Samuel White:

The film will start now.

Cathie Oats:

Good afternoon everyone and welcome to the National Library of Australia. I'm Cathie Oats, the Director of Reader Services. I'd like to begin by acknowledging Australia's First Nations peoples as traditional owners and custodians of this land and give my respects to the elders, past and present, and through them to all Australian Aboriginal and Torres Strait Islander peoples. Thank you for attending this event, coming to you from the lands of the Ngunnawal. I'd also like to take this moment to just to remind everyone to silence any mobile phones. There's nothing worse than us listening to your wonderful inventive and very creative ringtone just at that moment. So please check your phones. This afternoon's presentation 'Keeping the Peace of the Realm' is by Dr Samuel White, an honorary 2025 National Library of Australia Fellow. Our distinguished fellowships programme supports researchers to make intensive use of the National Library's collections through residencies of three months.

National Library of Australia Fellowships are made possible by generous philanthropic support. Dr Samuel White was a postdoctoral research fellow at Adelaide Law School and is now an adjunct Professor, associate Professor at Adelaide University. Prior to joining academia, he worked at the Office of International Law in the Attorney General's Department across a range of national security matters. Dr White has also served as both a Royal Australian Infantry Corps and an Australian Army Legal Corps officer in a variety of technical, operational and strategic level postings. He holds a rank of Major. So in his presentation today, Samuel will discuss his recent fellowships research focused on the historical use of military call-outs and the decision-making processes behind deploying troops in Australia. Please join me in welcoming Samuel White.

Samuel White:

Just lift that one up a little bit. There we go. Hello. So this is going to be a crash course in constitutional law, which most people tend to go to sleep. And my wife who's quietly sitting at the back there has photos of me reading the Constitution to our daughters to put them to bed. But I promise you, today you will not fall asleep. Okay? Because we're going to get into the nitty gritty reality of constitutional law, which is actually quite fun. Before that, there are a few thank yous. First one is the Library. I started this in 2024. Life got in the way. We moved to Singapore, had a kid, oh sorry, have a kid on the way, moved back. And I just wanted to make a very special mention of my father who died two weeks ago now. And dad was one of my best friends.

He also instilled in me a very strong love of history. He was a veteran from Vietnam. He was made totally permanently incapacitated through PTSD. And so he found his way through life, through history. He was the one that kind of pushed me down this way and inspired it. So I just wanted to make a mention of him. The other person, perhaps not the same level as my father, is Ella, who's sitting next to my wife, and she'll hate that I'm calling her out on this. But Ella was the one that promoted me to go look at the Library records and to actually see what people were writing and thinking about, rather than keeping constitutional law very black letter and dry. Now, when we have something as simple as what you have on the screen behind me, it's obviously raises quite interesting political decisions, but it also raises quite interesting constitutional decisions.

Does the New South Wales Premier have the authority to send in Commonwealth troops? No. So he wouldn't rule it out. Lovely. That means nothing constitutionally. In order to understand these decisions, and it's a pretty big decision, in fact, some would say it's the biggest decision there is to send in the military domestically to kill Australian citizens. It's a huge decision. It's one that the founding fathers, and they were men, were obsessed with. We think about Lindt. There was in the review after the Lindt Cafe, big decisions, big questions. Should special operations have gone in? Is it a state or a federal problem? What is the line? But there's also a public expectation when there are floods, bushfires, et cetera, that defence will be there. And when defence isn't there, and it's not their call, there is public criticism. It starts to get a little bit pointier as well.

Operation COVID Assist. ADF troops on the Queensland border stopping me from getting back home. Who owns that decision? Is that a federal problem or a state problem? Now, we were very clear during COVID that those ADF members walking around in uniform were purely citizens. They had no powers more than you or I to stop someone crossing a border. But the reality is a bit different, of course. The uniform means something. Vice versa, when Alice Springs was having troubles in 2025, it was very clear, and I say here, "It's not the army's job to go in." Now, of course, Alice Springs is within the territory, not a state. What we're talking about here is the problem of federalism. Federal government is a very deliberate choice, and it was a deliberate choice in 1901. Federal government means weak government. That was the phrase at the time by AV Dicey. You choose it because you want a weak central position.

