Tac Talks: Cognitive Dissonance In Constabulary Operations

Introduction

No place is unpoliceable; no crime is immune to better enforcement efforts.
(Bratton, 1999)

Key judgements

• Constabulary Operations are a crucial function for the RAN to undertake on behalf of Government.
• The conduct of ‘policing’ activities by a military force continues to be questioned if this is the most appropriate use of resources.
• The use of warfighters to conduct law enforcement functions detracts from their unique deliverable of high-end warfighting.
• Naval Police, while present on the majority of RAN platforms are not being employed in their core law enforcement role in an operational context during Constabulary Operations.
• The RAN, while keeping MWO command for boarding operations, should increase the use of Naval Police and refine doctrinal understanding of Constabulary Operations consistent with Five Eyes partners.
• These recommendations will strengthen the Navy’s discipline about its ‘How’ and achieve greater consistency with ‘What’ it does, to support the clear and recently articulated ‘Why’ of the RAN.

Constabulary Operations in the RAN

Attack Three’s Boarding Party, consisting of BMs and ETs. Photographer: ABIS Lee-Anne Mack, 2013.

Constabulary Operations (as the RAN defines them) have been undertaken by navies since there have been navies, as early as 3050 BCE by the Ancient Egyptians (Gilbert, 2008). One recent analysis determined that almost half of the world navies’ are incapable of operations beyond constabulary, and most navies worldwide are involved in some fashion in Constabulary Operations.

In our case, from 1990 to March 2005, 62% of operations conducted by the RAN were constabulary in nature (McCaffrie, 2012). The latest doctrine from the Sea Power Centre continues to forecast the requirement for consistent surveillance and patrol efforts, which will drive acquisition of platforms to achieve this task (Sea Power Centre - Australia, 2017).

Commentary from Defence analysts has strongly supported the RAN conducting Constabulary Operations. Some have pointed to the lessons learnt from Admiral Fisher in the UK during the early 20th century and his reluctance to create a Coast Guard, noting that its creation “might transfer the problem it would also transfer the budget” (Friedman, 2012). Continuing on this line, others posit that a Coast Guard concept places “over-emphasis on lower end capabilities, drain financial resources away from a navy which could ill-afford to lose them, impact upon naval personnel resources and opportunities for junior officers, and duplicate resources and responsibilities between civilian and military roles” (Reeve, 2004). While there is some merit in using dedicated vessels as they reduce “misconceptions stemming from the dual character of warships” (Holmes, 2013), there is greater advantage through the application of “‘hard’ and ‘soft’ power simultaneously and in mutually supporting fashion. The versatility of maritime forces in such circumstances underscores the artificial distinction involved” (Reeve, 2004).

HMAS Anzac’s Boarding Party during Operation SLIPPER. Photographer: SGT William Guthrie, 2012.

This acceptance of the constabulary role in the RAN was historically not always present. Our approach to Constabulary Operations has arguably been developed reactively, responding to ad hoc emerging threats rather than adopting a planned policy-driven approach. Analysts cite that until 1967 while being the only Commonwealth organisation with any offshore patrol capability, the RAN was ill-suited and unprepared to conducted Constabulary Operations (McCaffrie, 2012). Studies on the Royal Canadian Navy suggest there no inherent benefit from employing warships on fisheries patrols, as there is little deterrence value, minimal increase in warfighting competency and insignificant effect on public opinion (Hickey, 2008). Others have stated that “while it might be unwise to have navies conduct policing, it may be equally unwise to separate these functions in a smaller navy experiencing budgetary pressures. One solution might be reposition the navy so that it can do both” (Percy, Maritime Strategy in a World of Pervasive Insecurity, 2013).

As recently as the Defence White Paper, the public consultation resulted in questions about the RAN’s role and contribution to Constabulary Operations, especially in light of the creation of the Australian Border Force (DWP External Panel, 2015). These community concerns echo the debate raised in the 2001 election on the establishment of a Coast Guard (Forbes, 2002). Justice Murphy, in an appeal case based upon fisheries protection, said that there “may be serious questions as to how far the Defence Force may properly be involved in civil affairs”, but the Justice was not in a position to further consider the issue (Smith, 1998).

