Commonwealth Military Justice Systems - An Australian Perspective

A Paper delivered at the Commonwealth Magistrates' and Judges' Association Conference, Kigali, Rwanda

It is helpful when considering the merits of the current Commonwealth Military Justice Transformation Project (Transformation Project) to reflect on some aspects of our common heritage.

It is not only the common law which is, for most countries in the modern Commonwealth, both a legacy of an ever more distant colonial era and an enduring, unifying feature of our respective legal systems.

Another legacy, honoured at times by some member nations in its breach rather than its observance, is the subjection of the military to the civil power. A corollary of that subjection is that our military discipline systems have proceeded from a common ancestral foundation of legislative provision in respect of disciplinary law and practice. That ancestral foundation is the Army Act 1881 (UK) (1881 Act), which repealed and replaced the Army Discipline and Regulation Act 1879 (UK) (1879 Act).

The 1879 Act effected an amalgamation of the hitherto annually renewed Mutiny Act 1689 (Eng) and the Articles of War made under Royal Prerogative by the Monarch as head of the armed forces. The Mutiny Act was a sequel to the Restoration of the monarchy after the English Civil War of the mid-seventeenth century and the “Glorious Revolution” later that century. It reflected post-civil war experience of the threat to parliamentary government and general peace presented by Oliver Cromwell’s New Model Army. In keeping with the then prevailing constitutional view, which endures to this day, that the maintenance of a standing army without parliamentary approval was illegal, the Mutiny Act gave such legislative approval for a standing army and, as supplemented by the Articles of War, made provision for its discipline.

Thus, the history of provision for the discipline of the army in the United Kingdom is that while the Monarch remains its Head, the Royal Prerogative has been progressively replaced by legislative provision by Parliament in relation to its discipline. That reflects the prevailing position throughout the Commonwealth. While the Head of State, be that His Majesty the King or a Governor-General as his representative in respect of a realm, or a President in respect of a republic, is the head of a member country’s armed forces, the discipline of those forces is pursuant to legislative provision.

It is no coincidence that the enactment of the 1879 Act coincided with a period during which, under Secretary of State for War, the Rt Hon Edward Cardwell MP, the British Army’s organisation and administration had been modernised. A notable feature of that modernisation was the abolition of the sale of commissions by officers. Nor is it a coincidence that the enactment of the 1881 Act coincided with the continuance of reforms to the British Army made on the initiative of Cardwell’s successor as Secretary of State for War, the Rt Hon Hugh Childers MP.

The 1881 Act and related Rules of Procedure provided a comprehensive code for the discipline of the regular component of the British Army in war and in peace, and for the discipline when on active service of army reserve forces and colonial forces. In respect of the British Army, it endured until 1955, when replaced by the Army Act 1955 (Cth) (the 1955 Act). Part II of the 1955 Act, which made provision for the creation of service offences and their trial, did not effect a radical change to the provisions in the 1881 Act.

Subject to some nationally specific modifications, the 1881 Act was also incorporated by reference by many early Commonwealth countries as the disciplinary code for their armies, at least during active service. This remained the position through two world wars and the Korean War. In turn, this meant that the guidance found concerning the 1881 Act and the Rules of Procedure in successive editions of the Manual of Military Law, first published by the United Kingdom’s War Office in 1884, was pervasively influential in the application in practice of many Commonwealth military discipline systems. In respect of Commonwealth countries which gained independence after 1955, the 1955 Act was influential in relation to the provision for the discipline of their armies.

In relation to the Australian Army, the 1881 Act, subject to some local modification, remained applicable to its discipline on active service until the Defence Force Discipline Act 1982 (Cth) (DFDA) fully commenced on 3 July 1985.

For Australia, some key features of the 1881 Act are still to be found in the DFDA:

(a) Provision for inherently military offences such as mutiny and insubordination (ss 7-11, 1881 Act; Part III, Div 2 and Div 3, DFDA) but also the incorporation by reference of the body of the ordinary criminal law and making its contravention a service offence (s 41, 1881 Act; s 61, DFDA).

(b) Conferral of power on commanding officers to deal summarily with less serious service offences (s 46, 1881 Act; Part VII, Div 2, esp. s 197, DFDA).