And we'll get into the nitty gritty and I hope everyone brought their Constitutions as per the Eventbrite description. But when bushfires were happening and Scott Morrison couldn't hold a hose, what he really was talking about, an attention point here with the ABC was federalism. Who holds the authority to send in troops? Now the question, you need state permission to do that though. The answer is, "Well, we're acting under what I would call a very agreeable environment. The states are happy for us to be there." The implication is, what if the states said no? Fast forward, COVID, Dan Andrews. The ADF is sitting in Albury. They crossed the border to Wodonga. Dan Andrews says no. They crossed back to Albury. Now, what if the federal government had not listened to Dan Andrews? What if they had just sent the troops in to Victoria to enforce a public health, a quarantine?

These are constitutional matters that go to the heart of power. And if you can take one thing away from today is that constitutions are about power and who wields it. Each constitution is different and it is a very deliberate choice on how you divide that power.

Now, last year, UNSW Canberra did a study across everyone. In the people that they were interviewing, 83% of respondents suggested that they supported the use of the ADF during national emergencies. So what I did in the National Library Fellowship was rather than looking at the black letter law, because I had done that during my PhD, I was interested in what were the people who made the decisions, the executive. What were they thinking when they sent troops in? So to do that, I looked at their diaries, their personal papers, interviews if they were later prime ministers, trying to figure out what were they thinking when they sent in the troops. If you agree with me, one of the biggest decisions you can make.

Now, what came out of it was actually some sub-questions. It made me question again, what's the constitutional role of the ADF domestically? And also how does our Constitution and how it was drafted make us respond to national emergencies? Was Scott Morrison correct when he said that we were working at the edge of the constitution in the bushfire operation? All right. Pop quiz. How many sections in the Constitution? It's not big. I think it's five bucks. I'm sure you can pick one up at the National Library somewhere. Okay? There's a lot of history behind why we have a federal system. Obviously, the states were sovereign. Canada has a similar system. The UK is not a federal system. The United States is. There's a great line that we want to be more British than the British. So we wrote down our Constitution. The United Kingdom's Constitution is unwritten.

Okay? So we take that half. We take the US and we say, "That's a pretty good system." Merge it together. Some of the first high court cases are the high courts saying it's physically impossible for you to merge the two systems together. They're incompatible, but we'll do it anyway. Right? So we're stuck in this system and defence is the number one driver behind the Constitution and Federation. Quick and Garran, famous constitutional writers, they make a quick buck when federation happens and they publish how the Constitution is supposed to be interpreted. Right. Forces have to be under one command. You can't have National Guard, unlike the US. In order to do that, one government, one system of taxation by parliament. Defence is the driver for our Constitution.

Tasmania does exist. I apologise for anyone online. It just didn't translate over here. But when we look at federation and a federal system, there's actually just one bit you have to look at in the Constitution. It's section 51. It's really boring. Don't look at it. But what it does is it outlines all the things that the federal government's responsible for. Marriage, quarantine, excluding aliens, stopping the influx of criminals. Defence. Telecommunications. Okay? Anything that's not in that, that's a state problem. Famously, public order is a state problem. A bomb goes off. That's a state problem, not a federal problem.

Small government, weak government. States are supreme. That is how federalism should work. In Australia, we have not followed that original intent. States are very happy to give up responsibility and refer it to the Commonwealth. They can hide behind the Commonwealth. But when a bomb goes off, that is a state problem, so says the Constitution. Now, I promise you, this is it for the Constitution. Only bit you have to know. Okay? Section 51, you can pass laws about defence. Cool. That's how the army is made. Happy. Section 61, that's important. All the powers of the Queen, that is a executive power. That's what I'm looking at. Executive power. Section 68, the Governor-General is Commander-in-Chief. What on earth does that mean?

Section 69. All military forces in Queensland and the states, because Queensland used to have its own military. All the states did. In 1901, they get referred to the Commonwealth and now we have one central military. There is no longer the royal Queensland regiment. There is just the Australian Defence Force. 114, you can't make a new army in the state. Okay? That's important. And all of that combines at the end of the Constitution to 119, what I call the guarantee clause. A federal guarantee that you gave us your military. You can't raise your own. That we shall defend you against invasion. And if you ask against domestic violence. What on earth does that mean?

Well, these are the only two authorities, 61 and 119, that we have to worry about. 61 allows the Commonwealth to do stuff without passing a law. Filling in sandbags. Bushfire, Lindt Cafe. 119 stops the Federal Government from going into a state, right? It makes sense. I give you my military. You promise to protect me. You can't just do whatever you want to me. That's how the Constitution was written. The big 'so what' is what happened next. So almost immediately after federation, people are scratching their heads trying to figure out how on earth this new military system works. These are in the National Archives, requests from the states to figure out what the hell domestic violence means.

