CHAPTER 3

Key issues

3.1        Several witnesses and submissions to the inquiry expressed broad support for the establishment of the Military Court and the other proposed reforms to the military justice system contained in the bills.[1] However, a number of specific issues and concerns were raised in relation to:

• potential constitutional challenges to the Military Court;
• the appointment of judicial officers to the Military Court;
• the interaction between the civilian and military justice systems;
• the residual use of courts martial and defence force magistrates; and
• appeals from the Military Court.

3.2        Some submissions and witnesses recommended that the establishment of the Military Court should be reconsidered or should not proceed.[2] These persons and organisations questioned the need for the Military Court and highlighted flaws that they consider exist in the approach to the establishment of the Military Court. They also emphasised that the key purpose of the military justice system is the maintenance of discipline in the armed forces, and argued that the existing service tribunal system of courts martial and defence force magistrates is a superior option to achieve this purpose.[3]

Support for the Military Court

3.3        Several submissions considered that the establishment of the Military Court would improve the independence, transparency and impartiality of the military justice system. For example, Mr Alexander Street SC noted that '[o]nly real Courts administer justice and it is high time the outstanding Australians that serve in our great ADF are recognised as entitled to a real Military Justice System'.[4]

3.4        In particular, General David Hurley AC, DSC, Chief of the Defence Force, noted that, while commanding officers will continue to deal summarily with the overwhelming majority of service offences, 'the changes proposed by the Bills will mean that the Australian people and the ADF can have confidence that the trial of ADF personnel charged with serious offences will conform to the highest standards of independence, impartiality and fairness'.[5] The Chief of the Defence Force advised the committee that the 'ADF strongly supports the [Military Court] Bills and Defence has been closely involved with their development'.[6]

3.5        The Chief of the Defence Force outlined a number of improvements made by the bills, including:

• the Military Court would possess a 'strong service character' with ADF officers prosecuting and defending matters before the court and judicial officers required to have an understanding of the nature of service in the ADF;
• the modernisation of the Defence Force Discipline Act's unfitness for trial and mental impairment provisions;
• the statutory recognition for the Director of Defence Counsel Services;
• the option for all ADF personnel to elect to have a charge, which would otherwise be heard by a summary authority, heard by the Military Court;
• the broader rights of appeal for the Director of Military Prosecutions; and
• the clarification of rules for the disclosure of service offence convictions (which were described as balancing 'accountability and fairness' as service disciplinary offences will only be discloseable for service purposes).[7]

3.6        Mr Geoff Earley AM, Inspector General Australian Defence Force, also welcomed the establishment of the Military Court. At the public hearing, he explained that the amendments establishing the Military Court would simplify disciplinary processes:

One of the reasons why [the current system] is so complicated is because of the present elective system, both where people can elect trial by court martial or [defence force magistrate] in the present system or they can elect to be tried by a [commanding officer] and agree, if they are found guilty, to have imposed on them an elective punishment. The process that has to take into account those circumstances is a bit complicated. The change under the new court is to a simpler scheme whereby any member who is charged with an offence can elect for trial by the military court.[8]

3.7        However, the Inspector General cautioned that, while aspects of the military justice system may be similar to the civil system, the two systems are not interchangeable:

[I]t is important to keep in mind that the military justice system...is there to fulfil a specialised purpose which is not always, or necessarily, directly comparable to the objectives of a civil system. In particular, the primary role and underlying rationale of the military justice system is to assist command with the maintenance and enforcement of Service discipline in a manner that takes due regard of the individual rights of ADF members...There will be a limit therefore to the extent to which the two systems can be usefully aligned without distracting from the disciplinary purpose of the military justice system.[9]

International law obligations

3.8        The consistency of the Military Court with Australia's international law obligations was raised during the inquiry. Ms Gabrielle Appleby and Professor John Williams from the University of Adelaide Law School submitted:

The general move towards a Chapter III specialist military court brings Australia into line with many of its international obligations, most particularly the right to a trial before an independent and impartial tribunal. Internationally, and particularly in Europe, courts-martial have been seen as lacking the requisite independence from the Executive, the possibility of partiality because of influence, conscious or not, from the military chain of command, and the review of decisions by a non-independent body.[10]

