Gulam, Hyder --- "An Update on Military Discipline -- The 20th Anniversary of the Defence Force Discipline Act" [2004] DeakinLawRw 10; (2004) 9(1) Deakin Law Review 299

AN UPDATE ON MILITARY DISCIPLINE – THE 20TH ANNIVERSARY OF THE DEFENCE FORCE DISCIPLINE ACT

HYDER GULAM[*]

I. INTRODUCTION

Nothing is more harmful to the service than the neglect of discipline; for that discipline, more than numbers, gives one army superiority over another’. (George Washington 28 July 1759)[1]

Well may one ask what does ‘a person on the omnibus to Patong’[2] in Southern Thailand, and a ‘platoon of art lovers who visit the Pitti Palace in Florence’[3] have to do with Military Discipline in the Australian Defence Force (‘ADF’)? The answer to this can be found in the proceedings before the High Court March 2004 in the case of Alpert, Ex parte – Re Aird & Ors (‘Alpert’).[4] The judgment from this case, which is expected to be handed down later this year, has the potential to cause a notable effect to the Defence Force Discipline Act 1982 (Cth) (‘DFDA’). The purpose of this article is to survey the 20 year High Court of Australia jurisprudence of the DFDA since 1985, that is, when the DFDA was promulgated into law as a tri-service discipline code.[5] This article will also discuss the Alpert case as well as select leading military discipline cases from other countries. This article is timely given that 2005 will be the twentieth anniversary of the DFDA coming into effective operation.

II. MILITARY DISCIPLINE

The opening to An Introduction to Army Law appearing in the Army Law Manual 1964 Edition states:

Soldiers by donning uniform do not shed their civic responsibilities, they accept additional ‘rules’ to govern their lives.

While this introduction reflected the law as it stood at 1964, it is noteworthy to consider that despite changes to military discipline since that time, this reasoning of additional responsibilities still remains extant. It is the delineation between notions of military discipline and civic responsibilities that have caused challenges and tensions in the past and which continue today. This tension centres on defining the boundaries of the jurisdiction of military or service tribunals where the conduct of an ADF member constitutes both a disciplinary offence and an offence against ordinary civilian law. While this tension has been examined by the High Court of Australia, the military discipline has also been scrutinised by Commonwealth Parliament, most recently by the 2004 Senate Foreign Affairs, Defence and Trade References Committee into ‘Effectiveness of Australia’s Military Justice System’ (‘FAD&T-04’).

Military discipline is the system of trial and punishment of ADF personnel for disciplinary offences pursuant to the DFDA. The DFDA derives its power from s 51 (vi) of the Australian Constitution. This section, known as the ‘defence power’, states that (The Commonwealth Parliament shall have the power to make laws with respect to):

The naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth.

Like other armed forces around the world, the ADF has a military discipline system to support it during the conduct of operations and to facilitate its activities during peacetime. An integral element for any successful armed force is the requirement for discipline. According to the Chief of the Australian Defence Force (CDF), establishing and maintaining a high standard of discipline in both peace and war is applicable to all members of the ADF.[6] Within the war fighting environment, military discipline augments the system of command as it provides for the effective conduct of operations.

This notion of command is a key distinction between the military and civilian justice systems. Command can be explained as the lawful authority an individual exerts over subordinates by virtue of rank and appointment. The exercise of command obligates responsibilities upon a commander, particularly in matters of leadership. Concern for the welfare of personnel under command is of seminal importance to a commander.[7] It goes without saying that the notion of command is distinctly military. An officer who commands a unit of the ADF is responsible for controlling it, organising it and ensuring that it achieves its objectives.[8] In meeting its objectives, ADF commanders may be required to situate their personnel in harm’s way in a manner inconceivable to the public at large.