This is the first time that a request is made. Torres Strait, a white artillery officer who is afraid that Torres Strait Islander sea men are going to riot on Thursday Island because they want equal pay. And he's asking, "Can I shoot to kill?" I'm not convinced I'll be able to hold Thursday Island. What do I do? We used to be able to do it under 57, Section 57 of Queensland's Act, but I don't have that anymore. And so the Commonwealth writes back, "You can only do something when the state asks, sit tight, wait for Queensland to request help." That's when you can deal with domestic violence. Okay.

Makes sense. So what is it? Well, we're not very original in Australia. We just copy pasted the US Constitution and the US Constitution makes very clear that the federal government can intervene in domestic violence. Unlike us, they've actually had cases on it. Domestic violence is a local uprising and insurrection, internal unrest. Okay. There's lots of fancy legal work you can do, but it pretty much means a giant riot that the state feels un,incapable of dealing with. Fast forward, 100 years. We now have a law in Australia that says if domestic violence is occurring, you have to use the Defence Act. So what about all that stuff that's below domestic violence? A little riot, not a big one. Someone stopping federal trade, stopping people from voting. There's a really big tension point here. And it's a tension point that came up quite early in the piece.

So 1909, Broken Hill, big, big strike. Okay? Andrew Fisher, famous for two reasons. First Labour Prime Minister. Sorry, three reasons. Famous first Labour Prime Minister was 31 when he was made Prime Minister, very young. He wasn't part of writing the Constitution and he wore red socks and everyone hated that because it was very outrageous. He gets asked, "What will you do if New South Wales asks for you to crush the strike?" Keeping in mind that Labour is very pro strikes. He says, "Won't help us. Probably not a good idea. My hands are tired. I have to send in the troops. If I'm asked, we will see the law carried out." Right. So why on earth did he deny it?

Three years later, liberal Queensland government wants to put down a strike in Brisbane. They write to Fisher and they say, "Send in the troops. We promised you the troops 11 years ago. Send them now." Fisher says, "No, not going to do it." People lose, and excuse my French, lose their shit.

Deakin, Barton, Griffith, the men that were really instrumental in writing the Constitution, we can find them debating in hansard with Fisher saying, "The system will break if you don't send in the troops. The states didn't give you their armies for you to say no. You must do it." Makes sense. Fisher says, "No, never going to do it. The Labour Party has passed a motion that we will never intervene in industrial strikes." So, I'm a Queenslander, quite proud of this. Queensland writes to the Chief of Navy and says, "Bomb Brisbane. Disregard the Prime Minister. Bomb Brisbane." Chief of Navy writes back saying, "I'd love to do it. Probably can't. Sorry. Prime Minister said no." Queensland says, "Don't worry about that. We'll write to the Home Office." And they asked London to send HMS Warship, great name, to bomb Brisbane. They originally say yes, but it gets overruled.

Let the colonials deal with it themselves. They have to figure it out. And so begins a very interesting history. These are all the times that a state asked for the Commonwealth to send in troops. Okay? Domestic violence is occurring. Please send in the troops.

First time, 1919, that it gets approved. Japanese pearlers off Broome is a great idea by the WA Government that why don't we let them do the pearling and then we send a warship and we steal the pearls and we don't pay them. And we think that they're going to riot, so we need a Commonwealth ship to make sure that they go away. Now we don't find that in any records. We find three years later when they say, "It works so well the last two years, let's do it again." And the Commonwealth says, "No, we're not going to do it again." Okay? So we know that there has been a call out. The yellow one is one that I found at the National Library. The other ones were part of my PhD.

I'm not going to talk about this one because it's just in a one transcript, but there's a riot in Fremantle jail. A request gets put in at about 11:00am Perth time, 11:00pm Perth time, 2:00am Canberra time, it gets missed. That's all that they say in the reports. "Sorry, we missed it. Okay, you guys resolved it yourselves. We're not going to get involved." Much more interesting is when the Commonwealth, without a request, sends in the troops like Trump is doing in Minnesota. Same system, same legal debates. Okay? Yellow is stuff that I found during the National Library fellowship and stuff that I want to talk about. These are the interesting moments that the executive, the Commonwealth executive, has decided that without a state request, they're going to send troops into a state.

