The decision by the High Court to invalidate the Australian Military Court instituted in 2007 was not unexpected, as the underlying constitutional, legal and philosophical issues have been debated widely for over a decade.
First, as the defence force of a liberal democracy, the Australian Defence Force must have a disciplinary code to comply with Australia's international humanitarian law obligations, and so our defence force does not somehow degenerate into an armed rabble that might one day threaten the democracy it protects. In terms of day-to-day operations the ADF also needs a disciplinary code to:cover offences necessary for the fair and efficient operation of a defence force (insubordination, absent-without-leave, cowardice, etc) that are unknown to civil law; handle civil criminal offences, such as theft, which must be more strictly punished in the military because of the involuntary collective living and working conditions involved; and apply when the ADF operates overseas, such as in war zones, where Australian criminal law either does not apply or must be applied in quite different circumstances.
Second, serious criminal offences committed by ADF personnel tend to be tried by Australian (and in some cases foreign) civil courts anyway unless they are committed when the defence force is deployed overseas.
Third, Senate committee inquiries over the past decade or so rightly reviewed serious problems in the overall military justice system, and recommended far-reaching reforms (including the military court). The great bulk of the more serious difficulties, however, were with the application of general administrative law to the ADF, not the force's disciplinary code. Difficulties with the code were also generally more to do with its enforcement rather than the principles of the 1982 Defence Force Discipline Act itself.
Fourth, the High Court decision only invalidated the 2007 amendments to the Defence Force Discipline Act establishing the Australian Military Court (and replacing the courts martial and defence force magistrates previously at the apex of the ADFs disciplinary system). The Defence Force Discipline Act remains valid under the defence heads of power in section 51 of the constitution. So does the summary justice system administered (under strict controls) by unit and sub-unit commanders that handles over 19 in every 20 offences tried under the Act. On a day-to-day basis, military operations in Australia and overseas, and most ADF units and personnel, will not be affected much, if at all, by the hiatus before a new apex military court is re-established.
Fifth, the High Court cannot give advisory opinions so in some cases, where competing and relatively intractable philosophical or conceptual problems exist, the only alternative is to pass legislation and see which way the court jumps.
There are also valid concerns as to four requirements for whatever higher military court is constituted. Unfortunately for effective public debate, these aspects do not appear to be well understood in the general community by those without experience of war or military service.
First, any military court needs to be readily deployable to overseas operational theatres. This means that the judges and all court staff need to be appropriately trained as military personnel, to some extent, in order to defend themselves and others and to avoid being an undue security burden when in a theatre of war. It also means that all personnel involved need to meet standard preparedness requirements such as good health, adequate training and ready availability for deployment at very short notice. Second, the ADF's disciplinary code is a key component of defence force operational effectiveness, not some arcane back corner of the law. For both ADF operational efficiency and fairness and equity reasons, all or most of such a court's presiding members must include judges with sound military experience in order to make adequate judgements (especially about disciplinary rather than civil criminal offences).
Third, due to the unique natures of war and military service, a military court must have credibility among the military personnel subject to such a court. This is particularly so as by entering military service ADF personnel have voluntarily surrendered to the court's special jurisdiction over them in a way that does not apply to other Australian citizens.
Finally, based on the ADF's wartime experiences, many past and current senior ADF commanders consider that the judges of a higher military court need to be military personnel so they are subject to the Defence Force Discipline Act in other than the performance of their judicial function and duties. This is considered necessary for both ADF operational effectiveness and for the general military training of the personnel concerned. If a new military court were to be constituted under chapter 3 of the constitution, this would be the most difficult issue to resolve. While in practice it is unlikely to be a problem, it cuts directly to the issue of the necessary independence of the judiciary in perception as well as principle or operation. What the High Court has effectively said is that the new military court, in the modern desire to make it as independent of the ADF chain-of-command as possible, is no longer a tribunal but a court and is now too divorced from the defence heads of power constitutionally, but not divorced enough (especially regarding the appointment and limited tenure of judges), to be a valid exercise of the Commonwealth judicial power under chapter 3 of the constitution. This is consistent with the High Court's late 1920s decision that invalidated a specialist tax court because its members had limited tenure. The desire to maximise the Australian Military Court's independence in turn resulted from several High Court rulings in appeals over recent decades that threatened the validity of the Defence Force Discipline Act itself and particularly the traditional courts martial system that then tried more serious offences. The desire for the new military court to be quite independent was not just the result of recent Senate committee inquiries and associated recommendations.
The Rudd Government has signaled it will reconstitute the court under chapter 3 of the constitution. This might best be done as a division of the Federal Court and steps will have to be taken to avoid the readiness, deployability, military inexperience and credibility problems outlined above. The last thing we need to do is ignore some lessons from the old Courts Martial Appeals Tribunal instituted in the mid-1960s. This developed problems when its judges (provided by state Supreme Courts) began to be those with no personal World War II, or even post-war Army Reserve, military experience and consequently little or no contextual understanding of warfare, military service or the often unique operational circumstances of the difficult cases that came before them. There is no easy solution to these problems.
Neil James is executive director of the Australia Defence Association.
Email a friend