Martial law is an interesting subject, especially because various views exist about what it actually is and whether it actually exists. These views have been compiled over the centuries and are found within English legal writing and, to a lesser extent, in case law.
Cameron discussed the three following views:
The least controversial view – Conquered or occupied territories where the previous sovereign authority has been ousted and the need for some sort of law being better than no law. Australia was involved in this kind of martial law through participation in operations in German New Guinea (1915-1921), Somalia (1992) and East Timor (1999-2000).
A narrow view – The common law of necessity. For example, the Jamaican Rebellion in 1865 where Governor Eyre authorised the suppression of the rebellion.
- A broader view – A prerogative with respect to martial law, where military authority can be asserted over the civilian population to restore governmental authority. This occurred during the Eureka Stockade in 1854. The Victorian Parliament acted as though there was prerogative power to suppress the rebellion
Martial law is not military law. In his presentation Cameron explains that it is ‘effectively, a consequence of circumstances where the usual functioning of civilian government has practically ceased, even if not altogether or only locally. The first question is to whether martial law can or should apply, then, is one of fact. The military commander can exercise a degree of executive, legislative and judicial power over civilians and military alike as long and as much as necessity dictates. Martial law is distinct from military law in that it regulates all subject to it, rather than just the military. It is also a description of a state of affairs rather than being a body of law.’
A post Federation example of Australia implementing martial law occurred in February 1942. It was a result of the effective collapse of civilian administration during the first Japanese military attacks. Military control was imposed on the territories of Papua and New Guinea, the Northern Territory and the northern parts of Western Australia and Queensland.
During this event legal authority was provided by the National Security (Emergency Control) Act 1939 (Cth), which was repealed in 1946. The Act gave authority to the National Security (Emergency Control) Regulations 1941 and the National Security (External Territories) Regulations 1942. Military control was imposed by statute via gazette notice, providing clarity to the powers.
The powers combined executive power and legislative power. Other than geography, there were two limitations:
The powers had to be exercised for the purpose of meeting any emergency or providing for the defence of the area.
Courts retained their jurisdiction. This limitation was not fully enforced in Papua and New Guinea due to the existence of ‘native’ courts.
Unfortunately, due to our recent ‘living with COVID-19’ existence, Cameron was unable to give his talk in person. Instead, he presented a ‘virtual’ paper which will be printed in the Society’s monthly newsletter.