There's quite a lot. Now, you don't have to read all of that, just the bit down the bottom in bold to make it easy for you. Tasmania wants to dam the Franklin River. The Commonwealth says no. Tasmania says yes. The Attorney-General authorises the RAAF to fly spy flights over Tasmania to take photos of Tasmania breaking Commonwealth law. Cloud covers huge. The pilot dips below and buzzes them, and the argument is that the Commonwealth is spying on the states. And the Attorney-General stands up and says," What's the issue?" This is a non-issue here. It's Commonwealth law that you're breaking. I'll use Commonwealth assets. So we find an interesting moment in history. I mean, it does cause a bit of a public affairs issue, but constitutionally is fine. You can also be cynical and say the Attorney-General was marking his own homework. Of course, he would say it's legal, but let's look into it.

So the way that I did this at the National Library, I went through personal papers of the people that were making the decisions and some oral transcripts. I was interested in any time that the ADF was being contemplated to be used, either in force, i.e. Shooting someone, or to enforce Commonwealth law, like taking the photos, the spy flights. Okay?

I built off work that I had done during my PhD where there were 41 historical incidents, those tables that I showed you, and I found four new ones. There was quite a fair bit to go through, so I've just tried to do little ones or perhaps the ones that I thought were most important to what people were thinking. Okay. So in 1916, Australia's at war. There is a debate about conscription, not Vietnam style ballot, but that every man between 18 and 60 should be enlisted in the army and sent to fight. Massive referendum. Tasmania is actually quite pro-conscription. A bomb goes off in Hobart, a call-out request is made. Send the troops, Billy Hughes, to shoot these protestors who are saying no to conscription. Okay? Why did he say no? Well, to start with, there's a lot of pressure on Billy Hughes, we find in the personal papers that the Home Office thinks there's roughly 400,000 Australians who should be fighting on the Western front and that for empire to continue, Australia should meet its obligations.

Hughes writes to Murdoch saying, "I'll pay you a lot of money to get the word out there on the Western front for Australian troops to vote yes to conscription." There's a lot of pressure on him. He desperately wants this to go ahead. The day before the bomb, General Birdwood writes to Hughes saying, "I need more men or we will collapse." Murdoch says it's very unlikely that the men will vote yes. And then the bomb goes off and he says no to sending in troops. Why? Well, to me, it seems pretty simple if he doesn't have enough troops to be sending to the Western front, how on earth can he waste troops sending them to Tasmania? It's also politically dangerous to be sending troops in to quell a riot in Tasmania based around the use of military force. These pamphlets that you can see really got to the heart of why people were afraid of conscription. When would it end?

But we find immediately after the bomb that the Commonwealth starts trying to investigate having federal police. There is nothing in the Constitution and there was nothing imagined when the Constitution was written about federal police. If you want to enforce the law, use the military. That is how the Constitution intends for the Commonwealth to exist, not to have federal police. So we start to see people within the military investigative branch, which becomes eventually special investigation branch, talking about how we really need a federal police force. And it comes to a head again in Queensland, which features quite heavily in this story, where an egg is thrown by a Queenslander at Billy Hughes. Billy Hughes says, "Arrest that man" to a sergeant, a Queensland sergeant, and he says, "You have no authority over me. I'm not going to arrest him. Crack on." Again, Hughes is outraged. How do you enforce Commonwealth law without doing the thing that looks bad, sending in the military when you don't have enough troops?

There is no answer at this time. We fast forward. 1923, Melbourne is the Capital, Canberra and all its glory doesn't exist yet. Victorian police go on strike. How are you supposed to keep law and order?

Victoria writes to Senator Pearce, who's the Minister for Home and Territories, saying, "Look, let's not do all this fancy footwork with the Constitution. I don't think domestic violence is happening yet. What I want you to do is march the troops down the street of Melbourne to scare the civilians and then look after Commonwealth property." Very technical, Pearce writes back and says, "No. I'm not going to do a show of force. Put a request in and we can send the troops to help you. But I will protect Commonwealth assets. I will put troops to protect the Commonwealth properties." Great. We're starting to see already this tension between the federal police not existing yet. How do you maintain control over Commonwealth assets without tripping up the states? So they bring out of retirement Sir John Monash. They authorise close air support so Monash can bomb Melbourne if he needs to.

And Monash controls 5,000 special constables, mainly ex-soldiers that are given the powers of Victorian police. Not much is written by Monash. He's actually quite comfortable with it all. We just see that he writes in his diary, "Got authorised close air support." Not yay, not nay, just that it happened. We find in his papers though, soldiers, in this case a Colonel, reflecting the fact that they're getting shot at by Melbourne in Melbourne. I find that quite interesting because if that happened today, it would be front news, front page news. At the time, after the Great War, a couple are being shot at is a non-issue.