Policing and Constabulary Operations

Navies and states must also remember that, no matter how frequently these threats are couched in the language of security, they are fundamentally crimes, and therefore subject to existing domestic law-enforcement tools for crime control.
(Percy, Maritime Crime and Naval Response, 2016)

Writers have argued that Constabulary Operations are “clearly not ‘war-fighting’ nor an activity involved in defeating attacks on Australia and therefore not core business” (Forbes, 2002). Part of the issues that appear to cause discomfort around a lethal fighting force conducting Constabulary Operations is the language and trappings of policing. “Minimum violence used in enforcement only as a last resort” invokes policing methodologies, whereas it may be operationally valid and indeed necessary for a warfighter to apply a higher level of force to achieve an operational effect (Bateman, Securing Australia's Maritime Approaches, 2007). The use of legal terms such as “evidence”, “established” and “beyond reasonable doubt” conjure up judicial processes and court proceedings more than it does an Operations Room.

While the summation of Constabulary Operations in current doctrine reads “…also known as policing” (Sea Power Centre - Australia, 2017), arguably the operations that the RAN undertake are more accurately described as law enforcement operations. One analyst describes the difference between law enforcement and policing as “policing promotes compliance with the law through approaches that include community engagement and education. Law enforcement - jailing people for breaking the law - is one aspect of policing” (Coyne & Meurant-Tompkinson, Police, public servants and law enforcement: a contested domain?, 2018). There are very little community engagements and education activities conducted by the RAN that could be considered as crime prevention strategies, and rightfully so.

International Doctrine comparison

Australian concepts on Constabulary Operations were previously similar to those in the UK (McCaffrie, 2012). However, since 2011 (Bosbotinis, 2014) the UK joint doctrine on maritime power has “evolved” from policing functions and Constabulary Operations to the broader ‘Maritime Security’ roles, which include activities such as humanitarian assistance and disaster relief (HADR), constabulary operations, counter-piracy, counter-drug, counter people trafficking and non-combatant evacuation operations (NEO) (Developments, Concepts and Doctrine Centre, 2017).

This de-emphasis of the law enforcement activity to include other military operations is consistent with the enduring US and NATO concepts (Speller, 2014). US doctrine, for example, defines Maritime Security Operations as “those operations to protect maritime sovereignty and resources and to counter maritime-related terrorism, weapons proliferation, transnational crime, piracy, environmental destruction, and illegal seaborne migration” (Joint Chiefs of Staff, 2018).

Detracting from warfighting

On the one hand, the RAN values the training and experience available with patrol boats and sees a coast guard as a potential threat to the naval budget. However, on the other hand, it doesn’t regard civil policing as part of its core business (Bateman, Maritime Cop Needed on Beat, 2013).

An Evolved Sea Sparrow Missile is fired from HMAS Hobart during test firings off the US West coast in 2018.

The primary function of the RAN is to deliver decisive and distributed lethality (Barrett, 2017), and the current conduct of Constabulary Operations arguably detracts from the higher end warfighting capability required. Allied Navy authors have identified that even after decades of interoperability conducting Constabulary Operations, high-end warfighting capabilities have not increased sufficiently to meet the strategic environment or take advantage of the RAN’s recapitalisation (Cichon, 2019).

The problem for navies is that the resources for enforcing good order at sea are not necessarily those they need in war - police operations at any level demand arrests rather than the destruction of possible criminals. Incidentally, policing also requires the collection of much more data that is obtained in war because the ultimate object is a court conviction (Friedman, 2012). Analysts argue that Constabulary Operations are the most likely activity to interfere with ships’ training programs for high-intensity warfighting (McCaffrie, 2012). The most recent doctrine from the RAN flags the requirement of a warship to reconstitute after being deployed to Constabulary Operations before conducting to high-end warfighting (Sea Power Centre - Australia, 2017).

Warfare and other Communities’ personnel must spend considerable time learning about gathering evidence, procedures for arrest and interrogation of suspects. Since armed forces are raised and maintained at considerable expense to wage war, the question arises as to how much time and effort the RAN should devote to “an essentially secondary role” (Smith, 1998). A recent Navy Daily article stated that the Boarding Officer and their team from a Major Fleet Unit spent “almost 12 months before deploying” developing their boarding capability (Fitzgerald, 2019). Other analysts have found that even after the gaining of operational experience, the investment in skills required for law enforcement activities can atrophy due to sporadic employment, stemming from the multi-mission nature of Navy units (Sonnenberg, 2012).

The MWO as a law enforcement officer

An investigation is a process of seeking information relevant to an alleged, apparent or potential breach of the law, involving possible judicial proceedings. The primary purpose of an investigation is to gather admissible evidence for any subsequent action, whether under criminal, civil penalty, civil, disciplinary or administrative sanctions. Investigations can also result in prevention and/or disruption action. The term investigation can also include intelligence processes which directly support the gathering of admissible evidence.
(AGD, 2011)

If the primary objective of maritime security is the enforcement of civil law (Woolner, 2008), then the current conduct of Constabulary Operations is a stop-gap at best. Some authors point out there is “no necessary reason why enforcement of Australian law on water should vary significantly from enforcement on land” (Woolner, 2008). Whether deliberately or unintentionally, Constabulary Operations can be considered to fall within the remit of an investigation by a Government agency, and therefore the Australian Government Investigations Standards (AGIS) may apply.

