The uncertainties of the soldier's position serve to highlight the legal difficulties inherent in nearly all uses of defence forces for 'non-defence' purposes. Experience has shown first that successive Commonwealth Governments are quite happy to call on the forces, with little or no prior consideration of the legal basis for their involvement. They make up their minds after the event under what constitutional or legal basis they were operating. Secondly, the ADF has often responded with total disregard for its own operational instructions. As discussed above, the precise legal status of these instructions is open to argument, but no matter what the outcome of that debate, it is submitted that the ADF is under an obligation to comply with the instructions. Some sympathy must be extended to the ADF which, it is submitted, has had to make these instructions to fill a void in the law. In making them, the ADF has invoked mechanisms which it can be argued are above the requirements of the law, e.g. the requirement of an order of the Governor-General in Council where the troops are used to protect a Commonwealth interest and the use of force is likely (instruction 9a. DI(G)s on aid to the civil power). Internal instructions are hardly the place for laying down such substantive requirements. Such provision, if it is to be made, would be more appropriately made within a legal structure after parliamentary debate.
Another interesting point to note is that the case studies clearly reveal that the mechanism provided for in Section 119 of the Constitution has been of little practical importance. It seems that future controversial deployments of the defence forces will turn on the interpretation of the Commonwealth's inherent power of self protection and thus depend largely on the High Court's view of the limits of Section 61 of the Constitution.
It seems that there are two major needs which are not met by the present system. The soldier's position needs to be protected. And the community needs to have some idea of the legal structure for ADF use outside traditional defence purposes in order to be sure that civil liberties are not breached. If there is to be some formalising of these positions, an Act of Parliament is the appropriate place for this to occur. Neither of these aims can be achieved through administrative arrangements within the Defence Department. At the same time, any such law should be drafted carefully to ensure it did not open up new areas for the use of troops in 'non-defence' situations. It would, for example, be unwise to attempt to enumerate the situations in which the Commonwealth could intervene to protect its own interests. Such an attempt would no doubt be widely drafted and, far from easing civil liberties concerns, would serve only to enflame them.