And inevitably, like any University, the Vice Chancellor writes to Sir John saying, "Can you please send the students back? It's going to cause too many bureaucratic issues if they miss their exams." It starts to accelerate quite quickly. Post-war, the Commonwealth is very comfortable with having control and command of the military. It's easy after winning a war to just send troops to do things. The Freemantles strike in Perth, they won't allow Border Force agents to control the wharf, and it's very clear that the Commonwealth will send in the troops to Perth if they don't control it again. So it's not just waiting now for requests. The Commonwealth is very happy to threaten military intervention.

Oh, sorry. 1928, same thing happening in Southern Australia, South Australia. Here we see the sort of personal side. Sir George Pearce, this now is the Minister for Defence. He is a South Australian. A formal request comes in to crush a strike and he approves it, but puts limitations on ammunition. You can have military horses and equipment but I won't give you ammunition to shoot South Australians. Now, federalism shouldn't be dictated by what state you come from. That answer shouldn't change based on a Queensland Senator or a South Australian Senator, but I can't help but feel looking at the papers that if Sir George Pearce had been someone else, he may have approved ammunition.

The war's finished and the war's been done for quite a while. The Commonwealth is no longer big. It's shrinking. Their powers are shrinking constitutionally. There's no war to win. And so we find that the acting Prime Minister has his hands tied when he writes to the Minister for New South Wales saying, "How do we resolve communism?" We have legislation to stop the communists, but we don't have federal police. We don't have a federal prosecutor. We don't have constables on the ground to collect evidence. What are we supposed to do here? Can we please work together to beat communism?

It appears to me that the government of New South Wales has great political opportunity before it. You can do stuff that we can't. We're constrained by the Constitution, so says the federal government. You're not as badly affected by that. You can criminalise anything. We can only criminalise certain things. But that same year, and this to me was one of the biggest finds in the fellowship. In that same year, the tune changes. Western Australia has just successfully won its referendum to secede. This is on the day of secession. Following for the Prime Minister. In view of feeling excited by the secession campaign, I have arranged certain precautionary measures in respect of principle Commonwealth buildings. Have also arranged that any urgent and secret comms go through subsided. Please inform Latham signed Pearce. Latham replies, "Regret necessity, but crack on." What's this mean? It means that the Commonwealth is pre-positioning troops in Western Australia in case of riots when Western Australia secedes.

Obviously it doesn't ultimately secede. The Home Office says no. But there's a very big risk that WA will take the gold from the banks. They'll overrun the buildings. The Commonwealth here is pre-positioning its troops through subsided, and that kind of led to one month of my fellowship trying to figure out who or what subsided was. In short, subsided was a secret programme by the federal government without federal police. They would put agents within state police force and have them double-hatted. You would be both a Queensland sergeant and a federal employee. There was no federal police. This is a consistent problem coming up. How do you enforce federal law? Well, you spy on the states.

1919, this is where we find another call out. Red flag riots in Brisbane. This time, it's a Labour government in Brisbane. They are pro red flags. The returned servicemen from World War I haven't spent all those years in the trenches to have communists take over Queensland.

The head of the Returned Serviceman's League writes to the Premier of Queensland saying, "If you don't stop these, we will and we'll push you aside if we have to." These return servicemen are also funded by the Commonwealth. The Commonwealth at the same time is giving weapons to loyal families. It is funding return servicemen with whiskey and military vehicles to get them to the point so they can lead the riots. Now, is that in accordance with Section 119? No. That is pure executive power. Funding people to fight people, stepping around the massive political drama that is sending in troops.

And so we find from subsided, writing to the Commonwealth and subsided here is a Queensland constable double paid by the Commonwealth. Theodore, who's the Premier, is going to make a request for support. He's also starting a labour volunteer army and he's not being honest. He's going to try to have his cake and eat it too. He'll get the Commonwealth troops to come in, but he's also creating his own private army. Now, obviously Section 114 prohibits your own private military, but we find here in 1919, just seven years after Queensland's request has been denied for a call out that the states are taking matters into their own hands. It's a dangerous moment, a very dangerous moment.

Now, obviously, we haven't had a civil war in Australia, and the last time that contemplation of a call out occurs is after 1933. That's a state request. And what happens? Well, the federal government creates its own jurisdiction for an arbitration commission. A federal arbitration commission. If someone has a strike, you don't have to crush them anymore with troops. You send it to court. Great as lawyers. Okay? Wonderful. Everyone makes money. It also is politically more palatable. You can just send it to court. So then why do we continue to have call outs, but not from a state, just the Commonwealth? And when we look at the dates here, it corresponds to the Second World War. The Commonwealth, when it's at war, is very happy to send troops domestically to crush strikes. Two reasons. One, it's politically more palatable, I would say. The military is working overseas. It's okay to maintain the war effort at home. Secondly, World War II is a fight to the death. There is much more social licence to use defence domestically.

