© 2020 Thomson Reuters (Professional) Australia Limited for further information visit www.thomsonreuters.com.au or send an email to care.anz@tr.com Please note that this article is being provided for research purposes and is not to be repro- duced in any way. If you refer to the article, please ensure you acknowledge both the publication and publisher appropriately. The citation for the journal is available in the footline of each page. For information concerning permission to republish material from this journal, either in part or in its entirety, in any medium, please refer to http://sites.thomsonreuters.com.au/ journals/permissions. For general permission queries, contact LTA.permissions@thomsonreuters.com (2020) 31 PLR 423 423 Military Intervention in Australian Industrial Action Samuel White* This article explores the viability for the executive power to authorise the use of the Australian Defence Force (ADF) domestically, through the lens of military intervention in industrial action. It has become practice, when discussing the executive power, to delineate between breadth and depth – the latter of which is somewhat controversial. The article frst looks at possible courses of action that can be taken under the Defence Act 1903 (Cth), before highlighting the apparent gap where the ADF is placed in domestic situations that might require coercion or force, but the situation does not meet the “domestic violence” threshold required under Pt IIIAAA. It then discusses the non-statutory executive power – namely, the internal security prerogative and the implied nationhood power. The article concludes by advocating for statutory empowerment and protection for ADF members. I. INTRODUCTION The balance of industrial power; trade union activities; the interface between capital and labour; the relationships between the armed forces, the police, the public and the Government; the process of collective bargaining and the impact of incomes policies, particularly in the public sector, are all factors which are affected by military intervention. 1 To use soldiers or sailors kept up at the general expense of the taxpayer, to take sides with the employer in an ordinary trade dispute … would be a monstrous invasion of the liberty of the subject and would be a very unfair, if not an illegal, order to give to the soldier. But the case is different where vital services affecting the health, life or safety of large cities or great concentrations of people are concerned. 2 On 3 December 1854, Victorian constabulary forces assisted by garrison British soldiers, alongside detachments of the 12 th (East Suffolk) Regiment of Foot and the 40 th (2 nd Somersetshire) Regiment of Foot, under the command of Captain John W Thomas, engaged and routed a ramshackle industrial strike at Eureka. The offcial Ballarat District death register notes 27 casualties on the side of the strikers, and six on the side of the government. 3 The storming of the Eureka Stockade has captured and divided public opinion within Australia for over 160 years. Generally, the use of the Australian Defence Force (ADF) in domestic security operations has been characterised by “deeply held, even if imperfectly understood, reservations”. 4 This perhaps refects * BA/LLB (Hons) (UQ), LLM (Hons I) (Melb); Captain, Australian Army Legal Corps, currently posted to the Directorate of Operations and International Law. Thanks to Associate Professor Dr Cameron Moore, University of New England, who provided signifcant input in early drafts. The opinions and errors herein remain with the author and do not refect the views of the Australian Defence Force or Department of Defence. Note: there has been a recent decision which may have implications upon the nomenclature of non-statutory executive power. In Attorney-General (Cth) v Ogawa [2020] FCAFC the Full Court held that in lieu of exercising prerogative powers, “it is preferably described as the exercise of Commonwealth executive power” at [64] (Allsop CJ, Flick and Griffths JJ). This article has retained its original nomenclature of non-statutory executive power so as to help delineate between power that is prerogative and power arising from nationhood. 1  CJ Whelan, “Military Intervention in Industrial Disputes” (1979) 8 Industrial Law Journal 222. 2  Winston Churchill, quoted in United Kingdom, Parliamentary Debates, House of Commons, 1919, Vol 116, col 1511. 3  Dorothy Wickham, Deaths at Eureka (Wickham & Huggins, 1996) 64. Some estimates, however, put the striker casualties as high as 60: see Clare Wright, The Forgotten Rebels of Eureka (Text Publishing, 2013) 428. 4  Margaret White, “The Executive and the Military” (2005) 28(2) UNSW Law Journal 438. See, for an unparalleled legal history of DFACA, Sir Victor Windeyer’s opinion in Mr Justice Robert Hope, Protective Security Review (unclassifed), Parl Paper No 397