A Farewell to Arms by the Australian Senior Judiciary?

An after-dinner speech delivered at the New South Wales Tri-Service Legal Panel Dinner

Law Society House, Sydney

Doug Humphreys’ invitation to deliver an address to this dinner was welcome. But what to wear in taking it up? Although I am enduringly well-satisfied with having long ago attained field rank in the Australian Intelligence Corps in the Army Reserve, it would have been quite inappropriate this evening to have worn Mess Dress once more. That is because the invitation was directed to me in my capacity as the current head of jurisdiction of the Defence Force Discipline Appeal Tribunal. That Tribunal is a civilian tribunal. Within the executive branch, it is at the apex of our military discipline system as far as convictions are concerned. I shall return to that system and that Tribunal shortly in addressing my chosen topic, which is, “A Farewell to Arms by the Australian Senior Judiciary?”

First a word of explanation about my particular civilian attire.

When trying on my dinner jacket before packing for Sydney, I found it was a little too snug a fit. And there was no time to reposition the waist button. The alternative of a white tuxedo, apt for sub-tropical Queensland formal events, would have been altogether too louche for late autumn Sydney. So my choice of Scottish formal attire, although befitting a dual Australian and British national of Scots ancestry, has a banal explanation. It fits better.

A further explanation is needed. The three silver buttons on each sleeve do not indicate three-star rank. They are just traditional on a Prince Charlie jacket. Not that three-star rank is any longer, in the Australian Defence Force, a rank of any singularity. I was simply astounded to read late last year that Australia has no less than 11 officers holding three-star rank, with five in the Army alone.^[2]

During the First World War, when our country deployed no less than five infantry divisions in the field on the Western Front and the equivalent (with New Zealand and British supplementation) of a further two mounted divisions in the Middle East, only three officers held or achieved three-star rank in the Australian Imperial Force prior to the Armistice. They were Birdwood, Monash and Chauvel.^[3] When I enlisted as an officer cadet in 1975, and for over half of my time on the Active List, there were only ever three officers in the ADF who held three-star rank at any one time, each service chief with a fourth, the Vice Chief of the ADF, being added in 1986. How times have changed!

You can make your own minds up as to whether there is any correlation between these statistics and what follows. What follows concerns a phenomenon which presently affects the ADF’s military discipline system.

The 10^th of February this year marked the 60^th anniversary of the collision between HMAS Melbourne and HMAS Voyager during a training exercise off Jervis Bay. Eighty-two personnel, including some dockyard workers, died in the resultant sinking of HMAS Voyager. There has not, since then, been a greater loss of life in the ADF on any one day in peace or war.

In the aftermath of that collision, the Chief of the Naval Staff, Vice Admiral Sir Hastings Harrington, then the only three-star officer in the Royal Australian Navy, came to realise that there was a dearth of suitably experienced senior legal advisors on whom he could readily draw. His solution was as straight forward as it proved effective. He requested the then Mr L W Street QC, who had served in the RAN during World War 2 and remained in the RAN Reserve to raise a group of suitable members from the Sydney Bar to take up appointments as legal officers in the RAN Reserve. Street did just that. He headhunted talent, and he found ready volunteers.^[4]

So was born the intergenerationally effective Sydney Naval Legal Panel, one of this Panel’s predecessors.

I was reminded last month of just how intergenerationally effective was this Panel by the age-dictated retirement from the Tribunal of one of that Panel’s distinguished alumni, Michael Slattery. At present, there is a legislatively mandated retirement age of 70 for members of the Tribunal.^[5]

It is quite obvious that, intergenerationally, the RAN headhunted talent. Of those in present practice at the senior bar, James Renwick and Greg Sirtes offer contemporary examples. The RAAF has been likewise adept, as my colleague Melissa Perry and Arthur Moses exemplify; Steven Whybrow, too, if one casts the net slightly further afield, although he does seem to have spent quite a bit of time in Sydney of late.

The Army, by comparison, is fortunate to have at the senior bar in Sydney, David McLure. David apart, the only other current Army Reservist silk of whom I am aware is Chris Gunson in Tasmania. In my home state, Queensland, the Australian Army Legal Corps has not numbered a silk since James Crowley retired a quarter of a century ago or so [or so I thought].^[6]

Why this focus on silk? The answer is that the senior bar is, for good reason, the natural recruitment pool for appointments on merit to the senior judiciary.

How does this impact on our military discipline system?

The Defence Force Discipline Act 1982 (Cth) (DFDA) does not mandate that either the Judge Advocate General or a Deputy Judge Advocate General be a serving member of the senior judiciary, although the Judge Advocate General must at least be serving or have served as a superior court judge.^[7] The ADF is fortunate that Jack Rush, relatively briefly a Victorian Supreme Court judge, was ready and willing to take on that role. I say fortunate because, even though my predecessor in office, Richard Tracey, simultaneously held office as Judge Advocate General, that is not ideal. The contingency of a JAG or DJAG being a reviewing officer in respect of a conviction for a service offence cannot wholly be ruled out, with a consequential inability to sit on the Tribunal on any later appeal.

