The 26 August 2009 decision by the High Court to invalidate the Australian Military Court (AMC) instituted in October 2007 was not unexpected. The underlying constitutional, legal and philosophical issues have been debated widely for over a decade. Unfortunately much of the ensuing public commentary has not reflected these debates or their history. This is also a matter with few, if any, party-political, individual personality or bureaucratic power-play aspects of any note. This has not suited some commentators and unnecessary confusion has resulted from their purported explanations claiming such effects.
What the High Court has effectively said is that the new AMC – in the modern desire to make it as independent of the ADF chain-of-command as possible (and a court of record which the old courts martial were not) – is no longer mainly a disciplinary tribunal (which courts martial were) but a court.
Furthermore, in the quest for independence from the ADF chain-of-command it is now too divorced from the defence heads of power constitutionally to be based on them alone, but not divorced enough (particularly regarding the method of appointment and limited tenure of judges) to be a valid exercise of the Commonwealth judicial power under Chapter III 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 and were therefore not fully independent.
The High Court decision only invalidated the 2007 amendments to the 1982 Defence Force Discipline Act (DFDA) establishing the AMC (and replacing the courts martial and defence force magistrates previously at the apex of the ADF’s disciplinary system).
The remainder of the DFDA remains valid under the defence heads of power in Section 51 of the Constitution. So do the unit-level summary procedures under the DFDA administered, under strict controls, by unit and sub-unit commanders and which handle 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 court at the apex of the DFDA is re-established. The superseded courts martial system and the defence force magistracy are being temporarily brought back to handle appeals, and trials for more serious offences, until a new higher court is re-constituted.
The desire to maximise the new AMC’s independence resulted from several High Court rulings on appeals over recent decades that threatened the validity of the DFDA itself – and particularly the traditional courts martial system that tried more serious offences until late 2007. The courts martial system superseded by the AMC resulted from an evolving legal tradition stretching back, in modern times, to the 1887 Army Act of the British Parliament – which applied to the Australian Army (but not the RAN and RAAF) when operationally deployed overseas until the DFDA came into force in 1985. It is therefore important to note that the desire for the new AMC to be as independent as possible from real or perceived supervision by the ADF chain-of-command was not just the result of recent Senate committee inquiries and associated recommendations – nor indeed from alleged political or personality-based incompetence by Ministers or supposedly hidebound resistance to change by the ADF.
What is the background?
Several key points, and most of the historical background, have unfortunately been missed or skated over in much of the media and public commentary.
First, as the defence force of a liberal democracy, no-one is seriously suggesting that the ADF should not have a disciplinary code to comply with Australia’s international humanitarian law obligations (such as the Laws of Armed Conflict) – and so our defence force does not somehow degenerate into an armed rabble that might one day threaten the very democracy it protects. In terms of day-to-day operations the ADF also needs to be governed by legislation that integrates a disciplinary code specific to military personnel with the civil and criminal offences applying to all Australians and with our national and individual obligations under international law. This legislation needs to:
- cover offences necessary for the fair and efficient operation of a defence force (killing outside the authorised rules of engagement, mutiny, insubordination, cowardice, desertion, abuse of prisoners-of-war, neglect of issued weaponry, absence-without-leave, prejudicial conduct, etc) that are effectively unknown to civil law and need to be so;
- handle civil criminal offences (theft, assault, harassment, abuse of authority, fraud, negligence, etc) which must be more strictly deterred and punished in the military because of the involuntary collective living, working and operational conditions involved and the importance of self-discipline, mutual trust, teamwork and morale in a profession necessarily involving the application of disciplined, lethal, force and the risk of death and serious wounds;
- cover individual and collective compliance with the specialist international law covering warfare such as the Laws of Armed Conflict based on the Hague and Geneva Conventions; and
- apply when the ADF operates overseas, especially in war zones, where Australian criminal law may not apply (to varying degrees), may intersect with the criminal law of other countries or must be applied in quite different circumstances to Australia.
Second, serious criminal offences committed by ADF personnel in Australia tend to be tried by state and federal civil courts anyway. If committed overseas in generally peacetime circumstances they are usually tried by the relevant foreign civil court, depending on Australia's status-of-forces agreement with the country concerned and/or whether the civil courts of that country meet acceptable legal standards. In some cases the country concerned chooses not to prefer charges (even when the ADF recognises the necessity and does so) or prefers that the offender be tried by Australia. Criminal offences committed when the ADF is operationally deployed overseas, or where no valid civil code applies in the country concerned (such as in Somalia), are tried under the DFDA – including its incorporation and extension of ACT criminal law to such situations. Experience of Australian military deployments overseas for over a century has shown that disciplinary and criminal offences need to be treated within an integrated legal system for a range of practical reasons and diplomatic relations and international law obligations.