There are very few civilian jobs where a manager or supervisor can enforce a direction to a subordinate with the weight of legislation behind them and take punitive action if that direction is not followed. In the military environment, in both war and peace, a commander needs to be able to establish and maintain high levels of discipline. This is provided by the military justice system. According to Chief of the Air Force, Air Marshall Angus Houston, ‘discipline is one of the most crucial components of maintaining effective control over our people, in whom we entrust the responsibility to operate military weapons of great destructive potential’.[9]

The tension concerning military discipline is not unique to Australia. Military discipline and justice is going through a period of ‘ferment that is both rare and broad’.[10] Examples of this ferment include situations in the:

III. THE DEFENCE FORCE DISCIPLINE ACT

20 years ago the Director of the Army Legal Services forwarded a report to the Judge Advocate General outlining his thoughts on the DFDA. This 87 page report noted that the introduction of the DFDA was ‘inappropriate, time-consuming, and unlikely to serve the best interest of the Army, particularly in a time of crisis’.[13] Some Air Force Commanding Officers and Base Commanders noted similar sentiments. For example, ‘[E]xecutive opinion on this base is that the introduction of the DFDA in its present form was a serious mistake which already has had a significant negative impact on the discipline and good management of the service’.[14] The last 20 years has turned opinion around, especially within higher echelons of military command. The presentation by the CDF and the other service chiefs in the FAD&T-04 have been in full support for the DFDA. In fact, the CDF noted that a recent survey of perceptions of ADF members about military justice indicated that a majority of ADF members agreed that the DFDA is an effective and efficient tool for the maintenance of discipline and that the standards of discipline in their service ‘were about right’.[15]

Prior to the DFDA the legislation that anchored discipline in the ADF compromised three United Kingdom Acts, two of which had ceased to be in force in the UK itself. There were four sets of United Kingdom Rules of Regulations, all of which had ceased to operate in the UK. In addition, the Navy, Army and Air Force each had their own separate disciplinary legislation, with nine sets of regulations under these Australian Acts. On the 3 July 1985, the DFDA enacted ‘a single uniform disciplinary code... intended to reflect as closely as possible contemporary Australian political, legal and societal values’.[16]

The DFDA created service tribunals to try disciplinary offences. The service tribunals have the power to try members of the ADF on charges of service offences against the Act. The DFDA also contains detailed provisions in respect of arrest, search and custody, the investigation of service offences and it established a system of appeal and review of convictions and punishments and creates the office of the Judge Advocate General.[17] The DFDA also has provisions for non ADF personnel, specifically Defence Civilians. Civilians accompanying the ADF outside Australia or on operations against the enemy are also subject to the DFDA in certain circumstances, namely having consented in writing to subject themselves to the DFDA while accompanying that part of the ADF. Civilians are not otherwise able to be tried by service tribunals, and neither are any offences created by the DFDA triable by civilian courts.

Under the DFDA the military discipline system provides for three types of offences. First, there are the offences that are uniquely military in character, such as insubordinate conduct and disobeying a command. Second, there are offences that are criminal in nature, such as assault and falsification of documents, and are similar to offences in the civilian community. Third, there are other civilian criminal offences which have been imported into the act, such as serious sexual assault and fraud.

Of crucial importance, the DFDA does not exclude the jurisdiction of Australian courts in dealing with criminal behaviour where appropriate. Jurisdiction under the DFDA in Australia during peacetime is confined to circumstances where proceedings under the act can reasonably be regarded as substantially serving the purpose of maintaining and enforcing service discipline. Whether each matter should be referred to the civilian police is determined individually and on a case-by-case basis..

The ability to deal with discipline and criminal conduct under a military code of justice is particularly necessary during operational deployments outside Australia. This is because the DFDA provides a stand-alone, transportable code where a civil jurisdiction may not apply or, as been observed through the ADF’s more recent operational experience, does not exist (i.e. Iraq, East Timor). It also provides a means for the ADF to deal with misconduct that otherwise might be subject to the jurisdiction of a foreign country. Where operational necessity or training requirements demand, the DFDA also provides for more exacting standards than those that may apply to the wider community. This reflects the additional demands made upon servicemen and servicewomen and the high importance of disciplined conduct under operational circumstances.

The DFDA also supports the need for prompt and decisive reaction to incidents that have a direct operational impact, sometimes in the context of existing operations. According to the CDF, and which was also recognised by the 1999 Senate Inquiry into Military Justice, the system of justice that the ADF trains under in peacetime must be the same one that it takes on military operations.[18] The 1999 Senate Committee acknowledged that during ‘deployments and on operations, the ADF needs to have access to a discipline system that can be applied expeditiously and in such a way that service discipline is maintained, operations are not impeded and command authority is supported.’ An important aspect of military discipline during conflict is that it must be swift. A commander must be able to deal quickly with breaches of discipline in order to maintain group cohesion, teamwork and mutual support. In addition, the military discipline system must preserve the rights of individual members.

