Military Law and Executive Power

Abstract

Introduction <br/> The most powerful component of the executive government is the Australian Defence Force (ADF) because the executive ultimately relies upon military power to enforce its will. This has been the case since at least 1066: Moore C Crown and Sword: Executive Power and the Use of Force by the Australian Defence Force (Moore) 7-8. Much of the character of executive power in a military context derives from the tension between the military having sufficient power to execute the will of government but not too much, so that the military remains subordinate to the executive of civilian ministers drawn from the democratically elected civilian parliament. Executive power is the principal source of authority for the ADF to carry out the functions of commanding its forces, fighting wars, defending the realm and conducting peace operations. It is the only source of authority to kill or capture the enemy in war. Even in domestic operations such as maritime law enforcement, aid to the civil power and emergency assistance, where the use of force is regulated primarily by statute, executive power is a significant source of authority. Positioning of forces and even the use of force in situations which statute does not address may rely on executive power. <br/> Executive power is actually a broad term for power exercised by the executive branch of government. It can range from the mundane, such as purchasing stationery, to the profound, such as invading another country. The actual authority for such executive action is to be found in the following sources most relevant to the ADF.