The following memorandum has been submitted to me for advice:

I am directed to inform you that the question has arisen of the necessity in the event of an outbreak of domestic violence in any part of the Commonwealth of ensuring the safety of magazines for explosives which are the property not only of the Commonwealth but also of the State Governments and private firms. It has been proposed that the safety of these magazines should be ensured by the provision of military guards immediately upon occasion arising for taking precautionary measures. Owing to the limited strength of the Permanent Forces and the existence of many such magazines in outlying parts of the States where no permanent troops are stationed it might be necessary to employ troops of the Citizen Forces also for the purpose.

2. Before the matter of the employment of military troops in this connection is dealt with the favour of your advice is asked upon questions dealing with the power of the Commonwealth to employ Permanent and Citizen Force troops under such circumstances.
3. Section 119 of the Constitution Act provides:

The Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence. Section 51 of the Defence Act provides:

Where the Governor of a State has proclaimed that domestic violence exists therein, the Governor-General, upon the application of the Executive Government of the State, may, by proclamation, declare that domestic violence exists in that State, and may call out the Permanent Forces, and in the event of their numbers being insufficient may also call out such of the Militia and Volunteer Forces as may be necessary for the protection of that State, and the services of the Forces so called out may be utilized accordingly for the protection of that State against domestic violence:

Provided always that the Citizen Forces of the Commonwealth shall not be called out or utilized in connexion with an industrial dispute.

Section 45 of the Defence Act provides:

The Permanent Forces shall at all times be liable to be employed on war service and in the defence and protection of the Commonwealth and of the several States.

4. In the event of a state of domestic violence breaking out, should the policy of protecting these magazines by military troops have been adopted, it would in every probability be imperative to provide adequate military guards for these magazines prior to the issue of the proclamations by the Governor or Governor-General under section 51 of the Defence Act.
5. Advice is desired as to whether the Permanent and Citizen Military Forces could be so employed prior to the issue of those proclamations.
6. It is supposed that the Commonwealth Government would have power, in the exercise of the common law right of the Crown, to call out the necessary troops to protect Commonwealth magazines from acts of violence, but as each State is sovereign within its own limits it is doubtful whether the Governor-General would have power to call out troops for the protection of State and private magazines until the Commonwealth had been called upon to do so by the State Governments concerned.
7. In regard to the proviso to section 51 of the Defence Act a state of domestic violence might occur as the result of an industrial dispute. The favour of advice is also desired as to whether the Citizen Forces could be lawfully utilised to suppress domestic violence so arising and, if this provision prohibits the use of Citizen Forces under such circumstances, whether in view of section 119 of the Constitution Act the Commonwealth Government could not nevertheless lawfully employ Citizen Forces in such circumstances where their employment was essential in addition to that of the Permanent Forces to suppress domestic violence in any State after the protection by the Commonwealth had been requested by that State.

The question whether the Commonwealth has legal power to take steps for the suppression of a riotous outbreak depends to a great extent upon the circumstances of the case.

It is not by any means to be assumed that in no instance may the Commonwealth, without a request from a State Government, interfere to suppress domestic violence within that State. The Commonwealth Government has plenary power to protect itself and accomplish its objects:

... the functions of the Commonwealth Government are so many and its agencies and instrumentalities so far reaching, that internal disorder on any large scale could hardly leave them unaffected. For their protection, the Commonwealth Government could intervene on its own initiative (Moore, Constitution of the Commonwealth of Australia, 2nd edn, pp. 338-9).

The Commonwealth could, in the event of an outbreak which threatened magazines containing explosives belonging to the Commonwealth, take whatever steps were necessary to safeguard those magazines. Such action could be taken irrespective of whether or not the Governor of a State had proclaimed the existence of domestic violence or the Executive Government of that State had sought Commonwealth assistance.

Unless, however, an outbreak of domestic violence is such as to jeopardise the operations of the Commonwealth Government or the rights and privileges of federal citizenship it is not the function of the Commonwealth, in the absence of a request from the State Government, to intervene to suppress the outbreak.

If the possible consequences of domestic violence within a State are limited to the destruction or damage of State or private magazines, it is considered that the Commonwealth could not properly intervene without a request from the State Government.

The calling out or use of the Citizen Forces 'in connexion with an industrial dispute' is prohibited by the proviso to section 51 of the Defence Act 1903-1918.

In my opinion this provision does not necessarily operate to prevent the use of those Forces in connection with violence arising out of an industrial dispute. The object of the proviso is to prevent the forces being used to the prejudice of industrialists [sic] in any dispute affecting their wages or conditions of employment. If participants in such a dispute resort to violence or rioting, and Commonwealth functions or federal rights are thereby affected, the Citizen Forces may, in my opinion, be utilised to restore order.

[Vol. 17, p.117]