It may seem that the existence of a code of military discipline that co-exists with the civilian justice system suggests military personnel do not enjoy the same rights as other members of society. This is not the case. In fact, military personnel enjoy far more rights than that enjoyed by civilians when it comes to disciplinary proceedings. These include the automatic review of findings of guilt and punishments, petitions, representation at no cost to the accused, recourse to civilian courts, civilian standards of evidence[19] and criminal standards of proof for disciplinary offences.

The ideological principles that underpin the DFDA emphasise the needs of the group over the needs of the individual. This may seem confronting to some, especially in contrast with the civil justice system, which elevates the concept of individual rights[20] within the context of wider societal responsibilities. However, acting on behalf of the Australian people in defence of the state in an armed conflict creates, at times, a higher duty than that of observance of individual rights. This is not to suggest that individual rights are ignored or discounted, but great weight is given to ensuring that the military is able to win the war, succeed in the mission via having disciplined personnel. The military justice system is one mechanism of ensuring the creation and maintenance of discipline.[21]

IV. PERTINENT HIGH COURT CASES SINCE THE ADVENT OF THE DEFENCE FORCE DISCIPLINE ACT IN 1985

The first of the High Court cases that examined the DFDA was Re Tracey: Ex Parte Ryan.[22] This case concerned Staff Sergeant Ryan who was charged with making an entry in a service document with the intent to deceive and of being absent without leave. The charges were heard before a Defence Force Magistrate (‘DFM’). Objection was taken to the DFM’s jurisdiction on the ground that the hearing and determination of the charges was an exercise of the judicial power of the Commonwealth (found in Chapter Three of the Australian Constitution) (Ch III). Argument was heard before the High Court that the judicial power of the Commonwealth does not extend to the enforcement of discipline of the defence force.

The High Court was split in its reasoning on the jurisdiction and extent of the power of a service tribunal. Mason CJ, Wilson, and Dawson held that although a service tribunal exercised judicial power, it did not exercise the judicial power of the Commonwealth because the power to make laws with respect to the defence of the Commonwealth under s.51(vi) of the Australian Constitution contained power to enact a disciplinary code standing outside Ch III and to impose upon those administering it a duty to act judicially.[23] In addition, DFDA s 61 (the territory offence provision) was a valid exercise of power as it was within the power of the Parliament to provide that any conduct that constitutes a civil offence shall constitute a service offence if committed by a defence member.

Brennan and Toohey JJ were not prepared to go as far as Mason CJ, Wilson and Dawson JJ with regards to the ambit of s 51(vi). Their honours held that:

[p]roceedings may be brought against a defence members or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.[24]

The other members of the High Court differed in their opinions. Deane J was of the opinion that so far as offences committed in Australia in peacetime were concerned, jurisdiction could be validly conferred on a service tribunal only to the extent that is related to what were exclusively disciplinary offences.[25] Gaudron J was the opinion that jurisdiction could be validly conferred on a service tribunal only to the extent that it related to charges in respect of conduct outside Australia and to charges of service offences that were not substantially the same as civil court offences.[26]

The High Court next revisited the DFDA in 1991 in Re Nolan and Another; Ex Parte Young.[27] Staff Sergeant Young was charged with falsifying a service document in order to receive an amount of pay greater than to which he was entitled. Young contended that the offences charged were offences under the general law, and the DFM did not have jurisdiction to hear the matter.

