NEWSLETTER ISSUE 1 L JANUARY 2009 from the ACMLJ DIRECTOR Welcome to the ﬁ Rst Newsletter from the Australian Centre for Military Law and Justice (ACMLJ)

AUSTRALIAN CENTRE FOR MILITARY LAW & JUSTICE NEWSLETTER ISSUE 1 l JANUARY 2009 FROM THE ACMLJ DIRECTOR Welcome to the fi rst Newsletter from the Australian Centre for Military Law and Justice (ACMLJ). Newsletters will be published twice a year to all those who are members or associate members of the Centre, and those who have expressed an interest in Centre activities. In addition, the Newsletter will be the vehicle for sharing information about the Centre with other like centres in Australia and elsewhere. The ACMLJ was established in January 2008, and is Australia’s fi rst academic centre devoted to studying all aspects of Australian military law. The Centre, part of the ANU College of Law, has been established at a time when there is greater focus on the military as Australian forces are increasingly being called on to contribute to peace and security — in Australia, internationally and in the Asia Pacifi c region. The Centre will focus on how the Australian military’s activities are affected by its legal rights and obligations. The principal aim of the Centre is the development of high quality focused research across the spectrum of military law. The research work of the Centre will complement the postgraduate teaching program for Defence lawyers run since 2006 by the ANU College of Law. Robin Crey ke Robin Creyke Director, ACMLJ & Alumni Chair of Administrative Law at the ANU College of Law

CONTENTSCONTENTS From the ACMLJACMLJ Director 1 Launch of the CentreCentre 2 Research ProjectsProjects & StaffStaff 4 ReﬂReﬂ ections fromfrom the Military LawLaw Program 6 Inaugural ACMLJACMLJ Event: DefenceDefence Watchdogs 7 LAUNCH OF THE CENTRE — Professors Michael Coper (Dean ANU College of Law) & Robin Creyke (Director ACMLJ) with The Hon Upcoming Events 8 Warren Snowden MP

ANU COLLEGE OF LAW 1 LAUNCH OF THE CENTRE

The Australian Centre for Military Law and Justice was ofﬁ cially launched on Thursday 8 May 2008 by the Hon Warren Snowdon MP.

At the Launch, Professor Michael Coper, Dean of Law said: ‘The Australian Centre for Military Law and Justice easily satisfi ed [the ANU College of Law’s] criteria that the subject matter be of national signifi cance, and that we should have a critical mass of colleagues with expertise in the area. Indeed, that expertise was manifest in the teaching program that preceded the establishment of the Centre … We were delighted two years ago to win the tender to teach military law to defence lawyers. It is from milestone in the history of the I believe, have mutual benefi ts, not that beginning that the idea of College. It has come as a surprise least because it will help rectify the Centre, with a serious research to discover that this will be the the current defi cit of knowledge dimension, grew. fi rst Centre in Australia within of defence within the civilian The more I realised that, and the an academic institution which is community. more I connected it with our range devoted to all aspects of law as Those involved with the Centre, of expertise in the College, the it applies in the military. There is particularly the ANU College of Law more excited I became about the a wealth of material on military teachers in the military law program idea of a Centre to draw all of these history … Surprisingly, however, — some 20 percent of those in the strands together. And that is what there is no academic Centre with a College — are an enthusiastic team. we have done, so may I congratulate comprehensive focus on military law. Their enthusiasm and their growing Robin, the inaugural Director of the The community is the poorer for it. knowledge of the military has been Centre, her three Associate Directors, The experience defence has to offer encouraged by the considerable Simon Bronitt, Don Rothwell, and the civilian populace, both in terms assistance provided to them by the Gary Tamsitt, and all of my other of its institutional structures and Directors, Deputy Directors and colleagues, especially the teachers its understanding of the practice staff of the Defence Military Law of the military law program, of law within a military context is Centre at Randwick who manage the who contributed to the Centre’s valuable to the general community. military law teaching program … They establishment.’ Defence capability and discipline have sharpened our understanding is to be envied. Its operations and have made a considerable Professor Robin Creyke, Director of are steeped in traditions and contribution to that sense of the ACMLJ commented that: history. Exposing some of that rich collegiality which has enabled ‘The establishment of a new Centre heritage to the community through realisation of the ANU College of Law to harness research capability and academic analysis and critique will, Centre. I am proud to be part of that give focus to its work in the area team and also, as Director, to be in a of military justice is a signifi cant position to shepherd their efforts.’

