The civilianisation of australian military law


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The days in which the military and civilian legal systems operated separately from each other have long since ended. Most would agree that civilian and military law should contain many common features, but there is likely to be disagreement on the extent to which the two should be harmonised by way of civilianisation. Much of that disagreement depends upon the perspective from civilianisation is viewed. If one accepts that the military life is sufficiently different as to warrant a system of governance that is distinctly separate and different from much of civilian life, the civilianisation of military law represents an undesirable, even detrimental, encroachment of external values into military life. But if one does not accept that the character of military life is such to justify significant differences with civilian life, the civilianisation of military law represents a natural and desirable evolution of military law and the broader culture within which it operates. According to this view, military and civilian law should not differ unless there is clear and compelling reason.

It is difficult to accept one view entirely at the expense of the other because the arguments for and against the different character of military life are usually finely balanced. Australian courts have clearly not adopted the high level of deference which the Supreme Court of America has extended to the decision of military officials. The continued uncertainty that surrounds the constitutional validity of the Australian military disciplinary system concerns the relatively narrow question of the extent to disciplinary offences may validly extend to service members. When the High Court finally resolves the constitutional questions surrounding military disciplinary scheme it is, in my view, likely to support the ‘service connection’ test. The decisive adoption of that test would arguably narrow the scope of military disciplinary and, by implication, the military legal system as a whole, because it would restrict the extent to which service members were subject to military disciplinary offences. But this would depend very much on the manner in which the test was applied. The adoption of the service connection test would compliment other changes in military justice system such as the adoption of the principles of Criminal Code Act 1995 (Cth) and the assumption by the Defence Force Discipline Appeal Tribunal of the role of a quasi-court of criminal appeal.

The extent to which the recommendations of the Senate Report might change the military justice system is difficult to determine. Resistance to change is a recurring feature of military law and there is a reasonable possibility that any attempt to implement the Senate Report into Military Justice would meet significant institutional resistance. At the same time, however, it must be conceded that the publication of the report may provide an impetus for change. The report is well argued and makes a strong case for reform. In addition, its final recommendations were not subject to any division according to political or other lines. The central recommendations of the Senate would, if enacted, greatly increase the civilian influence over the military justice. The combined impact of those recommendations would be far greater than their individual elements might suggest, but whether wider changes will be embraced by the legislature remains to be seen.

* Law Faculty, Monash University.

1 The precise origins of this authority are an obscure mixture of history and politics. Defence was originally one of the prerogatives held by the Crown, but it was illegal for the monarch to maintain a standing army during peacetime. That rule was confirmed by art 9 of the Bill of Rights 1689 (Eng), which provided that the monarch could only raise an army during peacetime with the consent of parliament. That provision was but one example of the subjection of royal power and prerogative to parliamentary authority as a result of the Glorious Revolution (the army itself arose from the so-called ‘New Model Army’ that was formed by Oliver Cromwell to fight the revolution). The parliamentary authority over the armed forces has never since been seriously questioned in England or Australia, though it was modified by the Mutiny Act 1689 (Eng). That Act eased some restrictions over the King in light of the imminent threat posed by Scottish rebels led by James I. The combined effect of both Acts enabled the monarch to retain nominal control of the forces, but this was clearly subject to the substantive control of parliament. These historical influences are often cited in modern cases to explain the importance of the ultimate command exercised by parliament over the armed forces. See, eg, Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 572-3 (Brennan and Toohey JJ).

2 The exercise of that judicial function can take one of two main forms. The first is constitutional in nature, by which the High Court exercises its original jurisdiction to determine any constitutional questions arising from the military legal system. In recent times, the questions of this nature have concerned the extent to which the federal parliament can invest military disciplinary authorities with the power to hear and determine conduct that might also fall within the jurisdiction of civilian courts exercising criminal jurisdiction. The second judicial function that civilian courts may exercise over military law is the normal appellate/review functions by which courts may consider applications for appeal or review arising from military law proceedings.