While RAN personnel undertake significant tactical training to conduct Boarding Operations, this training is insufficient under the AGIS for the conduct of investigations, disruption action or intelligence to directly support Constabulary Operations. Even if it was never the intent of AGIS to limit Navy operations, which is more probable than not, in this age of ‘lawfare’ the exploitation of a legal challenge resulting from this training gap remains a vulnerability.

A Boarding Officer goes through an evidence bag onboard HMAS Wollongong. Photographer: SGT Rob Nyffenegger, 2010.

The training conducted for Constabulary Operations, and the discussions around their conduct focus on the tactics and techniques of the application of force. This focus is clearly within the realm and comfort of warfare specialists seeking to command maritime fighting forces. One recent issue of Tactalks featured two discussions of boarding operations, one on the tactical employment of a supporting helicopter (Garbutt, 2017) and the other on the generation of boarding teams (Russell-Cook, 2017). To be clear, it is entirely appropriate and necessary for Maritime Warfare Officers (MWOs) to consider and iterate tactics and techniques for the application of force to achieve operations, including when conducting Constabulary Operations. However, the focus on tactical techniques and procedures, while undoubtedly important, is only one part of boarding. The ability to prosecute offences through evidence and intelligence collection is just as important, if not more so because they are the core tasks of a boarding that should determine the outcome (Sonnenberg, 2012). The RAN measures its success in Constabulary Operations in tonnage of drugs seized, suspected irregular entry vessels turned back, and illegal fishing vessels detained.

However drug smugglers are let go, the crew of the irregular entry vessels return to their country, and illegal fishers are warned off. This failure to prosecute and sentence offenders is referred to as the “lack of legal finish” (McLaughlin, 2016). While there exist some jurisdictional issues which prevent the prosecution of offences discovered in the RAN’s Constabulary Operations in the Indian Ocean, there are options to remediate this problem that are well-developed and well-practised in the international legal framework (McLaughlin, 2016). Furthermore, and no such limitations exist in our jurisdiction for the conduct of border protection tasks.

Even though our current limited efforts have an immediate effect the tendency of enforcement tactics to spur offenders to devise more innovative modes of criminal activity, what is known as the paradox of criminal control, can inadvertently make the problem worse (Percy, Maritime Crime and Naval Response, 2016). The RAN does little to remove the offenders, and their firsthand knowledge of our tactics and techniques delivers the immediate opportunity for further criminality. We may in fact, through the ‘lack of legal finish’, be encouraging criminals (Percy, Maritime Crime and Naval Response, 2016), and their more extensive networks (McLaughlin, 2016) to adopt increasingly sophisticated measures to counter us.

HMAS Manoora Boarding Party training in South East Asia. Photographer: ABPH Evan Murphy, 2009.

So how did this deficiency in training, focus on half of the problem and ‘lack of legal finish’ come about? A cynical set of reasons put forward is that these activities take place away from the mainland, and the policing is directed at foreigners who breach Australian or International laws. “Dealing with aliens appears to be an acceptable function for a defence force” (Smith, 1998). A more nuanced argument is the securitisation of the maritime criminal threat has allowed policymakers greater flexibility in response, including the distortion of regular practice and the use of military forces to deal with these issues. Securitisation is easier for maritime threats as Navies are often the only actor that can operate on the High Seas or in some cases territorial waters (Percy, Maritime Strategy in a World of Pervasive Insecurity, 2013).

Some analysts argue it is no longer the case that naval personnel can undertake maritime policing satisfactorily on a part-time or ad hoc basis (Bateman, Securing Australia's Maritime Approaches, 2007). Others point out the margins for error in maritime operations are becoming progressively smaller, citing the ‘YouTube’ factor (Goldrick, Coast Guard-Navy Jointness as a Response to Hybrid Threats, 2017) as experienced unfortunately by the RAN in the unproven allegations of mistreatment of asylum seekers in 2014 (Solomons & Roberts, 2014).

