What now for Defence Force Discipline Appeals?

Paper delivered at the Joint Services Legal Panel (South-East-Queensland) Training Day

The Honourable Justice Logan RFD 16 April  2016

A Judge of the Federal Court of Australia & Deputy President, Defence Force Discipline Appeal Tribunal[1]

RTF version - 345 KB

In Lane v Morrison,[2] the High Court held that the Australian Military Court (AMC) could not validly exercise the judicial power of the Commonwealth. That was because its members did not enjoy the tenure required by s 72 of the Constitution in respect of a court established by the Parliament to exercise that power.

An irony about that case is that a feature of the AMC which was, at the time of its establishment, seen as desirable namely, independence from the military chain of command, was also one which facilitated the conclusion that it was exercising judicial power. A rationale for the military discipline system standing outside Chapter III of the Constitution is that it is a function of command. Removal of the trial forum from the chain of command removed the presence of that rationale. That facilitated a conclusion that judicial power was conferred on the AMC. Given this, the limited tenure of its members became a constitutionally insufficient basis for the appointment of those who were to exercise the judicial power of the Commonwealth.

In addition to an original jurisdiction in respect of the trial of service offences, the AMC exercised an appellate jurisdiction in respect of outcomes before summary authorities. The Defence Force Discipline Appeal Tribunal (DFDAT) was retained for the purpose of exercising its historic, appellate role in respect of convictions, now from the AMC. Further, and for the first time, a jurisdiction was conferred on the DFDAT to hear appeals against punishment.

The Military Justice (Interim Measures) Act (No. 1) 2009 (Cth) (Interim Measures Act 2009), an urgent legislative response to the outcome in that case, did not just result in the restoration, on what was said to be an interim basis, of the original jurisdiction in respect of military discipline cases hitherto exercised by summary authorities and, as required, by Defence Force Magistrates (DFM) and courts martial. It also resulted in the restoration of the jurisdiction hitherto exercised by the DFDAT in respect of convictions by DFM or courts martial. There was no continuance of the provision for appeals in respect of punishment.

A bill, designed to replace both the original jurisdiction exercised by DFM and courts martial and the appellate jurisdiction exercised by the DFDAT with a new court established under Chapter III of the Constitution, to be known as the Military Court of Australia, was introduced into Parliament in 2010, only to lapse without enactment upon a pre-election dissolution.[3]

The Bill proceeded on the basis that a court designed to hear and determine charges in respect of service offences might not sit overseas if, materially, the court determined that it was necessary so to do but the security of the place concerned would not permit that.[4] In that circumstance, the charge concerned was to be taken to be withdrawn with any further proceeding in respect of the service offence to be taken before a service tribunal under the Defence Force Discipline Act 1982 (Cth) (DFDA). To say the least, one might think it odd for a nation's parliament so obviously to identify in advance a potential need to undertake a particular task in wartime, in this instance trial by service tribunal, only deliberately to decide not to take every available opportunity to practise that task in peacetime. In this respect, the lapse of that Bill is not, I respectfully suggest, to be lamented.

Since the lapse of that Bill, there have been successive extensions[5] of interim measures in respect of those who held office in the AMC or who were the AMC's registrar immediately prior to Lane v Morrison. Unless sooner terminated by Ministerial declaration or yet further extended by legislative amendment, the most recent of these extensions will expire at midnight on 21 September 2017, eight years after the commencement of the Interim Measures Act 2009 (Cth).[6]

Each such extension has been designed to provide for a period within which Parliament is to make permanent provision for the forum or forums within which service offences are to be tried and related appeals determined. Given the lead times associated with normal parliamentary processes and the parliamentary cycle, it seems likely that the making of permanent provision is a subject which will arise early in the life of the next parliament.

That makes it timely to examine options for the determination of appeals in respect of service offences.

Such an examination is best conducted against the background of an understanding of the immediate and more historic origins of the present provision for such appeals.

The origin of the AMC lay in the response of the then government to a June 2005 report by the Senate's Foreign Affairs, Defence and Trade References Committee (Senate Committee) into the effectiveness of Australia's military justice system.[7] In its report, the Senate Committee had recommended the establishment of "[t]he Permanent Military Court to be created in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality" (Senate Report).[8] This court was to replace the then existing system for the trial of service offences by court martial or DFM.[9] Though the government's response to this report accepted the replacement of the trial of service offences by court martial or DFM by a military court, that institution was, deliberately, not established as a court whose members had tenure in accordance with Chapter III of the Constitution.[10] The flaw in that compromise response was exposed by Lane v Morrison.

For present purposes, there are two noteworthy features of the Senate Report.

Firstly, the report conflated, under the rubric "military justice", service inquiries and investigations on the one hand and the trial of service offences and related appeals on the other. To adopt a civilian analogy, this is akin to grouping police investigations and coronial inquiries on the one hand with trials by magistrates and judges and juries and related appeals on the other. At a general level of abstraction, these might, perhaps, be grouped under the rubric, "criminal justice" but it would be odd to abolish the latter on the basis of concerns about the former.