Again the High Court was split in both the outcome (that the service tribunal had jurisdiction to hear the charges) and its reasoning. Mason CJ and Dawson J noted that it was open to Parliament to provide that any conduct that constitutes a civil offence shall constitute a service offence if committed by a defence member and be triable by a service tribunal.[28] Brennan and Toohey JJ were in the majority, but stated that jurisdiction was enlivened when it could reasonably be said that the maintenance and enforcement of discipline would be served by charges being heard before a service tribunal constituted by a DFM. The power conferred by s 51(vi) of the Australian Constitution does not extend to the making of a law to punish defence members and defence civilians[29] for their conduct unless the proceedings taken to punish them can be reasonably regarded as substantially serving the purpose of maintaining or enforcing service discipline.[30]

The three dissenting judges were also split in their respective reasoning. Deane and McHugh JJ stated that unless a service tribunal is established under Ch III of the Australian Constitution, it has jurisdiction to deal with an offence by a member of the ADF only if such an offence is exclusively disciplinary in character or is concerned with the disciplinary aspect of conduct which constitutes an offence against general law. Gaudron J stated that the DFDA was invalid to the extent that it purported to vest jurisdiction on service tribunals to hear and determine service offences that were the same or substantially the same as offences under the general criminal law.[31]

Two years later the High Court was again examining the DFDA. This time the case was Re Tyler and Others: Ex Parte Foley.[32] This matter concerned Wing Commander Foley who was charged before a general court martial for dishonestly appropriating the sum of $24,761.40 from the Commonwealth. Wing Commander Foley objected to the jurisdiction of the court martial to hear and determine the charges against him because the charges were substantially the same as that found in the respective Commonwealth and NSW Crimes Acts. Because the general court martial was not constituted in accordance with Ch III of the Australian Constitution, it was argues that the service tribunal had no power to exercise the judicial power of the Commonwealth.

Once more, despite the majority holding that the court martial had jurisdiction to hear the charges, different reasoning was applied. Mason CJ and Dawson J held Parliament had power under s 51(vi) of the Australian Constitution to provide for a trial of service offences by way of a court martial and not by way of jury. Brennan and Toohey JJ stated Parliament had power under s 51 (vi) to provide for a trial before a court martial of offences substantially serving the purpose of maintaining or enforcing service discipline. The charge against Wing Commander Foley was such an offence, and a trial of a defence member for a service offence lay outside the judicial power of the Commonwealth. McHugh J stated that jurisdiction of the court martial to hear the charge was established in the two preceding High Court cases: Re Tracey and Re Nolan, not withstanding that neither of those cases had a clear ratio decidendi because of the different reasoning of the majority.[33] The dissenting judges, Gaudron and Deane JJ, remained committed to the views they enunciated in Re Tracey and Re Nolan.

Hembury v Chief of the General Staff [34] was handed down in 1998 and unlike the previous cases did not call into question the jurisdiction of the DFDA. Instead, this case was about the requirement that members of a court martial vote in ascending order of seniority as per r 33 of the DFD Rules. In Hembury there was misdirection by the Judge Advocate (JA) as to voting order. The High Court held this amounted to substantial miscarriage of justice as r 33 was a fundamental rule that went to the root of court martial proceedings. Instead of voting in ascending order of seniority as required by r 33, the voting in was (incorrectly) the reverse.

The case of Re Aird & Ors; Ex Parte Alpert was heard in March 2004 by the High Court of Australia[35] and at the time of writing has not yet been handed down. Thus, this discussion is a presumption of the outcome may be. Private Alpert’s unit was deployed to Malaysia between August to November 2001. During that time, the unit was stood down, and a number of the personnel travelled to the holiday resorts in Southern Thailand. The members of Alpert’s unit travelled on their on their individual passports. During Sepetmeber 2001, Alpert is alleged to have had sexual intercourse with a British tourist (the complainant) without her consent. This conduct is alleged to have occurred in Thailand when Alpert was on leave.

At the relevant time there was no Status of Forces Agreement with Thailand maintaining Australian jurisdiction over visiting Australian service personnel. It is significant to note that whilst on leave Alpert was in the company of a number other defence personnel. In November 2002 the complainant wrote to the Commanding Officer of Alpert’s unit querying what steps would need to take to press charges of rape against Private Alpert. The complainant also noted that she believed that the military was best suited to actioning her complaint because she ‘did not think the Thai Police would be in a position to help her’.

In a duly convened court martial in March 2003, the Judge Advocate ruled that court martial tribunal had jurisdiction to hear and determine charge. It is this matter that the High Court will need to rule upon – whether the court martial had jurisdiction to deal with the matter or whether to permit trial in respect of alleged offence under the DFDA it was beyond legislative power of the Commonwealth. The High Court will also need to examine (with regard to the nature and circumstances of the alleged offence – ie sexual inercourse without consent) if Private Alpert could only be lawfully tried by a tribunal constituted under Ch III of the Australian Constitution.