(c) Trial by court martial for the more serious service offences (ss 47-50, 1881 Act; Part VII, Div 3, DFDA, supplemented, save in the case of the most serious service offences, with an alternative now of trial by defence force magistrate – Part VII, Div 4, DFDA).

(d) Review of convictions and sentences within the service chain of command (s 54 and s 57, 1881 Act; Part VIIIA, Div 2, DFDA).

However, a major post-Second World War reform in Australia, as it was in the United Kingdom and other Commonwealth countries, was the supplementation of the review of convictions within the service chain of command by the conferral of an overarching right of appeal against conviction akin to that found in the civilian criminal justice system. In Australia, this is conferred by what is now termed the Defence Force Discipline Appeals Act 1955 (Cth) (Appeals Act). The appeal lies to a tribunal, the Defence Force Discipline Appeal Tribunal (DFDAT). Ever since the commencement of the DFDA, the DFDAT has been constituted only by judges. The occasion throughout the Commonwealth for the conferral of such a right of appeal was dissatisfaction on the part of the many millions who undertook military service solely for the purposes of that war with the lack of transparency and independence inherent in the review of convictions solely within the service chain of command.

In Australia, the appellate jurisdiction was, deliberately, conferred not on a court established under Chapter III of the Australian Constitution but rather on a statutory tribunal. Regard to the Second Reading Speech of the then Australian 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 Australian Constitution as it then stood, that those exercising the judicial power of the Commonwealth had to be appointed for life (since amended to provide for a maximum age of 70). The pragmatic consideration was the unlikelihood of any great volume of appellate business other than in periods of general mobilisation,

These 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.

(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)

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. The DFDAT has always followed this practice, save in the unusual circumstance of evidence having national security classifications.

The point of this brief reflection on these aspects of our joint Commonwealth heritage is that there is nothing unique about an endeavour to reach a common understanding about military discipline. The 1881 Act began its life as legislation of what was once an imperial power but became during the 20^th century to be regarded by independent countries as offering an acceptable standard, proven to be workable even during general hostilities, for the discipline of their armies. Grounded as it was in legislative control over the army, that standard reflected a pervasive constitutional heritage. In turn, and again because of the shared wartime experience of Commonwealth countries, a need for more independent review of convictions for service offences, aligned to the norms of the civilian criminal justice system, came to be regarded as essential to confidence in the undertaking of military service by a more rights conscious general population.

The Transformation Project is proceeding according to an agenda charted out by Commonwealth Law Ministers in November 2022. Since then, as a sequel to a meeting of experts at the Stellenbosch Institute for Advanced Study in November 2023, an initial draft of the Commonwealth Military Justice Principles (the Stellenbosch Draft) has been produced.^[1]

There was an Australian present at that meeting, the academic, Professor Alison Duxbury of Melbourne Law School at the University of Melbourne. Professor Duxbury has a longstanding academic background in international law and a research interest in military justice. Notably, she co-edited collection of writings in the latter field (Military Justice in the Modern Age Cambridge, 2016). However, she has not, as far as I am aware, ever served in the Australian Defence Force. Hers was not an official Australian representative attendance. Although the Australian Judge Advocate General, Rear Admiral the Hon Jack Rush AO RFD KC RAN was present at a briefing by the Commonwealth Secretary-General concerning the Transformation Project at Marlborough House in November 2022,^[2] Australia chose, deliberately, not to send an official representative to the Stellenbosch meeting. The Stellenbosch Draft does not therefore have any official Australian imprimatur.

Since the release of the Stellenbosch Draft, a report on progress has been presented to Law Ministers at their meeting Zanzibar in March 2024.^[3] As the United Kingdom’s Judge Advocate General, His Honour Judge Alan Large, reveals in a recent paper (UK JAG Paper) concerning the Transformation Project, the origins of the interest in that country for that project may be traced to a series of judgements of the European Court of Human Rights (ECHR) concerning the independence of the United Kingdom’s then military justice system, prior to the enactment of the Armed Forces Act 2006 (UK).

Although not expressly referred to in his paper, the cases Judge Large had in mind must, undoubtedly, have included two cases decided by the European Court of Human Rights, Findlay v United Kingdom (1997) 24 EHRR 221^[4] and Grieves v The United Kingdom (2004) 39 EHRR 2.^[5] In each of these cases, the UK defence member concerned, Findlay (a member of the British army) and Grieves (a member of the Royal Navy), had been tried and convicted by a court martial appointed by a convening authority within the service chain of command. In each instance, the ECHR held that the defence member had not received a fair hearing by an independent and impartial tribunal, contrary to Article 6 of the European Convention on Human Rights and Fundamental Freedoms (European Convention).

