Calling out the ADF into the Grey Zone

The Australian government has determined that the Australian Defence Force ('ADF') will prepare to counter non-geographic threats in a range of operational environments, including cyberspace. This article explores the viability of constitutional executive power to authorise the use of the ADF in counter cyber interference operations. Specifically, it looks to address the breadth and depth of the nationhood power as a lawful authority for operations outside of s 119 of the Constitution. This is an important area to explore, noting that interference operations will often fall below the 'domestic violence' threshold conventionally required to call out the troops.

This article addresses the manner in which executive power can enable and support ADF operations from a jurisprudential and operational perspective. With reference to earlier ADF operations such as the Bowral call out in 1978 and the 2002 Commonwealth Heads of Government Meeting deployment, this article argues that executive power could provide a capability and legal authority for a suite of operations that may be seen as otherwise breaching Australian law.