The civilianisation of australian military law

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69 [2004] 2 NZLR 577.

70 The decision to institute confidentiality agreements appears to have been caused in part by a survey among SAS members that revealed that almost all supported their introduction. That curious example of industrial democracy in a military setting provoked surprisingly little comment from the various courts that considered R’s claim.

71 A point made more difficult because R, having invoked these civilian law principles, was subject to the additional civilian law requirement that he prove the facts supporting each element of the claim.

72 Attorney-General for England and Wales v R [2004] 2 NZLR 577, 584-5. The decision of the Court of Appeal of New Zealand was quite similar: [2002] 2 NZLR 91. That decision is examined in P Twist, ‘Limits to the Supreme Government, Command and Disposition of the Armed Forces: Attorney-General for England and Wales v R’ [2002] New Zealand Armed Forces Law Review 43.

73 There was, in fact, a sense of exasperation in some members of the High Court that the applicant did not directly challenge the constitutional validity of the disciplinary scheme. See, eg, Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 [81]-[84] (Kirby J).

74 In this paper I refer to the ‘defence’ power which is s 51 (vi) of the Constitution, but it is clear that the additional power for defence related issues may be drawn from the power to maintain internal security (the wording 5 1(vi) includes ‘the control of the forces to execute and maintain the laws of the Commonwealth’) and external relations with other nations (s 51 (xxix)). The extent to which the second limb of s 51(vi) can support the question of military discipline was expressly doubted in Re Tracey; Ex parte Ryan (1989) 166 LCR 518, 564 (Mason CJ, Wilson and Dawson JJ). Although Gummow J has since endorsed this view, he has also accepted that the defence power can support the recourse to force to control internal threats: Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 [60]-[61]. In my view it is difficult, and perhaps undesirable, to separate authority to exercise the defence power from the authority to control the defence forces. Each compliments the other. The extent to which the foreign affairs power can support the creation of military tribunals outside the requirements of Chapter III has also been questioned: see Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 [27] (McHugh J), [82] (Kirby J).

75 Australian Communist Party v Commonwealth (1951) 83 CLR 1, 195-6, 197-8 (Dixon J), 206-7 (McTiernan J), 268 (Fullager J). See also the authorities cited by McHugh J in Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 [27] and G Sawer, ‘Defence Power of the commonwealth in Time of Peace’ (1954) 6 Res Judicatae 214.

76 Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 541 (Mason CJ, Wilson & Dawson JJ); Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 [8] (Gleeson CJ).

77 Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 540-1 (Mason CJ, Wilson and Dawson JJ). See also R v Cox; Ex parte Smith (1945) 71 CLR 1, 23 where Dixon J explained that the exception of defence tribunals to Chapter III was ‘not real. To ensure that discipline is just, tribunals acting judicially are essential to the organisation of an army or navy or air force. But they do not form part of the judicial system administering the law of the land.’ The constitutional accommodation of military courts in American law, which also incorporates a constitutionally based requirement of the separation of powers, is similar. See [Anon] ‘Military Justice and Article III’ (1990) 103 Harvard Law Review 1909. In the most significant constitutional challenge since that article was published, the Supreme Court affirmed that military courts are not required to be affixed with the features of court that exercise judicial power according to Article III of the Constitution: Weiss v United States 510 US 163 (1994). It has been suggested that the dearth of recent constitutional challenges to the composure of military courts is evidence that judicial deference to military judicial power is well established: John O’Connor ‘The Origins and Application of the Military Deference Doctrine’ (2001) 35 Georgia Law Review 101.

78 Defence Force Discipline Act 1982 (Cth) s 22.

79 Defence Force Discipline Act 1982 (Cth) s 27.

80 Defence Force Discipline Act 1982 (Cth) s 60. The offence is discussed in Matthew Groves, ‘The use of criminal law principles in military law’ (1997) 23 Monash Law Review 456, 473-7.