A like outcome for like reasons occurred in the Canadian case, R v Généreux [1992] 1 S.C.R. 259 in which a trial by court martial in respect of a service offence under Canada’s then military justice system as found in the National Defence Act 1985 (Can) was held not to be compliant with the Canadian constitutional requirement for judicial independence found in s 11(d) of the Canadian Charter of Rights and Freedoms (Part 1, Constitution Act 1982 (Can)) (Canadian Charter).

Article 6 of the European Convention and s 11(d) of the Canadian Charter each have a close affinity with Article 14 of the International Covenant on Civil and Political Rights (ICCPR). Either via the incorporation into domestic law of the ICCPR or the entrenchment of a like norm in a national constitution (for example, s 37(3) of the Constitution of the Independent State of Papua New Guinea), the outcomes in Findlay, Grieves and Généreux have relevance by analogy for the military discipline systems of many Commonwealth countries insofar as those systems, reflecting the legacy mentioned, provide for the trial by court martial of service offences.

This is not so in relation to Australia.

The following brief account of recent Australian case law and legislation in relation to the trial of service offences explains why.

Although Australia is a party to the ICCPR, Article 14 does not form part of Australian domestic law. Nor is there any equivalent of Article 11(d) of the Canadian Charter in the Australian Constitution. This notwithstanding, an endeavour was made in Australia to challenge the validity of the provision made by the DFDA for the trial of service offences by court martial or defence force magistrate. Albeit by majority, the High Court rejected this challenge in Re Tyler; Ex parte Foley (1994) 181 CLR 18, at 27 per Mason CJ and Dawson J and at 32-34 per Brennan and Toohey JJ. Généreux was distinguished on the basis that there was no equivalent in Australian domestic law of s 11(d) of the Canadian Charter. The conclusion reached by the majority was that, insofar as there was any requirement flowing from the Australian Constitution for a trial in respect of a service offence to be undertaken by an independent tribunal, the court martial and defence force magistrate system met that requirement. The reasons for that conclusion were expressed in the joint judgment of Brennan and Toohey JJ (with whom in this regard Mason CJ and Dawson J agreed) in Re Tyler; Ex parte Foley, at 33:

In any event, the constitution of a general court martial pursuant to the Act answers the requirement of independence of a service tribunal exercising disciplinary power. Eligibility for membership of a court martial under the Act is in effect confined to officers (s. 116). A person is eligible to be the judge advocate of a court martial if, and only if, he is a member of the judge advocates’ panel (s. 117). The panel is constituted by officers appointed by a chief of staff on the nomination of the Judge Advocate General (s. 196(2)). An officer is not eligible for appointment unless enrolled as a legal practitioner for not less than five years (s. 196(3)). The judge advocate fulfils the function performed by a judge in a trial by jury (s. 134). The position of Judge Advocate General is dealt with in Pt XI of the Act. That appointment is made by the Governor-General and may be made on a full-time or part-time basis (s. 179(1)), for a term not exceeding seven years (s. 183(1)). A person shall not be appointed as Judge Advocate General unless he is or has been a Justice or Judge of a federal court or of a Supreme Court of a State or Territory (s. 180(1)).

A court martial is convened by a convening authority who is an officer, or an officer included in a class of officers, appointed by a chief of staff to be a convening authority (s. 102). A convening authority shall not appoint as a member, or as the judge advocate, of a court martial an officer whom he believes to be biased, likely to be biased, or likely to be thought on reasonable grounds to be biased (s. 118). The accused may object to a member of the court martial or to the judge advocate on similar grounds (s. 121). The Judge Advocate General has security of tenure within the period of his appointment. It is true that the members of the court martial are chosen by the convening authority on an ad hoc basis but historically this has always been the pattern according to which courts martial have been appointed and necessarily so given the exigencies of war.

Part IX of the Act contains provisions for the review of a decision of a court martial. The Defence Force Discipline Appeals Act 1955 (Cth) provides a right of appeal to the Defence Force Discipline Tribunal against conviction, though only by leave of the Tribunal on a ground that is not a question of law.

