The relationship between military and civilian law has long been an uneasy one. According to orthodox legal doctrine, however, that should not be the case. There is longstanding and powerful authority for the principle that military law is subject to civilian law.1 One consequence of this principle is that the civilian government decides the extent, if at all, to which the military may be subject to different laws or even separate legal systems. On this view, the boundaries of military law are set by the civilian government and those boundaries are ultimately policed by the government itself. The civilian courts assist in this ‘policing’ or ‘boarder control’ function of military by exercise of their authority to declare and interpret the law.2 But the history of military justice suggests that the relationship between military and civilian law is much more complex. Military commanders have long maintained that the armed forces require considerable autonomy from the civilian legal system in order to maintain effective command and control over service members. According to this view, military law and military life may be undermined by external forces such as civilian law. Elements of the civilian legal system of this nature include scrutiny by civilian courts of military disciplinary and other decisions made within the armed forces,3 or the involvement in military justice of legal officers who are subject to the professional regulatory regimes that normally apply to legal practitioners.4 Those who argue in favour of a highly autonomous military justice system do not suggest that the military should become a law unto itself. They instead argue that that recourse to the civilian courts and civilian processes of law by service members has the potential to undermine military culture and fragment the command structure and should, therefore, be restricted.
The extent to which the law governing the armed forces should be separated from the influence of civilian legal principles and institutions has been a key issue in the evolution of modern military forces. The increasing influence of civilian legal principles and institutions, usually described as ‘civilianisation’, continues to provoke a strong response from military commanders. The civilianisation of military law has long been a central issue of American military scholarship, but has received considerably less attention in other western nations such as Australia.
This article examines the notion of civilianisation and how it affects Australian military law. The article is mainly concerned with military disciplinary because this area of military life has been a key focus of parliamentary and judicial attention in Australia. The first sections of the article trace the arguments that can be made for and against the development of a special or separate body of legal doctrine for the military. The next sections examine several features of the military justice system and consider whether, and to what extent, they may have enhanced the civilianisation of Australian military law. The final section of this article examines the comprehensive review of the military justice system recently undertaken by the Senate Committee for Foreign Affairs, Defence and Trade References and whether the recommendations of that review might, if enacted, affect the civilianisation of Australian military justice.5
II WHAT IS CIVILIANISATION?
Civilianisation means the incorporation of civilian values into military life. Any attempt to move beyond that apparently simple definition requires many statements by way of qualification, but for present purposes it is useful to rehearse the key issues that surround civilianisation. The first is that the principle of civilianisation presumes that the armed forces are clearly subject to civilian control. While there are many nations in which the armed forces may exert considerable control over government, it is fair to suggest that this is not the case in most western nations at present. But the absence of overt military influence over civilian government does not itself explain how, or even if, the civilian government controls the military.6 Some American scholars, for example, have argued that continued references to the civilian control of the military are rhetorical in part because no coherent definition or body of principles to explain the hallmarks of civilian control of the military has ever really emerged.7 It is possible that the absence of a settled body of doctrine reflects a wider lack of knowledge about the societal relationship between civilians and the military in modern society, but research into this issue remains in its infancy.8
The most widely accepted explanation of civilian control over the military is two-fold. It firstly provides that ‘the ends of government policy are … set by civilians; the military is limited to decision about means’; and, secondly, element provides that the civilian government determines where ‘the line between ends and means (and hence between civilian and military responsibility) is to be drawn’.9
Civilisation is an example of civilian control of the military. It is the incorporation of the norms of civilian society into the military and can occur in any aspect of military life. The civilisation of military law refers to the incorporation of the institutions and norms of the civilian legal system into military law. The incorporation of civilian law institutions usually occurs when a civilian statute or regulatory regime is extended to the military. Examples of this nature include the application of freedom of information (‘FOI’) and anti-discrimination legislation to the defence forces,10 and the introduction of a right to complain to an independent Ombudsman about unfair or unjust administrative action.
The incorporation of civilian legal norms is a much more subtle process that occurs either through the exposure of military personnel to civilian legal culture or the introduction of civilian lawyers into the military justice system. It is easy to underestimate the impact that civilian legal culture can have on closed environments such as the military. Lawyers carry and transmit a system of professional values that are fiercely independent. This independence is antithetical to the command model of military decision-making, which does not countenance disagreement or dissent. The other important effect of civilian legal norms is that they tend to overwhelm the values of the system into which they are introduced and thereby effect cultural change from within.11
Much of the debate surrounding civilianisation reveals considerable disagreement about is evolution. Some commentators suggest that civilianisation involves the voluntary incorporation of civilian values into military law by military authorities.12 Others, particularly, those who are members of the military, refer to civilianisation in a pejorative manner, suggesting that it usually occurs against the objection of military officials or, at best, with their begrudging acquiescence or barely concealed resistance.13 There is similar disagreement about the trend of civilianisation. Some commentators argue that the civilianisation of military law has continued unabated for the last hundred years,14 while others argue that the evolution of military law is more cyclical and that there have been clear periods in which civilianisation has slowed or even reversed.15