3 Scrutiny of this nature may take the form of either supervisory judicial review or appellate review.

4 The subjection of military legal officers to legal professional regulatory regimes is discussed below.

5 Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia,

The efectiveness of Australia ’s military justice system (2005) (‘The Senate Report into Military Justice’).

6 In Mocicka v Chief of Army [2003] ADFDAT 1 [13] the tribunal commented that ‘[I]n a democratic society governed by the rule of law the authority of the armed forces should be based on community respect rather than fear’. This statement suggests that the relationship between the civilian government and the military is one of respect rather subordination.

7 An influential exponent of this view was Samuel Herman, The Soldier and the State (1957). A recent analysis is Peter Feaver, ‘The Civil-Military Problematique: Huntington, Janowitz and the Question of Civilian Control’ (1996) 23 Armed Forces and Society 149. Feaver observes (at 149) that ‘the civil-military challenge is to reconcile a military strong enough to do anything the civilians ask them with a military subordinate enough to do only what civilians authorize them to do.’

8 This issue is the basis of the American research project known as the ‘Gap Project’. The Gap Project involves military scholars from several leading universities, who surveyed influential and rising leaders within military and civilian life. Participants were questioned at great length on issues relevant to the possible gap between civilian and military attitudes to many cultural issues, such as religion, morality, economic policy, political and social values, foreign policy and so on. The aim was to determine what, if any, ‘gap’ in attitudes and values might exist between the two groups. A collection of studies arising from the Gap Project and a full copy of the detailed questionnaire used in the study are published in Peter Feaver & Richard Kohn (eds) Soldiers and Civilians: The Civil-Military Gap and American National Security (2001).

9 See Kenneth Kemp & Charles Hudlin, ‘Civil Supremacy Over the Military: Its Nature and Limits’ (Fall, 1992) Armed Forces and Society 2, 8-9. See also Greer v Spock 424 US 828, 845-6 where Powell J explained that ‘[C]ommand of the armed forces placed in the political head of state, elected by the people, assures civilian control of the military.’ Some commentators offer a more subtle explanation of civilian control. See, eg, Charles Dunlap, ‘Welcome to the Junta: The Erosion of Civilian Control of the US Military’ (1994) 29 Wakeforest Law Review 314, 343-4. Dunlap argues that the notion of civilian control over the military is offended even when civilian authorities voluntarily cede authority to the military if that authority enables the military to exert an influence that endangers civil liberties or the democratic process. Although Dunlap argued for this view over a decade ago, it has assumed a new relevance in the so-called war on terror.

10 The application of anti-discrimination legislation to the defence forces was examined by the High Court in X v Commonwealth (1999) 200 CLR 177. In that case a soldier who was discharged because he had tested HIV positive challenged his discharge under the Disability Discrimination Act 1992 (Cth). The challenge was rejected by a majority of the High Court, which accepted the argument of military commanders that a soldier who was HIV positive might be unable to perform the inherent requirements of a soldier’s employment according to s 1 5(4)(a) of the Act. That section essentially provides that different treatment is not unlawful discrimination if it is related to deciding and enforcing the inherent requirements of employment. It is worth noting that the High Court applied the normal tests governing discrimination in civilian employment to the X case, though it took account of the nature of a soldier’s tasks.

11 For illustrations of this argument on the influence of lawyers in prison discipline and arbitration, see respectively Martin Loughlin, ‘The Underside of the Law: Judicial Review and the Prison Disciplinary System’ (1993) 46(2) Current Legal Problems 52 and Penny Brooker, ‘The Juridification of Alternative Dispute Resolution’ (1998) 28 Anglo-American Law Review 1.

12 See, eg, G R Rubin, ‘United Kingdom Military Law: Autonomy, Civilianisation, Juridification’ (2002) 65 Modern Law Review 36, 38.

13 One leading American commentator as referred to civilianisation as ‘the “C word,” the mere utterance of which still makes the occasional senior military lawyer see red’: Eugene Fidell, ‘The Culture Change in Military Law’ in Eugene Fidell & Dwight Sullivan, Evolving Military Justice (2002) 163, 163.

