The Senate Report into Military Justice identified significant flaws in the military justice system and made sweeping recommendations to correct those flaws. The full extent of both the perceived problems and their suggested solutions cannot be easily summarised, but several key themes emerge from the report. The report made adverse findings about individual investigations and prosecutions conducted in the military justice system, and its overall structure.132 A key element of the many comprehensive recommendations for reform was the argument that the military justice system should become less military in character. More particularly, it was recommended that civilian courts and law enforcement should assume responsibility for much more of the conduct of defence force members that is currently prosecuted within the military justice system.133 An important related element of the report was that it ultimately rejected much of the evidence given by defence officials who argued that control of military justice system should remain firmly within the military. The rejection of such evidence by the report provides a subtle example of the assertion of civilian authority over the military.
The shape of any reforms based on the Senate Report into Military Justice lies in the hands of the government, but it is useful to comment on the potential consequences that some of the major recommendations would have for Australian military law. Those comments are subject to two important cautions. The first is that the tabling of the report does not necessarily mean that its recommendations will be enacted in full or even in part. The recent history of the administration of the defence forces has witnessed regular reviews and inquiries, coupled with a continued reluctance of governments to give effect to many of the recommendations that have arisen from those reviews and inquiries.134 The second caution is that the Senate Report was clearly mindful of the difficulties in previous inquiries and reports into the defence forces. The report indicated that the Senate Committee on Foreign Affairs, Defence and Trade References had requested the ADF to submit annual reports on the implementation and effectiveness of reforms to military justice in light of the Senate Report and any other initiatives. The Committee has also requested that the ADF report annually on the workload and effectiveness of the key decision-makers within the military justice system.135 This aspect of the report indicates that the Committee intends to monitor the implementation of its recommendations, which may itself increase the likelihood that implementation occurs, and that the Committee intends to enhance its supervisory function over the military justice system. While the outcome of increased parliamentary scrutiny cannot be predicted, evidence form other jurisdictions suggests that parliamentary committees that make a determined effort to improve their oversight of defence matters can develop considerable expertise and thereby increase their ability to influence the military. 136
A The Adjudication of Offences and Chapter III of the Constitution
A key recommendation of the Senate Report into Military Justice was that a Permanent Military Court be established to hear and determine military offences and that this should conform to the requirements of Chapter III of the Constitution.137This recommendation would preserve the separate military legal system, but introduce a greater adherence to the institutional qualities of civilian judicial power. The possible increased influence of civilian justice was reinforced by additional recommendations that appointees to the court should possess several years experience in the civilian courts.138
Changes of this nature would almost certainly dispel many of the constitutional problems surrounding the defence disciplinary scheme, but they would also require many other institutional reforms. The Defence Force Disciplinary Appeal Tribunal would have to be reviewed, perhaps even abolished. It would be inappropriate, and probably also unconstitutional, for the Tribunal to exercise any appellate jurisdiction over the proposed military court. If the exercise of defence judicial power were to be constituted according to the principles applicable to Chapter III, it would be anomalous that the supervision of those bodies was not also conducted according to normal principles that govern inferior courts. If so, the Federal Court would be granted the right of appeal that is normally vested in a court of criminal appeal. Changes of this nature would amplify the oversight function of the Federal Court by widening its appellate function over military justice so that it occupied the position of a quasi-court of criminal appeal, which is currently occupied by the Tribunal. One important consequence of the creation of a military court is that it would inevitably give rise to a judicial culture within the military justice system in the sense that members of the court would freed from the chain of command, take the oath of judicial office and act with the institutional neutrality required of judicial officers. An important related point is that the judicial culture cannot easily be adopted in part – it must be adopted in full or not at all. That point was well illustrated by the recent review of Canadian military law which recommended that military judges, who were appointed to fixed renewable terms, should be appointed to a specialist military court according to the normal terms of judicial appointment. The report recommended that military judges be granted many of the protections accorded to civilian judges, such as protected conditions and statutory immunity from civil action when acting in their judicial capacity. It also recommended that military judges be granted many of the sentencing powers exercised by civilian judges, such as the power to impose suspended sentences.139 The common theme in all of these recommendations is the suggestion that military judges should look and act increasingly like civilian judges.140