Martial Law In Australia: Is It Possible?

Martial law is a legal entity that is often described as elusive, arising from necessity rather than legal right. In Australia, there has been no recorded case of martial law since federation in 1901, but it was invoked several times during the 19th century to suppress convicts, Aboriginal people, and workers. The last clear exception to the military-civil division of power occurred in 1891 when the Queensland Government used troops to help the police suppress a sheep shearers' strike. In 2024, members of the Korean diaspora in Australia were shocked and left in disbelief as South Korean President Yoon Suk Yeol declared martial law, which was swiftly revoked by parliamentarians 155 minutes later.

Martial law in Australia's history

Australia was established as a penal colony under military administration, but over time, the evolution of the Australian political system ensured a clear distinction between military powers and civil powers. During the 19th century, martial law was declared several times to deal with riots and rebellions, suppress convicts, Aboriginal people, and workers, and to help the police suppress a sheep shearers' strike. The longest period of martial law in the history of the British colonies on the Australian continent lasted for over three years, from 1828 to 1832. This was declared by Lieutenant-Governor George Arthur during the Black War, a violent conflict between British colonists and Aboriginal Australians in Tasmania. Arthur's declaration of martial law effectively provided legal immunity for killing Aboriginal people.

In 1891, the Queensland Government used troops to assist police in suppressing a sheep shearers' strike, marking the last clear exception to the military-civil division of power. Since federation in 1901, there have been no recorded cases of martial law in Australia. However, the absence of explicit constitutional provisions does not necessarily preclude the possibility of declaring martial law in extraordinary circumstances.

In other countries, martial law has been declared in various contexts. For example, martial law was imposed in China from 1949 to 1987 to suppress Communist activities in Taiwan, and in 1989 following the Tiananmen Square protests. In Egypt, states of emergency were in effect almost continuously from 1967 to 2021, giving military courts the power to try civilians and detain those deemed threats to state security. In 1977, General Muhammad Zia-ul-Haq of Pakistan imposed martial law to overthrow civilian ruler Zulfikar Ali Bhutto, who had previously ruled under a selective martial law in areas hostile to his government.

The legality of martial law

Australia has no tradition of martial law, and there has been no recorded case of it since the country's federation in 1901. However, it was invoked several times during the 19th century to suppress convicts, Aboriginal people, and workers. The last clear exception to the military-civil division of power occurred in 1891 when the Queensland Government used troops to help the police suppress a sheep shearers' strike.

Martial law is the replacement of a civilian government by military rule and the suspension of civilian legal processes for military powers. It can continue for a specified amount of time or indefinitely, and standard civil liberties may be suspended for as long as it is in place. While some countries have provisions explicitly permitting the use of martial law, many do not. Most often, the implementation of martial law arises from necessity rather than legal right. One legal theory most frequently associated with it is the common law doctrine of necessity. While countries like the United States do not have the explicit constitutional right to declare martial law, scholars often interpret the law to allow for its implementation in times of necessity.

In Australia, the deployment of troops within the country has been both politically contentious and clouded by legal uncertainties. The Australian Constitution gives the Governor-General the power over the military, and in 1975, the Governor-General dismissed the Prime Minister, demonstrating that the Governor-General is not bound to act at the Prime Minister's direction. Therefore, the Governor-General could theoretically demand that the military forces impose a form of martial law. However, any such declaration would likely be controversial, given the lack of historical precedent and concrete legal authority to support it.

In conclusion, while there is no explicit constitutional right for Australia to declare martial law, it is possible that the Governor-General could theoretically demand its imposition. However, the lack of historical precedent and legal uncertainties surrounding the deployment of troops within Australia suggest that any such declaration would be controversial and unlikely.

Civil liberties under martial law

Australia has not had any recorded cases of martial law since federation in 1901. However, it was invoked several times during the 19th century to suppress convicts, Aboriginal people and workers. In 1828, during the Black War, a violent conflict between British colonists and Aboriginal Australians in Tasmania, Lieutenant-Governor George Arthur declared martial law, effectively providing legal immunity for killing Aboriginal people.