So then this is the last one I'll talk about, and it is a massive moment in constitutional law. Australia wins Papua and New Guinea after the First World War. It becomes a mandated territory, so it's not a state. It's a territory. It means the Commonwealth can do things. Massive gold mine in New Britain and specifically on the Gazelle Peninsula, there are squatters, New Guinean squatters. They're not willing to get out of the way of the mines and they want their land back. So we find uniquely in the archives here, both the Administrator of the Territory of New Guinea, the Premier, the Prime Minister and the Governor-General reflecting on why they authorised a call out. It's a big moment.

As early as 1966, there was fear that New Guineans would revolt. Why? Although they were technically Australian citizens, they weren't allowed onto the mainland. They weren't paid the same. They weren't even informed they were citizens. Education was starting to cause a lot of riots and demand for equal pay. Defence gets tasked to create plans on how to crush a secession uprising. The Administrator of the Territory, Sir David Hay, in an oral transcript in the National Library, reflects on what was to be his biggest moment as Administrator, seeking and ultimately getting approval for white troops to shoot to kill black Australian citizens preemptively. So not waiting for the riot to happen, but to preauthorize the use of force. Big moment.

They redefine what domestic violence means. It no longer means an actual riot happening, but it means that a sizable and continuing disturbance, sure, or clear danger of a disturbance. They reinterpret the Constitution. They reinterpret how troops are supposed to be used. Sir David Hay is not particularly happy with that. There are 3,000 troops in Papua New Guinea. Why do we have to do this? Why do we have to pre-authorise? Surely we can wait. It's not like there are only 12 troops. We have sufficient men if something happens. So why? Well, the answer we find with Sir John Gorton, the Prime Minister, sitting in Canberra.

There's a clear disturbance going on for the Prime Minister. There are squatters on the land. People aren't respecting Commonwealth law. And so we get the reason we couldn't afford to keep the police there. They cost too much to send to the territory. And we weren't sure that the police could, if the balloon went up, deal with it. So we had to get the army, which was an Indigenous army, because in New Guinea, they had their own military, the Pacific Island Regiment. It wasn't part or allowed to come to the Australian mainland. It was filled with New Guineans and white officers to keep control. There was no confidence that the Pacific Island Regiment would shoot to kill their own people.

So the Commonwealth and Cabinet decides to get pre-authorisation to send white troops up to New Guinea in case of a riot or secession. And here we find it, the Governor-General says, "I can't do this. It's a terrible thing to do." That's not the Governor-General's job. The Governor-General signs and here we find Sir Paul Hasluck saying no. So what to do? Sir John Gorton sends the Attorney-General to New Guinea to fly around, come back and report. It's important. The Attorney-General provides the legal advice. Tom Hughes says, "Yes, we have to authorise it."

And I think we get to the real heart here. The Prime Minister reflects, "I was disturbed at the thought of a lot of white people in Rabaul, which is New Britain, and other countries like that, suddenly being involved with spear carrying axe-wielding people who could walk in on them and were just mad." 1970, black verse white, the Constitution is reinterpreted. The Governor-General says, "Yes, you ought to do that" and we did. Now, finally, we look at the papers of Sir Paul Hasluck, the Governor-General. As is appropriate, he didn't write down his thoughts on the matters, but we do find a year and a half later after he has authorised a preemptive call-out, reflecting on the role of the Governor-General.

Keeping in mind the Governor-General is the Commander-in-Chief. Section 68. I said we would come back to that. The Governor-General commands the Army, Navy, Air Force. Not really though. Constitutionally, yes. But they have command power, right? So what's their job? To make sure that all the actions of government are constitutionally correct and lawful. You can't rely upon your own opinion, even though he did. This is a terrible thing to do. We shouldn't do it. They act in accordance with advice. Some of my duties involve Section 68, the Command-in-Chief power, but it doesn't mean anything. It's just a title. So why did Sir Paul Hasluck say no? Was that constitutional?