81 Defence Force Discipline Act 1982 (Cth) s 33(a).

82 Defence Force Discipline Act 1982 (Cth) ss 25, 34 respectively.

83 See, eg, Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 544 (Mason CJ, Wilson and Dawson JJ).

84 The characterisation of this as a task of reconciliation was adopted by Brennan and Toohey JJ in Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 569-70.

85 See, eg, Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 545 (Mason CJ, Wilson and Dawson JJ). Most members of the court accepted this principle in Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311 [91]-[100] (Kirby J), [158] (Callinan and Heydon JJ).

86 In its strictest form, this view would enable military tribunals that do not conform to Chapter III to only determine military offences of an ‘exclusively disciplinary character.’ This view was favoured by McHugh J in Re Nolan; Ex parte Young (1991) 172 CLR 460, 499 and Re Tyler; Ex parte Foley (1993) 181 CLR 18, 39. Deane J appeared to favour a similarly strict view in Re Tracey; ex parte Ryan (1989) 166 CLR 518, 585-6. Despite the apparent strictness of the view, it raises the difficult question of what is meant by ‘exclusively’. No doubt military and civilian views on this point could differ greatly.

87 This view now prevails in the United States: Solorio v United States 483 US 435 (1987).

88 Such a disagreement led to the sharp division in Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311. McHugh J favoured the service connection view and held that the offence in question had such a connection. The offence was an alleged rape committed by a service member who was on an overseas posting but on leave in another foreign country, away from his unit and wearing civilian clothes. McHugh J found the service connection test satisfied largely because the defendant was overseas only by reason of his service, remained liable to recall at any time and subject to some restrictions even while on leave. Callinan and Heydon JJ agreed with McHugh J on his adoption of the service connection but did not accept that it was met in this case. In my view, there is much force in their Honours reasoning. It could even be argued that the relatively slender basis upon which McHugh J found the service connection test to be satisfied made it difficult to distinguish from the service status test.

89 See, eg, John O’Connor, ‘The Origins of the Military Deference Doctrine’ (2001) 35 Georgia Law Review 161, 273-7.

90 Commonwealth, 127 Parliamentary Debates, House of Representatives, 29 April 1982, 2083 (J Killlen). Some of the complex background to the Discipline Act is explained in the Minister’s speech. The Act arose largely from a working party that reported to Parliament about the consolidation and modernisation of military law nine years earlier.

91 (1989) 166 CLR 518.

92 Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 550.

93 For this reason, the Discipline Act bears many similarities to the American Uniform Code of Military Justice. Although that Code is an executive order issued by the President, it serves the same basic function of introducing a single military code to cover all forms of military service.

94 Victor v Chief of Naval Staf (1992) 115 ALR 716, 727.

95 See, eg, Kasprzyck v Chief of Army (2001) 124 A Crim R 217 where the tribunal drew upon civilian law principles governing property offences to determine property offences included in the Discipline Act. See also Mocicka v Chief of Army [2003] ADFDAT 1 [14] where the tribunal used principles of civilian criminal law to determine the meaning of ‘likely’ for a charge under s 60 of the Discipline Act, which creates an offence for ‘conduct likely to bring discredit on the Defence Force.’

96 See, eg, Hofman v Chief of Army (2004) 137 FCR 520 where the court determined a complex textual conflict between separate provisions of the Discipline Act by reference to orthodox civilian law principles of construction.

97 Section 61 of the Discipline Act provides that a service member is guilty of an offence if he or she does or omits to do an act in the Jervis Bay Territory, which if done or omitted to be done, would be a ‘territory offence.’ A ‘territory offence’ is defined by s 3 as one that is punishable under the Crimes Act 1900 (ACT).

98 Re Colonel Aird; Ex parte Alpert (2004) 209 ALR 311. It should be noted that while there was considerable disagreement in earlier High Court decisions on the disciplinary scheme, there was clear agreement in the court that the Commonwealth had wide power to subject service members to military discipline: Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 544 (Mason CJ, Wilson and Dawson JJ), 570 (Brennan and Toohey JJ), 585 (Deane J), 601 (Gaudron J).