It is likely that the High Court will uphold the validity of the JA’s determination. That is, the ambit if the DFDA expands when an ADF member is serving overseas or Australia is in an armed conflict. Section 61 of the DFDA, which this charge is based upon, has been considered to be a lawful exercise of power by the High Court in Re Tracey as it is within the power of the Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence if committed by a defence member. The events in Alpert occurred at a location frequently visited by ADF members. A failure by the ADF to assume responsibility for the conduct of its members in those circumstances could clearly have adverse consequences in terms of their relationship between the local population and the ADF which must in turn impact on discipline. On this factor alone it is quite evident that the prosecution of this offence is substantially serving the purpose of maintaining or enforcing service discipline. Thus it appears to be within the power of the DFDA to determine this charge.

V. SOME OVERSEAS CASES OF SIGNIFICANCE

A. Solorio v United States

In 1987, the Supreme Court if the United States handed down its decision in Solorio v United States.[36] This case was about whether a member of the Coast Guard could be tried under the jurisdiction of the Uniform Code of Military Justice for sexual abuse of a fellow coastguardsmen’s minor daughters in his privately owned home in Alaska during a prior tour of duty. The Supreme Court held there was jurisdiction for the court martial to try the member of the Coast Guard. This jurisdiction depended solely on member’s military status and not whether the offences charged had a service connection.

B. Findlay v United Kingdom

In Findlay v United Kingdom[37] the European Convention on Human Rights and Fundamental Freedoms (European Convention) found Sergeant Findlay had not received a fair hearing by an independent and impartial tribunal. There were a number of factors that went into making the tribunal not an independent, impartial tribunal, and the fact that service members were trying other service members was just one part of that’. One of the primary issues was the pivotal role of the Convening Authority (CA).

The significance of Findlay v United Kingdom to Australia is in the close similarity between Article 6(1) of the European Convention[38] and Article 14 of the International Covenant on Civil and Political Rights (ICCPR).[39] The United Nations Commission on Human Rights, in its General Comment on Article 14 expressed the view that the provisions of Article 14 of the ICCPR apply equally to military courts. There were parallels between Findlay v United Kingdom and the system under which members of the ADF are tried before a military tribunal under the DFDA. However, a recent amendment to the DFDA via the Defence Legislation Amendment Act 2003 has altered the powers of a CA: they no longer have the independent powers to appoint a person to be members or Judge Advocate of a court martial.

C. Grieves and the European Court of Human Rights

The case of Grieves v The United Kingdom (16 Dec 2003) was decided by the European Court of Human Rights on appeal from the Royal Navy court martial system.

At the relevant time, Grieves was a serving member of the Royal Navy.

On 18 June 1998 Mr Grieves was convicted by a Royal Navy Court Martial of unlawfully and maliciously wounding with intent to do grievous bodily harm. He was sentenced to three years' imprisonment, reduced in rank, dismissed from the service and ordered to pay 700 pounds sterling in compensation. The court martial comprised a president (a Royal Navy captain), four naval officers and a judge advocate, who was a serving naval officer and barrister working as the naval legal advisor to FLEET (the command responsible for the organisation and deployment of all ships at sea).

Grieves complained that the courts martial which tried him, structured as it was under the 1996 Act, lacked independence and impartiality and that he was therefore denied a fair and public hearing by an independent and impartial tribunal established by law. Grieves relied on Article 6 of the European Charter of Human Rights.

The Court found Grieves' misgivings about the independence and impartiality of his court martial could be considered to be objectively justified. These were that:

In Australia, the passing of the Defence Legislation Amendment Act 2003 has gone some way to defusing some of the issues raised in the respective UK cases. For example, there has been an elimination of the multiple roles of a convening authority, so that the review of the outcomes of a court martial[40] or DFM[41] is undertaken independently. In addition, JAG appoints officers to act as JA’s for courts martial and for nominating officers as DFM’s as opposed to these members being appointed by the chain of command. Finally, there is now legislative formalisation of the procedure for the JAG to appoint the president and members of the courts martial as opposed to these members being appointed by the chain of command.