Secondly, insofar as there were concerns about the then existing system for the trial of service offences by courts martial and DFM, a reading of the Senate Report would suggest that the foremost of these was an apprehension that this system might contravene Chapter III of the Constitution. Further, that same reading[11] suggests that these concerns were heightened by some comments from the bench made in the course of argument in the High Court in the then recently decided Re Aird; Ex parte Alpert.[12]

As to this and with all due respect, even at the time, these concerns were over-stated and later authority demonstrates them to be baseless.

Comments made in the course of argument in the High Court by some members of the bench are of no authority. Further, the validity of the court martial which was to try Private Alpert, in terms of whether that would entail a contravention of Chapter III, was not in issue in that case. That was not happenstance. I was senior counsel for Private Alpert. Though the point may have been arguable, to raise it would have required leave to re-open earlier authority.[13] I considered that that argument had no reasonable prospect of success. The correctness of that assessment was later emphatically vindicated in White v Director of Military Prosecutions (White's Case).[14]

There certainly was once a school of thought that service tribunals as constituted under the DFDA prior to the establishment of the AMC invalidly exercised the judicial power of the Commonwealth. That was never a view which commanded a majority of the High Court. It has now been so comprehensively rejected by the High Court in White's Case that it may be consigned to history.

It would also be a mistake to consider that the pre-Lane v Morrison trial system failed to meet some existing Australian constitutional norm in relation to impartiality and independence. In Re Tyler; Ex parte Foley,[15] a majority of the High Court was of the opinion that, if there were to be found in the Constitution a requirement of sufficiency of independence on the part of service tribunals exercising disciplinary powers, a general court martial constituted under the DFDA met those requirements. Overseas authority[16] which, on the basis of different norms, has held to the contrary in relation to like such tribunals is of no relevance to the Australian position.

Thus, so far as the trial of service offences is concerned, trial by court martial or DFM has the advantage of demonstrated constitutional validity. Further, unlike the model in the lapsed Bill, it also, in the court martial procedure, offers a procedure proven by experience to be suitable for both peace and war. The wartime suitability of trial by court martial was demonstrated on countless occasions in the course of Australian participation in general and more limited conflict in the course of the 20th century. There is no reason to think that the less elaborate, trial by DFM alternative, an innovation that came with the DFDA, would be any less suitable. That the procedures one practises in peacetime will be the same as one adopts in wartime is surely also an advantage, and one of inestimable value.

Even though there are good reasons, grounded in constitutional validity and suitability for peace and war alike, to make the restored system for the trial of service offences permanent, it does not necessarily follow that the existing appeals system need remain in its present form.

Provision for any appeal in respect of convictions by courts martial is a post-Second World War phenomenon. Prior to that, reviews of court martial outcomes were conducted by formation commanders, ever increasingly, especially during and after the Second World War, on the basis of specialist legal advice. Resort to an exercise of judicial power to challenge a court martial outcome was only available by constitutional writ under s 75(v) of the Constitution and then only on jurisdictional error grounds.[17]

In the aftermath of the Second World War, a need for a right of appeal to a legally qualified tribunal, sitting in public and outside the military chain of command, in respect of the lawfulness of court martial proceeding outcomes was recognised both in the United Kingdom, Australia, in comparable Commonwealth jurisdictions as well as in the United States.[18]

In response and following a like initiative taken by the United Kingdom that same decade,[19] Parliament enacted the Courts-Martial Appeals Act 1955 (Cth),[20] since renamed the Defence Force Discipline Appeals Act 1955 (Cth).

As enacted,[21] that legislation conferred upon a person convicted by court martial the following right of appeal:

(a) that the finding of the court martial-

(i) is unreasonable, or cannot be supported, having regard to the evidence; or

(ii) involves a wrong decision of a question of law; or

(b) that, on any ground, there was a miscarriage of justice.

This right of appeal was much wider in scope than review for jurisdictional error.

The current right of appeal[22] is even broader than the original:

(1) Subject to subsection (5), where in an appeal it appears to the Tribunal:

(a) that the conviction or the prescribed acquittal is unreasonable, or cannot be supported, having regard to the evidence;

(b) that, as a result of a wrong decision on a question of law, or of mixed law and fact, the conviction or the prescribed acquittal was wrong in law and that a substantial miscarriage of justice has occurred;

(c) that there was a material irregularity in the course of the proceedings before the court martial or the Defence Force magistrate and that a substantial miscarriage of justice has occurred; or

(d) that, in all the circumstances of the case, the conviction or the prescribed acquittal is unsafe or unsatisfactory;

it shall allow the appeal and quash the conviction or the prescribed acquittal.

(2) Subject to subsection (5), where in an appeal it appears to the Tribunal that there is evidence that:

(a) was not reasonably available during the proceedings before the court martial or the Defence Force magistrate;

(b) is likely to be credible; and

(c) would have been admissible in the proceedings before the court martial or the Defence Force magistrate;

it shall receive and consider that evidence and, if it appears to the Tribunal that the conviction or the prescribed acquittal cannot be supported having regard to that evidence, it shall allow the appeal and quash the conviction or the prescribed acquittal.