The provisions of the Act to which we have referred establish an independence on the part of courts martial commensurate with the system of service tribunals for the discipline of the Defence Force.

[Footnote reference omitted]

There was a later endeavour to persuade the High Court, notwithstanding the outcome in Re Tyler; Ex parte Foley, that this system was invalid. This was rejected by a near unanimous High Court: White v Director of Military Prosecutions (2007) 231 CLR 570.

Notwithstanding the failure of the challenge in Re Tyler; Ex parte Foley, the Australian Parliament was persuaded by a previous government to enact, via the Defence Legislation Amendment Act 2008 (Cth) (2008 Amendment Act), amendments to the DFDA which sought to bring the provision for trials in respect of service offences in closer conformity with norms identified in Findlay, Grieves and Généreux. The means adopted was something of a compromise between retention of a trial by court martial by a panel of service officers and the establishment of a court under Chapter III of the Australian Constitution. What was termed a court, the Australian Military Court (AMC), was established but its members did not enjoy the tenure for which s 72 within Chapter III of the Australian Constitution provides for those exercising Australian federal judicial power (although members of the Australian Defence Force, were given a degree of statutory independence). That tenure is for all practical purposes an entrenched version of the tenure for which the Act of Settlement 1701 (UK) provides, subject to a maximum age limit of 70 years of age (or such lesser age limit as otherwise provided by legislation).

The result of this compromise measure proved to be a debacle. In Lane v Morrison (2009) 239 CLR 230, the High Court concluded that the 2008 Amendment Act required the AMC to exercise Australian federal judicial power, without being established as a court under Chapter III of the Constitution. For that reason, the 2008 Amendment Act and thus the establishment of the AMC, was invalid. Those who would wish to understand in greater detail the post-Australian Federation history of Australian provision for military discipline and the rational for the 2008 Amendment Act might usefully read the joint judgment of Hayne, Heydon, Crennan, Kiefel and Bell JJ in Lane v Morrison.

In the aftermath of Lane v Morrison, the Australian Parliament swiftly enacted remedial legislation, initially on an interim basis, to restore the system of trial by courts martial or defence force magistrates in respect of service offences (see Military Justice (Interim Measures) Act (No. 1) 2009 (Cth), Military Justice (Interim Measures) Amendment Act 2011 (Cth), Military Justice (Interim Measures) Amendment Act 2013 (Cth) and Defence Legislation (Enhancement of Military Justice) Act 2015 (Cth)).

During the life of these initially interim remedial legislative measures, there was a Bill introduced into the Australian Parliament by a previous government, the Military Court of Australia Bill 2010 (Cth) (2010 Bill), which would, subject to a condition I shall shortly describe, have replaced both the original jurisdiction exercised by defence force magistrates and courts martial and the appellate jurisdiction exercised by the DFDAT with a new court established under Chapter III of the Australian Constitution, to be known as the “Military Court of Australia”. The 2010 Bill (cl 49(4)(a) and cl 49(6)) proceeded on the basis that this court 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. 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 (court martial or defence force magistrate) under the DFDA. One might, with respect, 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. The 2010 Bill lapsed upon the dissolution of that Parliament and has never been reintroduced.

Since Lane v Morrison, the High Court has opted for a service status-based approach to the valid reach of the DFDA: Private R v Cowen (2020) 271 CLR 316, a subject which had been left open in the earlier case, Re Aird; Ex parte Alpert (2004) 220 CLR 308.

Applying the Australian cases discussed to principles found in the Stellenbosch Draft, the following emerges in relation to the present Australian position:

1. Military Justice

Stellenbosch Draft: Ensure that military courts, when they exist, are part of a state’s general judicial system under the authority of the constitution or statute, respecting the principle of separation of powers and reflecting the rule of law and the obligations of international law.

Ensure that the law and procedure relating to military justice are reviewed at regular intervals to ensure their compliance with best practices and developments in international and domestic jurisdictions.

Australian position: Australia has no military courts, only service tribunals (courts martial and defence force magistrates) and summary authorities. These are established under the DFDA and have been held to meet any Australian constitutional requirement for independence.

2. Judges in Military Courts

Stellenbosch Draft: Ensure that proceedings in military courts are presided over by independent, impartial and legally qualified judges who have security of tenure.