3.9        In a joint submission, Associate Professor Alison Duxbury, Dr Rain Liivoja, and Associate Professor Matthew Groves also highlighted international human rights standards, specifically Article 14 of the International Covenant on Civil and Political Rights, which provides that '[i]n the determination of any criminal charge...everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law'. Further:

[C]ases on military justice systems in other jurisdictions have raised issues directly relevant to the establishment of a permanent court – notably the preference for the involvement of civilians in military justice systems and the preference for some form of permanency in military courts...The establishment of the Military Court of Australia will address both concerns articulated in these cases: judges will be civilians and will also have the requirements of tenure recognised by international human rights law, and most importantly, the Commonwealth Constitution.[11]

Opposition to the Military Court

3.10      The Law Council of Australia provided the committee with its commentary on a previous draft of the Military Court Bill and Consequential Amendments Bill. This commentary outlined a number of concerns with the establishment of the Military Court:

No compelling reason has been shown to dispose of the Courts Martial system, which has existed for as long as the ADF and has withstood numerous High Court challenges. The 2005 Review of the Effectiveness of Australia's Military Justice System did not find fault with the Court Martial system; the concern identified was with perceived undue influence by the chain of command in military discipline matters. Those concerns have largely been resolved by appointment of the [statutorily] independent Director of Military Prosecutions (DMP) and the proposed statutory appointment of the Director of Defence Counsel Services.[12]

3.11      Similarly, the Australia Defence Association (ADA) and the Returned and Services League of Australia (RSL) questioned the rationale for the establishment of the Military Court. In particular, witnesses for both organisations noted that one of the key reasons for proposing the establishment of a military court was an apprehension, (indicated in the Senate Committee's 2005 report[13]), that a constitutional challenge could be made to the service tribunal system. However, they pointed out that this 'fear' had been removed due to subsequent decisions of the High Court which had upheld the validity of the service tribunal system.[14]

3.12      Mr Alister Abadee considered that the proposed legislation should not be passed. He argued that there are other mechanisms, such as ensuring the statutory independence of Judge Advocates, 'which may secure an enhanced degree of independence and impartiality'.[15] Further:

[T]here is a heavy onus upon proponents of change to prove how reform of an institution which predates federation will likely improve the lot of the users of the system. By the Bill's effective transfer of the power to adjudicate upon infractions of discipline, and (thereafter) the power to impose discipline, from command (through peer review) to civilian judicial officers, that onus has not been discharged.[16]

3.13      Mr David McLure also argued that the Military Court Bill should not be passed. He noted that the Bill proposes a system where a statutorily independent Director of Military Prosecutions prosecutes charges before a civilian judge in a Chapter III court. In his view, '[t]he almost complete disengagement of military officers from this layer of the military justice system undermines its objective of maintaining a disciplined and effective fighting force'.[17] He argued:

The primary justification for the existence of a separate military justice system in Australia is that such a system maintains discipline in the [ADF] and thereby enhances its capacity to be an effective fighting force. A system that excludes military officers from the determination of serious offences is less likely to achieve that effect.[18]

Potential for constitutional challenges

3.14      Several witnesses and submissions raised their concerns regarding likely constitutional challenges to the establishment of the Military Court, as well as the potential impact on the ADF should the Military Court be found to be constitutionally invalid.[19] For example, Brigadier Lynette McDade, the Director of Military Prosecutions, expressed her hope that the bills are 'constitutionally sound because it is inevitable that they will be challenged'.[20]

3.15      A range of potential constitutional challenges to the establishment of the Military Court were described, including questions regarding the right of ADF members to trial by jury before the Military Court (addressed separately in chapter 4 of this report).[21] For example, the Law Council of Australia's comments on the draft bills noted its concern that 'any new Chapter III court may have constitutional flaws, particularly where the accused may face civil trial, military trial or Court Martial'.[22] Ms Gabrielle Appleby and Professor John Williams also raised the prospect that a constitutional challenge could be made on the basis that the establishment of a Chapter III court may remove the Governor-General's command of the armed forces, as vested in section 68 of the Constitution. However, in their view 'this argument is unlikely to be successful'.[23]