(3) Subject to subsection (5), where in an appeal against a conviction it appears to the Tribunal that, at the time of the act or omission the subject of the charge, the appellant was suffering from such unsoundness of mind as not to be responsible, in accordance with law, for that act or omission, the Tribunal shall:

(a) allow the appeal and quash the conviction;

(b) substitute for the conviction so quashed an acquittal on the ground of unsoundness of mind; and

(c) direct that the person be kept in strict custody until the pleasure of the Governor-General is known.

(4) Where in an appeal it appears to the Tribunal that the court martial or the Defence Force magistrate should have found that the appellant, by reason of unsoundness of mind, was not able to understand the proceedings against him or her and accordingly was unfit to stand trial, the Tribunal shall allow the appeal, quash the conviction or prescribed acquittal and direct that the appellant be kept in strict custody until the pleasure of the Governor-General is known.

(5) The Tribunal shall not quash a conviction under subsection (3) or (4) if there are grounds for quashing the conviction under subsection (1) or (2).

(6) Section 194 of the Defence Force Discipline Act 1982 (Cth) applies to a direction under subsection (3) or (4) of this section as if that direction were a direction to which that section applied.

In Australia, the appellate jurisdiction was, deliberately, conferred not on a court established under Chapter III of the Constitution but rather on a statutory tribunal, now the DFDAT, established under the legislation for that purpose.

Regard to the Second Reading Speech of the then Minister for Defence, the Honourable Sir Philip McBride, discloses that the reasons for this did not stem from any reservation as to any constitutional invalidity which would attend the conferral of the jurisdiction on a court. Rather, those reasons were pragmatic, albeit informed by constitutional considerations concerning judicial tenure.

The constitutional consideration was the requirement, flowing from the settled understanding of the meaning of s 72 of the Constitution as it then stood, that those exercising the judicial power of the Commonwealth had to be appointed for life.[23] This and the pragmatic considerations are evident in the explanation which the Minister gave for why, in contrast with the United Kingdom, the jurisdiction was not being consigned to a civilian court:

In Australia, on the other hand, we were faced by the constitutional requirement that judges exercising the judicial power of the Commonwealth must hold life tenure of office. However, the kind of body which was needed was one of a flexible character, able to function satisfactorily under all conditions in time of war as well is in time of peace. Under active service conditions a fairly large complement of members might at times be required, whereas in normal conditions a relatively few members would suffice. In these circumstances, a civilian court, all of whose members would, in accordance with the Constitution, have to be appointed for life, was not an appropriate choice.[24]

An advantage which the Minister particularly commended to the House in respect of the new appeal system, in contrast with the then existing conviction review system, was that the proposed tribunal would sit in public, enabling the appellant and others to attend and observe the hearing of his or her appeal.

To maximise the opportunity for practical voice to be given to this aspiration, the practice of the DFDAT is to hear an appeal at or as close as possible to the locale where the appellant is stationed. The Defence Force Discipline Appeals Act contemplates that the DFDAT may sit at any place within or outside Australia as determined by its President.[25] 

To date, the DFDAT has never sat overseas.[26] The nature of appellate jurisdiction and of Australian Defence Force overseas deployments since the establishment of the DFDAT have not warranted this. The position may well be different were there ever in the future large scale deployments overseas of the kind seen in the First and Second World Wars. Were such a need to arise, it would be necessary for provision to be made for terms and conditions of both DFDAT members and staff. For tribunal members, this might be done by the Remuneration Tribunal by determination pursuant to s 10 of the Defence Force Discipline Appeals Act.[27]

Some noteworthy features of the first Courts-Martial Appeal Tribunal appointed under that Act were:

(a) each of its members had served during the Second World War; and,

(b) its membership was not drawn exclusively from the federal judiciary or, for that matter, the judiciary alone.

As originally enacted, the Australian legislation required that a presidential member of the tribunal be or have been a member of a federal court or a State supreme court or one of Her Majesty's Counsel.[28] At that time, the only federal courts[29] were each, in the technical sense, superior courts of record. In expressly referring to Queen's Counsel, the legislation recognised the class from which, traditionally and for good reason, superior court judges were usually appointed in the United Kingdom and, by then, in the principal Australian jurisdictions,[30] even if governing legislation provided for lesser appointment criteria.

Originally, the other tribunal members were drawn from those eligible to be presidential members, as well as other legal practitioners or those of suitable legal experience.[31]

In respect of these original appointment qualifications, the Defence Minister opined that, "it can, I think, fairly be predicted that the tribunal will command, in the military sphere, a status corresponding to that of a supreme court of a State or Territory exercising criminal appellate jurisdiction".[32]

There is every reason to conclude that the Minister's prediction has amply been fulfilled over the 60 years of the existence of the DFDAT with a related, sustained and beneficial improvement in the standard of trials before service tribunals.