VI. THE FUTURE?

Authors such as Andrew Mitchell and Tania Voon[42] argue that the difficulty with service tribunals is that they appear to be exercising judicial power in breach of the constitutional doctrine of separation of powers. Despite their purported fairness, service tribunals have not been created in accordance with Ch III of the Australian Constitution and therefore lack the constitutional protections imposed on Federal Ch III courts, such as tenure and judicial independence. The preferred approach advocated by Mitchell and Voon involves an acknowledgment that for reasons of practicality and national security, an exception to the separation of powers doctrine allows service tribunals to exercise the judicial power of the Commonwealth. However this power extends only to the minimum degree necessary to enforce military discipline and no further. Thus in ordinary circumstances service tribunals should only be entitled to hear exclusively disciplinary offences, taking a strict view in identifying such offences. In circumstances of wartime and service outside Australia, service tribunals should be able to hear offences that are substantially similar or identical to civil offences.

Clearly service tribunals are not exercising judicial power of the Commonwealth. This has been stated by the majority in the High Court a number of times in the cases discussed above. Consequently, argument that there exists a breach of the separation of powers is contrary to the decisions of the High Court. For service tribunals to be exercising judicial power they would need to have been created under Ch III of the Australian Constitution and the tribunal members would require the constitutional protections obligated on Commonwealth Ch III courts. Plainly this is not the case. Service tribunals are exercising disciplinary power,[43] one that is found under s 51 (vi) of the Australian Constitution, notwithstanding an obligation to act judicially. However this exercise of disciplinary power is amenable to the review by the judicial power of Ch III of the Australian Constitution.

Another important factor to consider before even analysing a separation of powers argument is to examine the offence that an ADF member is being charged with, its relationship with an identifiable military interest and whether there are policy reasons why the matter is better dealt with by civilian authorities.[44] It is important to consider that not every criminal conduct by an ADF member will be determined by a service tribunal. For example, serious criminal conduct (such as murder and manslaughter) cannot be tried without the consent of the Attorney-General. In addition, the policy of the ADF is to refer allegations of sexual assault to the Director of Public Prosecutions for investigation and prosecution.[45]

On policy grounds alone the High Court may consider that there is no breach of the separation of powers with regards to service tribunals. Some of the reasons include the very great difficulties for Ch III courts being convened in situations of military conflict or in places of general military or civilian danger. The other reason for a specialised tribunal is that the objectives of military discipline may differ to the objectives of the criminal law. While some of the objectives may intersect, as in the case of professional disciplinary bodies, some of the objectives may not. The service tribunal may adjourn proceedings to allow the accused or witnesses to perform military duties. It might take into account in imposing sentence the military duties that could or should still be performed by the person concerned. There are many considerations peculiar to a disciplinary body which would not necessarily apply in the administration of the criminal law on its own.

The Judge Advocate General in his report to the Minister of Defence for the period 1 January to 31 December 2003[46] has noted a possible mechanism to deal with constitutional and jurisdictional challenges to the service tribunal established by the DFDA. This remedy is to establish a permanent military court. The advantage of this mechanism is that it would comply with the Chapter III provisions of the Australian Constitution. This military bench would be located within the existing framework of Commonwealth courts, namely within the Federal Magistrates Courts. It would contain the entailing protection of tenure. This would provide legitimate independence and provide important safeguards to the independence and impartiality of the service tribunal as a whole. The advantage of this proposal is that the service tribunal would consist of members who had a knowledge and understanding of the military culture and operating environment. This would assist in the maintenance of military discipline of the military force, both in Australia and on operations and exercises overseas. This would have the added benefit of a service tribunal being able to sit in-theatre and on operations.

