The Senate Report into Military Justice recommended that officers responsible for the conduct and determination of disciplinary offences should be granted institutional independence from the defence force. In one sense these recommendations are a natural extension of the suggestion that the adjudicative bodies should be constituted in accordance with Chapter III of the Constitution because there seems little purpose to constitute decision-making bodies in accordance with orthodox constitutional rules without also granting those bodies the same institutional independence granted to other judicial bodies. But the suggestion that institutional independence should be granted to prosecuting authorities moves a step further. The recommendation to create an independent Director of Military Prosecutions with responsibility for advocacy, advice and prosecutorial functions would remove operational control of prosecution decisions from military forces.142 One important question about these changes is the extent to which an independent military prosecutor might be influenced by his or her civilian counterparts. The history of independent civilian prosecutorial authorities suggests that they act with great independence and often take decisions that are unpopular with the government of the day. It is difficult to predict whether an independent military prosecutor would adopt the same vigorous independence.
It was explained above that there is an overlap between civilian criminal law and military disciplinary offences because many military offences, such as assaulting a superior officer, are ‘hybrid’ offences in the sense that they can constitute an offence under military or civilian law but acquire a special significance when committed in a military environment. The Senate Report into Military Justice did not recommend the abolition of hybrid offences, but its recommendations that responsibility for the investigation and prosecution of criminal conduct be vested in civilian authorities foreshadows a much narrower role for military law. The report anticipated that civilian authorities might decline to pursue many matters and suggested that such cases should be referred back to military authorities, but it recommended that military authorities should only pursue such matters when they could ‘reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline’.143
These changes would restrict significantly the scope of the military disciplinary system and allow for a corresponding increase in the reach of civilian authority over the military.144 Several comments can be made about the potential effect of that increased reach of civilian authority. First, civilian authorities would exercise initial control over the investigation of hybrid offences and determine whether, and how, to investigate and prosecute such offences. While military authorities would retain the right to pursue some matters, this would only occur if civilian authorities declined to do so and, even then, when a ‘service connection’ could be established. Secondly, the Senate Report into Military Justice gave no indication how the requirement that an offence could ‘reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline’ was to be determined. While military authorities would clearly take account of service issues, that requirement might not be easy to satisfy. The Senate Report into Military Justice suggestion that offences be pursued by military authorities only if they substantially maintained or enforced discipline introduces a threshold or preliminary requirement that must be satisfied before an offence should be pursued. Another difficult issue is the extent to which military authorities should take account of the reasons why civilian authorities declined to pursue a matter. If they decided that a matter was too trivial or that the prospects of a conviction were not sufficiently strong to warrant a prosecution, would military authorities need to explain their decision to adopt a different view? Should military authorities take account or use the evidence obtained by civilian authorities? While it is difficult to predict the outcome of these problems, it is likely they point to a greater influence of civilian standards for the investigation and prosecution of offences on military justice. That, in turn, would influence the conduct of military investigations.
D An Independent Directorate of Defence Counsel Services
The Senate Report into Military Justice suggested that other aspects of the military legal apparatus be granted greater institutional independence from the ADF. It recommended that all permanent military legal officers be required to hold current lawyers’ practicing certificates and that a Director of Defence Counsel Services be established.145
The recommendation to establish a Director of Defence Counsel Services would provide institutional support to enhance the independence by Defence Legal Officers (‘DLOs’) by creating a high profile office that would serve as a focus, perhaps in a protective sense, for DLOs who acted on behalf of service members. The Senate Report was mindful that the Canadian model from which it drew this recommendation was widely perceived to be independent of the chain of military command.146 The recommendation that legal officers hold current practicing certificates was clearly designed to overcome the problems identified in the recent case of Vance v Chief of Air Force.147 In that case the Supreme Court of the ACT held that DLOs did not possess a sufficient level of professional independence required to support a claim of legal privilege for much of their work.148 This finding was influenced by several factors, all of which suggested that DLOs acted primarily as military, rather than legal, officers. First, DLOs operated within a hierarchical regime of command which limited their independence to that allowed by superior officers. This problem was highlighted by evidence which suggested that the defence forces had not fostered a culture of independence for legal advisers but instead accepted that DLOs were amenable to superior orders concerning their legal work.149 Secondly, DLOs were not normally subject to continuing legal education and other mechanisms designed to foster ethical standards, and there was no clear mechanism by which professional ethical standards could be applied to DLOs.150
It should be noted that the decision of Crispin J was set aside after the Senate was tabled.151 The ACT Court of Appeal held that Crispin J had erred when he applied the common law test governing legal privilege rather than requirements for legal privilege established in the Evidence Act 1995 (Cth). The Court of Appeal conceded that DLOs did not hold practising certificates but concluded that this issue was not decisive to the statutory requirements for legal privilege.152 The more important issue, according to the Court of Appeal, was whether the document was confidential in the sense that it was prepared ‘in circumstances that the person who prepared it was under an express or implied obligation not to disclose its contents …’153 In my view, the connection drawn by the Court of Appeal between circumstances that give rise to an obligation of confidence and the existence of legal privilege does not sit easily with legal practice in the armed forces. It is entirely possible that a DLO might provide advice in circumstances that would prima facie impose on obligation of confidence, but that obligation could be overridden by superior orders directing the DLO to disclose advice that would otherwise be confidential.
A requirement that DLOs hold current practicing certificates would provide an important foothold for civilian values within the defence force. The superficial reason is that legal professional regulatory requirements such as continuing legal and ethical education and the obligation to observe professional ethical standards introduce external norms. But a deeper reason is the persuasive nature of legal culture. Many legal ethical values highlight the independent position of lawyers and their overriding duty protect and pursue the interests of clients and to obey and uphold the law.154
The role of other lawyers in fostering these values is crucial. When lawyers are faced with ethical and other professional problems, they are encouraged to seek the advice of other lawyers. This approach immerses lawyers in legal culture and its values and makes them more able to resist what are perceived as external values or pressures, such as superior orders.155 Such practices may arguably imperil the chain of command because they invite DLOs to question the chain of command and also subject DLOs to a divided loyalty – between the client and chain of command – which is antithetical to military life.