99 The amending statute was the Defence Legislation Amendment (Application of Criminal Code) Act 2001 (Cth).

100 This reform was affected by amendment of s 10 of the Discipline Act.

101 The most common variation from the Criminal Code was the preservation of strict liability for many military offences. The Criminal Code requires that an offence of strict liability must be expressly specified as such.

102 A point reinforced in the second reading speech of the minister has introduced the Bill. The minister explained that the application of the Criminal Code to defence legislation occurred as part of a more general review that required all federal agencies to review legislation for which they were responsible, with a view to harmonising those statutes with the Code. That approach suggests that the Department of Defence was prima facie regarded like any other agency: Commonwealth, 242 Parliamentary Debates, House of Representatives, 29 August 2001, 30466 (Hon B Scott).

103 Judge Advocate General, Defence Force Discipline Act 1982 – Report for the period 1 January to 31 December 2001 (2002) 4-5.

104 Hembury v Chief of General Staf (1998) 193 CLR 641, 649.

105 Hogan v Chief of Army [1999] ADFDAT 1. Here the tribunal applied the test for judicial bias that applied in civilian courts.

106 Rogers v Chief of Army [2004] ADFDAT 1, where a complex question of statutory interpretation on this issue was determined by reference to civilian law authorities.

107 Coleman v Chief of Army [2003] ADFDAT 2, where the tribunal determined the requirements of ‘property belonging to another’ by reference to normal civilian tests.

108 Ferdinands v Chief of Army [2002] ADFDAT 3, involving an appeal against refusal of application to lodge appeal out of time, the matter was determined according to High Court authority applicable to civilian law appeals.

109 Defence Force Discipline Appeals Act 1955 (Cth) s 52(1). But once that limited jurisdiction is enlivened, the court can make such order as it thinks appropriate: s 52(4).

110 Hembury v Chief of General Staf (1998) 193 CLR 641, 653 (Gummow and Callinan JJ). Their Honours pointed out that the jurisdiction of the court is such that it exercises original jurisdiction under this right of ‘appeal’.

111 Hembury v Chief of General Staf (1998) 193 CLR 641, 673-4 (Hayne J).

112 See Genevra Richardson & Maurice Sunkin, ‘Judicial Review: Questions of Impact’ [1996] Public Law 79; Genevra Richardson & David Machin, ‘Judicial Review and Tribunal Decision-Making: A Study of the Mental Health Review Tribunal’ [2000] Public Law 494; Robyn Creyke & John McMillan, ‘Executive Perceptions of Administrative Law – An Empirical Study’ (2002) 9 Australian Journal of Administrative Law 163. See also the papers collected in Simon Halliday (ed) Judicial Review and Bureaucratic Impact (2004).

113 ADJR Act, sch 1(o). That exclusion does not extend to decisions of the DFDAT, but an express exclusion of that body from the scope of the ADJR Act is not required. The definition in s 3 of the ADJR Act of a ‘decision to which this Act applies’ is a ‘decision’ which is ‘made under an enactment’ and is ‘of an administrative character’. The DFDAT exercises judicial rather than administrative power and, therefore, its decisions do not fall within the scope of the basic definitional requirements of s 3.

114 ADJR Act, sch 2(a), (b).

115 The jurisdiction of the Federal court is explained in Mark Aronson, Bruce Dyer & Matthew Groves, Judicial Review of Administrative Action (3rd ed, 2004) 24-6, 3 3-5.

116 That right is granted by s 13 of the ADJR Act and extends only to decisions that are amenable to review under the Act. There is no equivalent exemption under freedom of information legislation. Exemption under that regime is granted only to documents of the Defence Intelligence Organisation and the Defence Signals Directorate: Freedom of Information Act 1982 (Cth) sch 2.

117 There are limitations to the jurisdiction of the Federal Court under s 39B in criminal proceedings that are commenced in a State or Territory court, but these do not normally apply to military decisions. On the difficulty of proceeding with an application for judicial review of a defence related decision without the benefit of a statement of reasons, see Martinek v Evans [2002] FCA 1584.