3.16      Others contrasted the High Court decisions affirming the current system of service tribunals as constitutionally sound with the legal uncertainty which would be created by the establishment of the Military Court.[24] The possible negative impact on the military justice system if the Military Court were found to be constitutionally invalid was also emphasised.[25] For example, Mr David McLure argued:

It is inevitable that there will be a challenge to the constitutional validity of the [Military Court]. If successful, the ADF would again suffer substantial disruption to its disciplinary processes. The safer and better course is to retain and improve the existing system of military justice.[26]

3.17      Conversely, Associate Professor Alison Duxbury, Dr Rain Liivoja, and Associate Professor Matthew Groves considered that 'the validity of the current system is assumed rather than assured'; and noted the strong dissents made during the previous High Court challenges to the current system of military justice, and the absence of 'a clear and coherent consensus within the [High] Court'.[27]

Appointments to the Military Court

3.18      The requirement for the appointment of judicial officers to the Military Court and the number of suitable candidates were areas of concern for witnesses and submitters.

Experience and training

3.19      Subclause 11(3) of the Military Court Bill provides that those appointed to the Military Court must 'by reason of experience or training' understand the nature of service in the ADF. The ADA expressed its concern regarding the lack of clarity in this requirement:

[T]here is no standard or criterion as to what this experience or training is to consist of, or how the training or experience is to be attained, measured or indeed how long its duration needs to be. In almost all cases, it could only be actual and effective service in the defence force which could possibly provide appropriate training or experience...It will not be gained at a university or in the practice of civil or criminal law in the Australian community. Nor will it be gained from merely reading military history or from minor contact with military topics through administrative law proceedings.[28]

Departmental response

3.20      In an answer to a question on notice, the Attorney-General's Department confirmed that there is no definition of 'training or experience' for the purposes of subclause 11(3), but that the requirement of 'experience or training' is intended to incorporate 'a more practical basis' for understanding the nature of service in the ADF:

Like any criteria for appointment, this would be applied on a case by case basis in relation to potential candidates for appointment...The criteria for experience and training could be met by demonstrating prior service in the Australian Defence Force (permanent, regular or reserve). However, the eligibility criteria do not require the person to have had prior service. If this were an eligibility requirement, this would reduce the flexibility of criteria for appointment and potentially have an impact on the perceived independence and impartiality of the Military Court.

There would be other ways that an applicant may gain the relevant experience or training which would make them suitable for appointment to the Court. However, it is unlikely that academic study alone would be sufficient to satisfy subclause 11(3)(b). In the version of the Bill that was introduced in 2010 the criterion for appointment was expressed as 'experience or knowledge of the nature of service in the Australian Defence Force'. This has been changed in the [current] version of the Bill...[29]

3.21      The Attorney-General's Department also noted that subclause 11(3) requires the Minister of Defence to be consulted in relation to appointments to the court. Further, the requirements in the bill are 'designed to provide for appropriate consideration of the suitability of candidates in light of the role of the Court in the military justice system'.[30] At the public hearing, a representative from the Department of Defence highlighted that the requirement in subclause 11(3) is 'not particularly unique', noting similar provisions which require persons appointed to the Family Court to be, by reason of training and experience, suitable to deal with matters of family law.[31]

Pool of suitable candidates

3.22      Some submissions and witnesses pointed to the limited number of potential appointees to the Military Court with operational experience within the ADF.
For example, Mr Paul Willee QC from the Law Council of Australia estimated that there are currently 'about four' judicial officers who would meet the current qualifications for the Military Court.[32] Mr David McLure also commented on the service experience of potential appointees to the Military Court and their capacity to conduct the trials of service offences:

