Colouring in the Grey Zone: The Legal Capacity of the Australian Defence Force to Respond Domestically to Interference Operations

Abstract

The ability to, en masse, micro-target individuals based on their explicitly stated and implicitly assessed preferences is a capability unique in history. It has created a new form of statecraft that this thesis calls interference operations (IOs), which have undergone a paradigm shift from the high cost, low impact active measures of the Cold War. Modern IOs are increasingly preferred by States due to the legal grey zone surrounding them. Grey zone operations is a term increasingly used within Australian policy documents and academia to describe activities that deliberately take place below identified and articulated thresholds of international and domestic law. It is a term that is relative to both the operation being conducted, and the legal frameworks involved. With respect to IOs, the grey zone is compounded by the fact that they have only recently begun to be explored by Australian policy-makers, with a strategic framework being centred on illuminating false information and allowing the Australian public to seek the truth themselves. This strategic framework, however, is founded upon the questionable assumption that in the ‘marketplace of ideas’ individuals will act rationally and actively seek the truth. This doctoral project advocates an alternate strategic framework: deterrence. It is a framework that aims to instil costs on those who would conduct IOs. These costs can be achieved through denial and punishment, the earlier of which this thesis focuses upon. Underpinning effective deterrence is legal credibility. This thesis seeks to understand the legality of counter-IO activities by the one branch of Government whose task it is to deter: the Australian Defence Force (ADF). In doing so, this thesis focuses upon constitutional executive power as a lawful authority for ADF operations. Within constitutional executive power is found the oldest creature of the common law – the royal prerogative. Accordingly, this thesis examines the domestic constitutional legal context that empowers and restrains the ADF in domestically-focused operations with a specific emphasis on the royal prerogative. The legal history of Anglo-Saxon military intervention provides for more restrictions internally, rather than externally. This is reflected within the Australian Constitution in the oftneglected provision relating to ‘domestic violence’ – an undefined and archaic term that sets a high threshold on domestic intervention. This constitutional provision is operationalised by Part IIIAAA of the Defence Act 1903 (Cth). This thesis therefore engages novelly with whether constitutional executive power may provide a lawful authority for the ADF to respond to instances below domestic violence, and whether any legislation has abridged residual nonstatutory power. Ultimately, this thesis concludes by identifying gaps in the domestic legal framework (statutory and non-statutory) and provides suggested legislative amendments. Canvassing alternate models for legislative reform, the thesis grapples with whether non-statutory executive power should ultimately be abridged, or whether its flexibility should be retained. Finding that dynamic situations require dynamic legal authority, this thesis provides a model of legislative reform that allows the difficulties of federalism to be surmounted, in an attempt to colour in the grey zone.