day in the ninefax press, the worlds most awkward cricket visual since John Howard tried and failed to bowl an over, was released. Posing at Kirribilli House on an angle designed to misrepresent the smoke haze over Sydney, it features a scowling Morrison with a group of highly trained professional athletes who appear to be offended by him or scared of him. Probably both – I know I am.
(photo credit: Steven Siewert in the Sydney Morning Herald 1 January 2020)
The following day, HMAS Choules arrived to evacuate people who had fled their homes and were sheltering from wildfires on the beach, preparing to jump into the sea, at Mallcoota. The Sydney tabloid front page featured a photo of 11 year-old Finn Burns steering a boat carrying his brother, mother, and the family dog to safety. This incredible picture, taken by his mum, flashed around the world.
Photo credit: Allison Marion.
Cut to the 4 January compulsory reserves call out announcement and Morrison said:
We now must move our posture as a Commonwealth as we’ve agreed at the National Security Committee this morning from a posture of respond to request, to move forward and to integrate with the local response… we must move forward first as a Commonwealth, particularly with the work of our Defence Force, and then integrate with the local operations that are in place in those local communities. So today we are making a number of announcements in terms of what we will be doing to move into that move forward posturing. First of all, just around half an hour ago, the Governor-General signed off on the call-out of the Australian Defence Force Reserve to surge and bring every possible capability to bear by deploying Army Reserve brigades to fire affected communities across Australia… And what this means is we will deploying those more on a move forward basis and taking on these additional reserves which are being called out as a result of the decision we’ve taken and authorised by the Governor-General today.
All this was of course sandwiched between the usual streams of consciousness that are a hallmark of Morrison press conferences. Throughout the rolling crises of his public appearances, many self-inflicted, Morrison is notable for garbled word salad, obfuscation upon evasion upon outright lies, and a jagged and jumpy rushed delivery that seems to reflect an extremely short attention span.
My ears pricked up because what I thought I heard was Morrison asserting to have sought and secured the authority of the Governor General, itself mostly uncodified “reserve powers”, to override the reserve power of the states to request military intervention from the Commonwealth in the event disaster support is required. This is an important power check, the ‘convention’ that Premiers hold the constitutional power to request military assistance in their jurisdiction, rather than the Commonwealth having constitutional authority to unilaterally send in the troops.
Militarisation: a continuum
It should never be forgotten that the Commonwealth retains the power to send in the troops for political purposes to the Northern Territory; and in 2007 it did exactly that. The Northern Territory Emergency* Intervention legislation had to be tabled a second time with the word emergency added because it was otherwise unconstitutional – an insufficiently ‘special’ law under the race power (Australian Constitution Act 1901 (Cth) s. 51(xxvi).
Ensuing discussion on 4 January turned up this very useful and relevant analysis (Fetchik 2012), sent to me by a former soldier on twitter. It examines Commonwealth-state arrangements with regard to deploying the military domestically with a case study on the catastrophic 2009 Victorian bushfires. As an aside, then-opposition MP Scott Morrison, the man who as prime minister went on a holiday to Hawaii during the worst fires in the history of the continent, told ABC flagship panel show Q&A in 2010 that the Victorian Police Commissioner Christine Nixon – typically, a woman being held to double standards by a Liberal Party male – should not have gone out to dinner during the 2009 crisis.
Anyway, I can definitely recommend the above article by Janine Fetchick to those interested in more detail of the constitutional questions. For a more general explainer on federalism, I wrote this earlier in the pandemic. In the remainder of this post, I want to point to a deeply ingrained pattern, on the publically availbale evidence, of what I can only conclude is Scott Morrison’s ongoing desire to politicise the Australian military; to militarise the Australian government response in a range of policy settings; and ultimately to expand federal executive power over domestic military orders and actions.
It was obvious during his time as shadow minister for immigration, which a compliant and complicit Tony Abbott – who Scott Morrison later betrayed in pursuit of self-serving careerism – renamed ‘Immigration and Border Protection’. This disturbing and continuing chapter in our history of racist and xenophobic policy settings was launched by ‘Operation Sovereign Borders’, co-designed by Morrison with then-General and now-Senator Jim “butcher of Fallujah” Molan.
It continued through offensive, expensive defamatory and untrue claims about childrens charity workers; a 2013 ministerial directive to demonise refugees as ‘illegals’; and multiple violent deaths of detainees held without charge in immigration (executive) detention, including by suicides that are the tip of a mental illness iceberg. Creating and exacerbating mental health conditions, up to and including suicide, is also a hallmark of Morrison’s ministerial career – see #Robodebt and the incredible work of the #NotMyDebt team here. An excellent volume (to which I contributed) on some of the many moral and legal failures of Australian refugee policy can be found in the 2019 edition of UNSW Law Society journal Court of Conscience. It is also worth clicking on the Save the Children link above for its account of Morrison talking exactly as he talks today, evading responsibility in the face of overwhelming findings by official investigations, insisting on his own personal version of reality so blatantly it is a wonder journalists continue to avoid the L-word. He is lying.