Martial law involves the temporary substitution of military authority for civilian rule and is usually invoked in times of war, rebellion, or natural disaster. When martial law is in effect, the military commander of an area or country has unlimited authority to make and enforce laws, and standard civil liberties may be suspended. The justice system that typically handles issues of criminal and civil law is replaced with a military justice system.

When martial law is declared, civil liberties such as the right to free movement, free speech, and protection from unreasonable searches may be suspended. Curfews can be implemented, and civilians may be arrested for violating these curfews or for minor offences that would not usually warrant detention. Laws relating to habeas corpus, which are designed to prevent unlawful detention, may also be suspended, allowing the military to detain individuals indefinitely.

In some cases, martial law has been used to suppress political opposition, as seen in Poland in 1981, or to stabilise insurrections or perceived insurrections. It can also be used to enforce rule over the public, as seen in Thailand in 2006 and 2014, and Egypt in 2013. In Egypt, states of emergency were in effect almost continuously from 1967 to 2021, with military courts given the power to try civilians and the government able to detain anyone deemed to be threatening state security, without court orders. Public demonstrations were banned under this legislation.

Martial law and the military

Australia has not recorded a case of martial law since federation in 1901. However, it was invoked several times during the 19th century to suppress convicts, Aboriginal people, and workers. The last clear exception to the military-civil division of power occurred in 1891 when the Queensland Government used troops to help the police suppress a sheep shearers' strike.

The concept of martial law is closely associated with the suspension of habeas corpus, the right to a hearing on lawful imprisonment, and the deployment of troops within a country. While some countries have explicit provisions permitting the use of martial law, others do not, and it is often considered a legal grey area. In the case of Australia, the power to resort to martial law is believed to continue as a creature of common law.

During the 1820s and 1830s, the Black War, a violent conflict between British colonists and Aboriginal Australians in Tasmania, resulted in Lieutenant-Governor George Arthur declaring martial law in 1828. This provided legal immunity for killing Aboriginal people and remained in force for over three years, the longest period of martial law in the history of British colonies on the Australian continent.

Martial law can be declared for a specified period or indefinitely, and it often occurs during times of war, civil unrest, natural disasters, or military coups. It involves the suspension of standard civil liberties and can be used by governments to enforce their rule over the public, as seen in several countries.

While Australia has not experienced martial law in recent times, members of the Korean diaspora in the country have expressed shock and concern when South Korea briefly declared martial law in 2024. This declaration evoked memories of a dark past, including the Gwangju massacre in 1980, when dictator Chun Doo-hwan instigated a deadly military crackdown against students and pro-democracy activists.

Martial law in other countries

Martial law has been declared frequently throughout history, and it can continue indefinitely or for a specified period. While some countries have explicit provisions permitting the use of martial law, many do not. The implementation of martial law often arises from necessity rather than legal right.

In the United States, the president does not have the authority to declare martial law. The Posse Comitatus Act, passed by Congress in 1878, can forbid, depending on the circumstances, the use of the military to enforce the law within the country. The US military has been deployed within the country several times, but these acts do not amount to a declaration of martial law. The US Constitution does not give the president "conclusive and preclusive" authority over the domestic use of the military and instead vests power in the legislative branch.

In 1981, Poland experienced martial law, which was introduced by General Wojciech Jaruzelski to prevent the extraparliamentary opposition from gaining popularity and political power. Approximately 91 deaths are attributed to this period, including 9 miners shot by the police during the pacification of striking Wujek Coal Mine. Curfews, censorship, and food rationing were in place, and a nationwide travel ban was imposed.

Martial law was also declared in Thailand in 2006 and 2014, Egypt in 2013, and China during the Tiananmen Square protests in 1989. In 2011, King Hamad bin Isa Al Khalifa declared martial law during an anti-government uprising, granting the police and military authority to crack down on protesters. In 2020, martial law was declared by Armenian Prime Minister Nikol Pashinyan and Azerbaijani President Ilham Aliyev during the Nagorno-Karabakh war.

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