14 See eg, Gerry Rubin, ‘United Kingdom Military Law: Autonomy, Civilianisation, Juridification’ (2002) 65 Modern Law Review 36, arguing that the civilianisation of English military law accelerated after World War II; Edward Sherman ‘The Civilianization of Military Law’ (1970) 22 Maine Law Review 3, 8-59, arguing that American military law has witnessed continued civilianisation from the beginning of the 20th century to the era of the Vietnam war.

15 See, eg, Diane Mazur, ‘Rehnquist’s Vietnam: Constitutional Separatism and the Stealth Advance of Martial Law’ (2002) 77 Indiana Law Journal 701, arguing that the body of doctrine developed by the American Supreme Court under Rehnquist CJ has enabled the American military to essentially become both a partisan conservative force and one that is increasingly isolated from civilian life. See also Jonathon Turley, ‘The Pocket Military Republic’ (2002-3) 97 Northwestern Law Review 1, 133, who concludes his detailed study of the evolution of American military law by declaring that ‘the civilian system’s close proximity has inevitably changed the latter. The gravitational force of the Madisonian system has shaped military governance, but core differences still predominate. It is remarkable that this system of governance with millions of “citizens” has escaped serious congressional scrutiny’.

16 The law during the time this reasoning prevailed is explained in Matthew Groves, ‘Proceedings for Prison Disciplinary Offences’ (1998) 24 Monash Law Review 338, 349-51.

17 Similar reasoning was adopted in respect of the discipline of firemen in Ex parte Fry [1954] 2 All ER 118. In that case the court declined to issue relief to a fireman who complained of irregularities in disciplinary proceedings because it feared that judicial intervention might weaken the internal disciplinary system for firemen. The court was particularly influenced by the quasi-military character of the fire brigade (as evidence through its command and discipline and structure). This apparent analogy between civilian bodies and the military was strongly criticised by Sir William Wade: ‘Discipline and Fireman Fry’ (1954) 17 Modern Law Review 375.

18 A widely cited statement of this principle came from the Becker v Home Ofice [1972] 2 All ER 676, 680 where Lord Denning MR suggested that ‘if the courts were to entertain actions by disgruntled prisoners, the governor’s life would become intolerable.’

19 Binse v Williams [1998] 1 VR 381, which deals with the decision of a prison governor to place an unmanageable prisoner in shackles.

20 R v Deputy Governor of Parkhurst Prison; Ex parte Hague [1992] 1 AC 58, 155 (Lord Bridge, with whom the other Lords concurred). These sentiments have been approved in Australia: Holden v SA (1992) 62 A Crim R 308, 317-8 (Legoe J); McEvoy v Lobban [1990] 2 Qd R 235, 242 (Thomas J); Herald & Weekly Times Ltd v Correctional Services Commissioner (2001) 18 VAR 316, 330 (Eames J).

21 The foundations of the principle are discussed in Dyzenhaus D, Hunt M & Taggart M, ‘The Principle of Legality in Administrative Law: Internationalisation as Constitutionalism’ (2001) 1 Oxford University Commonwealth Law Journal 5.

22 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131 (Lord Hoffmann).

23 Raymond v Honey [1982] 1 AC 1.

24 R v Secretary of State for the Home Department; Ex parte Leech [1993] 4 All ER 539.

25 R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (‘Daly’).

26 R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115.

27 David Dyzenhaus, ‘Baker: The Unity of Public Law’ in David Dyzenhaus (ed), The Unity of Public Law (2004) 1, 2.

28 Daly [2001] 2 AC 532.

29 This was another feature of the Daly case: Daly [2001] 2 AC 532.

30 See, eg, Greer v Spock 424 US 828, 838 (1976) where the American Supreme Court acknowledged that it was ‘the primary business of the armies and navies to fight or be ready to fight wars’.

31 Courts have repeatedly accepted that the need to maintain command and discipline is an integral aspect of this separate and specialized character of military life: Parker v Levy 417 US 733, 759 (1974).

32 See, eg, Russell Vance v Chief of Air Force (2004) 154 ACTR 12 where the Supreme Court of the ACT accepted that defence legal officers (DLOs) might, unlike their civilian counterparts, be obliged to breach privilege when ordered to do so by an appropriately qualified superior officer. That possibility proved a significant obstacle to a claim of legal privilege by the DLOs.