As early as 1963, the Chief Legal Officer of the Army's then Eastern Command, Lieutenant-Colonel E P T Raine, after completing a two-day hearing before the DFDAT, wrote to all legal officers in that Command expressing his belief that it was "minded to set up and maintain the highest standards".[33] He made particular reference to the scrutiny by the DFDAT in the course of the hearing of the appeal of the adequacy of the summing up of the Judge Advocate as well as of the conduct of the prosecuting officer. A year later, similar views were expressed about the effect of the DFDAT by a civilian legal commentator and future Commonwealth Attorney-General and later New South Wales Supreme Court judge, the then Mr Kep Enderby.[34]

The experience over that 60 year period is that the system of appeals to the DFDAT is well adapted both to peacetime and to thewartime and other overseas deployments conducted to date by the Australian Defence Force.

To date, the largest overseas deployment since the establishment of the DFDAT has been the Vietnam War. The volume of appeal cases yielded from that war by the deployment, over a sustained period of years, of a ask force comprising what these days would be termed a joint force headquarters commanding a reinforced brigade group, a logistic support base and significant air and naval components, was readily dealt with by the DFDAT's part-time membership. These cases included appeals in respect of convictions for offences up to and including murder.[35]

Particularly if the DFDAT were brought up to its usual establishment of five members,[36] there is no reason to think that this establishment would not be sufficient to meet the demands of any present like deployment.

Eligibility for membership of the DFDAT has, since its first establishment, been made even more rigorous. This occurred in 1982,[37] when the class of those eligible to be appointed as presidential members was narrowed to superior court judges of the Commonwealth, the States and Territories. At the same time and apart from those eligible to be appointed presidential members, the class eligible to be appointed as members was narrowed to District or County Court judges.[38]

As to the latter class, Judge Broad DFC and Judge Mylne QC, each Queensland District Court judges and each World War Two active service veterans, notably served as members of the Tribunal. That was prior to a deliberate policy change on the part of the Governor-General in Council in relation to appointments. For at least the last twenty years, the practice has been adopted of appointing only superior court judges to the DFDAT. District and County Court judges do exercise a criminal appellate jurisdiction in respect of offences dealt with by magistrates but, unlike supreme court judges, not in respect of the full range of offences on the criminal calendar.

Retention of the wider appointment class for DFDAT members other than presidential members, even if not presently utilised, does give a potential for a surge capacity in the event that there were a volume of cases warranting a larger tribunal membership from that available from the superior court judge appointment pool. There is no present need for resort to the wider appointment pool.

The present practice is also not to make appointments exclusively from the federal judiciary. This allows a desirable infusion of members from courts which regularly exercise criminal trial and appellate jurisdiction.

The establishment, in 2000, of the Federal Magistrates Court (now known as the Federal Circuit Court) created anomalies in relation to the qualifications for appointment to the DFDAT.

That is because the eligibility criteria for appointment to the DFDAT were not revised to take account of the establishment for the first time of a federal court which was not a superior court of record. The term "federal court" is not defined in the Defence Force Discipline Appeals Act. It is defined by the Acts Interpretation Act 1901 (Cth)[39] to mean "the High Court or any court created by the Parliament". Technically, this means that the more rigorous eligibility criterion for presidential members has been compromised ever since 2000. The inclusion of members of a non-superior federal court in a class otherwise comprised of federal, State or Territory superior court judges is anomalous. No less anomalous is the omission of Federal Circuit Court judges from the class of those eligible to be appointed members when their State equivalents on District and County Courts are eligible. Parliament's failure to make a consequential amendment appears to have been inadvertent.

Again in practice and even though the Defence Force Discipline Appeals Act has always been silent in this regard, it remains a feature of the DFDAT's membership that each of its members has had military experience. My experience is that prior military service experience is desirable. That is not just because that experience gives one a disposition to accept an additional commission on the DFDAT. It is because that experience brings with it a greater likelihood of an understanding of service terms, conditions and context and more ready assimilation of service publications and other documentary evidence. The appointment practice doubtless also adds to the credibility of the DFDAT in defence circles, senior and junior.

Even so, expressly to insert that as an appointment criterion may be undesirable. For most of the 20th Century, military service experience was a pervasive feature of the judiciary and in the professions generally. This is no longer so. This is referable to many factors – the fortuitous and happy circumstance since the Second World War of no mobilisation on the scale encountered in that war and the First World War, cessation of National Service in 1972, disbandment in the 1970s of many school cadet units, which units often engendered later recruitment in the reserves and the disenchantment of much of a generation with military service in the aftermath of the Vietnam War are but some of them. Expressly to provide that prior military service is an appointment criterion may, because of this, unnecessarily limit the pool of interested and suitable appointees.

One way of increasing the likelihood that appointees to the DFDAT will have service experience is by proactive headhunting for Defence Legal Panels. To my observation, the RAN has been notably good at this over a long period, not coincidentally, I strongly suspect, because its Legal Panel was founded by Sir Laurence Street. Related to this for the Army is an understanding of the very particular loyalties engendered in General Service Officers by the regimental and corps system. This may well have been a reason why the now repealed Australian Military Regulations 1927 provided for secondment, as well as appointment, to the Australian Army Legal Corps.[40] An innovative use of any replacement power of secondment would be a way of tapping into a wider pool of lawyers who have service experience but retain regimental or corps loyalties.