As for the Tribunal, there has never, since the Tribunal’s inception almost 70 years ago, been any formal requirement for any past ADF service. However, for good reason, successive governments have additionally looked to this background as an appointment criterion. Such past service, believe me, greatly enhances an understanding of the context in which appeals fall to be decided.

When the composition of the Tribunal was reformed in conjunction with the introduction of the DFDA it became a requirement that not only its President, but any Deputy President be a serving judge of the High Court, the Federal Court of Australia or a State or Territory Supreme Court.[8] In practice, High Court judges have never been available. And in any event, as far as I am aware, the last who met that informal appointment criterion was Sir Daryl Dawson, another example of the skill of the RAN in identifying talent. In practice, successive governments have since the reform only ever appointed judges from these other superior courts to the Tribunal. This in my view is a wise practice, as it ensures that the Tribunal has a “surge capacity” of senior judges eligible to preside at appeal hearings if an expansion of the ADF brings such a need. I think that might usefully be complemented by establishing and continuously updating from District and County Courts a pool of judges with service experience who would be willing to be appointed as Members if ever a need arose for expansion.

But here lies a dilemma.

If the practice of appointing members of the senior judiciary with ADF service is to be maintained, the Tribunal, in some ways, resembles the present RAN. It is nearing obsolescence. And there are no ready replacements to fill a looming capability gap.

Of our present membership, and as the law presently stands, Robertson Wright must retire next year, and I must retire in March 2026. At present, there are no replacements available if past ADF service is to remain an informal appointment criterion.

How did this happen?

One reason, I think, is that the Army has not been as adept as the RAN and RAAF at intergenerationally headhunting. Of course in the past there have been silks with AALC service who made fine JAG’s and Tribunal members after appointment to the senior judiciary – Len Roberts-Smith, Kevin Duggan, Dean Mildren, Graham Hiley and Richard Tracey come readily to mind. But there is no presently serving superior court judge with such an Army background. The dearth of Army representation in the senior judiciary is, as it has been for some time, masked by those of us who held general service appointments – Robertson Wright, John Halley, Lincoln Crowley and me and in the recent past, Greg Garde and Paul Brereton.

In many ways though, we are aberrations. Herein, I think, lie other reasons for the present looming capability gap. In the aftermath of the Vietnam War, undertaking any reserve military service for those entering or in the legal profession was hardly popular. This may perhaps have been exacerbated by the decision by the Whitlam government to withdraw ADF support to school cadets. Although ADF support was restored by the Fraser government, that support took a different form with an emphasis on regional cadet units. But by then cadets had disappeared from many schools and been replaced by other activities. In the case of my old school, Brisbane Grammar School, all three arms of the ADF were represented in large school cadet units in my day, the Army since 1878. But over two generations have passed now since there were cadets at BGS. Cadets introduced the ADF, and the notion of service in it, to many secondary students. Further, the burden of pursuing part time as an officer the profession of arms for an extended period in addition to one’s civilian profession was once expressly marked out in our national honours system by the award of the Reserve Force Decoration. Now the additional demands such service brings are uncritically assimilated with long service in the Regular Forces.

When the Tribunal was established, and for over forty years afterwards, there was an abundance of members of the senior judiciary with past military service. The Second World War saw to that. Ray Northrop was the last President of the Tribunal with WW2 service. Thereafter, the pervasive national service schemes of the 1950’s and the 1960’s, with reserve service an alternative in the latter era, also offered many candidates in the senior judiciary with past service. Peter Heerey was an example from that time. But that generation has either retired from the senior judiciary or, if still serving, is over 70 and presently ineligible to serve on the Tribunal.

What is to be done? It depends on whether one accepts the desirability of the criterion of ADF service.

If one does, there is an urgent need for head hunting, in the same way as Vice Admiral Harrington identified 60 years ago. Further, and with all due respect, as with 60 years ago, the recruitment task is not one which can be consigned to the Regular Forces. They just do not have the ties with the senior ranks in the profession that many of us present this evening have. Indeed, in the case of the AALC, if there is resistance to the creation of a Chief of Army’s pool of willing volunteers from the senior judiciary and silk that will become part of the problem, not a solution.

However, any such effort would be pointless unless federal, state and territory governments saw it as desirable that the senior judiciary include some silk with ADF service. There is certainly a case to be made that “judges shouldn’t salute generals”. Yet from the very enactment of the DFDA, parliament has contemplated that the judiciary would participate in our military discipline system at least in the office of JAG and permissibly also as a DJAG. Such involvement enhances independence in that system. And, although the Tribunal has, as a matter of deliberate enacted policy, always been a civilian tribunal, ADF service has been seen as a desirable appointment criterion.

Absent a combination of the suggested headhunting and related political value judgement, the time will soon come when there will be a “farewell to arms” by the Australian senior judiciary, with all the related ramifications for appointments as JAG and to the Tribunal.