33 See, eg, the defence disciplinary offences that have no counterpart in civilian life, such as failing to comply with directions or orders: Defence Force Discipline Act 1982 (Cth) ss 28-9.

34 Military authorities sometimes recognise this possibility. One example is Defence Force Discipline Rules 1985 (Cth) r 33 which requires that members of a court martial vote in reverse order of seniority (ie the most junior votes first). The rule acknowledges that junior officers are liable to be influenced by the beliefs, or perceived beliefs, of senior counterparts. The history of such provisions is explained in Hembury v Chief of General Staf (1998) 193 CLR 641, 652 (McHugh J).

35 Though few would support the total separation of military and civilian life. Even those who support a highly autonomous defence legal system would, for example, likely accept that such a system should be subject to the jurisdiction of a civilian court invested with jurisdiction to settle constitutional questions such as those which challenge the constitutional validity of military disciplinary bodies. Another example might be the need for a right of appeal to civilian courts to determine possible choice of law disputes between civilian and military courts. It is possible, however, that many military commanders would see no real problem in granting jurisdiction to military courts to determine such conflicts.

36 General William Tecumseh Sherman, Hearings on H.R. 2498 Before the Subcommittee of the House Committee on Armed Services (8 1st Congress, 1949) at 789 (reprinted in Index of Legislative History – Un iform Code of Military Justice (Hein, 2000)).

37 The Senate Report into Military Justice, above n 5, [109].

38 See, eg, the subtle point made by McHugh J on the effect of status and authority in the military: Hembury v Chief of General Staf (1998) 193 CLR 641, 652.

39 The connection of these issues to judicial attitudes is examined in Sam Nunn, ‘The Fundamental Principles of the Supreme Court’s Jurisprudence in Military Cases’ (1994) 29 Wakeforest Law Review 557.

40 In recent times the willingness of courts to reach such conclusions may be affected by the fact that most judges are now unlikely to have experienced any form of military service. See, eg, Bromet v Oddie [2003] FCAFC 213 [51] where Madgwick J commented ‘[I]n modern times it is unusual for judges to have had any significant military experience or even to be steeped in military history or lore. They should therefore tread carefully.’

41 Judicial deference of this form in American jurisprudence is criticised in Jonathon Turley, ‘The Military Pocket Republic’ (2002) 97 Northwestern Law Review 1, 47-54.

42 Earl Warren, ‘The Bill of Rights and the Military’ (1962) 37 New York University Law Review 181, 187.

43 On the development of internal cultures, see Edgar Schein, ‘Organisational Culture’ (1990) 45 American Psychologist 111. Schein believes that ‘culture’ is ‘what a group learns over a period of time as that group solves its problems of survival in an external environment and its problem of internal integration’. See also his Organizational Culture and Leadership (3rd ed, 2004). Although Schein devised a general typology of organisational cultures, when applied to the military it suggests that military culture is shaped by the existence of the military as a separate environment within the wider external civilian environment.

44 There is circularity within this reasoning because the courts can of course acquire knowledge of military life by undertaking greater scrutiny of it.

45 The classic work on the role of the military in English history remains Charles Clode, Military Forces of the Crown (1861). Political attitudes to the military in early American history are explained in Jonathon Turley, ‘The Military Pocket Republic’ (2002) 97 Northwestern Law Review 1, 15-24.

46 There is the further reason that England did not maintain a standing army for many centuries, but instead convened one when circumstances required. It has been suggested that the non-permanent nature of the army and, therefore, its courts martial, partly explain the paucity of material on judicial attitudes to the military in much of English legal history. See the historical analysis of English military authority in Gordon Hook, ‘The Evolution of New Zealand Military Tribunals’ [2003] New Zealand Armed Forces Law Review 36.

47 The leading modern case was Re Mansergh (1858) 26 JP 22. In that case it was held that the courts would only intervene when a military tribunal had clearly exceeded its jurisdiction and done so in a manner that affected the rights of a service member to life or liberty. See also Dawkins v Lord Paulet (1869) 5 QB 96.

