On 21 June 2012, the Attorney-General introduced two Bills to Parliament, the Military Court of Australia Bill 2012 and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012. (The Bills can be accessed here). The Bills are the culmination of a series of attempts by the Commonwealth to create a new institution for the trial of serious service offences that enjoys greater independence and impartiality than the traditional service tribunals. The Bills were referred to the Senate Legal and Constitutional Affairs Committee. The Adelaide Law School’s Gabrielle Appleby and Professor John Williams made a joint submission to the Committee. (The full text of the Submission can be accessed here). Below is a modified extract of the Submission.

An introduction to service tribunals

In our constitutional system, defence force personnel have traditionally been tried by courts martial and other service tribunals, outside of the system of independent and impartial justice established by Chapter III of the Constitution. While the High Court has implied from the constitutional structure a negatively drawn principle that only Chapter III ‘courts’ can exercise federal judicial power, military justice has always been treated as an exception.

The Commonwealth has been able to make provision for the discipline of military personnel under the defence power (s 51(vi)) in tribunals that do not meet the minimum standards of independence and impartiality required by Chapter III.

Calls for reform of the service tribunal systems

This status quo has, however, been increasingly questioned, both in Australia and internationally, as failing to provide military personnel the same rights to a fair trial as are enjoyed by civilians. In 2005, the Senate Foreign Affairs, Defence and Trade References Committee recommended major changes to increase the independence and impartiality in the service tribunal system, ultimately recommending the establishment of a Chapter III court for the trial of service offences.

The Australian Military Court: Rise and demise

The Government responded to the recommendations with a new system that compromised some independence and impartiality on the basis that there were legitimate reasons for maintaining a separate and different military justice system. These reasons were two-fold: first, there was concern that civilian judges would not have sufficient knowledge and understanding of military culture and context; and second there was concern that a Chapter III court would not be able to sit overseas and in theatre during military operations. The Government introduced the first Australian Military Court (‘AMC’), which still remained a service tribunal, but had a number of court-like characteristics. The Court started operations on 1 October 2007.

The High Court struck down the provisions establishing the AMC in Lane v Morrison (2009) 239 CLR 230 because they breached the separation of powers in the Constitution. This was predominantly of the basis that the AMC now made final and definitive findings of guilt and passed sentence without review from within the military chain of command. As the joint judgment of Justices Hayne, Heydon, Crennan, Kiefel and Bell noted:

the AMC was intended to differ from earlier forms of service tribunal. It is independent from the chain of command. That independence is critical to the decision whether the AMC is to exercise the judicial power of the Commonwealth.

The Commonwealth’s attempt to bring greater independence and impartiality within the service tribunal system had therefore been the cause of its demise. The High Court appeared to say that military justice either had to exist within the confines of the historical exception, or be exercised as judicial power by a properly constituted court under Chapter III of the Constitution. The constitutional separation of powers it seemed did not allow for flexible, modern compromises.

In the wake of the High Court decision, the Commonwealth Parliament passed legislation that in effect reinstated the service tribunal system as it previously stood before the introduction of the AMC.

The New Military Court of Australia

The Military Court of Australia Bill 2012 (‘MCA Bill’) establishes a Military Court that fits the requirements of a Chapter III constitutional court for serious service offences. Under the new system, summary authorities will continue to hear the bulk of cases for less serious service offences.

The MCA Bill has addressed the concerns that have previously been used to justify a separate and different system of military justice. Judges appointed to the court must, by reason of experience or training, understand ‘the nature of service in the Australian Defence Force’, and appointments are made in consultation with the Defence Minister. The Military Court sits in Australia, except where it is ‘both necessary and possible for it to sit at a place outside of Australia’. In determining whether it is necessary for the MCA to sit outside of Australia, the Court may take into account a number of factors, including the location of the alleged service offence and the location of the accused and witnesses. In determining whether it is possible to do so, there is another list of factors the Court may take into account, including the security of the place. If the MCA finds it is necessary but not possible for it to sit overseas, offences can be heard under the old system of courts-martial and DFM.

Critique of the MCA Bill

We made one fundamental critique of the Bill, based on its drafting to avoid the constitutional requirement that all Commonwealth indictable offences be heard with a trial by jury (s 80 of the Constitution).