VII. CONCLUSION

Morale and discipline of the armed forces are at the heart of military effectiveness. Members of the ADF must have a clear understanding of the standards of conduct to which they must conform and they must also have confidence that the system of justice will operate in a fair and just manner.[47] The primary mission of the ADF is to defend Australia’s national interest by preparing for and, when necessary, waging war, using coercive and lethal force. Members of the ADF are subject to disciplinary rules and military orders twenty-four hours a day, regardless of whether they are actually performing military duty.[48]

Military members do not forfeit their constitutional rights once they join the military. Like all Australian citizens, ADF members enjoy the fundamental protections of our Constitution. While ADF members enjoy most of the same protections afforded all citizens, the unique demand of the military services require a balancing act between military necessity and personal liberties. The High Court has examined competing interests and has consistently held that military personnel can be subjected to duties and restrictions that ordinarily would be impermissible in civilian life.[49]

Military discipline exists for the protection, not the persecution, of ADF personnel. Discipline is not the fear of punishment for doing something wrong, but faith in the value of doing something right. This aspect of military discipline is often misunderstood. A disciplined defence force does not mean cowering in fear of the punishment. It means requiring personnel who will do the right thing in all situations. It is this discipline that is the feature that motivates an ‘individual and an organisation to do the right thing even when the right thing is hard to do’.[50] No legal system can or should operate in a vacuum, disregarding the changing norms of society[51], and neither does the DFDA.

The numerous High Court challenges and the parliamentary inquiries are a testament to this oversight by the laws and elected representatives of Australia. The maintenance of good order and discipline is an essential function of command[52] and the DFDA has managed to obtain the balance between respecting individual rights and recognising the special environment in which the ADF operates. Thus, Happy 20th Birthday DFDA!

[*] Barrister and Solicitor, Accredited Mediator, Fellow of the Royal College of Nursing Australia. These views are my own, and do not represent those of the Australian Defence Force. I would like to thank the following people for their assistance with this paper: WGCDR Frank Healy, WGCDR Ian Henderson, SQNLDR Pat Keane, FLTLT Lee Warren, FLTLT Bryan Cavanagh, Mr Bruce Oswald CSC and Mrs Jan MacGowan.

[1] J B Roan and C Buxton, ‘The American Military Justice in the New Millennium’ (2002) 52 Air Force Law Review 185, 185.

[2] Alpert, Ex parte – Re Aird & Ors (Alpert) [2004] HCATrans 42 (3 March 2004), page 7 (Kirby J)- available on-line at <http://www.worldliii.org/au/other/HCATrans/2004/42.html>

[3] Ibid, page 44 (Callinan J).

[4] [2004] HCATrans 42 (3 March 2004) at <http://www.worldliii.org/au/other/HCATrans/2004/42.html>

[5] For an excellent analysis of the pre-DFDA High Court cases, namely R v Bevan; ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 and R v Cox; ex parte Smith [1947] HCA 39; (1945) 75 CLR 1, see the presentation to the 2003 ANU Constitutional Law Conference by Richard Tracey RFD QC headed ‘The Australian Constitution in Troubled Times: The Constitution and Military Justice’.

[6] Per General Cosgrove at The Senate (Foreign Affairs, Defence and Trade References Committee) Public Hearing ‘Inquiry into the Effectiveness of Australia’s Military Justice System’ 01 March 2004, FAD&T 4.

[7] Defence Instruction (Air Force) ADMIN 1-2 Command, Leadership and Discipline in the RAAF.

[8] Per Air Marshall Houston, ibid FAD&T 43/44.

[9] Ibid.

[10] Eugene R Fidell ‘A Worldwide Perspective on change in Military Justice’ in E R Fidell and D H Sullivan (eds), Evolving Military Justice (2002) 209.

[11] [1992] INSC 17; [1992] 1 SCR 259. This case is not discussed in this paper, however for more information about this Canadian case see the review by Chief Justice Antonio Lamer submitted to the Canadian Minister of National Defense on 3 September 2003.

[12] Ibid.

[13] Judge Advocate General-ADF, Defence Force Discipline Act 1982 Report for the period 1 July to 31 December 1985, Australian Government Publishing Service, Canberra 1986, 29.

[14] Ibid 31.

[15] Per General Cosgrove at The Senate (Foreign Affairs, Defence and Trade References Committee) Public Hearing, ‘Inquiry into the Effectiveness of Australia’s Military Justice System’, 01 March 2004, FAD&T 11.

[16] See Report of the Defence Force Discipline Legislation Board of Review, 23.