Post-bushfire pandemic responses
Fast forward to 2020 and the current global pandemic. It is clear to anyone who looks that Scott Morrison has mishandled every aspect of the national Australian response. We, the public, have been spared the worst of his incompetence, selfishness and bone-idle laziness only by the industrious intelligence of Premiers and Chief Ministers. Even some in the press gallery are starting to break ranks [$$]. This is the same claque who collectively backed Morrison into office, covered for his Hawaiian holiday, defended his hypocrisies when keeping his own kids home while threatening and bullying the Premiers (and teachers, and parents, and children) on public schools, and to this day run #ScottySplaining (hashtag credit: Noely Neate @YaThinkN) interference on his every hasty misjudgement and subsequent panicked pivot.
Leaving aside the domestic deployment of defence force personnel since the outbreak of the pandemic in January, because this post is as always already too long, I turn now to reports this week that the prime minister has directed Attorney General Christian Porter to draft amendments to the Defence Act 1903 (Cth). The lengthy lead-in has been for this purpose: to make clear how I reached this view. I do not wish to be alarmist. It may amount to nothing. After all, the bigotry expansion ‘religious discrimination’ bill was set aside while ‘culture wars’ are waged elsewhere.
But the record indicates that bills tabled or not tabled by this government are all in the same service: of not letting a crisis go to waste. My sense is that, on the evidence, Morrison will prioritise this one. He will also – like de-encryption and other ‘security’ – read surveillance and control – measures, prioritise wedging Labor on this one. From where I sit, his reported desire to amend the Defence Act 1903 looks like another item on his relentless agenda to expand federal executive command of the Australian military, for political objectives. And despite inexcusable, unforgiveable commentary from the gallery to the contrary, Morrison is nothing without his politics. Everything, but everything he does, is a political comms strategy in pursuit of power.
The ninefax report on planned Defence Act amendments.
First, a couple of meta-points.
- The writers are standard-credentialed for a news report of this kind, the foreign affairs and national security correspondent and the National Affairs Editor for Sydney Morning Herald and The Age. Both are white males.
- The headline is standard framing of not holding power to account. It offers the Morrison government rationale for amending ‘laws’ straight up, in quote marks. As with all Morrison government announcements, there are stated purposes and actual purposes. The success for every single Morrison government political comms strategy is contingent on the press gallery and their editors foregrounding the stated purpose; and framing this political statement as verified fact. Happily for federal Liberal Party politicians, and unhappily for the public interest, the press gallery and their editors invariably oblige.
- The photo is of ‘Members of Victoria Police, aided by ADF soldiers, patrol the Queen Victoria Market’. Whether deliberately or not, this blurs the supposedly strict line between domestic and foreign deployment of armed agents of the state. As Fetchik (2012, above) explains, the basic demarcation is domestic = police; foreign = ADF. And as Head (2015, above) has shown, conservative governments notoriously seek to blur this line, both in terms of authorising power and in the minds of the citizenry.
The first two sentences are directly contradictory. By which I mean, the second sentence contradicts the first:
Australia’s military would be given more powers while dealing with national emergencies such as bushfires and pandemics under new laws to be drawn up by the federal government.
The Morrison government plans to amend the Defence Act to hand the Prime Minister of the day the power to declare a national emergency or disaster and deploy the Australian Defence Force within Australia.
Either more powers to military officers – the constitutional head of the ADF is the Governor General – will be authorised by the proposed amendments; OR more powers will be ‘handed’ – by the process of both houses of parliament passing legislative amendment bills – to the prime minister of the day. The prime minister is not the military. Both claims can only be true iff the proposed amendments are designed to expand the authority of both military commanders AND politicians acting in their capacity as the federal executive.
Is this the plan?
The legal and constitutional limits on deploying the armed forces domestically has this year come into sharp focus after there was confusion about the deployment of troops in NSW during the summer’s bushfires and Victoria’s Andrews government repeatedly declined to accept the offer of ADF support for its hotel quarantine program.
The claim here is that ‘confusion’ around legal and constitutional limits of domestic military deployment has brought the legal and constitutional limits of domestic military deployment ‘into sharp focus’. There is not, however, confusion about the convention that the states have reserve powers to request military support; and the Commonwealth does not have unilateral power to send in the troops. This is widely accepted. To apply consistent naming practices, the last part would read ‘troops in NSW’s Berejiklian government during the summer bushfires and Victoria’s Andrews government reportedly repeatedly declined to accept the Commonwealth’s Morrison government offer of ADF support’.
By what we can only assume is coincidence, the unnamed governments are Coalition governments; and the named government is a Labor government.