A Cop when you need one

Maritime Law enforcement, like all law enforcement organisations, requires authority (laws, policies and powers) to grant permission to apply capability and capacity. Capability (skills, proficiency, equipment, information) determines how and what assets do cover the problem. Capacity (numbers of personnel, platforms and/or systems) determines the amount of effort that can be applied.
(Sonnenberg, 2012)

Authors and analysts chiefly discuss how navies and platforms contribute or don’t contribute to law enforcement operations (Sonnenberg, 2012), but rarely do they consider how the component elements of the Navy system support these operations, the component elements being the human, technological and organisational dimensions (Barrett, 2017). Technologically, the RAN is more than capable of contributing to Constabulary Operations. Some authors have noted that while higher-end capabilities will enhance the performance of lower-end tasks, lower end capabilities will not do the reverse (Reeve, 2004), whereas paradoxically building capacity for constabulary missions builds capacity for combat missions (Holmes, 2013).

In terms of the human dimension, our people as a whole are well trained in the delivery of lethality at sea, and how to apply that lethality lawfully to support Constabulary Operations. The vast majority of our surface fleet have on board trained investigators compliant with AGIS standards (AGD, 2011), and while the most recent study on the Military Police community found non-policing functions and discipline matters dominated the Navy policing capability, Naval Police achieve good policing outcomes when tasked (Providence Consulting Group, 2017).

LSNPC onboard HMAS Betano performs first aid duties during Minor War Vessels Concentration Period. Photographer: ABIS James Whittle, 2010.

Organisationally is where the current contribution to Constabulary Operations is the weakest. Navy employs its warfighting personnel to conduct policing non-core tasks like evidence collection and statement collation to prosecutorial standard. At the same time, Navy’s policing personnel are performing non-core functions like health care provider, administrative assistant or bridgemanship duties. While the conduct of Whole Ship Coordination by Naval Police continues to be questioned (Providence Consulting Group, 2017), a far less defendable position is to insist on the underutilisation of Naval Police by not employing their law enforcement skill sets to support warfighters in the conduct of Constabulary Operations. Naval Police are not utilising the skills and proficiencies they develop throughout their career in the Constabulary Operations context. In contrast, we upskill other officers and sailors to achieve a mission knowing this capability may never be used again. The Naval Police on board the RAN’s primary Constabulary Operations platform, the Armidale Class Patrol Boat, average one internal policing incident report per year (Providence Consulting Group, 2017), and while it is possible that they are under-tasked, it is far more likely that these NPCs are contributing significant capacity outside of their core skillsets and training continuum.

Recommendations

The following recommendations are humbly offered to improve the understanding and conduct of Constabulary Operations.

Refine Doctrine

The following term and definition are offered to replace ‘Constabulary Operations’, to assist in clarifying and updating RAN doctrine in a manner consistent with comparable international navies:

Maritime Security Operations: The use of military force to support the detection, deterrence, disruption and response to breaches of domestic or international law.

This proposed term removes the issues associated with policing in its broader sense, focuses the Navy’s contribution to the use of military force, the effects that this use of military force is attempting to achieve, and by inference acknowledges that the RAN contribution to this issue is one aspect of a Whole of Government response. This proposed update will also align our doctrine closer to our Five Eyes partners.

Retain Warfare Command

Command in the application of lethality, whether through small arms or RAN platforms, rightly belongs as a core role of the MWO. The planning, leadership and majority of the composition of boarding teams should be made up of personnel that are trained in the application of lethality for military purposes. The enforcement action conducted by trained and professional warfighters can help mitigate against the potential for increased violence, as a response by criminal organisations to the application of control measures (Percy, Maritime Crime and Naval Response, 2016).

Also, the resurgence of long term strategic competition from China and Russia as articulated in the USA’s National Defense Strategy (Dibb, 2018) has potential implications for Australian Constabulary Operations. Analysts forecast a genuine possibility that Australian vessels will face increasingly aggressive encounters with illegal fishing fleets. Chinese state-owned commercial vessels are likely at times to challenge rather than evade Australian authorities (Coyne, Sharpe, & Hodgson, Mice that roar: Patrol and coastal combatants in ASEAN, 2018). The broader operational and strategic direction that MWOs and other warfare community members can provide in these eventualities necessitates their continued, and valuable, contribution to the conduct of Constabulary Operations.

Involve the Naval Police

CPONPC demonstrating correct search technique during a boarding exercise on HMAS Perth. Photographer: ABIS Jesse Rhynard, 2014.

The crime types that Constabulary Operations are intended to prevent, while complex problems, rely on similar methods (Percy, Maritime Crime and Naval Response, 2016). As previously argued, crimes should be managed similarly regardless of the environment in which they occur. Piracy merely is robbery, or armed theft, which happens at sea.

While the circumstances of Navy operations lend themselves to an argument that a dedicated law enforcement capability cannot be deployed on a ship or relied upon at sea, this argument does not recognise and value the contribution of the Naval Police community and the capabilities already organic on most RAN vessels.