[17] The JAG position is created by DFDA s.179. The holder of the office is a two-star ranking officer of the Reserve Forces. JAG must be, or have been, a judge of a Federal Court or State Supreme Court. The appointment is made by the Governor-General in Executive Council.

[18] Per General Cosgrove ibid FAD&T 8.

[19] According to s 146(1) of the DFDA, the rules of evidence in force in the Jervis Bay Territory apply in relation to proceedings before a service tribunal as if the tribunal were a court of the Jervis Bay Territory and the proceedings were criminal proceedings in the Territory. Those rules of evidence are the rules of evidence that apply in proceedings before a court of the Australian Capital Territory, including the Evidence Act 1995 (Cth) which codified the evidence law.

[20] I recognise that the term ‘rights’ in contemporary legal and popular discourse is a loaded term that requires more treatment than it is accorded here.

[21] Senate Inquiry into Military Justice Procedures in the ADF following the Burchett Report 1999 (Chapter 4).

[22] [1989] HCA 12; (1989) 166 CLR 518.

[23] Ibid 545.

[24] Ibid 569-570.

[25] Ibid 591.

[26] Ibid 599.

[27] [1991] HCA 29; (1991) 172 CLR 460.

[28] [1991] HCA 29; (1991) 172 CLR 460, 474-5.

[29] See DFDA s 3: defence civilian means a person (other than a defence member) who:

(a) with the authority of an authorized officer, accompanies a part of the Defence Force that is:

(i) outside Australia; or

(ii) on operations against the enemy; and

(b) has consented, in writing, to subject himself or herself to Defence Force discipline while so

accompanying that part of the Defence Force.

[30] (1991) 172 CLR 488, 489.

[31] (1991) 172 CLR 488, 493, 498-499.

[32] [1994] HCA 25; (1994) 181 CLR 18.

[33] [1994] HCA 25; (1994) 181 CLR 18, 37-40.

[34] [1998] HCA 47 (23 July 1988).

[35] [2004] HCATrans 42 (3 March 2004).

[36] No.85 -1581 [1987] USSC 159; 483 U.S. 435

[37] Case of Findlay v The United Kingdom 1997 European Court of Human Rights (110/1995/616/706)

[38] ECHR – Article 6(1): ‘Right to a fair trial - In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgment shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice...’ (located at <http://www.echr.coe.int/Convention/webConvenENG.pdf> )

[39] ICCPR - Article 14: ‘All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law...’ (located at http://www1.umn.edu/humanrts/instree/b3ccpr.htm).

[40] A court martial is a service tribunal which is created for the purpose of trying a defence member or defence civilian on a specific charge or charges, usually of a serious nature. A court martial can be either a general court martial or a restricted court martial, the difference being the rank and number of members, and powers of punishments. A Judge Advocate is a legal officer who has been appointed to the judge advocate’s panel and has been enrolled as a legal practitioner for not less than five years, and is appointed to assist the court martial with legal matters.

[41] DFM’s are appointed by the JAG from members of the judge advocate’s panel. A DFM sits alone when trying matters and has the same powers and jurisdiction as a restricted court martial.

[42] Andrew Mitchell and Tania Voon ‘Defence of the Indefensible? Reassessing the Constitutional Validity of Military Service Tribunals in Australia’ (2000) 27 Federal Law Review 3.

[43] White’s Case [1962] HCA 51; (1962) 107 CLR 174.

[44] Defence Instruction (General) PERS 45-4 – Australian Defence Force Prosecution Policy (29 Aug 00) and Defence Instruction (General) PERS 45-1 Jurisdiction under Defence Force Discipline Act—Guidance for Military Commanders, (17 Feb 1999).

[45] Ibid - DI(G) PERS 45-1

[46] Judge Advocate General-ADF, Defence Force Discipline Act 1982 – Report for the period 1 January to 31 December 2003, Commonwealth of Australia (2004).

[47] San Nunn, ‘The Fundamental Principles of the Supreme Court’s Jurisprudence in Military Cases’ in Fidell and Sullivan, above n 10.

[48] Ibid 4.

[49] Ibid.

[50] John S Cooke, ‘Manual for Courts-Martial 20X’ in Fidell and Sullivan, above n 10, 176.

[51] Ibid.

[52] Ibid 186.