Serious flaws in the proposed Military Court of Australia

The Government's 24 May 2010 announcement of new higher judicial structures governing the Australian Defence Force (under Chapter III of the Constitution) requires careful analysis. The proposed model risks creating new problems in practice through its attempts to avoid further constitutional (and comity) complications.

The announcement also lacked detail on how various practical problems are to be addressed.

There are unfortunately signs that the Government's desire to establish the new Military Court of Australia (MCA) as a Chapter III court has driven all other considerations, rather than a more balanced approach being taken. In terms of operational decision-making methodologies in the military, the MCA seems to have been the result of a "situated appreciation" rather than an objective "appreciation of the situation".

Detailed ADA comment on the background and issues involved, including the High Court's August 2009 invalidation of the previous Australian Military Court (AMC), can be found in our comments at the time. Unfortunately much of the media coverage of the MCA announcement has ignored or misunderstood the history of this issue. 

Many of the range of conceptual issues and concerns the ADA has raised in our previous comment on the AMC still appear to apply to the proposed MCA in part or full. These were (and largely remain):

  • 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.
  • 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).
  • 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.

The ADA remains concerned that the new MCA will not be sufficiently deployable overseas. We also have some concerns about how its judicial officers would be protected under the Geneva Conventions (as they would not qualify for protection as ADF personnel). That the judges and magistrates of the MCA need only have "a familiarity with the Services" (whatever that is to mean), rather than actual experience of military service or war, is also likely to have significant practical and moral consequences. 

The problems of deployability also go beyond the practical and equity ones outlined in our previous analysis (see excerpt above). Sittings of the MCA as a full Australian court (as opposed to courts martial which are in effect a disciplinary tribunal in constitutional terms) in a foreign country are likely to face significant sovereignty issues for the host country. Unless Australia is an occupying power under international law (a very rare situation), it is unlikely that many countries would agree to a Status-of-Forces-Agreement (SOFA) that allows jurisdiction by a foreign court in their territory – especially if citizens of the host country are involved as victims of offences allegedly committed by ADF personnel. This is also not just a legal problem as the nature of military operations in foreign countries generally involves a complex mix of military, political, social and various international relations factors. The obvious solution on sovereignty, equity and practicality grounds (as New Zealand has done) is to retain the option for trial by court martial where the ADF is operating overseas. 

The ADA is also particularly concerned that the proposed MCA does not appear to include (or at least guarantee access as a last resort to) jury trials, whether by a military jury or a court martial board composed of ADF personnel, or by a jury composed of civilians – although the attorney-general's press release makes some mention of courts martial perhaps being used to try serious offences committed overseas (but with no detail of their role and composition). All or most cases will apparently be heard by a judge or magistrate of the MCA sitting alone. At first glance we can see no legal or military reason why this change has been introduced. Particularly given that the judicial officers of the MCA may have inadequate knowledge or experience of Service life or war, we see three significant and inter-related problems with the lack of juries: the high risk of judgements lacking a proper understanding of context and nuance in especially complex moral and legal situations, the general lack of fairness risked, and its overall constitutionality. 

As noted in our detailed background comment (below), ADF personnel do not somehow lose their fundamental rights as Australian citizens by donning a defence force uniform. Section 80 of the Constitution, for example, states in part:

The trial on indictment of any offence against any law of the Commonwealth shall be by jury ....

Cleverly-worded legislation might get around the indictment requirement, such as prosecution by summons or through a "reference" by the Director of Military Prosecutions. The new MCA may also well be able to hear cases concerning ADF disciplinary offences by judge or magistrate alone, as happens now under existing legislation in around 19 out of 20 cases. But the new MCA will also be required to try criminal cases. This means the absence of a jury will still apply, even where the offence is a serious one and/or is allegedly committed when the defence force member concerned is deployed overseas (where the ACT criminal code is the applicable Commonwealth law). 

Excluding whatever legalistic drafting of the legislation is tried, the practical and moral problem is that the accused in an MCA trial is surely still entitled to a fair trial in both perception and reality.

If the presiding judicial officer is not a serving military officer (to satisfy the independence requirements of a Chapter III court), and/or has no general military experience (even if a lawyer technically qualified in military law) previously, how can the trial be considered fair? There is a serious risk that such a judicial officer may have little on no real understanding of the complex matters of operational context, and especially battlefield nuance, that apply in the unusually stressful and abnormal situations of combat or other complex military operations.

In essence, will MCA trials still be fair if the judge has no military experience, or more particularly no real knowledge of war, and sits in judgement alone? 

Why are ADF personnel now apparently to be denied their existing right to be judged on matters of guilt or innocence in serious cases by their professional peers – or indeed any peers at all among their fellow citizens? For example, the New Zealand Courts Martial Act, 2007, deliberately includes the option for the presiding judicial officer (a "real judge" in Australian terms) to be assisted by a panel of three or five "military members" (as has long occurred successfully in courts martial in Commonwealth countries for over a century). 

That the judges and magistrates of the MCA may only have an undefined "familiarity with the Services", rather than actual experience of military service or war, is a grave cause for concern. This aspect draws together a range of concerns about safety, suitability, deployability and equity. It highlights the puzzling decision to remove the right for decisions on guilt or innocence to be made by peers of the accused as applies in civilian trials for serious offences. 

Finally, as a Chapter III court the new MCA falls under the responsibility of the Attorney-General not the Minister for Defence. The apparent conceptual gaps in the proposed structure and processes of the MCA announced thus far do not instil confidence that the drafting of the necessary legislation will pay due attention to the unique circumstances of military service and the unusual situation of war. The Minister for Defence and the ADF leadership must not lose the confidence of ADF personnel in this regard. 

In summary, the proposed MCA appears to solve some constitutionality, and perhaps comity, problems but at the cost of creating or exacerbating a range of practical problems in implementation on the ground. Fighting wars is a complex matter and the legal framework governing this activity needs to balance the legal, moral and practical challenges involved appropriately.