Howard Govt’s lack of military justice

THIS week the High Court did its best to ensure that “military justice” does not join the sardonic list of oxymorons like “military intelligence”, “fun run” and “Catholic education.

It struck down the Australian Military “Court” – set up by the Howard Government in 2006 — as offensive to the Constitution.

Indeed, the blunder was so obvious that it is amazing the Government allowed the legislation to go through in the form that it did.

Well, maybe not so amazing when you consider that the Government had a majority in both Houses and could do what it liked, and that due process and human rights hardly figured highly at the time.

Bear with me while I try to explain the constitutional point in layman’s terms.

The Constitution says the judicial power of the Commonwealth is vested in the High Court and such other courts as the Commonwealth Parliament creates. These courts must have independent judges: tenure to 70; no pay cuts and no removal except on petition by both Houses on proven misbehavior or incapacity.

The judges on the Australian Military “Court” did not have those characteristics. They had five-year terms. They had to be serving officers. If they left the Defence Force they lost their job as judge. And they could be removed from the Defence Force other than petition by both Houses on proven misbehavior or incapacity.

Legislation setting up the “court” in effect enabled it to exercise the judicial power of the Commonwealth because the “court” could make binding, final, authoritative findings of guilt of offences under the criminal law after public trials.

It is not a mere legal technicality. This separation of powers is one of the few rights in the Constitution. It is a protection against arbitrary exercise of power. It is nowhere near as powerful as the US due-process requirement, but it prevents people from being convicted without the benefit of a finding (or at least appeal supervision) by an independent judge. And that is what the defendant, Brian Lane, faced in this case.

Moreover, under the new law, the Australian Military “Court” could try what would otherwise be offences under the ordinary law which had nothing much to do with the military, even if the defendant was off duty – insofar as any defence person is off duty. Lane was charged with an act of indecency.

The history of it began with a growing concern about the justice in the old court-martial system. In that system charges were dealt with by ad-hoc military tribunals within the military system which would in effect inform the superior officer dealing with military discipline. There was an automatic review up the chain of command.

That system is fine when you are engaging in military operations or dealing with things inherently military. But when the system starts dealing with a whole range of offences (excluding only the most serious) that might be committed by a member of the Defence Forces, it gets trickier. In the US, Canada and Britain soldiers successfully challenged court-martial findings.

In Britain the military law was changed to make it conform to European human-rights requirements. In Canada it had to conform with the Charter of Rights.

In Australia, in 2005, a parliamentary inquiry recommended a new court complying with the constitutional requirements for independent judges. But the Howard Government thought that would impose what it said were “real constraints” upon military justice.

The Government was not a big proponent of pesky things like judicial independence and human rights. So it tried to have it both ways. It tried to have the appearance of justice by calling its body a “court” in the legislation and saying it was a “court of record”, but it did not staff it with real judges.

The High Court in two judgments (one joint judgment of two judges and another of four) has now put the kibosh on this. Unfortunately, it did it in a rather dry, narrow way. It did not explore the human-rights issues or the importance of judicial independence.

It seemed more like a case of how dare a government call something a court when it is not.

That aside, though, it is still an important human-rights case. The legislation setting up the Australian Military “Court” attempted to apply the general criminal law (with a few exceptions) as military offences to the 50,000 or so members of the Defence Force and make them answerable in body that had the trappings of a court, but really was a bunch of Defence officers, albeit with at least some rules about procedural fairness.

It was a wonderful coincidence that the decision came down on the day John Howard gave a speech decrying any plan for a Bill of Rights in our Constitution. He said the people, the Parliament and the common law could be trusted to protect human rights. Phooey.

Without the (albeit weak) separation of powers in our Constitution upholding at least some rights, Parliament would have got away with a plainly flawed system.

It would have been fine for officers to try military matters – dirty uniforms, disobeying a command, and so on, but not virtually the whole range of charges in the criminal matters.

The Rudd Government must now do what the Howard Government should have done in the first place: set up a proper military court or let the civilian courts deal with all but purely military matters.

This has been another example of a Parliament controlled by the Executive Government ignoring essential rights (this time in the name of military efficiency).
CRISPIN HULL

One thought on “Howard Govt’s lack of military justice”

  1. Dear Crispin,

    Dare I suggest that if you had read the background at http://www.ada.asn.au/Recent.Comment.htm your article in today’s “Canberra Times” might have considered the overall picture.

    It is also worth emphasising that the AMC’s judges were experienced lawyers rather than just a “bunch of Defence officers”.

    The bottom line remains that fully “civilianising” a court for the ADF will not work either.

    Neil James
    Executive Director
    Australia Defence Association

    See also Neil James’s article on the court at:

    http://www.canberratimes.com.au/news/opinion/editorial/general/military-knowhow-a-must/1609754.aspx

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