The next sentence opens with the accepted convention about which there is, by the authors own phrasing, no confusion.
While states and territories would still need to make a request for ADF support, government sources with knowledge of the potential legislation say the changes will make it easier to deploy the military and clearly set out its roles and responsibilities. This would likely include giving defence personnel greater legal protections in the event they have to help police search a property or detain someone.
This is old news. In 2006, the Howard government passed Defence Legislation Amendment (Aid to Civilian Authorities) Act 2006 to amend the Defence Act 1903 (Cth) and provide ‘greater legal protections’. These ‘protections’ – for the military – include exempting ADF members from criminal liability (s. 51WB), with a federal override of state criminal codes (s. 51WA); and from wearing identifying name tags ‘during operations’ (s. 515(1)(b)). The government can designate infrastructure ‘critical’ and enliven legal use of force by the ADF to ‘protect’ it (s. 51T(2A) (see Head and Mann 2009 p. 415).
Recall that during the subsequent 2007 APEC summit, which saw police, private security and ADF stationed around the city of Sydney, Liberal Party politicians spent their time doing the numbers in a futile bid to crowbar John Howard – a man who was, in the words of Paul Keating, araldited to the seat – out of the PMO. Meanwhile, a group of comedians, one dressed as Osama bin Laden, breached the cordon so comprehensively that producer Julian Morrow, not security, turned their fake motorcade around.
The article then repeats the by now well-settled not-confused convention that states can request military support; and quotes a couple of experts who are all for ‘clarifying’ the ‘powers’. This is the ‘chain of command’ assumption that the military are an ideal solution to emergencies and disasters; and there are merely logistical and administrative issues to codify.
This is wrong. Even during the Blitz, the City of London appointed civilian marshals to manage air raid shelters. Australia already has an ‘army’ of volunteers doing a vast range of tasks, including fire brigade and SES volunteers who attend car accidents, bushfires, floods and cyclones other disaster sites.
Sydneysiders may recall that a central reason offered up for the abject failure to resolve the Lindt café siege more quickly and less fatally was command chain confusion. There is absolutely nothing to say that the military are better equipped to manage health regulations during a pandemic than civilian marshals; or that more laws would not further complicate the chain of command between police and domestically deployed military. In fact, the evidence points the other way.
Bearing in mind that the ‘sources’ for this story is ‘government sources with knowledge of the potential legislation say’, there are two more key points to note.
Under the changes, the law would be amended so the military could be called out to “national emergencies and disasters”, which would cover events such as bushfires, floods and pandemics. The callout would occur only if the Prime Minister, Defence Minister and Attorney-General agreed a state or territory was not able to protect the Commonwealth or itself against the threat.
The first sentence is the semiotic signal to shift from ‘natural disasters’ to ‘emergency [executive] powers’, which in jurisprudence – by which I primarily mean High Court case law – is closely, almost exclusively, associated with wartime measures. The second is a sap to ‘safeguards’, which will receive increasing attention if or when the story develops. The point is to focus on legal ‘protections’ that would be redundant if the executive were not expanding executive power in the first place.
And then the clincher, and this is classic Morrison. It leads me personally to suppose that the ‘government sources’ for the story are Morrison staffers.
The government wants to make the changes to the Defence Act ahead of this summer, but it will await the findings of the Royal Commission into National Natural Disaster Arrangements, which is due to hand down its report on October 28, before making the changes. Other changes that will streamline the callout powers for ADF reserves will be put to Parliament earlier.
Apart from the inherent climate denialism of labelling last summers catastrophic fire season a “natural” disaster, this is why the ‘bushfire’ Royal Commission – a nickname suggested on the home page of the Commission itself – was tasked to investigate “national natural disaster arrangements” and a military man, Mark Binskin, instead of a scientist, appointed Royal Commissioner. It may produce a useful body of evidence on bushfire managements – and I am sure it will – but the political purpose is, and was all along, to provide rationalisation to expand ‘emergency’ executive power. In other words, to never waste a good crisis.
The article is bookended by yet more Morrison perspective. This bit is about what the prime minister “believes” is “a community expectation”; and is the most common technique used by political operators enjoying the vast reach of incumbency. What this statement amounts to is the head of executive government stating his desire for more executive power, and attributing his desire to the people, backed by nothing but a statement of his belief.
Prime Minister Scott Morrison said in January he had been “very conscious of testing the limits of constitutionally defined roles and responsibilities this bushfire season… I believe, however, there is now a clear community expectation that the Commonwealth should have the ability to respond in times of national emergencies and disasters, particularly through deployment of our defence forces in circumstances where the life and property of Australians have been assessed to be under threat,” he said.
Regardless of what Scott Morrison says about community expectations, the reality is that he wants to expand militarisation of Commonwealth government responses, as he did to refugees, as he is on the climate crisis and, handed a pandemic, to that as well.