Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force

Abstract

The Australian Defence Force (ADF) has considerable power at its disposal. It is physically more powerful than any other organisation in Australia. This is hardly surprising when it has the task of defending the country, conducting warlike and peacebuilding operations overseas, enforcing maritime legislation, and providing a degree of internal security. Yet only a minor proportion of this activity is authorised by an Act of Parliament. In fact, some of the more extreme powers currently exercised by the ADF, such as the offensive use of lethal force, deliberate destruction of property, interception of shipping and detention of civilians, are actually contrary to some Acts of Parliament. The authority for such activity lies elsewhere. The scant literature on this topic in Australia would identify the executive power of the Commonwealth as the source of this extraordinary authority whether it is to invade Iraq in 2003, to conduct warlike operations in Afghanistan since 2001, to bomb Syria since 2015, to board shipping in the Arabian Gulf since 1990, to counter piracy off Somalia since 2009,to fly combat air patrols to protect visiting dignitaries in 2002 and 2003 or to occupy East Timor in 1999. In some senses, executive power as a source of authority for ADF operations is a new question.