Well, Sir Paul says that various steps are open to him, the Governor-General. He can ask questions, he can seek information, call for additional advice. That's what they did through the Attorney-General. They can send things back to the Executive Council if necessary, but ultimately you have to sign. That's their job. Right. So what? What do we take from all of this? As I said, at the start, what were the people thinking when they made these decisions to send in troops? Ultimately, not much. That's probably more terrifying as we reflect on it. But it also makes sense constitutionally. You don't have the federal police. You don't have a federal arbitration commission. Someone has thrown an egg at you. What do you do? Well, you either shoot them all with the military, which is probably bad news and it's a bad PR day, or you do nothing.

So something has emerged in that gap.

Equally, there's a constitutional prohibition on raising your own military forces, and yet for anyone that's lived in Sydney and seen Sydney police driving around in their giant armoured vehicles, we hit a point where states have expanded to fill the gap. Under legislation, there's this thing called Part three AAA of the Defence Act. It's highly technical. This is the trigger to send in the troops if domestic violence is occurring, right? And this is how it exists today. You can send in troops domestically in Australia if domestic violence would or would be likely to, and we see New Guinea playing in there, to affect Commonwealth interests. If there is a threat offshore to a Commonwealth interest onshore, or if domestic violence is occurring. You can also do it if a state asks you to.

What though for emergencies, bushfires, that clearly don't meet this threshold of domestic violence? When troops are in there, cleaning up after a bushfire, cutting down trees, COVID, do they really just have the powers of a citizen or do they have more? Well, the Royal Commission after the bushfires was very clear that the ADF were spontaneous volunteers, and I just think that is bullshit. How can you be spontaneous if you're planned for? How can you be a volunteer if you're ordered to be there? We put soldiers in a really hard position. There is a clear public expectation and a clear history of sending troops in to enforce Commonwealth law, and yet we say they're just citizens.

We find in the National Archives, Major-General Alan Stretton, a two-star General in charge of cleaning up after Cyclone Tracy. And he says, "Now at the time, no one worried about legal niceties. The only thing that mattered was the lives of the people in Darwin. You know though that I had no legal powers, even though people assumed I did." Stretten's whole tactic was to make people afraid of the uniform and that we could arrest them to stop looting. That's a pretty unconscionable position, I would say, both from a government policy and for soldiers on the ground. And by that, domestic operations have only continued to grow. COVID, bushfires, floods. There is a opportunity here [unclear] work that I've done just reinforces the fact that there is clear constitutional authority for there to be some level of protection. If we're going to use troops and if there is a public expectation that we're going to use troops, then surely those troops should have some protection under law.

Thank you.

Cathie Oats:

So thank you, Samuel. That was an incredible talk and covered so very, very much. So thank you.

Samuel White:

And I don't think anyone fell asleep, so

Cathie Oats:

No

Samuel White:

Constitutional law is cool, guys.

Cathie Oats:

They're all still awake. I can see the eyes. We do have some time for some questions. So please raise your hand if you'd like to ask a question. Wait a moment because the microphone needs to come to you because we are recording. So who's going to be the brave soul that goes first?

Audience member 1:

I probably missed something along the way there, but there were several mentions talking about Tasmania about the bomb. I'm not aware of what the bomb was.

Samuel White:

Sorry. On conscription day, on the day of the referendum, when people were turning up to vote, and I believe it was in Launceston or near there, a anti-conscription campaigner placed a bomb that exploded and killed a few people. And so Tasmania requested specifically the Commonwealth to come and protect it against the domestic violence, which was the bomb going off. And Billy Hughes said, no, you can deal with it yourself.

Great. Oh.

Audience member 2:

[unclear] The Governor-General is constitutionally Commander-in-Chief, but he can only do that if he's done what he's told. Who is effective Commander-in-Chief?

Samuel White:

So the way a defence works is you have the Commander of Defence Force, CDF, and sitting next to them, it's called a diarchy, you have a public servant, so they both command and control. Now, CDF gets their command authority constitutionally through the Governor-General who says, "I allocate to you the ability to run defence." So practically speaking, if anyone's watched Secret City, which makes Canberra look pretty cool and sexy, right? There's a scene where the Minister for Defence orders a Corporal to tell them the truth, right? And that Corporal can very rightfully say, "No, I don't take orders from you. I only take orders from the military." If you want to send out the troops, it goes to the Governor-General as Commander and then it goes down that way, which is what makes it even more fascinating when Gareth Evans as Attorney-General ordered the Air Force, wasn't Minister for Defence, the Attorney-General ordered the Air Force to fly spy flights on Tasmania.

And I've never managed to find out how or why. I think it was no one really cared. It was the '70s.

Audience member 3:

Hello.

Samuel White:

Hello, James.

