The military justice system is broken but holistic and careful reform is required
The Senate Foreign Affairs, Defence and Trade References Committee report of its inquiry into the effectiveness of Australia’s military justice system addresses both the administrative law systems applying to the ADF and the force’s disciplinary code.
Most publicity and commentary on the report has unfortunately conflated and confused both aspects, or has focused on various individual matters in isolation, often in a highly personalised manner.
Moreover, the key reason why we have a defence force disciplinary code — to ensure the force’s operational effectiveness — has largely been missed.
The report’s overall conclusion is that the administrative law system is fundamentally broken and that the disciplinary code needs reform in many areas.
The committee notes that a number of common faults bedevil both systems, including inordinate delays, inadequate resources, poor quality investigations, conflicts of interest with command responsibilities, and an overall lack of independence and impartiality in both fact and perception.
The report’s two major supporting conclusions are that prosecution, defence and adjudication functions should be conducted independently of the force’s command structure; and that holistic reform is needed, rather than more of the type of add-on legislative and procedural changes over the past 20 years that have greatly contributed to the current problem.
Few military professionals would disagree. Where genuine disagreement exists it is over the cure and how it should be administered.
The defence force of any democracy needs to accurately reflect the wider society it comes from and defends. Moreover, as the society evolves the defence force needs to change with it as much as possible.
Over the last generation there has been an explosion nation-wide in anti-discrimination, OH&S and administrative review laws.
The defence force cannot stay cocooned from such developments, especially as the wider society it recruits from and interacts with has undergone significant change.
The large number of botched inquiries, investigations and complaint resolutions conducted by the ADF and the Department of Defence, and the growing morass of its internal redress of grievance procedures, mean that strong action needs to be taken to restore public and Service personnel confidence respectively.
The Committee’s primary recommended solution is that all administrative law matters be controlled by a statutory authority independent of the ADF. This is based on the Canadian model, which is itself still evolving, and is probably worth trying.
There will be objections to this reform from the more traditionally hidebound parts of the ADF. They will eventually see the light even if only because, done properly, it will free up command attention, manpower and resources for operational tasking.
Reform of the ADF disciplinary code is not as easily achieved. The Defence Force Discipline Act (DFDA) already faces increasing vulnerability to constitutional challenge overall as parts of it do not, at first glance, appear to be a valid exercise of Commonwealth judicial power (because they do not involve independent 'judges' at the lower levels although they do for appeals from courts martial).
The military discipline power itself, however, is mainly an exercise of the Commonwealth's executive and defence powers, so it is the 'judging' part only that appears to be a constitutional problem. The key point involved is that doing nothing, or further tinkering with the DFDA based on existing (albeit longstanding) interpretations of the Constitution, are not viable options.
Twenty years ago the tri-Service DFDA replaced the separate inquisitorial-style disciplinary codes that had served the Services well for centuries in the cases of the Navy and the Army. The DFDA introduced an adversarial model similar to civil proceedings.
This has caused much greater complexity without necessarily improving access to, and acceptance of, justice among the ranks. It has certainly meant vastly increased legal workloads for commanders at all levels from corporal to admiral.
This can best be exemplified by the comparison that basic military law at Duntroon in the 1970s could be and was taught by infantry warrant officers, whereas at officer and senior NCO training institutions nowadays it often has to be taught by middle-ranking officer lawyers. Few would defend this as an improvement.
The Committee proposes, in effect, to civilianise most offences. All disciplinary matters that are also civil crimes would be dealt with by civil police and local civil courts — at least in Australia. At unit level military commanders (as summary authorities) would still dispense justice for those crimes peculiar to military service, such as absent-without-leave, insubordination and sleeping on sentry duty.
The handling of strictly military offences above this summary level would be undertaken by an independent Permanent Military Court (PMC) with full-time judges, rather than by the existing system of full-time and part-time Defence Force Magistrates and by Courts Martial. An independent Director of Military Prosecutions established by statute would oversee investigations from the legal viewpoint and initiate prosecutions in the PMC.
The civilianisation proposal regularises a situation that largely occurs now, in the peacetime barracks or base environment, for crimes that are both civil and military summary offences of comparable seriousness.
How both proposals would work on operations overseas, especially in the functional anarchy of combat, is much more problematic.
The proposal that offences overseas be investigated by federal, rather than military, police would also need very careful implementation and risks militarising the AFP through the constant demands of military operational necessity.
Furthermore, military duties at home and overseas often mandate degrees of cheek-by-jowl living, 24-hours per day in unusual and even stressful conditions, that necessitate much greater degrees of mutual trust than those necessary or commonly experienced in civil society.
Theft from fellow Service personnel, for example, is a far more serious issue of morale, discipline and operational teamwork than petty theft is in wider society.
Furthermore, given the penchant of the civil police to not investigate crimes below certain arbitrary thresholds, apparently due to resourcing limitations, making them responsible for tackling minor crime in the ADF hardly seems a viable option in most circumstances.
It would also be interesting to see how the same incident combining a strictly military offence, say insubordination, with a dual military and civilian one, for example assault, could be efficiently handled by different investigations and judicial procedures.
The bottom line of ADF discipline is that military operations, and especially combat, takes normal people and puts them in abnormal situations where they are still required to behave legally and in a civilised manner.
Even legal systems that suit a barracks or base environment do not translate easily to the unforgiving exigencies of the battlefield. We tinker with the ADF’s disciplinary code at some peril unless this is done with some understanding of what we require the defence force to do in war.
The difference between a rabble and an efficient fighting force are its inter-dependent command and disciplinary systems. These are two halves of the one whole of how the force fights and how it is commanded at all levels and in all situations.
Some officers across the ADF hierarchy may at first object to the force and extent of the Senate Committee recommendations.
We suspect most will come around to discussing options for genuine reform in a useful way once they realise the operational, moral and public confidence advantages involved.
Those who will not are perhaps those ethically comfortable with presiding over a culture and a system that continues to deliver as much injustice as it does justice.