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, that was jettisoned some 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 recitals 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.

In other words, 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 Liberal Party was established during an actual world war, self-evidently by men with more energy for political strategising 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.

And 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. 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 his 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. Across the south east, including most of Sydney and a few weeks later almost all of Melbourne, people moved about under a blanket of smoke.

In an increasingly familiar trajectory, the inadequacies of the Morrison government became so obvious that not even his legacy media cheer squad could ignore it. This was countered, as usual, by press gallery cover via the Liberal Party machine. It works like this. Liberal Party staffers and backbenchers pump out an endless stream of misinformation on social media behemoth facebook. From there it jumps, via government politicians with a public profile on friendly media outlets like racist Sydney radio station 2UE and Sky news, to the murdoch mastheads. Next, the hero narrative/outright misinformation is picked up and amplified by apparently serious commentators at ninefax and on the ABC, on the flimsy and irresponsible pretext that ‘arsonists’ or ‘Scott Morrison said thing’ are the big story 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 starts with distraction. For 2020, he began on 1 January by releasing a saccharine video of his wife and himself talking barely concealed evangelical gospel on facebook. This contemptible crap was disseminated via pay-walled murdoch mastheads.

Meanwhile 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 Harbour, the photo opp features a scowling Morrison surrounded by 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 Mallacoota. The Sydney tabloid front page featured this photo of 11 year-old Finn Burns steering a boat carrying his brother, mother, and the family dog to safety. The incredible picture, taken by his mum, flashed around the world.

Photo credit: Allison Marion.

Pressure was building on the prime minister to do something other than massage his image at the publicly owned and funded harbourside mansion while an 11-year-old child takes the tiller in a tiny family boat on the open sea to escape out-of-control fires.

And so we got the 4 January compulsory reserves call out announcement. 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 sandwiched between the usual streams of consciousness that marr Morrison press conferences. Throughout the rolling crises of his public life, many self-inflicted, Morrison is notable for garbled word salad, obfuscation upon evasion upon outright lies, and the jagged, jumpy, and rushed delivery of an extremely short attention span.

My ears pricked up because what I thought I heard was Morrison asserting that he sought and secured the authority of the Governor General, an authority which [purportedly still] includes uncodified “reserve powers”, to override the reserve power of the states to request military intervention from the Commonwealth in the event of disaster support being 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 not be forgotten that the Commonwealth retains power to send in the troops for political purposes to the Northern Territory: 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).

But back to 4 January. Ensuing discussion on social media turned up this very useful and relevant analysis (Fetchik 2012), sent to me by a former ADF 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.]

I recommend the above article by Janine Fetchik to those interested in more detail of the constitutional questions. For a more general explainer on the institutional arangements of Australian federalism, I wrote this earlier in the pandemic. In this post, I want to focus on a deeply ingrained pattern, on the publically available 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, another pattern – 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 another hallmark of Morrison’s career – see #Robodebt and the incredible work of the #NotMyDebt team here. And 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.

As the meme goes, he is a lying liar who lies.

Post-bushfire pandemic responses

Fast forward to the global pandemic. It is clear to anyone who looks that Scott Morrison has mishandled every aspect of the federal response. We the public have been spared the worst of his incompetence, selfishness and bone-idle laziness 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, parents, and children) on public schools, and continue to run #ScottySplaining (hashtag credit: Noely Neate @YaThinkN) interference on his hasty misjudgements and subsequent panicked pivots.

Leaving aside the domestic deployment of defence force personnel to date, because this post is 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 is 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 politicising incumbency, which, as we have seen, the Liberal Party has done since its inception. Clearly Morrison adheres to the political adage to never let 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. It is not an opinion piece. Both bylines 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, which I choose not to publish here, is captioned ‘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.

Next, the body of the article. The first two sentences are directly contradictory. By which I mean, the second sentence appears to contradict 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 military commanders AND politicians acting in their capacity as the federal executive, which seems like a lot of expansion of powers.

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. [original hyperlinks]

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.

Also, if naming practices were consistent, 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 in the article (Commonwealth and NSW) are Coalition governments; and the government identified by the name of its leader (Victoria) is a Labor government.

The next sentence opens with the accepted convention about which there is, by the authors own phrasing, by this paragraph, 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 thereby enliven legal use of force by the ADF to ‘protect’ it (s. 51T(2A) (see Head and Mann 2009 p. 415). This a foundational principle of the penal colony, by the way: use of military force against the people to protect [stolen] property of the state.

During the subsequent 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 prime ministers office (they failed). 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 Defence Act ‘powers’. [There is no comment from, say, pacifists. And the only named politican quoted is an 8-month old grab from Scott Morrison.] 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.

The assumption 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, and recruited thousands more for the Sydney Olympics, doing a vast range of tasks. Volunteer fire brigade and SES members are highly skilled and local community. They attend car accidents, bushfires, floods and cyclones, and 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.

There are two more key issues I want to highlight. One is that the ‘sources’ for this story are ‘government sources with knowledge of the potential legislation’.

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 a semiotic signal, designed to seamlessly shift from ‘natural disasters’ to ‘emergency [executive] powers’. In Australian jurisprudence – by which I primarily mean High Court case law – emergency powers are closely, almost exclusively, associated with wartime measures. The second is a sap to ‘safeguards’, which will receive increasing attention if or when this story develops. It highlights legal ‘protections’ that would be redundant if the executive were not expanding executive power in the first place.

Speaking of semiotics, a useful rule of thumb is that ‘protection’, in legal contexts, almost invariably means ‘control’.

The clincher is classic Morrison. It leads me to suppose that the ‘government sources’ for this story are almost certainly 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”. It is why a military man, Mark Binskin, instead of a scientist, was 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. Again, never waste a good crisis.

Finally, the article is bookended by yet more Morrison perspective. This bit is about what the prime minister “believes” is “a community expectation”. It contains 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, attributing his desire to the people, and backing this sleight of hand by nothing more than 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 doing on the climate crisis and now, handed a pandemic, to that as well.