Audience member 3:

Hello, Sam. This leads me to actually piggybacking off that question to a degree. You mentioned when you do look into this, right, what were they thinking? Well, I don't know, not much. And what did they write down? I mean, definitely not much. And that seems certainly from when I looked into similar things or 78, the barrel call out. Well, what did we write down? Not much. I'm wondering, you know, to the degree to which your research has uncovered that this is a bit of a, let me just say, the people of the executive, the Prime Minister, the Attorney-General, their thinking is behind closed doors, off the page, right? The degree to which that sort of thinking can or should be captured by constitutional law. Does that make sense?

Samuel White:

Yeah. So I feel like the difficulty for lawyers is that we love black letter law, right? It's so easy. Section one says this, section two says that, and that's why I was trying to step outside of that and figure out what people were thinking. Now, they talk about the founding fathers of the Constitution who wrote everything, but I also think quite importantly is the first generation or two after federation because that's when the precedence through actions are being established. Fisher says, "I have no choice. I have to send in the troops." And yet three years later says no. And then successive governments feel empowered to say no to call outs. I think Sir John Gorton's thing there about, "I was terrified that white people would be killed by axe-wielding spear-throwing natives" speaks to the heart of those constitutional shifts. If your question is, should Ministers be required to write down their thoughts and put it into the archives?

I highly doubt that'll ever happen, nor should it perhaps. Ultimately, you're held responsible by a vote. And that's kind of how our system works. If you didn't think that New Guineans should be shot, then you would vote the government out. That's how representative government works.

Audience member 4:

Hi, Sam. Thank you. I don't have the right words to ask this question, but I'm going to try ask it anyway. You're talking about how the outcomes or possible outcomes of these historic decisions, whether or not they happened, might result in, you know, a bad press day for certain people. I wondered if, was there much public awareness of what was going on in terms of these kinds of decisions being considered at the time? And if there was public awareness, what was the sentiment in response?

Samuel White:

Well, yeah. So yes, none of this is secret. As sort of more national broadcasting comes about, you can see Cyclone Tracy's destruction and you can see the army there on the streets helping with all of that. I guess the bigger ones in terms of when strikes are being crushed by the military, there is a lot of writing. And within the personal papers, for example, there was a strike in 1920 in Brisbane over the Meat Factory and Premier Gair refuses to send in the troops, he's Labour, but he does send the Queensland police in to steal the records of who are in the unions, which is a pretty bad move, right? If you're a Labour government and you're breaking the Union secrecy. His personal papers that he kept until he died about that high, full of telegrams telling him he's the worst person in the world.

I think he took it quite deeply. People knew what was going on. People know when troops are going in to cut coal in New South Wales and the state hasn't been asked, but the Commonwealth needs energy. People are very vocal in the newspapers, in personal telegrams they're sending to the Commonwealth saying what bad people they are. So we know what's happening. It's just more, I think we find a deeper divide politically. When Labour is quite clear that they won't intervene in a strike in 1912 in Brisbane, you can find in the personal papers of the Liberal Premier saying to other politicians, "I reckon Fisher's a communist. This is outrageous. I reckon he's helping the unions." And Fisher writes back saying, "Of course I'm not. No, that would be inappropriate." And then you find in Fisher's personal notes, him writing letters to the Union saying, "Keep it up. Good work. Bring him down." So it is quite political at the time.

I mean, huge riots all the time. And sending in the troops is an incredibly difficult decision. There's a phrase around this, which is, "Australians hold a deeply held but imperfectly understood reservation about the use of the military." We all deeply have opinions on it. Should the Commonwealth get involved in industrial matters? When does Commonwealth law need to be enforced? How should federalism work? It plays out when we see troops in COVID on the Queensland border stopping me getting home. Is that their job? Do they have powers? Why are they there? What's the authority?

Wonderful. Thank you very much for the opportunity.

Cathie Oats:

Thank you. Thank you. So of course, I would be remiss if I didn't tell you about our next fellowship presentation. It's actually on early Philippine palaeontology.

Samuel White:

Very similar.

Cathie Oats:

Very similar. The contributions of H Otley Beyer to Philippine pleistocene research. And I have to say, I have been talking to the researcher about this particular fellowship and it is astonishingly interesting. So I strongly encourage you to come along to see Dr Pauline Basilia at 12:30 on Thursday, the 30th of April, and you come along and enjoy. The website is the place where you'll be able to find this recording eventually and other recent recordings from our fellows, and they're also available on our YouTube channel. So this is one I think that will be worth rewatching. Thank you very much for attending. Please join me once again in congratulating Dr Samuel White for today's fascinating presentation.