Australian position: Australia has no military courts at all. Courts martial consist of a panel of officers, assisted by a legally qualified judge advocate whose rulings on matters of law are binding. A court martial gives no reasons, a like position to that in respect of a civilian criminal law system jury. Defence force magistrates are legally qualified. Defence force magistrates are obliged to give reasons. Judge advocates and defence force magistrates are given a degree of independence from the service chain of command by legislative provision in the DFDA.

3. Non-judicial Members in Military Courts

Stellenbosch Draft: Where the determination of any issue in proceedings in military courts involves non-judicial members of the court, select those members by a process which is independent of the chain of command or prosecution.

Australian position: Members of a court martial and the judge advocate are appointed by the Registrar of Military Justice (s 119, DFDA), who is a uniformed officer outside the chain of command given a degree of independence by the DFDA (s 188FD). Under the DFDA (s 121) at any time before a court martial is sworn or affirmed, an accused may object to a member of a court martial panel or the judge advocate on the following grounds: (a) ineligibility; (b) actual or likely bias; or (c) likely to be thought, on reasonable grounds, to be biased.

4. Jurisdiction

A. Military Personnel (Regular and Reserve Forces)

Stellenbosch Draft: Restrict proceedings in military courts against military personnel to cases which have a direct and substantial military connection beyond the military status of the accused.

Australian position: In Private R v Cowen, the High Court opted for a “service status” based ambit of jurisdiction.

B. Civilians

Stellenbosch Draft: Conduct proceedings against civilians in military courts only in exceptional circumstances

Australian position: One element of the definition of “service offence” in the DFDA (s 3) is that it was “committed by a person at a time when the person was a defence member or a defence civilian”. A “defence civilian” is defined (s 3, DFDA) to mean:

“a person (other than a defence member) who:

(a) with the authority of an authorized officer, accompanies a part of the Defence Force that is:

(i) outside Australia; or

(ii) on operations against the enemy; and

(b) has consented, in writing, to subject himself or herself to Defence Force discipline while so accompanying that part of the Defence Force”.

Subject to meeting these conditions, there is no restriction on the application of the DFDA to a “defence civilian”. The DFDA has no application to civilians generally.

5. Prosecution

Stellenbosch Draft: Ensure that the prosecution of proceedings in military courts is conducted by independent and legally qualified prosecutors.

Australian position: The DFDA establishes the office of Director of Military Prosecutions (the DMP), who is assisted in the conducted of prosecutions under the DFDA by a staff of legal practitioners. The DMP is by legislation given independence from the service chain of command (see Div 2 of Part XI, DFDA). The DMP conducts cases before courts martial and defence force magistrates but not before summary authorities.

6. Protection of Victims

Stellenbosch Draft: Ensure that victims in proceedings in military courts are:

a. provided with general information about the military justice system, including their role, and the services, protections and remedies available to them;

b. provided with reasonable and necessary measures to protect them from intimidation, repercussions, and improper command or peer influence;

c. able to inform the court of the impact of the offence upon them; and

d. entitled to have the court consider remedies, including compensation, for any loss or injury they have incurred.

Insofar as this principle might be thought to assimilate a “complainant” with a “victim” it is, in my respectful view, deeply flawed.

Australian position: Under the DFDA, prosecutions before service tribunals are not conducted by or on behalf of complainants but rather by the DMP on behalf of the service chief of the accused defence member. Upon conviction in respect of a service offence, a service tribunal may order the defence member or defence civilian concerned to make restitution (see s 83, DFDA) or, as the case may be, reparation (see s 84, DFDA) to the victim of the service offence. Standard prosecutorial practice before a service tribunal after conviction would include the tender of a victim impact statement as part of the sentencing process. Subject, of course, to any finding of perjury, any intimidation or adverse repercussions in respect of a complainant would be dealt with either as a service offence by the perpetrator or, perhaps, result in termination of membership of the Australian Defence Force by the perpetrator’s service chief, pursuant to s 24(1)(c) of the Defence Regulation 2016 (Cth), made under the Defence Act 1903 (Cth).

7. Rights of Accused

Stellenbosch Draft: Ensure that proceedings in military courts provide the internationally recognised rights of due process and a fair trial to a person charged with an offence.