Another, related way is by a very particular succession planning ethos within Defence Legal. In explaining why the first Australian Imperial Force came by 1918 to be a successful battle formation with superb leaders, their historian and fellow member, Charles Bean, put the ethos of that force this way:

"Anyone watching an Australian battalion on parade felt that in this year's corporals he saw the next year's sergeants and the following year's subalterns."[41]

I respectfully suggest that there is scope for a similar ethos within Defence Legal. Anyone watching a training day such as this should, amongst others, see this generation's juniors, the next generation's Queen's Counsel and the superior court judges or District or County Court judges of the generation after that. Put another way and in the Defence Legal context, in the more senior Judge Advocates and Defence Force Magistrates one might see the next generation's Judge Advocate-General, Chief Judge Advocate and Deputy Judge Advocates-General and perhaps DFDAT members of the generation after that.

The DFDAT is not a court for the purposes of Chapter III of the Constitution.[42] What is termed an "appeal" lies on a question of law involved in a decision of the DFDAT to the Full Court of the Federal Court of Australia.[43] Strictly speaking, such an "appeal" is a proceeding in the Court's original jurisdiction. A further appeal to the High Court is possible only by special leave of that court.[44]

It is the practice of the Federal Court for the Full Court to be constituted by five judges for the purpose of hearing such appeals. Given that the present appointment practice has the effect that the DFDAT's jurisdiction is exercised by three superior court judges, it would be incongruent for the Full Court to be constituted by its usual complement of three judges.

The combination of provision for an appeal to the Federal Court and the need for adoption of a practice of constituting a Full Court of five members entails a consumption of judicial resources not encountered in analogous cases in the civilian criminal justice system. Under that system, intermediate criminal appellate jurisdiction following a conviction in a District or Supreme Court is usually exercised by a Full Court or Court of Appeal of three members.

In contrast, and as is illustrated by the course of proceedings in the DFDAT and the Full Court which culminated in the appeal to the High Court in Li v Chief of Army,[45] no less than eight superior court judges, three in the DFDAT and five in the Full Court were engaged in the intermediate appeal processes. This same consumption of judicial resources can be entailed in intermediate appeal processes even when an appeal to the DFDAT is demonstrably frivolous.[46]

One way of addressing this seeming over-consumption of judicial resources in the present system for appeals against convictions before service tribunals would be to repeal the provision for an appeal from the DFDAT to the Federal Court. That might be replaced by the conferring of a like original jurisdiction on the High Court, exercisable only by a Full Court and then only if the applicant first secures a grant of special leave from that court to institute the appeal. The power to confer such a jurisdiction on the High Court is to be found in s 76(ii) of the Constitution.

The insertion of such a special leave limitation would be in keeping with a limitation which attends appeals to the High Court from the courts of the States[47] and from the Federal and Family Courts. Such a replacement would recognise the present reality that, in practice if not in strict point of law, an appeal to the DFDAT is an equivalent of an appeal to an intermediate appellate court in the civilian criminal justice system.

The present system for appeals to the DFDAT also differs from appeals against conviction in the civilian criminal jurisdiction in that, unlike courts exercising a criminal intermediate appellate jurisdiction, the Tribunal does not possess any power to stay the operation of the sentence imposed on conviction, pending the hearing and determination of the appeal.[48] Instead, that power is, within the military justice system, consigned to a reviewing authority.[49]

Given that a reviewing authority is an appointee of the Chief of the Defence Force or a Service Chief,[50] one or the other of whom will always be a respondent to an appeal to the DFDAT, and that a principal object of Parliament in the establishment of the DFDAT was the introduction of greater independence and transparency in respect of challenges to convictions before service tribunals, this omission looks incongruous. Perhaps a reason for consigning a power to grant a stay to a reviewing authority is to be found in the exigencies of military service and the likelihood of easier access by a convicted member to a reviewing authority so as to make a stay application but that does not explain why the power to grant a stay is not one at least shared with the DFDAT.

As matters stand, a person who, for one reason or another, is denied a stay by a reviewing authority is left to the remedies of either instituting a proceeding for a constitutional writ of prohibition in the High Court under s 75(v) of the Constitution challenging the refusal decision and seeking a related stay pending the hearing of that application or bringing a like originating application and related interlocutory application in the original jurisdiction of the Federal Court under s 39B of the Judiciary Act 1903 (Cth).

The possibility of a need for such an application is not a remote one. It occurred in the Federal Court recently[51] as a precursor to the hearing and determination by the DFDAT of Jesser v Chief of Air Force.[52] As it happened, the attitude of the only active party to the s 39B proceeding, the Chief of Air Force, came to differ from that of the reviewing authority such that the granting of a stay by the Federal Court was not opposed. It was only happenstance that the stay application came to be heard in the Federal Court by a judge who also held a commission as a member of the DFDAT and was thus familiar with the latter's jurisdiction.