2 In his ofﬁ cial launch of the Centre, the Hon Minister Warren Snowdon, had this to say:

‘While still incorporating research into operational law, the Australian Centre for Military Law and Justice will also delve more comprehensively into all facets of legal endeavour related to the ADF, especially in the ﬁ elds of military administrative and discipline law. The future work of the Australian Centre for Military Law and Justice offers intriguing and exciting possibilities for reform, based Dr Mark Nolan (ANU College of Law) & Brigadier Lynette upon the conclusions of its research. McDade (Director of Military Prosecutions)

It is the natural complement to the environment of the military, will be in the ﬁ eld of military law to see postgraduate teaching program of limited value. the establishment of this Centre and for Defence lawyers that has been I therefore welcome the Centre’s to contemplate the potential for running here at the ANU since 2006. willingness to consider opportunities sustained scholarly consideration of a And I see other synergies to be to for interaction with the Australian broad range of military law issues.’ be achieved by Defence working Defence Force Military Law Centre in concert with the Centre and and, more generally, with Defence scholars to develop research into legal ofﬁ cers and other military For full text of the speeches issues of mutual interest. Clearly, specialists. academic study of military issues please see our website at: undertaken in isolation, and without As I said at the start of this address, www.law.anu.edu.au/ACMLJ an understanding of the unique it is truly an exciting development

Professor Michael Coper (Dean ANU College of Law), Professor Simon Bronitt (Director National Europe Centre ANU), Professor Robin Creyke (Director, ACMLJ), Professor John McMillan (Commonwealth & Defence Ombudsman) & Associate Professor Gary Tamsitt (Director Legal Workshop ANU)

3 RESEARCH PROJECTS & STAFF

The ACMLJ will provide a focal point for research into Military Law.