[T]he reality is that there will be very few candidates for judicial appointment who have had recent command experience and fewer still with operational experience. To say so does not cast any doubt on the skills or dedication of the judicial officer who might be appointed to the [Military Court]. Rather, it is submitted that a system in which military officers participate in the trial of serious offences with the assistance of a legally qualified judge is likely to be a better one, both in terms of the accuracy of decision-making and the credibility of such decisions in the perception of the public and members of the ADF.[33]

3.23      Associate Professor Matthew Groves suggested that the problem may not be the requirements for appointees to the Military Court, but 'the number of people who have enough legal experience and qualifications to be a judge and also have this same [service] experience':

I think the key problem here is we are beyond the time when military service is all that common. So I think to some extent the bill requires two areas of expertise that are so rare that the numbers will be small.[34]

3.24      On the other hand, the Chief of the Defence Force expressed confidence in the availability of suitable candidates for appointment to the Military Court:

If we look inside the Australian Defence Force at the present time I believe there is [a] pool that we could draw from in the short to medium term. We have over 500 full-time and part-time legal officers in the ADF as the base to be looking at for the future. I agree it will be necessary to work through and develop what that experience might be and what practical measures we can put in place to help in that selection process, and develop the understanding of members in the broader activities and operations of the ADF.[35]

3.25      Professor John Williams also made the point that judicial officers in other courts are regularly expected to adapt to new subject matter:

All the time, judicial officers deal with drug cases, bankruptcy cases and family law cases. That does not mean they were involved in any of those things before, but they bring skills to the area. I am more relaxed about that provision being opened up to a wider pool of judicial officers. Training in those areas can be provided, and judges deal with cases time after time where they may not even have been in practice in that area, or the cases come to them just by dint of being the next judge on the docket.[36]

Departmental response

3.26      The Attorney-General's Department informed the committee that:

It will be a matter for the Government to decide the number of judicial appointments based on the anticipated workload of the Military Court...Dual commissions may be offered to existing federal court judges and Federal Magistrates who have experience and knowledge of the nature of service in the [ADF] to provide flexibility in management of military caseload (cl 12). This would include the position of Chief Justice of the Military Court.[37]

Exclusion of ADF members

3.27      Subclause 11(4) of the Military Court Bill provides that a person must not be appointed to the Military Court if he or she is a member of the ADF. The EM to the Military Court Bill notes that subclause 11(4) 'ensures the independence and impartiality of the Military Court by providing that persons currently serving in the ADF would not be eligible for appointment'.[38] Further amendments contained in the Consequential Amendments Bill provide that, once appointed, Military Court judicial officers will no longer be eligible to enlist into the ADF.[39] At the public hearing, officers from the Attorney-General's Department explained that subclause 11(4) is a 'requirement of independence for a chapter III court' and that 'the provision is there as a consequence of a policy decision'.[40]

3.28      The ADA described the requirement in subclause 11(4) as 'unworkable in practice' and argued that '[m]embers of the ADF are the candidates for appointment likely to be most familiar with the subject matter and may be the only suitable candidates'.[41] Further:

The drafting of this section does not appear to reflect actual knowledge or appreciation of who a member of the ADF actually is. Legally they include permanent (full-time) members and (part-time) reservists of all kinds. The latter include standby reservists who continue to serve for a mandatory period of at least five years following permanent or active reserve service (although having no training or continuing service obligation unless reactivated).

[I]t is not easy for a serving member to formally or practically leave the ADF, although many assume they have effectively done so when they become standby reserve members...It would be most unfortunate if the practical effect is that commissioned officers, even standby reservists, have to seek to resign their commissions.[42]

3.29      Mr Neil James from the ADA also pointed out that any amendments to the legislation to allow a reservist to be appointed to the Military Court 'would inevitably provoke an appeal – that they were not an independent judge under the meaning of chapter III'.[43]

3.30      At the public hearing, the Chief of the Defence Force, confirmed that subclause 11(4) would include reserve force members and that a member of the ADF would need to resign their commission completely before being eligible for appointment to the Military Court.[44]

