Keeping the Peace of the iRealm

Abstract

<p>Digital connections and the ubiquity of cyberspace have undermined Australia's historic defence system: our distance from other nations. Increasingly, this new vulnerability is being covertly exploited by foreign actors. Accordingly, the Commonwealth government has determined that the Australian Defence Force ('ADF') is to prepare to counter these new threats in the grey zone. Yet, little has been written on the legal authorities for, and constraints on, the utilisation of the ADF in this context. This article explores one microcosm example of the multitude of threats that Australia might face in the coming century - foreign interference operations targeting domestic voting infrastructure and the information environment.</p><p> This article will canvass the viability of the internal security prerogative, the so-called sister prerogative to the war prerogative, to authorise the use of the ADF in counter-interference operations. This is an important area to explore, noting that interference operations will often fall within the 'domestic violence' threshold for the ADF to be permitted to be called out under pt IIIAAA of the <i>Defence Act 1903</i> (Cth). This article first looks at the nature of the internal security prerogative of 'keeping the peace of the realm', and how it is constrained by federalism in the Australian context. This requires a historical exploration of both Anglo-Saxon and Australian domestic military deployments. This article then explores the principle of desuetude as a rule of extinguishment, and whether it is applicable to this little-used prerogative power. It then concludes by arguing for a re-interpretation of the legal foundations for earlier ADF operations - such as the Bowral call-out in 1978 and the 2002 Commonwealth Heads of Government Meeting ('CHOGM') deployment - in accordance with the prerogative, rather than under an implied nationhood power.</p>