Proposed projects include: related topics. He is presenting a Cooperation, at the ANU in April • The fi rst comprehensive text on paper on’ Standing for Claims in 2009 (for more details see link in Australian military law. Insolvency’ in March 2009 at the Law Upcoming Events on p.8). Council of Australia’s Insolvency Law • Australian/NZ Maritime Security Simon is also hosting an international Committee Conference and further • Australian/NZ Military Operations workshop on the use of force, papers at the RSM Bird Cameron Law and Policy in the Asia Pacifi c Shooting to Kill: The Law Governing Annual Conferences (one for senior the Use of Lethal Force in Context, • Australian Private Military accountants and one for partners) in in June 2009 at the Onati Institute Contractors early April 2009. for the Sociology of Law (Spain). • Use of the Military in Aid of the Publications The program includes leading Civil Power. Winning Advocacy (with Hugh Selby), international scholars, senior military The Centre is also host to a number OUP, 2004. lawyers and practitioners from the of PhD and SJD/LLM students Appellate Practice (ed with Hugh Australia, UK and US, including undertaking research into areas as Selby) (co-author of 2 chapters), Captain Dale Stephens RAN, former diverse as Defence and the source of Federation Press, 2008. Director of the Military Law Centre, its authority under executive power, who has recently embarked on and judicial review of administrative PROFESSOR SIMON BRONITT doctoral studies at Harvard. action in a command environment. Simon is Director of the National Europe Centre, ANU College of Arts & PROFESSOR ROBIN CREYKE Social Sciences, Professor in the ANU Robin teaches in the Military Administrative Law courses for the RESEARCH INTERESTS & RELATED College of Law and a teacher in the Military Law Program. RESEARCH ACTIVITIES OF MEMBERS Discipline Law courses in the Military OF THE CENTRE & TEACHERS IN THE Law Program. Publications MILITARY LAW PROGRAM In 2008, Professor Bronitt spent Veterans’ Entitlements Law in part of his sabbatical at the Military Australia (2nd edn, Federation Press, The following are all people who Law Centre in Randwick, working 2008) (with Peter Sutherland). teach in the Military Law Program with Captain Dale Stephens on an ‘Military Administrative Inquiries’, conducted, since 2006, by the ANU article, ‘”Flying Under the Radar”— paper presented at the Defence College of Law. All are members or The Use of Lethal Force Against Watchdogs conference, 26 November associate members of the Centre. Hijacked Aircraft: Recent Australian 2008. In addition to their research Developments’ (2007) 7(2) Oxford interests and listed output, most MIRIAM GANI University Commonwealth Law will be contributing to the text Miriam teaches in the Military Review 265-277. This research was on Australian Military Law (to be Discipline Law course in the Military based on presentations delivered at published by Federation Press) which Law Program. Her research interests the Navy Legal Conference at HMAS is a major research project of the in the codifi cation of Australian Cairns (September 2007) and at the Centre for 2009. criminal law, the interpretation Senior Staff College (Legal Module) of codes, federal criminal law and GRAEME BLANK held at the Centre for Defence terrorism offence prosecutions are Graeme is one of the teachers in Strategic Studies, Australian Defence pertinent to the military, particularly, the Military Advocacy Law course College, Canberra (February 2008). the Defence Force Discipline Act 1982 of the Military Law Program. His Simon is also involved in hosting (Cth). general research interests are in the a conference, Crossing Borders: fi elds of insolvency and advocacy Promoting Regional Law Enforcement

4 WENDY KUKULIES-SMITH with terrorism offences in Australia Military Law Program. His research Wendy teaches in the Discipline and elsewhere. He also has specifi c interests span administrative, Law component of the Military Law interest in research into juries, corporations and regulatory law. He is Program. including military jury procedure. on leave for much of 2009 but hopes to be involved in research in the area DR HITOSHI NASU PROFESSOR DON ROTHWELL of use of the military in aid of the Hitoshi teaches in the Military Don is one of the teachers in the civil power on his return. Operations Law courses for the Military Operations Law courses in Military Law Program. the Military Law Program. He is a A/PROFESSOR GARY TAMSITT well-known commentator on topics Gary is Director of the ANU Legal Publications within his broad fi elds of expertise in Workshop, and also chairs meetings International Law on Peacekeeping: A international, including operations, of the Management Committee for Study of Article 40 of the UN Charter, law. He has current research interests the Military Law Program. He is a (Martinus Nijhoff, forthcoming 2009). in: Australia/New Zealand Maritime member of the Army Reserves. ‘The Responsibility to React? Lessons Security; Australia/New Zealand DR GREGOR URBAS from the Security Council’s Response Military Operations Law and Policy Gregor teaches in the Military to the Southern Lebanon Crisis of in the Asia Pacifi c; and Australian Discipline Law courses for the 2006’ (2007) 14(3) International Private Military Contractors: Military Law Program. His current Peacekeeping 339-352. International and Australian Law research areas include federal ‘Towards a True Incarnation of the Dimensions. Rule of Law in War-Torn Territories: criminal law, criminal appeals, Centring Peacebuilding in the Will A/PROFESSOR/ HUGH SELBY cybercrime and transnational crime. of the People’ (2007) 54 Netherlands Hugh is a teacher in the Military He has published widely on the International Law Review 81-114 (co- Advocacy Law course of the Military topics of cybercrime and intellectual authored with Kristen Daglish). Law Program. property infringement. Publications DR MARK NOLAN KYLIE WESTON-SCHEUBER Winning Advocacy (with Graeme Mark teaches in the Military Kylie teaches in the Discipline Blank) (OUP, 2004). Discipline Law courses for the Law component of the Military Appellate Practice (ed with Graeme Military Law Program. He is currently Law Program. Kylie’s academic Blank) (co-author of 2 chapters), conducting empirical research on expertise, and the practical skills Federation Press, 2008). lay attitudes to terrorism threats she brings from her work with the Commonwealth Director of Public and the appropriateness of specifi c DANIEL STEWART Prosecutions, inform her research counter-terrorism suspects and Daniel teaches in the Military interests in military law. the prosecution of those charged Administrative Law courses for the SUMMER RESEARCH SCHOLARS The members of the ACMLJ were successful in attracting three summer research scholars to assist with projects for the Centre. The Summer Scholar program is a longstanding national program hosted by the ANU. It brings top honours students from around the country to work with ANU researchers for two months over the summer. Mr Arn Duncan from the University of South Australia has been working with the Director on devising a template for the chapters of the Centre’s major 2009 project, the book on Australian Military Law. The prototype chapter on which Arn has been testing the template was his research for the chapter on executive power and defence. Mr Toby Collis, a recent graduate from Macquarie University, worked on an international criminal law project under the supervision of Professor Simon Bronitt. His project examined the transposition of the Rome Statute provisions into the Criminal Code (Cth). The research is being developed into an article for publication in the Criminal Law Journal. Ms Grace Keesing, a student from ANU, also worked with Simon on a project examining the use of force in the counter- terrorism context.