48 See, eg, Marks v Frogley [1898] 1 QB 888.

49 R v Secretary of State for War; Ex parte Martyn [1949] 1 All ER 242. See also R v OC Depot Battalion, RASC Colchester; Ex parte Elliot [1949] 1 All ER 373.

50 See, eg, John O’Connor, ‘The Origins and Application of the Military Deference Doctrine’ (2001) 35 Georgia Law Review 101165-97.

51 United States; ex rel Toth v Quarles 350 US 11, 17 (1950).

52 Burns v Wilson 346 US 137, 140 (1953).

53 See, eg, Goldman v Weinberger 475 US 503, 507 (1986) where the Supreme Court accepted that significant deference should be accorded to military commanders for the exercise of their professional or vocational judgement, even if that judgement infringed on the constitutional rights of other service members.

54 417 US 733 (1974).

55 Parker v Levy 417 US 733, 751 (1974).

56 Parker v Levy 417 US 733, 751 (1974).

57 See Earl Martin, ‘Separating United States Service Members From the Bill of Rights’ (2004) 54 Syracuse Law Review 599; Diane Mazur, ‘Rehnquist’s Vietnam: Constitutional Separatism and the Stealth Advance of Martial Law’ (2002) 77 Indiana Law Journal 701; James Hirschhorn, ‘The Separate Community: Military Uniqueness and Servicemen’s Constitutional Rights’ (1984) 62 North Carolina Law Review 177.

58 On the circulation of petitions, see Brown v Glines 444 US 348 (1980) Secretary of Navy v Huf 444 US 453 (1980). On the circulation of publications, see Greer v Spock 424 US 828 (1974).

59 Feres v United States 340 US 135 (1950). That principle was invoked to deny a remedy in damages to a soldier who was dosed (secretly and without his knowledge) with LSD as part of army studies on the effect of the drug: United States v Stanley 483 US 669 (1987).

60 The rule is examined in Jonathon Turley, ‘Pax Militaris: The Feres Doctrine and the Retention of Sovereign Immunity in the Military System of Governance’ (2003) 71 George Washington Law Review 1.

61 Chappell v Wallace 462 US 296 (1983).

62 Lord Mansfield CJ was a strong proponent of this principle: R v Kennett (1781) 5 Car & P 282; Burdett v Abbott (1812) 4 Taunt, 401. See also S Skinner, ‘Citizens in Uniform: Public Defence, Reasonableness and Human Rights’ [2000] Public Law 266, 273-5.

63 R v Pinney (1832) 5 Car & P 258, 258 (Lord Tindal CJ).

64 LexisNexis, Halsbury ’s Laws of England, vol 2(2) (2003, 4th ed reissue) Armed Forces, ‘Chapter 1 – The Legal Position of the Armed Forces] [3], citing Burdett v Abbott (1812) 4 Taunt 401, 449-50 (Lord Mansfield CJ). The classic modern exposition was made in Holden v Evans (1919) 35 TLR 642, 643-4 (McCardie J).

65 (1985) 157 CLR 309.

66 Groves v Commonwealth (1985) 157 CLR 309, 315 (Mason CJ, Wilson, Brennan, Dawson and Toohey JJ). See also Re Nolan; Ex parte Young (1991) 172 CLR 460, 497 and Re Tyler; Ex parte Foley (1993) 181 CLR 18, 35 where Gaudron J stressed that service members were neither immune from the operation of the general law nor deprived of its protection. Such reasoning echoes the citizen soldier doctrine.

67 A notorious example of this was the action reported in the English journal The Lawyer (24 February 1998) where the English Ministry of Defence issued a writ for several million pounds against the estate of a pilot who was killed in a mid-air collision. The cause of action essentially sought to hold the pilot liable according to the principles traditionally applied in civilian law workplaces.

68 The historical and political basis of the doctrine is explained in Stephen Skinner, ‘Citizens in Uniform: Public Defence, Reasonableness and Human Rights’ [2000] Public Law 266.

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