The new MCA will not hear matters with a jury. The MCA has managed to avoid the s 80 requirement because service offences ‘are to be dealt with otherwise than on indictment’.

The High Court has held that the Commonwealth may designate offences to be tried on indictment, and so this would appear to be constitutional. Whether it is appropriate is a separate question. The Attorney-General argued that trial by jury was not appropriate for two reasons. First, where ADF personnel commit criminal offences in Australia, they are still subject to the civilian criminal law system and may be tried within this system. The Attorney-General explained that the current arrangements between the DMP and the Commonwealth DPP, which require consultation where there is overlap between the civilian criminal and military discipline jurisdictions will continue. Further, the DMP cannot bring prosecutions for serious offences, including treason and murder, without the permission of the Commonwealth DPP. This will presumably ensure in practice that in appropriate circumstances an accused will be tried in the civilian courts with a jury. However, the Bill does not mandate this outcome.

Second, the Attorney-General explained that where a service offence is tried overseas, empanelling a jury would be impractical. The explanatory memorandum further explains that a civilian jury as required by s 80 of the Constitution may not necessarily be familiar with the military context of service offences.

While we appreciate that 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 that ensures this. We would also reject the arguments that a civilian jury is not necessarily familiar with the context of service offences. Our criminal justice system asks a lot of juries, and they are often required to understand complex evidence, often provided by scientific and medical experts. It does not seem congruent with our acceptance that juries are able to understand this, to argue that they will not have, or not be able to gain, an understanding of the context of service offences.

Moreover, a critical aspect of the regulation of the armed forces in a Westminster system is that they are subject to civilian control. Thus while s 68 of the Constitution states that ‘The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen’s representative’ it is beyond doubt that it is the responsible Minister that provides the civilian accountability. In similar terms the use of civilian juries injects an important aspect of community involvement into the military justice system. In Kingswell v The Queen Justice Deane highlighted the development of trial by jury in Australia and its underlying principle.  

The guarantee of s.80 of the Constitution was not the mere expression of some casual preference for one form of criminal trial. It reflected a deep-seated conviction of free men and women about the way in which justice should be administered in criminal cases. That conviction finds a solid basis in an understanding of the history and functioning of the common law as a bulwark against the tyranny of arbitrary punishment. In the history of this country, the transition from military panel to civilian jury for the determination of criminal guilt represented the most important step in the progress from military control to civilian self-government.
The guarantee of trial by jury for indictable offences should not be excluded from the new MCA for serious offences. The particular aspects of the offences are not beyond the capacity of civilians to appreciate. The constitutional guarantees of the military accused should be the same as to other citizens. Moreover the involvement of civilians in the military justice system is consistent with the principle that the military is subject to civilian oversight.

Constitutionality of the Bills

We also noted that the establishment of a Chapter III court raises a potential constitutional challenge on the basis of s 68 of the Constitution. There is an argument that this removes the Governor-General’s command of the armed forces vested by this section. However, we believe this argument is unlikely to be successful.

First, there is evidence that the framers believed that it was possible for military justice to be administered by the Commander in Chief within the chain of command (pursuant to s 68 of the Constitution, as occurs with the traditional service tribunal model), or by a ‘properly constituted military court’. The term used, ‘properly constituted military court, is distinct from the use of the term courts-martial, used elsewhere in the debates. The notion of the court being ‘properly constituted’ may be a reference to a court constituted under Chapter III, although this is not made clear in the debates.

Second, several members of the High Court have indicated that the military justice system could be administered by a Chapter III court.

Conclusion

Our submission was generally in support of the Bills. We believe there are strong arguments that they will be constitutional, and we commend the Commonwealth government for implementing reforms to bring Australia in line with its international human rights obligations. However, the submission highlighted our concern over the lack of guarantee for a civilian jury trial for serious criminal offences. 

In October, the Committee issued its report, which can be accessed here. The Committee’s recommendation was that the Bills be passed without amendments. There was a Dissenting Report issued by the Liberal Senators, and Additional Comments made by the Australian Greens. Both of these additional reports recommended the Bills be amended to provide a right to trial by jury for more serious service offences.

Professor John Williams is the Dean of the Adelaide Law School. Gabrielle Appleby is a Senior Lecturer at the Adelaide Law School, she has previously written on this issue for The Conversation.