Civilianisation is the result of many different influences in military law rather than a single decisive one. It is not easy to measure the precise influence that particular changes have had on the military, or the combined effect of several changes, but a survey of different areas can reveal common points about the evolution of civilian influence. This section examines several such areas and considers whether they may enhance or frustrate the civilianisation of Australian military law.
A The Constitutional Influence
The possibility of successful constitutional challenge in military disciplinary proceedings remains ever present while the disciplinary system is in its current form. It is beyond the scope of this paper to explain those constitutional issues in detail or to consider the likely outcome of a frontal attack on the structure of the present system, which appears almost inevitable in the near future.73 But an explanation of some of the key points of the constitutional uncertainty is useful for present purposes because they highlight an important point of uncertainty about the extent to which the system of military justice should conform to the requirements of civilian justice.
Many key elements of the military justice system are not controversial in a constitutional sense.74 Such elements include the variable nature of the defence power, which is at its greatest during times of war and armed conflict but contracts considerably during peacetime.75 Another well settled proposition is that the defence power can support the creation of a separate system or code of discipline for the armed forces.76 It is also clear that the resolution of disputes arising from that code can be resolved by the exercise of the judicial power and, importantly, this judicial power emanates from the defence power itself. Accordingly, bodies established to hear and resolve defence force disciplinary matters need not conform to the requirements of Chapter III of the Constitution.77
There is, however, an apparently simple point of dispute which underpins a point of constitutional and social importance about the appropriate boundary between military and civilian law. This dispute surrounds the extent to which the defence power may authorise the determination of offences by military bodies that do not conform to Chapter III. How, and how closely, must those offences be connected to the defence power? Some military offences are purely disciplinary in nature in the sense that they possess no civilian counter part, such as desertion,78 disobeying an order79 or engaging in conduct that is likely to prejudice the discipline of, or bring discredit on, the defence force.80 Other military offences are hybrid in the sense that they could constitute an offence under either civilian or military law such as assault.81 Some hybrid offences, such as assaulting a superior or subordinate officer,82 acquire a special significance when they occur within the armed forces, and for that reason may be regarded as within the armed forces. This latter form of offences is best described as hybrid in view of the judicial acceptance that it is perhaps impossible to draw a ‘clear and satisfactory line between offences committed by defence members which are of a military character and those which are not’.83
That difficulty goes to the heart of the constitutional dilemma. To what extent does the defence power authorise the creation of service tribunals that do not conform to the requirements of Chapter III? Does the power enable services tribunals to be invested with power to determine only offences of a disciplinary nature or does it extend to hybrid offences? At the constitutional level, this question is one of constitutional reconciliation because it requires the defence power, and its inherent authority to create and enforce a disciplinary code, to be reconciled with the more general requirements of Chapter III.84 Any expansion on one factor requires a contraction on the other, hence the task of reconciliation. At another level, the question requires an intuitive judgment about the appropriate boarder between civilian and military authority, the preparedness of military authorities to accede to the exercise of civilian authority over military personnel, and the preparedness of the civilian judiciary to understand and accept that some judicial authority can, and perhaps even should, be exercised without conformity to the requirements of Chapter III.
Some judges have accepted that the issue can be decided by whether the relevant offence has a sufficient ‘service connection’, which requires that an offence should bear a relationship to the service environment. An offence need only be relevant to the maintenance of the discipline and good order of the services.85 Adherents to this view essentially believe that the defence power can authorise military tribunals to determine what I have described as purely disciplinary offences but almost certainly not hybrid offence s.86 Other judges have accepted that the scope of the defence power should be decided by reference to the ‘service status’ of the defendant, which enables a military tribunal to exercise jurisdiction by reason of the defendant’s status as a service member.87 Adherents to this view believe that military tribunals can determine both disciplinary and hybrid offences.
Several comments can be made about the differences between and consequences of the ‘service connection’ and ‘service status’ tests. First, neither view has gained clear support among the High Court. It is not even clear that the court would adopt this classification if it was to finally resolve the constitutional uncertainties surrounding military tribunals. Secondly, the apparent problems would dissolve if military tribunals were created in conformity to Chapter III of the Constitution. Such changes would, however, require significant reforms to the military justice system. Thirdly, judges who accept the service connection view often disagree about the application of that test. In other words, they disagree about what may or may not constitute a service connection.88
The outcome of this constitutional uncertainty about the defence disciplinary scheme will greatly affect the scope of the defence force discipline. If the current disciplinary scheme finally ran aground on constitutional principles, the reasoning of the High Court would exercise enormous influence on subsequent reforms to the military disciplinary. The adoption by a clear majority of either the service connection or status test would greatly affect the scope of the military disciplinary scheme. Many American commentators have suggested that the adoption by the Supreme Court of that nation of the service status test has been
an important element of the high level of deference and autonomy that court has granted to the military.89 The same applies to Australia. A decisive adoption of
one test or the other, whether by constitutional doctrine or legislative reform, would determine the extent to which military offences were determined by adjudicative bodies that operated within the armed forces of the civilian courts.