55 REFLECTIONS FROM THE MILITARY LAW PROGRAM Military Lawyer Wins Scholarship to Study European Law in Germany by Captain Gerard O’Shea

For two weeks in December last year forces of EU/NATO countries. This the experience. Programs like the I was lucky enough to swap the sun- included the recent attention drawn Winter Academy demonstrate yet scorched hills of the Puckapunyal to the interaction of the European again the benefi t of the ongoing Military Area for the snowfl akes of Convention of Human Rights and its partnership between ADFLS and a German winter, when the second application to detainee management tertiary institutions in the delivery of annual DAAD-ASKO European Winter by member countries, but also post-graduate legal training. Academy was held in Otzenhausen. addressed other topics of military The course introduced students to the interest; NATO preparedness for European Union with an emphasis confl icts arising from global warming on the regulation of the common and population movements, energy market, expansion of the EU, security, EU-China and EU-Russia common foreign and security policy, relations, supranational and inter- and the environment. governmental regulation of strategic policy, and attempts to reinvigorate Legal offi cers undertaking LTM 2 Twenty nine students from tertiary the philosophical and practical or 3 at ANU can contact Professor institutions throughout Australian debate over the establishment of a Simon Bronitt, Director of the and New Zealand participated — the Single European Army (SEA) in the National Europe Centre, who will majority studying law, but with a context of EU expansion to include be able to provide details on similar scattering of students from other member States who were formerly DAAD opportunities in the future. disciplines. The course was delivered aligned with the eastern bloc and are For those with a particular interest through a series of seminars and not signatories to NATO. in undertaking further study in included visits to institutions of the Germany, the DAAD website is: EU, such as the European Court of The course is sponsored by the Justice, the European Parliament and German Academic Exchange Service http://www.daad.de/en/index.html the European Court of Human Rights. (DAAD) and delivered jointly by the This combination of presentations European Academy Otzenhausen and by European academics with cultural Saarland University. The scholarship visits to cities in Germany, France to cover my travel expenses was and Luxembourg was a unique and provided by the ANU National Europe fantastic opportunity. Centre.