Exclusion of state judicial officers

3.31      Subclause 12(1) provides that a person may be both a judge of the Military Court and a judge of another court 'created by the Parliament'. The ADA suggested that this wording would result in the Military Court comprising 'Federal Court Judges cross-appointed as Military Court Judges'. The ADA contended that, while 'former State judges and magistrates would be eligible to be appointed to the proposed [Military Court], it seems very unlikely that a State judge in particular would resign that State commission in order to do so'. It also outlined the large role that state judicial officers play in the ADF, and consequently described the 'effective' exclusion of state judicial officers for appointment to the Military Court as 'idiocy'.[45]

Departmental response

3.32      The Attorney-General's Department provided the committee with a response to a question on notice regarding this issue:

Clause 12(1) of the Military Court of Australia Bill is intended to allow for the possibility of dual appointments to the Military Court and other federal courts. The number of cases heard in the military court is likely to be small (50-100 cases per year heard in the General Division by Federal Magistrates and less than 10 cases in the Appellate and Superior Division). Dual commissions will provide for flexibility in the management of the military caseload.

The Bill is silent on the issue of appointment of serving state or territory judges to the Military Court. The appointment of serving state or territory judges to the Military Court would raise practical and operational issues in terms of state and territory court responsibilities of those judges. These issues would need to be dealt with through agreements between relevant heads of jurisdiction regarding work arrangements as well as legislative changes to deal with remuneration.[46]

Interaction between military and civilian justice systems

3.33      The Defence Force Discipline Act complements, and does not replace, the civilian criminal law in force in Australia applicable to defence personnel.[47] Currently, section 63 of the Defence Force Discipline Act provides that proceedings may only be instituted in a service tribunal for certain offences with the consent of the Commonwealth Director of Public Prosecutions. The EM to the Consequential Amendments Bill notes that following the establishment of the Military Court:

Section 63 of the Defence Force Discipline Act 1982 will continue to require the Director of Military Prosecutions (DMP) to obtain the consent of the Commonwealth Director of Public Prosecutions (CDPP) prior to prosecuting certain serious service offences with criminal law equivalents (such as murder, rape, assault) committed in Australia. The Memorandum of Understanding between the Australian Directors of Public Prosecutions and Director of Military Prosecutions is the cooperative arrangement which operationalises the section 63 statutory requirement for CDPP consent and facilitates cooperation and consultation between the Australian Directors of Public Prosecutions and the DMP, particularly where the military discipline and criminal law jurisdictions overlap. The Memorandum of Understanding will continue to operate.[48]

3.34      During the inquiry, some witnesses and submitters commented on the potential interaction between the military and civilian justice systems. For example, the Law Council of Australia highlighted the 'potential for charges to be referred to a civilian court, which...raises questions about consistency for those who might be dealt with under any one of three separate judicial constructs in respect of the same charge'.[49] In their submission, Ms Appleby and Professor Williams noted that the High Court has made clear that the Defence Force Discipline Act 'could not exclude the jurisdiction of the civilian courts'.[50] However, Ms Appleby and Professor Williams pointed out:

While...in the vast majority of cases in practice, serious offences committed in Australia with a civilian equivalent will be tried in the civilian criminal jurisdiction, we note that there is nothing in the consultation and approval process [between the DMP and the CDPP] that ensures this.[51]

Potential for 'double jeopardy'

3.35      Ms Appleby and Professor Williams also considered that a 'significant area of concern' under the service tribunal system is the possibility that an individual could be 'tried under both the military justice system and civilian criminal jurisdiction'. While arrangements between the Director of Military Prosecutions and the Commonwealth Director of Public Prosecutions have reduced the possibility of a 'double jeopardy' situation arising, they noted:

The creation of a Chapter III court to hear and determine service offences substantially meets these concerns more definitively. A conviction or acquittal by the new [Military Court] will, beyond any doubt, prevent any other Chapter III court from hearing the same matter, leaving the potential for confusion only where a Defence Force member is tried by a service tribunal (that is, by a summary authority or, on rare occasions under the new regime, by a court-martial or [defence force magistrate]).[52]

3.36      On the other hand, Mr David McLure considered that doubt could exist regarding whether a conviction in the Military Court would necessarily preclude a convict for the same offence by a civilian court:

[A]ll offences prosecuted under the Defence Force Discipline Act contain an element that will not be in the civilian offence—that is, that it was conduct engaged in by a defence member in some defence context that is to attract the service jurisdiction. So the argument may be put that, because of that extra element, it is not the exact same offence.[53]

Departmental response

3.37      The Department of Defence, in a response to a question on notice, outlined that 'double jeopardy' concerns have not been a practical problem during the operation of the Defence Force Discipline Act, and agreed that any problems are 'likely only to be further reduced' if conviction or acquittals are imposed by the Chapter III court, as opposed to a service tribunal.[54] However, the 'treatment by a civilian criminal court of a conviction or acquittal for a service offence is a matter for that civilian criminal court'; and the issue would depend on 'the actual charges which were prosecuted as service offences, the offences charged in the relevant civilian criminal jurisdiction and the similarity of the conduct constituting both the service offence and the civilian criminal offence'.[55]

3.38      The Department of Defence explained that amendments to be made by the Consequential Amendments Bill would also strengthen protections against double jeopardy situations arising in the future:

Clause 190B makes it clear that a conviction for a service offence (other than a purely disciplinary service offence listed in Schedule 7) by the Military Court of Australia, a court martial or a Defence Force magistrate must be recorded as a conviction for a service offence and is a conviction for an offence against a law of the Commonwealth....

New clause 190A prevents prosecution of a service offence in respect of an act or omission, where the person has been acquitted or convicted of that service offence or a service offence similar to that service offence, in respect of that act or omission, or where the Military Court of Australia, or a court martial or Defence Force magistrate, has taken the service offence into consideration with respect to a person convicted of a service offence.

New clause 190A also prevents prosecution of a service offence where the service offence is substantially the same as a civil court or overseas offence of which the person has been acquitted or convicted.[56]

Residual use of courts martial and defence force magistrates

3.39      The EM to the Consequential Amendments Bill notes that courts martial and defence force magistrates are maintained under the bills as a 'residual or backup system to be...used in rare instances where the Military Court determines that it is necessary, but not possible, for the Military Court to conduct a trial overseas'.[57] The Chief of the Defence Force indicated that this means that the bills 'retain a fully deployable military justice capability, able to meet the needs of the ADF across the full spectrum of current and possible operational environments'.[58]

Dual military justice processes

3.40      Several concerns were raised in submissions regarding the potential problems created by dual military justice processes and retention of the expertise required to operate service tribunals within the ADF. For example, the Inspector General Australian Defence Force characterised the residual use of service tribunals as 'not ideal since it distracts from the ideal of systemic seamlessness'.[59] He noted further:

While this may be a pragmatic solution, two issues have been raised...First is a concern that, on paper at least, members of the ADF will in certain circumstances be subject to parallel higher tribunal regimes, and second, that this will necessitate measures to preserve expertise in conducting courts martial for what may well be few occasions of actual need. Of course, should such a need arise, 'just-in-time' training may not be ideal.[60]

3.41      Similarly, the Law Council of Australia in its commentary on the draft bills stated:

The expectation is clearly that Courts Martial will be rarely used. This may lead to circumstances where there are very few officers with experience of Courts Martial, meaning few if any officers will understand how to mount one, much less conduct one.

It also appears that replacement of the Courts Martial system with a Chapter III court is a repudiation of the former model as inferior. Accordingly, any person who is subject to Court Martial may have due cause for complaint that they have been subjected to a second-rate judicial process.[61]

3.42      The RSL provided the committee with its submission relating to the Military Court of Australia Bill 2010 (which also proposed the residual use of courts martial and defence force magistrates). The RSL submission characterised this as a '"two-tier" system of military justice' established without compelling reasons, and pointed to the Joint Committee's 1999 report on military justice which outlined the problems associated with establishing two systems of military discipline.[62] The RSL noted that 'the same offence that warrants trial by one Military Court judge...will, in certain circumstances, attract a trial by a Court Martial comprised of at least 5 or 3 members if the back-up system needs to be implemented'.[63]