Third, Senate committee inquiries over the last decade or so rightly reviewed serious problems in the overall “military justice system”, and recommended far-reaching reforms (including the AMC). The great bulk of the more serious difficulties, however, were with the application of civil administrative law to ADF processes, not the force's disciplinary code or how it was administered judicially. Furthermore, difficulties with the code were also generally more to do with the independence, efficiency and equity of its enforcement rather than the principles of the DFDA itself. Moreover, many of these enforcement problems have been solved by tweaks such as creating a director of military prosecutions and a military court registry both relatively independent of the ADF command chain, and by reforming and modernising the ADF’s criminal investigation capabilities.
Finally, the High Court cannot give advisory opinions. In some cases where relatively intractable philosophical or conceptual differences exist, the only alternative is to pass legislation and see which way the Court jumps. In this case, some constitutional purists tended to overlook some of the military practicalities involved and argued for a strictly civil court to be established under Chapter III of the Constitution (like the Federal Court and the Federal Magistracy). They also tended to argue that there was no requirement for the judges (or magistrates) to have military expertise and that even nominal links to the military command chain or the Westminster principle of civil control of the military by Ministers would compromise the independence of the court. On the other hand, those with an appreciation of military experiences and the history of warfare, including some judges and lawyers, tended to approach the matter with emphasis on the unique exigencies and requirements of military service and the general nature of international warfare. They argued that the proposed court should remain a military one, to some degree, in order not to compromise ADF operational effectiveness, preserve the court's relevance to those it tried, and avoid weakening the constitutional, professional and military operational safeguards embodied in the ADF chain of command and civil control of the military by Ministers.
What else is being missed in much of the public debate?
There are also valid concerns as to four requirements for whatever higher court is constituted at the apex of the DFDA. 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 court trying ADF personnel needs to be readily deployable overseas when required – as numerous courts martial have had to sit in war zones – including having to share the dangers involved and appropriately understand the conditions, nuances and wartime or other operational contexts applying to the ADF in that particular foreign theatre of operations.
- 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 vulnerability or other operational burden when in a theatre of war.
- It also means that all court personnel need to meet standard operational preparedness requirements such as good health, physical fitness, adequate training for war and ready availability to deploy for perhaps prolonged periods to unpleasant places at very short notice.
- Moreover, the suggestion by some that such a court could somehow sit in Australia instead and interview all its witnesses remotely by video-conferencing or by bringing all of them to Australia ignores several equity, fairness and practical issues. These include the difficulties of such a court (including any juries) being able to understand appropriately the context, circumstances and conditions involved with offences committed overseas. Bringing all ADF witnesses or potential witnesses to Australia, or even interviewing them by video-conferencing, risks unduly compromising ongoing military operations. If foreign witnesses were to be brought to Australia from war zones, often for long periods, there are likely to be significant practical, legal, immigration and asylum problems (especially if they refused to return home at the end of the proceedings or sought to negotiate their entry status). The veracity and integrity of foreign witness evidence from war zones could be a significant problem where such witnesses were potentially compromised by also being asylum claimants or potential immigrants.
- 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 for fairness and equity reasons, all or most of the presiding members of a court trying ADF personnel must include judges with sound military experience in order to make fair and adequate judgements (especially about disciplinary rather than civil criminal offences).
- Third, due to the unique natures of war and military service in particular, a court trying military personnel must have credibility among those subject to it exclusively. This is particularly so as by entering military service ADF personnel have voluntarily surrendered to such a court's special jurisdiction over them in a way, and in potentially lethal circumstances, that do not apply to other Australian citizens.
- Finally, based on the ADF's wartime experiences, many (but perhaps not all) past and current senior ADF commanders consider that the judges of a court trying ADF personnel need to be themselves military personnel so they are subject to the DFDA in other than the performance of their judicial function and duties – and are fully subject to the Laws of Armed Conflict (LOAC). This is considered necessary for both ADF operational effectiveness and for the general military training and LOAC protections of the personnel concerned. If a new military court was to be constituted under Chapter III of the Constitution this would perhaps be the most difficult issue to resolve. While in practice it is unlikely to be a problem, it cuts directly to the issue of balancing the necessary independence of the judiciary, in perception as well as principle or operation, with the other unique aspects of war and military service.
