Marching up and down the square!
The infiltration and advancement of the Delta variant through New South Wales has placed immense pressure on our Health and Police departments. This pressure has now reached boiling point and the Government has requested the assistance of the Australian Defence Force. While the ADF has a strong history of assisting citizens through natural disasters, the question here is what level of assistance can the ADF provide without impinging on our democracy?
In Re Tracey; Ex parte Ryan (3), Justice Hope stated:
“Use of the military other than for external defence, is a critical and controversial issue in the political life of a country and the civil liberties of its citizens. An armed disciplined body is in its essence dangerous to Liberty: undisciplined, it is ruinous to Society. Given that there must be a permanent Defence Force, it is critical that it be employed only for proper purposes and that it be subject to proper control.”
For law and order assistance, section 119 of the Constitution provides for the protection of every State against invasion and, on the application of the Executive Government of the State, against domestic violence. That means before the Defence Force can be deployed on Australian soil, there must be domestic violence for example an uprising like we witnessed in Washington earlier this year.
As it currently stands, the Defence Force has no statutory powers or protections when conducing COVID operations on Australian soil. Members of the ADF currently have the same powers and immunities as ordinary citizens. For example, if a member of the ADF deployed to assist in COVID compliance uses force to ensure compliance, they may be liable for damages.
Helpful context and NSW resources
- When ADF powers change: Formal “call out” for domestic violence is governed by the Defence Act 1903 (Part IIIAAA). Routine COVID assistance was provided under Defence Assistance to the Civil Community (DACC), which does not give extra policing powers.
- NSW Police & Health operations: See NSW Police operations updates and statewide health advice via NSW Health.
- Business support during restrictions: For non-legal support (grants, payroll & staffing), visit business.gov.au and Service NSW.
For tailored public order, protest and constitutional law advice in NSW, speak with our criminal law team or call (02) 8806 0866.