Overseas deployment of the Military Court

3.43      The justifications for the deployability of the Military Court and the residual use of courts martial and defence force magistrates were also questioned. Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate Professor Matthew Groves suggested that it is unlikely that the residual role of courts martial would be regularly used. They noted that, currently, courts martial seldom sit overseas and more serious offences can be dealt with more effectively and quickly in Australia. Further, they submitted that 'the need to sit overseas for the purposes of examining witnesses is now considerably mitigated by the availability of video‐conferencing facilities' which the Military Court would be able to utilise.[64] Mr Alexander Street SC also contended:

The argument advanced as the need for deployability of Military Courts is utterly without substance in peacetime...[I]t is a gossamer thin proposition of any such need, even in wartime, given modern transportation and communication, as well as practical realities that constrict deployment of non-combat personnel into a war zone.[65]

3.44      In contrast, Mr Paul Willee QC from the Law Council of Australia pointed out that there are many possible situations where the Military Court would determine it is not possible to sit outside of Australia.[66] In his view, it would be unwise for the legislation 'to spell this out beyond what the legislation now provides':

[This situation] might occur because of the normal exigencies of the service, or operational difficulties and dangers, or simply because a sovereign state in which operations are permitted...objects on the grounds of sovereignty to another country's court sitting [in their jurisdiction]...There are so many of such exigencies that the legislation could not contemplate let alone deal with them all.[67]

Departmental response

3.45      At the public hearing, a representative from the Department of Defence emphasised that, despite the provisions for the residual use of courts martial and defence force magistrates overseas, the vast majority of military disciplinary matters will be heard in Australia. The representative noted that a court martial has not been held overseas since 2006, because, for example, the accused and witnesses are often located in Australia at the time of trial.[68]

3.46      In a response to a question on notice, the Attorney-General's Department elaborated on this point:

It is expected that most cases would be heard by the Military Court sitting in Australia. If the Court determines that it is necessary to sit outside Australia, the Court will also need to determine whether it is possible to sit outside Australia having regard to the circumstances set out in clause 51(4) ie security consideration, any relevant Australian or foreign laws, and any relevant international agreements that may be in place between Australia and that country.

It is important that the courts martial and Defence Force magistrate system can be used as a fall-back option to ensure the maintenance of discipline in the Australian Defence Force when the trial of a service offence needs to take place overseas and the Military Court of Australia is unable to sit in that overseas place. If Australian jurisdiction under the Defence Force Discipline Act 1982 was not able to be exercised, accused persons may be subject to the jurisdiction of foreign nations or international tribunals.[69]

3.47      In relation to the residual use of courts martial and defence force magistrates, the Attorney-General's Department outlined a number of steps which are being, or will be, undertaken to retain service tribunal training and expertise within the ranks of the ADF. Specifically, it pointed out that 'Defence accepts that it must be pro-active in developing policy, training and ensuring suitable appointments are made so that the expertise in courts-martial and Defence Force magistrate trials is retained at an appropriate level for use in the residual system of trials'.[70]

Appeals from the Military Court of Australia

3.48      Mr Alexander Street SC raised a number of issues with the committee regarding appeals from the Military Court, which were directly addressed by the Attorney-General's Department and the Department of Defence.

Appeals

3.49      Clause 113 of the Military Court Bill provides for a number of restrictions on appeals to the High Court from certain decisions of the Military Court. The EM to the Military Court Bill notes that the 'restricted nature of appeals to the High Court emphasises the role that the Military Court will have as the exponent of military law'.[71] However, Mr Street argued:

The constraints on appeals to the High Court of Australia do not reflect the appellate structure of s73 of the Constitution and the supremacy of the rule of law. This attempted constriction of the ability to appeal to the High Court of Australia is likely to be the cause of injustice and, in any event, will in my opinion be held to be Constitutionally invalid.[72]

3.50      Mr Street also considered that the 'Full Court of the Federal Court is the proper repository of judicial power of the Commonwealth to hear appeals from the Military Court of Australia', and noted that the Full Court of the Federal Court currently hears appeals from the Defence Force Discipline Appeals Tribunal.[73] He asserted that 'the way the Military Court Bill is currently drawn, a matter could be heard by the Full Court without any further appellate right' and that this 'would be contrary to Article 14 of the [ICCPR] that provides "Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law"'.[74]