The course teased out many issues ADF Legal Ofﬁ cers have the that are becoming increasingly opportunity to apply for a DAAD relevant for ADF legal ofﬁ cers as they scholarship grant as students of work on deployment with coalition ANU, and I wholeheartedly endorse

6 INAUGURAL ACMLJ CONFERENCE Defence Watchdogs: The Administrative Oversight of Military Justice 26 November 2008 at the Australian War Memorial

The inaugural ACMLJ event was a conference held at the end of 2008, which was undertaken jointly with the Commonwealth and Defence Force Ombudsman’s Offi ce and the Offi ce of the Inspector-General of Defence. The conference marked the 25th anniversary of the establishment of the Offi ce of the Commonwealth and Defence Force Ombudsman in 1983, the tenth anniversary of the Offi ce of the Inspector-General of Defence, and the fi rst year of the ACMLJ. The conference attracted over 90 people, largely drawn from the Defence departments, including Professor John McMillan (Ombudsman), The Hon Warren Snowden MP, Professor Robin people from the offi ce of Inspector Creyke (ACMLJ) & Mr Geoff Earley (Inspector General Australian Defence Force) General ADF, the Commonwealth Ombudsman, and academia. gave a paper on the history, the fi ndings and the implementation Speakers included: The Minister for of recommendations from formal Defence Science and Personnel, the inquiries into military administrative Hon Warren Snowdon MP; Senator action. Mark Bishop, who as chair of the Senate Committee on Foreign Affairs, An amusing speech about the role Defence and Trade was involved in of watchdogs was given by Emeritus the Military Justice Inquiry; Professor Professor Dennis Pearce, former John McMillan, Commonwealth Commonwealth and Defence Force and Defence Force Ombudsman; Mr Ombudsman and newly appointed Geoff Earley, Inspector General of Chair of the Defence Honours and the Australian Defence Force; Mr Awards Tribunal, at the conference Peter Leahy, former Chief of Army, dinner at the Anzac Memorial Hall, and now Director, National Securities Australian War Memorial. Institute, University of Canberra; Dr Matthew Groves, Monash University Law Faculty; and Mr Neil James, Executive Director, Australia Defence Some papers from the conference are available at the ACMLJ website: Association. The Director of the Presenter Group Captain Paul Cronan ACMLJ, Professor Robin Creyke, also http://law.anu.edu.au/ACMLJ/ (Director Military Discipline Law)

77 DEFENCE WATCHDOGS CONFERENCE Top L: Dr Vivienne Thom (Deputy Commonwealth Ombudsman) M: Hon Warren Snowden & dinner speaker Professor Dennis Pearce R: Ms Lynley Ducker (Director, Defence Force Ombudsman) Bottom L: Mr Neil James (Australia Defence Association) & Dr Gregor Urbas (ANU College of Law)

UPCOMING EVENTS OF INTEREST JUDICIAL REASONING: ART OR SCIENCE? Conference 7 & 8 February 2009 The conference will explore how judges’ reasoning is inﬂ uenced by a range of factors, including: social, neurological, biological and psychological aspects. More info at: http://law.anu.edu.au/nissl/JudReas_09.htm

SWIMMING TO CAMBODIA: JUSTICE & RITUAL IN HUMAN RIGHTS AFTER CONFLICT Seminar 19 March 2009, 6pm by Prof Hilary Charlesworth More info at: http://law.anu.edu.au/cipl/Lectures&Seminars/2009/Charlesworth.pdf

CROSSING BORDERS: PROMOTING REGIONAL LAW ENFORCEMENT COOPERATION — EUROPEAN, AUSTRALIAN AND ASIA-PACIFIC PERSPECTIVES Conference 8 & 9 April 2009 The Conference will bring together academics, public policy and legal practitioners, and law enforcement ofﬁ cials from Europe, Australia and the Asian-Paciﬁ c region to review and discuss the pressing problems impeding cross-border policing and law enforcement. The Conference includes a presentation by Wing Commander Ian Henderson, Director, Military Law Centre on the topic ‘Jurisdiction under the Defence Force Discipline Act 1982’. More info at: http://www.anu.edu.au/NEC

Australian Centre for Military Law & Justice l ANU College of Law l The Australian National University l Canberra ACT 0200 Contact l Ms Pam Zwickert l T: 02 6125 4640 l E: [email protected] l http://law.anu.edu.au/ACMLJ