Australian position: The DFDA gives extensive protections to an accused both during the investigation phase (see generally Part VI, DFDA) and during the trial phase (see, in particular, Part 9 of the Court Martial and Defence Force Magistrate Rules 2020 (Cth), made under the DFDA). As with the civilian criminal justice system, an accused defence member is presumed innocent unless and until proven to be guilty by the prosecution. Subject to the exigencies of the service, an accused is entitled, without personal expense, to the services of a legally qualified defending officer both before and during trial (s 137, DFDA).

8. Open and Accessible Proceedings

Stellenbosch Draft:

a. Ensure that proceedings in military courts are open and accessible to the public, including the press.

b. Require the presiding judge to decide whether circumstances exist which make it necessary to hold part or all of the proceedings in closed court in the interest of justice or to protect the state from a genuine threat to national security, and to provide an explanation for their decision in open court.

c. Ensure that a decision to hold proceedings in a closed court may be subject to appeal to a higher civilian appellate court and that proceedings are re-opened as soon as possible.

Australian position: Subject to a value judgement by the President of a court martial or, as the case may be, a defence force magistrate that some part of a hearing ought not be in public or publicised, because this is considered “necessary in the interests of the security or defence of Australia, the proper administration of justice or public moral”, proceedings before a service tribunal are to be held in public: s 140, DFDA.

9. Executive Review and Appeals

Stellenbosch Draft:

a. Ensure proceedings in military courts are not subject to command, executive or administrative review or alteration.

b. Grant the right to appeal from military courts and ensure that final judicial review and/or appeal from proceedings in military courts is conducted only by civilian appellate or constitutional courts.

Australian position: As mentioned above, there is a right of appeal against convictions in respect of service offences by service tribunals to the DFDAT. The DFDAT is comprised only of judges. An appeal panel for the DFDAT is three judges. It is a civilian tribunal, completely outside and completely uninfluenced by the service chain of command. To buttress the institutional independence of the DFDAT from the service chain of command, the Appeals Act is administered by the Attorney-General, rather than the Minister for Defence.

There is a right to petition a reviewing authority within the service chain of command (Div 2 of Part VIIIA, DFDA) but that does not operate to the exclusion of the right of appeal against conviction to the DFDA.

An appeal lies to the Federal Court of Australia from the DFDAT on a question of law (s 52, Appeals Act). A party to such an appeal may, by special leave of the High Court, appeal further to the High Court (s 33, Federal Court of Australia Act 1976 (Cth) (FCA Act)). The Federal Court and the High Court (which is Australia’s ultimate appellate court) are each courts established under Chapter III of the Australian Constitution.

10. Summary Proceedings

Stellenbosch Draft:

a. Where summary proceedings are initiated by commanders against military personnel, ensure that sufficient protections exist, including the right to elect trial in a military court which provides access to the internationally recognised rights set out in Principle 7 above, or an unfettered appellate procedure to such a court.

b. Ensure that summary proceedings are only used to adjudicate minor offences and to impose minor sanctions which are proportionate to the gravity of the offence and the degree of responsibility of the offender, and which do not involve sentences of imprisonment or any other significant deprivation of liberty, violation of human rights, or dismissal from service.

Australian position: Summary authorities may only deal with minor service offences and impose related minor punishments. An accused has a right to elect trial by court martial or defence force magistrate (see s 111B and s 111C, DFDA).

A noteworthy omission from the principles set out in the Stellenbosch Draft is that a military justice system must be suitable for war in all its phases and intensities. Some, with respect, might consider this odd.

A feature of the court martial system is that it has been proven as suitable for war, including twice during world wars.

More fundamentally, it is a complete misconception of the nature and role of a court martial to assimilate it with a national court exercising a civilian criminal jurisdiction. This was a point made for Australian domestic law in Lane v Morrison, at [85] by Hayne, Heydon, Crennan, Kiefel and Bell JJ, who cited with approval the following observation made in 1821 by Platt J of the Supreme Court of New York in Mills v Martin (1821) 19 Johnson’s Supreme Court Reports (NY) 7 at 30:

“The proceedings of the Court-Martial were not definitive, but merely in the nature of an inquest, to inform the conscience of the commanding officer. He, alone, could not condemn or punish, without the judgment of a Court-Martial; and, it is equally clear, that the Court could not punish without his order of confirmation.”