There also remain deep-seated concerns among many military personnel generally about the continued demise of the tried and tested system of traditional courts martial. In a court martial, under the supervision of a legally qualified Judge-Advocate, the court martial board comprised professional officers functioning as a jury but with the additional responsibility that they also had to vote on what punishment should be awarded (within set legal limits) in cases of guilt. The Judge-Advocate presiding was only there to oversee court proceedings and to advise and decide on matters of law. This meant, in the unique context of military service, that the rights of those accused were perhaps better protected than, say, in the AMC. A court martial meant judgement, and punishment, by peers with a real and professional understanding of in-theatre or other operational circumstances, rather than by a judge alone (especially if this is to be by a civilian judge of an independent court back in Australia). There have also been significant practical problems in panelling military juries for jury trials by the AMC compared with the smaller court martial boards previously used.
The main criticisms of the old courts martial system were to do with the way boards were formally convened (and chosen) by senior ADF commanders as a function of command, and that sentences had to be confirmed by the convening officer before taking effect (in both cases only after taking due legal advice). The perceived independence of the courts martial from the ADF command chain, rather than any serious real problem with actual independence in operation, was the issue. The creation of the independent director of military prosecutions and the independent AMC registry have been successful steps taken to remedy this perception and potential deficiency.
It is also worth noting that many distinguished Australian jurists such as Sir Edmund Herring, Sir Henry Winneke, Sir Victor Windeyer, Sir Harry Gibbs, Sir Anthony Mason, Sir Ninian Stephen and Sir Ronald Wilson served in one or both World Wars as operational combatants, not lawyers, before going on to high judicial office in State Supreme Courts and/or the High Court from the 1950s to the mid 1990s. Some even held very senior operational commands. Herring commanded the 6th Division and both I and II Corps. Windeyer commanded the 2/48th Infantry Battalion (the most decorated combat-manouvre unit in Australian military history), the 20th Infantry Brigade and, after World War II, the 2nd Infantry Division in the Army Reserve. Many more junior judges and leading lawyers also served in World War II in operational rather than legal roles.
Rather than criticise the courts martial system, their writings and reported views on the subject invariably remark on the efficiency, propriety and equity involved, including favourable comparisons to civil jury trials in terms of protecting the rights of the accused and achieving the interests of justice.
The emerging idea that the long-established practice of courts martial might be legally improper or even constitutionally invalid was apparently foreign to this generation of Australian jurists.
This does not mean, of course, that courts martial as traditionally undertaken continue to be valid as constitutional practices evolve, but it does provide important insights into our legal and practical history of reconciling the law, citizenship, military service and war in the challenging circumstances of major conflicts.
The Rudd Government has signalled it will reconstitute the AMC as a court under Chapter III of the Constitution. This might best be done as a division of the Federal Court but only five judges of this court have any military experience. Even then this is only as peacetime reservists and with three of them their military service was or is only as lawyers rather than them having a broad military operational background. One of these three military lawyers is currently the ADF's Judge Advocate General as a reservist.
Only two of the five (but the two with general military experience) are under the age of 60 and more readily deployable. Similarly only two serving federal magistrates have any military experience and again both only as reservist lawyers in peacetime.
Whatever method is adopted for a new court, steps will have to be taken to cater for or avoid the readiness, deployability, shared danger, military inexperience, professional credibility and human rights problems outlined above.
Whatever form a new court takes, a careful balance will still need to be struck between the independence of the new court and these other conditions and requirements. Few civil law practioners in the modern era seem to grasp this.
The last thing we need to do is ignore some telling legal and practical lessons from the old Courts Martial Appeals Tribunal instituted in 1955. This developed problems as a court of appeal in the late 1960s when its judges (provided by State Supreme Courts) began to include those with no personal World War II, or even post-war Army Reserve, military experience, They consequently had insufficient contextual understanding of warfare, military service or the often unique operational circumstances involved with the difficult appeal cases that came before them.
There is no simple solution to all these problems. Those advocating simple solutions, or suggesting simplistic root causes to the current constitutional impasse, either do not understand the problems or are ignoring them.
They do so at some peril to the operational efficiency of our defence force and to the rights and well-being of those who volunteer to serve in it on our behalf – including their surrender of some general citizenship comforts, benefits and rights in doing so.