Costly debate in defence of disturbance

He was court-martialled over an incident at Campbell Park offices in February 2010. He was found guilty of ''being a defence member at Defence Legal Division, Level 4 Campbell Park Offices on 3 February 2010 between approximately 10.30 and 11.00 in the vicinity of the office of Mr Andrew Snashall created a disturbance by causing a confrontation with Mr Snashall''.

Snashall was director of special financial claims at the time.

Li was sentenced to be severely reprimanded and fined $5000, $3000 of which was suspended.

Li's appeal to the Defence Force Disciplinary Tribunal (comprising three Federal Court judges) was dismissed, so he appealed to the Full Federal Court where two of five judges found in his favour.

Li's disturbance has certainly made some disturbance in defence legal circles.

There is more to come. He has sought special leave to appeal to the High Court.

How did this happen, bearing in mind the nature of the incident. Here is the additional material attached to the charge:

That Major Li:

''(a) refused to leave Mr Snashall's office when requested to do so by Mr Snashall and continued speaking to Mr Snashall in a raised voice;

''(b) followed Mr Snashall and continued the conversation when Mr Snashall left his own office , ostensibly because Major Li would not:

''(c) forcefully pushed against Mr Snashall's office door placing his head and shoulder in the doorway while Mr Snashall was inside the office trying to close the door;

''(d) re-entered Mr Snashall's office and again refused to leave when requested to do so;

''(e) stood approximately three inches [8cm] from Mr Snashall's face, speaking with a raised voice and in an agitated and aggressive manner.''

Heady stuff.

The Federal Court judgment ran to 66 pages.

Li had sought information and advice from the directorate and was nagging staff. Snashall objected to this. Li asserts Snashall made a remark with racial overtones, which was denied by Snashall. Li demanded an explanation from Snashall. Snashall said there was a complaints procedure and for Li to leave his staff alone and to leave his office. That is when the ''disturbance'' happened.

The Defence Force Discipline Act provides for offences and punishments beyond the realm of the civilian law. It is there to provide a disciplinary code for a military force.

In Australia, the constitution requires that the judicial power of the Commonwealth be exercised by judges appointed under chapter III of the constitution. This means that, even though a superior officer or officers can hear a defence disciplinary matter and provide a sentence, appeals on matters of law to a chapter III judge (in this instance the Federal Court) must ultimately be available to an accused.

And thus what one witness described as ''an argy-bargy'' has found its way to the highest court in the land, though I cannot imagine the court allowing special leave to appeal, though stranger things have happened. The case has had a pretty good run already for the seriousness of the issues at hand.

But if it does, it will ultimately come down to defining what is a ''disturbance'' - a general or a narrow meaning.

Three of the Federal Court judges almost took it as read that the word ''disturbance'' in the Defence Force Discipline Act was the general meaning, so that an argy-bargy in an office would be a ''disturbance''.

But Justice John Logan went for the narrow meaning - that disturbance meant a breach of the peace, riots and the like.

''There is nothing about the nature of military service which compels a preference for the more general meaning of 'disturbance' so as better serve the purpose of the Defence Force Discipline Act. The military environment, even in peacetime, is hardly a place of monastic peace and solitude where interpersonal conversation must occur only in muted tones lest the tranquillity of one's fellows soldiers, sailors or airmen or collocated civil servants be 'disturbed'.''

He cited the arguments between Lieutenant-General Sydney Rowell and General Sir Thomas Blamey in New Guinea in 1942 - arguably the most notorious ''disturbance'' in Australia's military history.

Exchanges of that kind which entail verbal rather than physical violence occur throughout the ranks. Also, Justice Logan said, people of many different backgrounds, experience, education were brought together in the military, so such differences inevitably were produced.

He said ''disturbance'' had a secondary meaning which ''disturb'' did not have. Someone smoking might disturb people, but would not result in a disturbance.

So he concluded that the narrow meaning (breach of the peace or riot) should be preferred, especially as the personal rights and freedoms of soldiers should not be diminished unless the statute made it very clear that that was what it intended.

The freedoms of people in the armed services should not be taken away lightly, especially where they could be subjected to imprisonment.

Others, obviously, think discipline in the forces must be stricter and a broader range of disturbances must be regarded as offences.

Interestingly, there was no order for costs in the Federal Court. It seems the Commonwealth will be bearing the costs of its successful prosecution, but in courts martial, it is usual for the soldier to get legal assistance from his or her employer - again the Commonwealth. This argy-bargy is likely to cost taxpayers several hundred thousand dollars. The cost of justice?

Disturbing stuff.