To this, their Honours added, at [86]:

These features of the provisions for courts-martial set them apart from the exercise of the judicial power of the Commonwealth. The decisions of courts-martial were not “definitive” of guilt; the punishments awarded by courts-martial were subject to confirmation or review. Dispositive decisions about guilt and punishment were made on confirmation or review within the chain of command. It was, therefore, right to describe courts-martial as directed to the maintenance of discipline of the forces. They were tribunals established to ensure that the discipline administered within the forces was just. But as Dixon J pointed out in R v Cox; Ex parte Smith, courts-martial did “not form part of the judicial system administering the law of the land”.

[Footnote reference omitted]

A corollary of this is that in my view it is a serious mistake to assimilate the suitability of all features of a civilian criminal jurisdiction trial procedure with that suitable for the hearing and determination, if need be during operations, of service disciplinary charges. Under the DFDA, there is an overlap but no exact symmetry.

A court martial exists to buttress the discipline of an armed force. Its verdict informs the chain of command. Its sentence cannot be carried into effect without being reviewed and confirmed within the chain of command. As to punishment, this remains a feature of the system for which the DFDA provides: see s 168, DFDA.

This understanding of the role of a court martial is not evident in the Stellenbosch Draft.

The 1881 Act in its time and now, in relation to the Australian Defence Force, the DFDA were and are disciplinary codes for the profession of arms.

At its most blunt and in respect of a Commonwealth realm, the core function of a defence force is to kill the King’s enemies. That means that the profession of arms has no equivalent in any civilian calling. To discharge that core function requires both leadership, training and discipline. These requirements interplay. The best account I have ever read of that interplay was offered by General Sir David Fraser, a senior British general officer of the modern era, in his work And We Shall Shock Them, A History of the British Army in World War Two (Hodder & Stoughton, 1983), p 41:

Few men are born heroes. Few are incorrigible cowards. Most can be either; and to help them towards the former rather than the latter state an army uses leadership, discipline and training – a mix which produces confidence and pride. The man well-led can believe there is sense in what he is ordered to do, and that his commander both cares for him and knows his own job. The disciplined man knows that the habit of obedience and united action distinguishes a self-respecting body of soldiers from a mob. The trained man knows his profession enough to do what he has to do, and do it by instinct amidst great dangers. Without these characteristics in the body to which they belong soldiers cannot behave well in battle; and when they fail the fault is not theirs but lies in the system which has placed them there unprepared.

From this it emerges that the disciplinary system of a defence force must be capable of employment on operations. Those who will constitute the adjudicators of whether service offences have been committed must therefore be deployable as and when lawfully directed by the national government. Like other military skills, opportunity must be taken in peacetime to practise and maintain skill in that system.

None of this is to suggest that a disciplinary system must not be fair. A disciplinary system which is not seen by defence members to be fair is conducive to mutiny. Both altruism and pragmatism lay behind the procedures for trial specified in the 1881 Act and, for Australia, now in the DFDA. Subject to the post-Second World War provision for appeals the overwhelming evidence from two world wars is that these procedures struck a reasonable balance between suitability for operational employment and fairness. As to appeals and in terms of the Australian experience, the system of provision for appeals to what is now termed the DFDAT proved workable under the disciplinary system demands of a prolonged, brigade-sized deployment during the Vietnam War, including in relation to challenges to murder convictions.

As far as Australia is concerned, there is no doubt that it would be possible to establish a court compliant with Chapter III of the Australian Constitution to hear and determine charges in respect of service offences. To establish such a court would be a radical departure from the employment for service disciplinary purposes of a court martial, as explained in Lane v Morrison. To be effective in terms of the knowledge and experience of its judges, such a court would have to be separate from the Federal Court. It would require the appointment to it by way of additional commission of judges from State and Territory courts, not just the Federal Court. The Federal Court has a very limited criminal jurisdiction. Reflecting the criminal jurisdiction State and Territory courts routinely exercise, it is in such courts that the more pervasive criminal law knowledge and experience reposes. That would require co-operative agreements between the Australian government and State and Territory governments in relation to the release of such judges. It is to say the least doubtful whether it would be within the legislative competence of the Australian Parliament to conscript State or Territory judges to such a specialist military court. At least with State judges, such judges form part of the constitutional structure of a State. It is not possible for the Australian Parliament to inhibit the capacity of another Australian polity to exist or function: Melbourne Corporation v Commonwealth (1947) 74 CLR 31; Re Residential Tenancies Tribunal (NSW); Ex parte Defence Housing Authority (1997) 190 CLR 410; Victoria v Commonwealth (1996) 187 CLR 416 (‘Industrial Relations Act Case’); Commonwealth v Cigamatic Pty Ltd (in liq) (1962) 108 CLR 372; Austin v Commonwealth (2003) 215 CLR 185.

