The civilianisation of australian military law

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D Judicial Review

Judicial review of administrative action provides an important form of control over administrative decision-making. The empirical studies of judicial review suggest that the relatively small number of decisions subject to judicial review belies the full effect of those applications. More particularly, it is clear that the normative effect of the apparently small number of applications for judicial review has a much greater effect on decision-making agencies than may appear to the outside eye.112 In other words, judicial review – or even the potential for judicial review – changes the behaviour of decision-makers. To a large extent, however, the defence forces have been immunised from these processes.

The primary vehicle for judicial review of administrative action at the federal level is the Administrative Decisions (Judicial Review) Act 1977 (Cth) (‘ADJR Act’). The significant procedural advantages of the ADJR Act include a right to a statement of reasons, a statutory codification of the grounds of review and simplification of the technical common law remedies into streamlined statutory remedies. Importantly, decisions taken under the Discipline Act are expressly excluded from the scope of the Act.113 Other military decisions are amenable to review under the ADJR Act, but are expressly exempt from the statutory right to provide reasons that normally attaches to decisions that are amenable to review under the Act. Such decisions include those made ‘in connection with, or made in the course of, redress of grievances or redress of wrongs’ of service members, or ‘decisions in connection with personnel management (including recruitment, training, promotion and organisation)’ of service members.114

This exclusion does not disturb judicial review by way of s 39B of the Judiciary Act 1903 (Cth), which replicates the original jurisdiction of the High Court.115 Accordingly, decisions under the Discipline Act cannot be the subject of statutory judicial review and its associated advantages, such as the right to obtain a statement of reasons,116 but they remain amenable to judicial review according to common law principles.117

The net effect of this exclusion of some military decisions from either the entire ADJR Act or its obligation to provide reasons for decisions, while the alternate avenue of judicial review under the Judiciary Act 1903 (Cth) remains available, is that military decisions are amenable to a patchwork structure of judicial review.118 Proceedings under the Discipline Act may be immune from statutory judicial review but decisions with a disciplinary element that are not taken directly under the Discipline Act, such as administrative inquiries related to possibility disciplinary issue,119 or the actions and decisions of an investigating officer appointed by legislation other than the Discipline Act are amenable to statutory judicial review. The ability to seek statutory judicial review of such decisions allows for indirect or collateral challenge of many decisions with a disciplinary element.120 The applications of judicial review of such decisions indicate that courts apply the normal principles governing judicial review and often examine the conduct of military decision-makers in considerable detail.121

Decisions that are not excluded from the ADJR Act are also subject to judicial review according to the normal principles of civilian law. Accordingly, there have applications for judicial review of a decision to terminate the enlistment of a service member on the grounds that the decision was unfair and unreasonable,122 and of a decision to transfer a service member on the ground that the decision failed to take account of the effect of the transfer of the service member’s family and financial commitments.123 While each of these cases failed, the decision-maker was required to justify his or her conduct to exacting external scrutiny. 124

It is difficult to measure the precise extent of the applications for judicial review of military decisions, though it is clear that the potential to commence an application for judicial review can itself have an immediate and lasting effect. The Senate Report into Military Justice gave one such example in which an officer faced with disciplinary proceedings endured a lengthy and fragmented pre-trial procedure. Although eight pre-trial proceedings were conducted over several months the investigation lacked crucial detail and the central allegation against the officer was not clearly made. The case was terminated when the officer threatened to seek judicial review in the Federal Court on the grounds of delay and lack of evidence.125 This case provides a clear example of the influence of even the threat of recourse to civilian legal principles.

E Inquiries and Reviews

The role of external reviews is an important measure of civilian influence. More particularly, the response by military forces to external reviews provides evidence of the extent to which external scrutiny can have a direct and timely effect the operation of the armed forces. The narrative account provided by the Senate Report into Military Justice of several earlier inquiries into various aspects of the defence forces, and the often disappointing outcomes arising from these inquiries, suggest that the defence forces are quite resistant to the effect of reviews and inquiries.

An inquiry in 1998 by the federal Ombudsman into how the defence force responded to serious incidents and offences concluded that the procedures for administrative and disciplinary investigations were seriously deficient and required significant reform. The Ombudsman was particularly critical of the apparent lack of appropriate professional standards in the conduct, monitoring and review of investigations.126 Two contradictory points can be made about this report. First, the Ombudsman’s investigation began after the Chief of the Defence Force requested the Ombudsman investigate a particular incident. This request indicates an understanding of, and acceptance by, military command of the value of external scrutiny. Secondly, many of the problems identified by the Ombudsman were found to still exist by the Senate Report into Military Justice, which was completed seven years later.

A subsequent investigation of the defence disciplinary system the following year by the Joint Standing Committee on Foreign Defence and Trade shared many of the same concerns. The report of that Committee expressed particular concern about the absence of procedural fairness granted to service members during disciplinary investigations. The report was especially concerned about the secretive nature of many investigations and the lack of appropriate training and professional standards for staff who administered the disciplinary system.127 One notable aspect of this report was that it proceeded on the assumption that the requirements of procedural fairness, as the doctrine of natural justice is now often labelled, should extend to service members.128 A subsequent investigation by the same committee into allegations of brutality within a particular unit revealed similar problems about the secretive nature of investigations and the poor standard of training and oversight for investigative staff. An important feature of this report was the recommendation that the training of military investigators should include greater experience in the work of comparable civilian bodies in order to improve the quality of their work.129

A subsequent related inquiry which was commissioned by the Chief of the Defence Force confirmed that systemic flaws existed within procedures for disciplinary investigations.130 The report repeated earlier concerns about undue delays, frequent examples of the exercise of undue or improper influence by commanders during the investigation of disciplinary processes, and a general failure to observe the requirements of procedural fairness during disciplinary investigations.

The Senate Report into Military Justice acknowledged that military authorities had often sought to respond to the problems raised by earlier reports but concluded that the response was often inadequate. The Senate Report explained:

repeated inquiries and reports indicate that the same problems continue to arise. Despite almost constant scrutiny, ADF personnel continue to suffer under a system that is seemingly incapable of effectively addressing its own weaknesses.131

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