THE AUSTRALIAN DEFENCE FORCE (ADF) is now supporting the States in their response to coronavirus isolation. This includes things like transporting people, doing contact tracing, and packing Foodbank lunches, but also helping the NSW Police with self-isolation directions. The National Communicable Disease Incidence of National Significance Plan (CD Plan) provides for Defence to 'Assist the national response to a communicable disease emergency by filling capability shortfalls within other government departments'.

This is not an accidental choice of words, and also refers to the application of new powers established by law in 2018, and trained with in exercises in 2019.

In October 2019, the ADF participated in Exercise Austral Shield, in which soldiers of the 2nd Division and 4th Brigade trained with the Victoria Police in joint searches and checkpoints, 'protecting' the Loy Yang coal mine in Victoria. The exercise was a test of a number of new powers under amendments to the Defence Act 1903, which, in 2018, expanded the options for 'calling out' the ADF in civil unrest. A number of commentators have long advocated a national disaster role for the ADF. 'Supporting civil order' was one the Prime Minister listed in an interview.

What does it mean for soldiers to have 'detention' powers? What would happen if someone resisted, or ran? Could the Army be called out against quarantine-breakers, border-crossers, or protesters—or post-bushfire looters? Could they, would they, shoot? The Second World War gives us one answer.

On the 7th February 1942 on a closed beach in Sydney (it may have been Bondi), a small group of partygoers, takeaway bottles of beer in hand, wanted a walk and a last drink on the sand. That night, one of the partygoers, Private Stanley Plumb, 25, was killed by a sentry, Private McGraw, 23, who was guarding the beach, barbed-wired against night landings.

Plumb and his companions, including his wife Nell, had been to the Trocadero (a popular dancing club), to a nightclub called the 'Mirrors Club', and had all been drinking. At about 3.30am on February 7, they went down to the beach with some bottles of beer. The servicemen were in uniform.

Plumb seemed 'worked up when the guard refused to let him on the beach', according to LAC Cahill, his friend (Sun, 27 Feb 1942, p3.) 'Put us off!' he said. Private McKeon, one of the other sentries, told the court that Plumb advanced on McGraw saying 'if I get close enough I'll kill you', while Simmons, another sentry, said that he said 'I'll get down the beach no matter what happens'. Holding a bayonet, Plumb said 'Go on—I'll stick you through, you choco —!'

Private McGraw, holding his rifle in the 'on guard' position gave one warning: 'Drop the bayonet or I shoot' (Sydney Morning Herald, 28 Feb 1942, p13). He fired the gun, and the bullet went through Plumb's stomach. Nell Plumb cradled her husband's head in her lap. He was taken to hospital, but died on 12 February.

When the police arrived, a member of the public told Sergeant Robinson and Detective Constable Barnes 'I demand the arrest of this man—he should be charged with murder' (Sun, 2 March 1942, p3). The Army officer in charge of the sentry post, however, ordered the police officers away, saying without jurisdiction, they could not take the sentries into custody, or take the rifle as an exhibit for investigation (Sydney Morning Herald, 9 February 1942, p7).

For the Army, there was no crime, and therefore no evidence. Indeed, for the Army, there would only have been a crime if McGraw hadn't fired, the military crime of disobeying orders. The Minister for the Army, Frank Forde, began discussing the question with his Department and with the NSW Police: just what, legally, had happened on the beach?

There was no question about Private McGraw's intent to kill. McGraw himself told the Coroner: 'I shot him. He was menacing me with a bayonet and I thought he was going to stab me' (SMH, 28 Feb 1942, p13). 'I dropped the rifle to my hip before I fired the shot... After warning him I called out, "I'll shoot you, fair dinkum, sport". I did not accidentally pull the trigger—I pulled it deliberately' (Sun, 2 March 1942, p3). It was neither an accident nor a mistake.

In the end, the Coroner blamed Private Plumb, the victim, who ought to have known that the sentry had orders, and would be expected to shoot. The Coroner's finding, 'justifiable homicide', is entered in the Australian War Memorial's honour roll, against Private Stanley Joseph Plumb, NX78659, 8 Infantry Training Battalion.

Where did the battlefield begin and civil life end? The NSW Police felt that a soldier was 'also a civilian', and that they should still be allowed to investigate crimes (The Sun, 9 Feb 1942, p3). The Army, on the other hand, felt that if sentries were to be charged for obeying orders, none of them would shoot, and then what would the point of sentries be? A barrister in The Sun said it was 'commonsense' that the police shouldn't go into the front line. But where was the front line?

The issues are not so simple even today. The ADF has already trained to assist Police with the kinds of checkpoints and searches now being established at State borders, and which may be established around COVID hotspots. In 2017, the Prime Minister announced the 'streamlining' of the Commonwealth powers to call out the ADF's special forces. Since 2013 the whole of Australia has been a non-zone for immigration by boat, to be protected in a designated military Operation [Sovereign Borders]. Which is the civil power and which the military? Where is the front line, is it nowhere or everywhere?

A legal background paper looked at the issues in 1997, and asked:

...is it a satisfactory state of affairs for soldiers to face the possibility of private actions and criminal charges arising from their obedience... [with] no way for the soldiers to assess the lawfulness or otherwise of their superior officer's commands?

In 2018, introducing the legislation which expanded the 'Call Out' provisions of the Defence Act, the Member for Canning, Andrew Hastie MP, a veteran, expressed the view that:

ADF units, when deployed in response or called out to a terrorist incident, are still operating under the Australian rule of law. No obligations are lifted for them to accord with what is expected of them in the ADF and within our judicial system.

In fact, as Private Plumb's death showed in 1942, it is not clear, and can never be. Soldiers are obliged to apply lethal violence, contrary to civil laws against assault and murder, but in accordance with lawful orders. It's an important distinction and it is just this distinction between civil space and the battlefield that terrorism, as well as disorder in natural disaster, tends to erase. We have no historical guide at all, legal or moral, to dealing with pandemic disorder in a complex modern society.

If and when the issue comes again to question, it will be in a situation like the one that Privates McGraw and Plumb found themselves before one killed the other: confused, noisy, emotional, with seconds (or less) for quite young people to make decisions. The rest of us, who have more time, and eighty years to look back, owe any future Private Plumbs more consideration than that.

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