The present omission of a power to grant a stay might be remedied by an amendment to the DFDAT's incidental powers, found in s 31 of the Defence Force Discipline Appeals Act. That would allow any member of the DFDAT to grant a stay, pending the hearing and determination of the appeal.

In short then, while there are some present incongruities and anomalies which might be legislatively addressed, the rationale for the system of appeals to the DFDAT remains the same as at its establishment. Since then, its constitutional validity and its suitability for its intended purpose have been vindicated in both peace and war operations of the Australian Defence Force.

It does not necessarily follow that, if the restored, constitutionally sound, provision for the trial of service offences by court martial or DFM were retained that the DFDAT must also be retained.

Ever since the introduction of a right of appeal from such service tribunals, the appellate jurisdiction has always been exercised by civilians. In this sense, the conferral of an appellate jurisdiction on a Chapter III court necessarily constituted by civilian judges would not represent any change. The change would be that the exercise of that jurisdiction would now entail an exercise of the judicial power of the Commonwealth.

The members of the DFDAT do not in point of law enjoy the entrenched tenure for which s 72 of the Constitution provides. They have term appointments and while, during that term, they may only be removed on a basis akin to that for which s 72 provides,[53] that tenure relies upon the continuance of the Defence Force Discipline Appeals Act on the statute book. Were that Act to be repealed, membership of the DFDAT would cease.[54] In practice and apart from the character of the appointees, the independence of the DFDAT has been assured via a combination of the constitutionally entrenched tenure that each of its members separately enjoys by virtue of Federal or State judicial office and a scrupulous observance of proprieties by both the Commonwealth Executive Government and the Parliament over the entire period of the Tribunal's existence.

That Commonwealth judicial power would be entailed ought to sound a cautionary note in respect of any widening of the present right of appeal so as to make the appeal in the nature of a rehearing. The possibility of such a widened jurisdiction being said in substance to be original, in respect of an indictable offence and a violation of s 80 of The Constitution,[55] because of the absence of a jury might seem remote until the very moment it occurred. It might be thought that the experience of Lane v Morrison is that ventures into constitutionally uncertain waters in respect of a subject as important as the discipline of the Australian Defence Force are fraught. It would be better to retain the existing right of appeal to the DFDAT as the basis for any appeal to a military appeals court.

At the time when the DFDAT was established, it was thought that. In practice, there would be little need for a sentence appeal. The primary and only formal qualification for appointment to the tribunal, as it would be for a court, is eminence and expertise in the Law, not the Military. That eminence and expertise is well suited to the review of a conviction for error of law or miscarriage of justice. I would respectfully question whether it is suited to the review of punishment resultant from a conviction. When the rationale for service tribunals standing outside Chapter III is recalled, it is a service tribunal and then a service reviewing authority that is the logical repository for discretionary value judgements about what punishment is required in a particular case to vindicate the command and discipline of the Australian Defence Force and for the review of such judgements. It would, I suggest, be incongruous for a court (or for that matter the DFDAT) to exercise this aspect of the command the Australian Defence Force. Extreme cases of unreasonableness might better be left to constitutional writ or s 39B Judiciary Act review. Civilian control over the command of the Australian Defence Force is already accommodated under constitutional arrangements of longstanding.[56]

Subject only to the change resulting from the amendment of s 72 of The Constitution in 1977 so as to remove life appointments, the constitutional consideration to which the Minister referred in his Second Reading speech remains. Were the appellate jurisdiction to be conferred on a Chapter III court, its members would have to enjoy the tenure for which s 72 provides.

Were the court constituted as a separate court, rather than, for example, a division of the Federal Court, this tenure issue might be more apparent than real in practice. If the only appointees to the Military Appeals Court were serving judges and if there were no separate remuneration provided for in respect of membership of the Military Appeals Court, a larger wartime membership would technically remain members of that court until reaching retirement age but there would be no fiscal consequence. If the size of the Court in wartime were such as to warrant recognition of the related administrative burden in judicial salary of the Chief Justice and one or more deputies, this might be recognised by provision of an appropriate addition to normal judicial salary in respect of the holders of those offices. Military Court judges who were surplus to peacetime requirements would not be rostered to sit.

For the same reasons as ground the membership of the DFDAT being drawn from both the federal and State judiciary, it would be necessary for the Military Appeals Court to have such a recruitment base. Providing suitable financial and leave arrangements were struck by the Executive Government of the Commonwealth and the Executive Governments of the several States and Territories, and providing that there was reciprocal legislative provision to avoid any application of the doctrine of inconsistent commissions, there would appear to be no constitutional impediment to a State judge holding an additional commission as a member of a federal court. Such a position has existed for some four decades in Western Australia where some members of that State's Family Court also hold commissions as judges of the Commonwealth's Family Court.[57]

The last mentioned consideration and the possibility of a need for a surge capacity drawn perhaps from District or County Court or Federal Circuit Court judges would, I suggest, make it preferable for any military appeals court to be a separate court, rather than a division of the Federal Court.