Departmental response

3.51      The Attorney-General's Department informed the committee that the limitations on appeals from the Military Court to the High Court are modelled on similar limitations for appeals from the Federal Court:

Section 73 of the Constitution makes provision for Parliament to legislate for regulations and exceptions in relation to appeals to the High Court.  These limitations are provided to ensure the efficient administration of justice.  For example, the restriction on the right to appeal over a limited number of interlocutory decisions, which involve minor procedural matters, will reduce delays caused by appeals from these decisions. The requirement for special leave before certain appeals may be brought before the High Court has operated since 1976, and ensures that the High Court selects appropriate matters for determination by Australia's final appellate tribunal.[75]

3.52      The Attorney-General's Department also advised:

Like the Federal Court of Australia, the Military Court of Australia will be a superior court of record...In light of the status of the Military Court as a superior court of record, it is not necessary or appropriate for the Federal Court of Australia to hear appeals from the Military Court of Australia. The approach in the Bills is consistent with the approach for the Family Court of Australia, which is also a superior court of record. Appeals from the Family Court of Australia are not heard by the Federal Court of Australia.[76]

Costs

3.53      Clause 109 provides that the Military Court may, if it considers it appropriate, allocate costs in the case of appeals by accused persons or appeals by the Director of Military Prosecutions. The Law Council of Australia indicated that this is one of a number of amendments to the draft legislation based on feedback provided to the Attorney-General.[77] In its commentary on the draft legislation, the Law Council of Australia submitted that 'preventing the Military Court from making cost orders is out of step with civilian courts' as 'there is little provision made for those who may...choose a civilian lawyer to represent them in the Chapter III environment'.[78]

3.54      However, Mr Street emphasised that, in the Court of Criminal Appeal, no adverse orders as to costs are made against an accused person appealing conviction and sentence. He considered clause 109 to be an 'inappropriate provision except insofar as it might provide for a power to order costs against the [Director of Military Prosecutions]'.[79]

Departmental response

3.55      In a response to a question on notice, the Department of Defence acknowledged that there is a potential for the Military Court to award costs against an accused who had not appealed a decision, but emphasised that the Director of Military Prosecutions can only appeal decisions in 'limited circumstances'.[80] The department commented that the 'discretion of the Military Court...to award costs is in keeping with the power of civilian courts, including other Chapter III courts, to make costs orders'. Accordingly:

It is appropriate...for the Court to have power to award costs against the respondent in a prosecution appeal, for use in the rare circumstances where the conduct of the defence at trial or the respondent's case on appeal has unnecessarily lengthened the hearing of the trial or the appeal, particularly if there has been a failure on the part of counsel for the accused or the respondent to disclose material required to be disclosed (e.g. alibi evidence) or to comply with an interlocutory or other order of the Court.[81]

Allowing appeals

3.56      Subclause 105(1) provides that the Military Court must allow an appeal from a judgement convicting an accused person if satisfied: (a) that the judgement should be set aside on the ground of a wrong decision of any question of law; or (b) that there has been a substantial miscarriage of justice. Mr Street considered that this power to appeal against a conviction is too narrow and should be expanded to reflect the broader scope of grounds for appeal which currently exists in section 23 of the Defence Force Discipline Appeals Act 1995. He also suggested that this broader scope of grounds to appeal to the Military Court should be extended to the residual use of courts martial and defence force magistrates.[82]

Departmental response

3.57      The EM to the Military Court Bill notes that this clause is modelled on an existing section of the Federal Court of Australia Act 1976 regarding when the court is to allow appeals.[83] The Attorney-General's Department explained that the 'grounds for appeal in the Military Court are broadly consistent with the appellate systems of other federal courts'. It highlighted that the Military Court could also allow an appeal against a sentence if satisfied that some other sentence is warranted in law, or if satisfied that it is in the interests of justice to do so.[84]

Navigation: Previous Page | Contents | Next Page