The members of any such military court would therefore have to be volunteers. Moreover, it is doubtful whether the Australian Parliament could authorise an officer of the executive such as the Chief of Defence Force to order a judge of a court established under Chapter III of the Australian Constitution to serve overseas. This may well explain why the 2010 Bill provided for a court martial as a fallback in the event that the military court it contemplated determined it was not feasible to sit in a place for security reasons.

Thus, in addition to the common sense retention of a system proven suitable for war for the discipline of a military force, there are for Australia other practical and also constitutional considerations which may mitigate against the establishment of a military court under Chapter III of the Australian Constitution in response to the principles stated in the Stellenbosch Draft.

Finally, the most recent major amendment of the DFDA by the Australian Parliament suggests not only is there little appetite for such a court but that the Parliament is reverting in respect of some service offences to a position which predates even the 1881 Act.

The Defence Legislation Amendment (Discipline Reform) Act 2021 (Cth) (2021 Act) introduced a new Part 1A into the DFDA to provide for what are termed “disciplinary infringement. The scope of that new Part is accurately summarised in the “simplified outline” now found in s 9A of the DFDA:

A prescribed defence member (a junior officer or lower rank) may elect to be dealt with under the infringement scheme in this Part in relation to a disciplinary infringement if the member has been given an infringement notice in relation to the infringement. By electing, the member is taken to have admitted the infringement for the purposes of being dealt with under the infringement scheme.

Disciplinary infringements are not service offences. However, if a prescribed defence member has been dealt with under the infringement scheme in relation to a disciplinary infringement (see subsection 9C(3)), the member is not liable to be tried by a service tribunal for an offence arising out of the infringement.

Disciplinary infringements are dealt with by discipline officers and senior discipline officers who may decide to:

(a) impose a punishment; or

(b) not impose a punishment if the infringement is trivial; or

(c) dismiss the infringement if the member has a reasonable excuse; or

(d) decline to deal with the infringement if it is too serious to be dealt with under this Part.

Discipline officers may only deal with a contravention of a minor disciplinary infringement provision. Senior discipline officers may deal with a contravention of any disciplinary infringement provision and may impose a higher punishment. There are other limitations on the jurisdiction of a discipline officer or senior discipline officer (see section 9F).

A decision by a senior discipline officer to impose a punishment is reviewed by a commanding officer. The commanding officer may confirm the decision or substitute the decision with a decision to impose a reduced punishment or no punishment or to dismiss the infringement with no punishment.

Section 9B of the DFDA states:

The object of this Part is to provide a means of dealing with minor service discipline matters which:

(a) is fair and efficient; and

(b) meets the disciplinary needs of the Defence Force.

It might, alternatively and with respect, be stated that the new Part 1A is parliamentary recognition of the failure of the disciplinary system for which the DFDA had hitherto provided in respect of the more minor service offences by junior officers and other ranks. Nominally, subjection to this system requires an election by the defence member concerned: s 9C, DFDA. Anyone with any experience of military service might conjecture that subtle pressures might be brought to bear on the making of such an election.

The review of outcomes within this new system is wholly within the service chain of command: s 9G, DFDA. There is no right of appeal to the DFDAT. The only means of challenge to the decision of a reviewing officer would be on the narrow and quite different grounds of jurisdictional error by way of what is now termed in Australia a “constitutional writ” (once termed a prerogative writ) in the original jurisdiction of the High Court under s 75(v) of the Australian Constitution or in the Federal Court under an equivalent jurisdiction conferred by s 39B of the Judiciary Act 1903 (Cth). Such a right of judicial review is inherently likely to be more theoretical than real for a junior officer or soldier.

I have no remit whatsoever to put any Australian policy position in relation to the Stellenbosch Draft. However, for all the reasons canvassed above, it may be doubted whether it will find any attraction within the Australian Department of Defence. Of course, the Transformative Project is one commissioned by Law Ministers, not Defence Ministers. Judges should not speculate about how any resultant political differences might be resolved.