118 It is not intended to suggest that review by way of s39B of the Judiciary Act 1903 (Cth) should not be available. If that avenue were abolished, service members aggrieved by disciplinary and administrative decisions would have no alternative but to seek a remedy in the original jurisdiction of the High Court in s75(v) of the Constitution. It would obviously be undesirable to curtail the judicial rights of service members so as to exclude all options except that of constitutional judicial review because the High Court should not be burdened with unexceptional applications.

119 X v McDermott (1994) 51 FCR 1.

120 C v T (1995) 58 FCR 1.

121 See, eg, C v T (1995) 58 FCR 1 where the court carefully scrutinised the manner in which an inquiring officer questioned witnesses.

122 Stuart v Chief of Army [2003] FCA 1291.

123 Paterson v Chief of Army (No 2) [2001] FCA 196.

124 There are even instances in which the defence force itself might seek to use the ADJR Act in an attempt to overturn an unfavourable administrative decision. X v Commonwealth (1999) 200 CLR 177 is an example. That was a disability discrimination case that ultimately reached the High Court. Early in the proceedings, the defence forces sought judicial review under the ADJR Act of the decision of the Human Rights and Equal Opportunity Commissioner who had upheld the initial complaint by X which alleged he had been subject to discriminatory treatment by the defence forces: The Commonwealth v Human Rights and Equal Opportunity Commission (1996) 70 FCR 76. If that application had succeeded, the complex subsequent High Court proceedings would almost certainly not have occurred.

125 The Senate Report into Military Justice, above n 5, [38].

126 Commonwealth Ombudsman, Own Motion Investigation into how the Australian Defence Force Responds to Allegations of Serious Incidents and Ofences (1998), ch 5.

127 Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Military Justice Procedures in the Australian Defence Forces (Report 89, 1999).

128 The report did suggest that the exact requirements of the doctrine should take account of the character of the military environment, but this is simply an illustration of the variable content of the doctrine of procedural fairness.

129 Joint Standing Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Rough Justice? Investigation into Allegations of Brutality in the Army’s Parachute Battalion (Report 99, 2001) 61.

130 Australian Government Department of Defence, JCS Burchett QC, Report of an Inquiry into Military Justice in the Australian Defence Force (‘the Burchett Report’) (2001).

131 The Senate Report into Military Justice, above n 5, 3.23.

132 The Senate Report into Military Justice echoed concerns expressed by the report of a recent joint inquiry conducted by the Department of Defence and the Office of the Commonwealth Ombudsman: Commonwealth Ombudsman, Review of Australian Defence Force Redress of Grievance Systems 2004 – A joint report by the Department of Defence and the ofice of the commonwealth Ombudsman (January 2005). That report suggested that the military grievance system was overly complex, piecemeal in nature, often inefficient, and that many of these problems were exacerbated by wider problems in the military justice system.

133 The report also recommended fundamental changes to the structure and operation of the administrative mechanisms to receive and investigate grievance from service members. The Senate Report into Military Justice (2005), above n 5, chs 6, 7, 10, 13 and recommendations 24-5, 29, 30, 35

134 The Minister for Defence has not, at the time of writing this paper, issued a press release in response to the Senate Report into Military Justice. In an interview given shortly after the Senate report was tabled, the minister indicated his apparent sympathy to the view of the Chief of the Defence Force whom the minister suggested did not support radical change to the military justice system. See the transcript at <> at 24 June 2005.

135 The Senate Report into Military Justice, above n 5, l. The Judge Advocate General was not included in the list of bodies to provide an annual report to the Senate Committee because he has done so for many years.

136 On the English experience, see Bruce George & J David Morgan, ‘Parliamentary Scrutiny of Defence’ (1999) 5 Journal of Legislative Studies 1.

