Accused Hastings Fredrickson charged with sending offensive material.

Accused Hastings Fredrickson charged with sending offensive material.

The recent report that six members of the self-appointed ''Jedi Council'' have been sacked by the Chief of Army, Lieutenant General David Morrison, and that the Chief of Navy, Vice Admiral Ray Griggs, is contemplating similar action in relation to sailors allegedly involved in inappropriate behaviour while serving on HMAS Ballarat, indicates that the Australian Defence Force has the ability to take strong and swift action to maintain and enforce discipline among its members.

Effective military discipline should be delivered swiftly; lengthy delays in finalising disciplinary proceedings are not conducive to achieving the primary goal of any military discipline system - the maintenance and enforcement of military discipline in an expeditious, yet fair, manner.

If the so-called ''ADFA-Skype'' matter is anything to go by, the civilian courts are much slower to deal with a matter than might be expected under the military discipline system and will only deal with those matters the police or prosecutors think serious enough to bring before the courts.

Issues that are considered important from a military discipline point of view may not have the same prominence in the eyes of state/territory police and prosecutors.

During the past decade there have been three attempts to establish a military court in Australia as a replacement for the system of courts-martial and Defence Force magistrate trials that have existed in this country since 1985.

Perhaps there is a message for the Abbott government that can be read into these failed attempts to establish a military court - if it's not broken then don't try and fix it!

These attempts, initiated by both Coalition and Labor governments, have faltered due to the now-defunct Australian Military Court being ruled unconstitutional by the High Court in its decision in Lane v Morrison (2009), and in the case of the proposed Military Court of Australia due to legislation lapsing twice when Parliament was prorogued in 2010 and 2013.

There have been a number of challenges to the constitutional validity of the Defence Force Discipline Act (1982) since it commenced operating as the single piece of legislation regulating the enforcement of discipline in the Royal Australian Navy, Australian Army and Royal Australian Air Force in 1985.

On each occasion the High Court has ruled - albeit a number of cases have been decided by bare majority - that the existence of a disciplinary regime for the armed forces is entirely appropriate and a constitutionally valid exercise of the ''defence power'' provided under section 51 (vi) of the Constitution.

Calls for reform to the DFDA have been raised in a variety of forums. The most recent consideration occurred when the Senate Legal and Constitutional Affairs Committee considered the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012.

These bills lapsed when Parliament was prorogued on August 5, 2013 and there has not been any indication of whether the Abbott government intends to re-introduce these bills in the current Parliament. Noting that when the Senate committee delivered its report there was a dissenting report provided by the Liberal senators, it might be assumed the Abbott government thinks there is further work to be done before these bills can be reintroduced.

However, caution should dictate that the issue of whether a Military Court of Australia is actually needed be properly re-evaluated.

There is no compelling case for changing the current system of trial by courts-martial and Defence Force Magistrate. Those who argue there is a lack of independence and impartiality in the current system ignore the reality of the purpose that lies behind maintaining and enforcing discipline in the armed forces.

Put simply, this is inherently a command function and should not be subjected to adjudication by those who do not perform this role. If an allegation that is raised against a service member possesses sufficient elements of

criminality, there is already provision under the DFDA and the ordinary criminal law of Australia for this allegation to be dealt with through the criminal law system - as is the case for any other serious criminal activity within the jurisdictional competence of Australian authorities.

Further, if a serious allegation is raised as a result of action by a service member that occurs outside Australia, the extra-territorial application of the DFDA will be invoked to ensure the allegation can be properly investigated, and prosecuted if sufficient evidence exists. Another reason why change should not occur is one that might resonate highly with the Abbott government - cost.

In 2011, there were 61 courts-martial and Defence Force Magistrate trials conducted throughout the Australian Defence Force.

On face value, it is highly questionable whether the workload associated with this level of activity warrants the creation of a separate court as contemplated with the Military Court of Australia.

At a time when the Abbott government has signalled an intention to reduce the size of the public service it seems incongruous that a decision could be made to create a new military court to deal with such a light case load.

So, what should be done?

This is one of those occasions when the best outcome, for both service personnel and the Australian community, would be to maintain the status quo.

The courts-martial and Defence Force Magistrate system is working adequately and is, in large part, meeting the needs of military commanders while providing sufficient safeguards to those who appear before these tribunals. There is no compelling reason for change to occur and there are plenty of other challenges in the Defence portfolio where the Abbott government could usefully expend its energy.

Associate Professor David Letts is co-director of the Centre for Military and Security Law at the Australian National University.