Were there ever a need for the Military Appeals Court to sit abroad, that would entail an assertion of Australian national sovereignty and thus require a permissive arrangement to be struck with whatever government recognised by Australia and with whom we were not at war governed that place. Such an arrangement would doubtless form part of overall status of forces negotiations prior to a deployment of the Australian Defence Force. It is difficult to see that it would entail any different considerations to those which would presently be necessary for the DFADT to sit overseas.

Registry services for the DFDAT are presently satisfactorily provided by the Federal Court Registry. This existing arrangement would, for the present, seamlessly translate into an appellate jurisdiction conferred on a military appeals court. Were the volume of court business such as to warrant a separate registry, temporary arrangements for this would doubtless be possible.

The same might be said of premises. At present, the DFDAT usually sits in existing Commonwealth court buildings and, as required and by arrangement, in State court buildings. There is no reason why this practice ought not to continue with a military appeals court. The DFDAT is not constrained to sit in such places and could doubtless sit elsewhere if particular wartime exigencies so required.

Any appeals from the Military Appeals Court to the High Court might be conditioned upon a grant of special leave to appeal in the same way as prevails in respect of the civilian criminal justice system.[58]

 Whether or not to retain or move from the DFDAT system with the proven qualities mentioned to a military appeals court system is a matter for political value judgement.

[1] I gratefully acknowledge the benefit of discussion concerning this topic with my colleague, The Honourable Justice Richard Tracey AM, RFD. The views expressed in this paper remain personal, not those of any institution in which the author holds a commission. The paper incorporates, in relation to the history and present structure of the Defence Force Discipline Appeal Tribunal and without further attribution, some revised portions of a paper, "The Demise of the Australian Military Court–The High Court's Judgement in Lane v Morrison – It's Ramifications", presented by me at a Queensland Bar Association Continuing Professional Development Seminar on 1 October 2009.

[2] (2009) 239 CLR 230.

[3] Military Court of Australia Bill 2010 (Cth).

[4] Military Court of Australia Bill 2010 (Cth) cl 49(4)(a) and cl 49(6)

[5] Military Justice (Interim Measures) Amendment Act 2011 (Cth), Military Justice (Interim Measures) Amendment Act 2013 (Cth) and, most recently, the Defence Legislation (Enhancement of Military Justice) Act 2015 (Cth).

[6] Interim Measures Act 2009 (Cth) Sch 3, cl 8(1) provides:

8 Minister may declare a termination day

(1) The Minister may declare, in writing, a specified day to be the termination day for the purposes of this Schedule. The day must be after the day the declaration is made and before the end of the 8 year period beginning on the commencement day.

The "commencement day" is 22 September 2009.

[7] Department of Defence, The Effectiveness of Australia's Military Justice System (AGPS, Canberra, June 2005).

[8] Senate Report, Recommendation 19, at [5.95].

[9] Senate Report, Recommendation 18 at [5.94].

[10] Department of Defence, Government Response to Report by the Senate Foreign Affairs, Defence and Trade References Committee (Senate Committee) into the Effectiveness of Australia's Military Justice System (AGPS, Canberra, October 2005) Recommendation 18, p 4.

[11] Senate Report, pp xxxii at [36]; 77 at [5.5]; 84 at [5.25]; 86-88 at [5.33] – [5.44].

[12] (2004) 220 CLR 308.

[13] Re Tracey; Ex parte Ryan (1989) 166 CLR 518 Re Nolan; Ex parte Young (1991) 172 CLR 460 and, in particular, Re Tyler; Ex parte Foley (1994) 181 CLR 18.

[14] (2007) 231 CLR 570.

[15] (1994) 181 CLR 18.

[16] R v Généreux [1992] 1 SCR 259 (Canada); Findlay v United Kingdom (1997) 24 EHRR 221 and Grieves v United Kingdom (2004) 39 EHRR 2.

[17] R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452.

[18] See, further, as to this background, the Second Reading Speech of the then Minister for Defence, the Honourable Sir Philip McBride: Australia House of Representatives, Commonwealth Parliamentary Debates, (10 May 1955) Vol 49, p 566 (CMAT Second Reading Speech); see also: Enderby KE (then Barrister and Senior Lecturer, ANU Law School; later Commonwealth Attorney-General and later yet a judge of the Supreme Court of New South Wales), Courts-Martial Appeals in Australia, (1964) 1 FedLR 96.

[19] Courts Martial (Appeals) Act 1951 (UK).

[20] Commenced 1 June 1957; Commonwealth of Australia Gazette (1957) p 1501.

[21] Courts-Martial Appeals Act 1955 (Cth) s 23(1).

[22] Defence Force Discipline Appeals Act 1955 (Cth) s 23.

[23] As a result of amendments made in 1977, that s 72 tenure is now until age 70 or, for courts other than the High Court, such lesser age as Parliament may establish.

[24] CMAT Second Reading Speech, p 567.