137 The Senate Report into Military Justice, above n 5, (recommendations 18-9).

138 Ibid, (recommendations 20-1). The report did not specify whether the experience required would be experience of working within the civilian legal system or simply that practitioners be admitted as legal practitioners for a period of years. The latter does not necessarily require any direct experience within the civilian courts

139 The First Independent Review by the Right Honourable Antonio Lamer PC, CC, CD of the provisions and operation of Bill C-25, An Act to amend the National Defence Act and to make consequential amendments to other Acts, as required under section 96 of the Statutes of Canada 1998, c.35 [(2003) 17-31, (hereafter ‘The Lamer Report’). The recommendations to replace fixed term appointments with appointments to the age or retirement, as is the standard practice for judicial officers, contrasts American practice. American military judges are appointed to renewable terms and subject to regular performance assessments. The latter practice has attracted considerable criticisms on the basis that it comprises the independence of military judges. See, eg, Fredric Lederer & Barbara Hundley, ‘Needed: An Independent Military Judiciary—A Proposal to Amend the Uniform Code of Military Justice’ (1994) 3 William and Mary Bill of Rights Journal 629.

140 The Lamer Report can be contrasted with the review of the American Uniform Code of Military Justice that was conducted on the 50th anniversary of the code: Hon Walter Cox III, Report of the Cox Commission on the 50th Anniversary of the Uniform Code of Military Justice (2001). The Cox Commission was much more procedural in its focus. A summary of its report is located on the website of the National Institute of Military Justice: <> at 17 September 2005.

141 The Senate Report into Military Justice, above n 5, li.

142 The Senate Report into Military Justice, above n 5, (recommendations 10-11).

143 The Senate Report into Military Justice, above n 5, recommendation 4.

144 These changes would, if enacted, amount to the adoption of the view advocated by some members of the High Court that the defence disciplinary scheme should extend only to disciplinary offences.

145 The Senate Report into Military Justice, above n 5, (recommendations 16 and 17 respectively).

146 Ibid, 74-6. It should be noted that a recent review of the Canadian scheme recommended reforms to strengthen the independence of the Director of Defence Counsel Services, to grant the Director the same level of security and independence enjoyed by the head military prosecutor: The Lamer Report (2003), above n 139, 14-16.

147 (2004) 154 ACTR 12. Vance was involved in a long running claim for damages for what he alleged was a wrongful decision to discharge him on medical grounds. The ADF resisted Vance’s motion for discovery with a claim of legal privilege. Vance claimed that DLOs were not sufficiently independent to claim legal privilege and, therefore, could not resist discovery on this ground.

148 The position in Canada seems similar. The Lamer Report (2003), above n 139, 62-3 noted that defence counsel acted as advisers rather than legal counsel in the traditional sense. The report recommended that confidentiality between defence counsel and their client be strengthened but concluded that the introduction of solicitor/client privilege would be inappropriate in a military setting.

149 Crispin J was influenced by evidence in the case at hand, in which a DLO was ordered to deliver confidential files. He also recited evidence by a government minister, who was a former DLO, that DLOs could be commanded to act against their legal training. In addition, a senior member of the defence force did not clearly deny the possibility that DLOs could be ordered to act contrary to legal professional ethical rules: Vance v Chief of Air Force (2004) 154 ACTR 12, [60].

150 Vance v Chief of Air Force (2004) 154 ACTR 12, [63] where Crispin J noted that DLOs almost certainly could not be subject to legal professional discipline for any order to act against legal ethical guidelines. He also noted that, even if a DLO was sanctioned, he or she did not require a practising certificate to continue work in the defence force.

151 Commonwealth of Australia & Chief of Air Force v Vance [2005] ACTCA 35.

152 The main point of difference appeared to be that Crispin J held that privilege could only be established when the lawyer held a practising certificate. The Court of Appeal rejected this absolute approach: ibid [22].

153 Ibid [24].

154 The literature on these issues is vast. A useful explanation of the duties of lawyers is given in Gino Dal Pont, Lawyers’ Professional Responsibility (2nd ed, 2001).

155 The Senate Report into Military Justice (2005), above n 5, seemed aware of this possibility when is suggested that the ‘exposure’ of DLOs civilian processes during secondments to civilian prosecuting bodies would broaden their professional skills, [4.37]. It is difficult imagine that DLOs could absorb civilian professional skills but not their accompanying ethical context.

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