The civilianisation of australian military law



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C Reasons Against Difference


While there are many reasons why military life may be regarded as separate and distinct from civilian life, many other considerations point in the opposite direction. Some reflect a steady movement of civilian law concepts into military law, which has occurred over many centuries, while others reflect more recent trends. The suggestion that distinctions between military and civilian life should be narrowed found favour in English law during the 18th century in a series of cases which established that soldiers were subject to normal rights and obligations of any other citizen except to the extent the law expressly provided otherwise. Most of the cases that gave rise to this proposition involved civil riots. The courts were called to consider the politically contentious issue of the lawfulness of the use of military forces to suppress riots. The courts held that soldiers were in fact obliged to intervene because they were subject to the general common law duty incumbent on citizens to act to suppress a riot.62 By the start of the 19th century, the more general rule that could be distilled from these cases was that:

the law acknowledges no distinction … between the soldier and the private individual. The soldier is still a citizen, lying under the same obligation and invested with the same authority to preserve the peace of the King as any other subject.63

Halsbury’s explains this rule to mean that:

a person does not, by enlisting in or entering the armed forces, thereby cease to be a citizen, so as to deprive him of his rights or to exempt him from his liabilities under the ordinary law of the land.64

On this view, a service member can expect to receive the normal rights and privileges granted by the law unless there is express provision to the contrary. It should be noted that, while the High Court of Australia has not directly engaged this concept, the general approach of the court to military justice provides some evidence of sympathy with the civilian soldier doctrine. In Groves v Commonwealth,65 for example, a majority of the High Court held that ‘military law has a quite restricted range of operation and is seen as an additional, rather than a replacement, set of rights and duties’.66 This reasoning suggests that those subject to military law acquire further rights and obligations while retaining, at least as far as is possible, those of civilian law.

The idea of the ‘citizen soldier’ is a double edged sword. It suggests that members of the armed forces should expect to enjoy the normal rights of other civilians, but that expectation carries the burden of subjection to the normal obligations of civilians.67 The citizen soldier doctrine clearly stands in opposition to any suggestion that military life and law is different, but it does not prevent the creation of differences. It simply requires that the starting point is that any rights or remedies enjoyed by normal citizens are enjoyed by service members unless the law clearly suggests otherwise.68

The decision of the Privy Council in Attorney-Gen eral for England and Wales

v R69 indicates that some exceptions to the enjoyment of the normal rights by service members may arise at common law. In that case a former member of the Special Air Service (‘SAS’) sought equitable relief against the army. The solider had signed an agreement not to publish information about his service activities. Commanders of the unit introduced such agreements after several members of the SAS battalion published accounts of their exploits in the first Gulf War. These account caused considerable concern among remaining members of the unit who felt the authors were either unfairly attempting to blame a deceased soldier or ‘talking up’ their own role.70 Soldiers who wished to continue with the SAS had to sign the agreement. Those who did not would be returned to their previous unit. R signed the agreement but eventually wished to publish an account of his time in the SAS. R defended an attempt by government authorities to restrain publication of his book on the basis that he was coerced into signing the agreement and that he had provided no consideration so any agreement of a contractual nature was void.

The suggestions that a solider might enter a contract in the normal sense with military authorities, or that command activities might form of the basis of a plea of duress or unconscionable conduct, were novel. The first implies that agreements between soldiers and their superiors should be governed by normal contract or perhaps workplace laws. The second implies that the command authority and decision-making of military authorities – which necessarily favours commanders – should be adjudged according to equitable doctrines such as unconscionability or undue influence to which an imbalance of power is antithetical. Each clearly has the potential to undermine command authority; particularly the second, because it attempts to use the unequal nature of the command relationship – the necessary disparity in power between superior and subordinate – as a basis for a legal remedy.

The Privy Council rejected the pleas of duress and undue influence largely because they were not supported by the evidence.71 The facts suggested that R clearly understood the agreement and was equally clear about the obligations it entailed. In addition, the benefit obtained in the form of not being returned to his original unit provided sufficient forbearance to amount to consideration for the purposes of contract law.72 This reasoning invites several comments. First, the dismissal by the Privy Council of the claim was largely by reason of the facts at hand. The Privy Council did not discount the possibility that a serviced member could, in an appropriate case, invoke civil law concepts such as undue influence or unconscionable conduct which are based on unfairness and unequal power between the parties. What an appropriate case might be remains to be seen. Secondly, the case was decided within the relatively narrow confines of equitable doctrines. The court did not consider the more far reaching doctrines that have underpinned the expansion of public law in recent years, such as the principle of legality which was mentioned above.

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