As previously argued, Naval Police have the skills and proficiency in law enforcement capability. With a refocusing on core roles within the organisation and transferring additional non-core duties, Naval Police should have the capacity to deliver these proficiencies in the operational context. As MWOs will continue to command the activity, the most appropriate function for a Naval Police Officer or Sailor would be either as second in command or in charge of a security team. A position of some authority would satisfy AGIS requirements, keep the application of lethality centrally controlled by warfighters, and deploy Navy’s organic law enforcement expertise for direct utilisation. Through the use of Naval Police, Boarding Officers can be quarantined from the extensive court processes that can result from seeking the ‘legal finish’. The Naval Police member can be the designated witness responsible for evidentiary matters (Sonnenberg, 2012). This process protects the Boarding Officer from the legal compulsion to attend court proceedings and minimises disruption to broader ship programs to achieve high-end warfighting serials.

Clear, Consistent, Disciplined Purpose

We believe that the security and prosperity of Australia is tied directly to the Maritime Domain.
(Chief of Navy, 2018)

Boarding Party training, HMAS Albany. Photographer: LS Andrew Dakin, 2013.

In 2018 Chief of Navy expanded upon the Navy Mission “to fight and win at Sea” to include the concept of the ‘Why’, ‘How’ and ‘What’, and what they mean for the RAN. Fighting and winning at sea is the ‘What’, the readily identifiable broad service that the Navy provides, or the function. The ‘How’ is the unique way that the Navy goes about its activities, consistent with its ‘Why’. Navy’s ‘How’ are:

• We have an agile, resilient and lethal fighting force;
• Our People are professional, well trained and empowered;
• Serving Australia with Pride.

The ‘Why’ is the reason for being, the purpose, cause or belief that people sacrifice for. Our ‘Why’ is ‘we believe that the security and prosperity of Australia is tied directly to the Maritime Domain’? To be driven by this purpose, Navy needs to be clear about its ‘Why’, disciplined about ‘How’ it achieves its purpose, and consistent about ‘What’ it does (Sinek, 2009).

We can be consistent with Navy’s ‘How’ of the agility of our fighting force, through our ability to most appropriately combat criminal threats on the lower end of the spectrum of conflict (Sea Power Centre, 2010) with professional, well trained and empowered Naval Police. This agility in response is consistent with recent recommendations to deter and defeat ‘grey zone’ operations in the maritime domain (Goldrick, Grey zone operations and the maritime domain, 2018) and refocusing of Naval Police to employ law enforcement techniques during boarding operations will also reinforce the consistency of winning the fight at sea through the achievement of the ‘legal finish’ to maritime criminal activity.

The clarity, discipline and consistency of our purpose is an important distinction to grasp, as it’s not the RAN’s job to tackle every problem as a fight that must be won. We’ve been challenged to think about our profession, and experts have stated that effectively countering criminal-security threats will require psychological adjustments concerning the boundaries of war and crime, and naval and policing responses (Percy, Maritime Crime and Naval Response, 2016). We can't think about Constabulary Operations the same way as a surface engagement. Through a more disciplined approach to how we conduct Constabulary Operations in light of Navy's ‘How', and more consistency in ‘What’ MWOs and Naval Police do, Navy can build upon and work towards its clear purpose.

Conclusion

Constabulary Operations are a core deliverable of the RAN, and our Navy has the capability and capacity to conduct this task. Through some unchallenged practices, warfighters have taken on policing duties, and Naval Police are underutilised during the conduct of Constabulary Operations. Even our understanding of Constabulary Operations has not kept pace with the international maritime community. By thinking about our profession, and through continuing to exercise the discipline of the Navy’s function, we will be able to conduct our business in alignment with our purpose consistently. We will be able to answer those critics of the use of military assets for law enforcement purposes, as the RAN is supporting the prosperity and security of the Australian maritime domain through flexible and where necessary escalating application of lethality to combat threats from illegal yet compliant fishers to state-sponsored actors engaging in grey zone operations.

About the Author

LCDR Sean West Money is a serving Military Police officer in the Warfare community, joining the RAN in 2003 as an MWO before transferring to Naval Police Coxswain Officer in 2010. He deployed on Operation ANODE (2003) and Operation RESOLUTE (2007-2008), and has served in Directorate of Policing & Security Navy as well as the (formerly) Joint Service Police Group, in policing capability development and criminal intelligence. He was the last Provost Marshal Navy in 2018, is now the SO2 Head of Profession Policing & Security, and from July 2019 will be the inaugural OC Joint Military Police Station Sydney.

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