[25] Defence Force Discipline Appeal Tribunal Act 1955 (Cth) s 14(1).

[26] Advice to the author from its current President, Tracey J of the Federal Court of Australia, 30 September 2009 and the author's subsequent experience.

[27] It would, for example, be anomalous were DFDAT members deployed to a theatre of operations not granted the like medical benefits and tax concessions to other Commonwealth officers, military and civilian, deployed in that theatre.

[28] Courts-Martial Appeals Act 1955 (Cth) s 8(1).

[29] The High Court of Australia, the Federal Court of Bankruptcy and the Australian Industrial Court.

[30] New South Wales and Victoria, where the volume and complexity of work at the Bar had made taking Silk more feasible than at the Bars of other States. Increasingly from the late 1950's, Silk became more pervasive at the other State Bars with superior court appointment practices from then on usually but not invariably conforming with the settled position in the UK, New South Wales and Victoria.

[31] Courts-Martial Appeals Act 1955 (Cth) s 8(2).

[32] CMAT Second Reading Speech, p 567.

[33] Oswald B and Waddell J, Justice in Arms: Military Lawyers in the Australian Army's First Hundred Years (Big Sky Publishing, 2014) pp 248-249.

[34] Enderby, supra.

[35] Re Allen's Appeal (1970) 16 FLR 59 and Re Ferriday's Appeal (1971) 21 FLR 86.

[36] President, Deputy President and three Members. A Member positon is presently unfilled, although I understand steps are in train to remedy this.

[37] Defence Force (Miscellaneous Provisions) Act 1982 (Cth) s 17, which made amendments to the Defence Force Discipline Appeal Tribunal Act 1955 (Cth) s 8.

[38] Defence Force Discipline Appeal Tribunal Act 1955 (Cth) s 8.

[39] Acts Interpretation Act 1901 (Cth) s 2B.

[40] Australian Military Regulations 1927, reg 576. These regulations ceased on 1 April 2015.

[41] Bean, C. E. W: Anzac to Amiens: A shorter history of the Australian fighting services in the First World War, Australian War Memorial, Canberra, 1946, p, 537.

[42] Lane v Morrison (2009) 239 CLR 230 at 259-260, [93].

[43] Defence Force Discipline Appeal Tribunal Act 1955 (Cth) s 52. There is no such appeal in respect of single member tribunal decisions; in effect, procedural decisions.

[44] Federal Court of Australia Act 1976 (Cth) s 33(3).

[45] (2013) 250 CLR 328.

[46] See, for example, Ferdinands v Chief of Army [2013] FCAFC 103; special leave to appeal subsequently refused by the High Court: Ferdinands v Chief of Army [2014] HCASL 1.

[47] Judiciary Act 1903 (Cth) s 35; Federal Court of Australia Act 1976 (Cth) s 33(3); Family Law Act 1975 (Cth) s 95.

[48] At the time when the DFDAT was established and when it was, in theory, possible for a death sentence to be imposed in respect of certain service offences, there was provision for a stay per force of statute: Courts-Martial Appeals Act 1955 (Cth) s 59.

[49] Defence Force Discipline Appeals Act 1955 (Cth) s 176.

[50] Defence Force Discipline Appeals Act 1955 (Cth) s 150.

[51] Megan Louise Jesser v MAJ GEN Westwood acting as Fedence Force Magistrate & Anor, QUD 376/2015 (22 May 2015) per Logan J. The interlocutory application resolved on the day and a stay granted without the need to deliver reasons for judgment. In light of the outcome in the DFDAT, there was no need for further proceedings in the Court.

[52] (2015) 300 FLR 218; [2015] ADFDAT 3.

[53] Defence Force Discipline Appeals Act 1955 (Cth) s 11.

[54] An analogous situation occurred in respect of the Commonwealth Conciliation and Arbitration Commission when the Conciliation and Arbitration Act 1904 (Cth) was repealed.

[55] Section 80 of the Constitution provides:

Trial by jury

The trial on indictment of any offence against any law of the Commonwealth shall be by jury, and every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

The absence of a proceeding on indictment was held fatal to a violation of s 80 in R v Archdall and Roskruge; Ex parte Carrigan and Brown (1928) 41 CLR 128. However there has always been a minority view to the contrary, that this represented a triumph of form over substance which had no place in respect of a constitutional protection, a view notably evident in the judgments of Brennan and Deane JJ in Kingswell v The Queen (1985) 159 CLR 264.

[56] Via the command in chief of that force being constitutionally consigned by s 68 to the Governor-General, as The Queen's representative, who acts on the advice of a Ministry responsible to Parliament, via the establishment of that force by statute, the Defence Act 1903 (Cth) and via the consigning of the administration of that Act to the Minister for Defence, who is also responsible to Parliament.

[57] As to the legislative provision for dual appointments, see Family Law Act 1997 (WA) s 24 and Family Law Act 1975 (Cth) ss 22(2)(a), 22(2AG), 22(2AH)(b), 22(2A) and 22(2B).

[58] A special leave limitation was provided for in the lapsed bill: see cl 113.

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