A PROPOSED NEW MILITARY JUSTICE REGIME FOR THE AUSTRALIAN DEFENCE FORCE DURING PEACETIME AND IN TIME OF WAR Dr David H Denton, RFD QC BA, LLB, LLM (Monash), PhD (UWA) Thesis presented for the degree of Doctor of Philosophy of The University of Western Australia School of Law 2019 THESIS DECLARATION I, DAVID HOPE DENTON, certify that: This thesis has been substantially accomplished during enrolment in this degree. This thesis does not contain material which has been submitted for the award of any other degree or diploma in my name, in any university or other tertiary institution. In the future, no part of this thesis will be used in a submission in my name, for any other degree or diploma in any university or other tertiary institution without the prior approval of The University of Western Australia and where applicable, any partner institution responsible for the joint-award of this degree. This thesis does not contain any material previously published or written by another person, except where due reference has been made in the text and, where relevant, in the Authorship Declaration that follows. This thesis does not violate or infringe any copyright, trademark, patent, or other rights whatsoever of any person. This thesis contains only sole-authored work, some of which has been published and/or prepared for publication under sole authorship. Signature: Date: 16 September 2019 © The author iii ABSTRACT Only infrequently since Federation has the High Court of Australia been called upon to examine the constitutionality of the Australian military justice system and consider whether the apparent exercise of the defence power under s51(vi) of the Constitution to establish service tribunals may transgress the exercise of the judicial power of the Commonwealth under Chapter III of the Constitution. Since World War II, the High Court of Australia has maintained a line of authorities supporting a doctrine of constitutional ‘exceptionalism’, whereby service tribunals do not exercise the judicial power of the Commonwealth under Chapter III of the Constitution but constitute an ‘exception’ to Chapter III based upon a construction of the defence power which is “necessary not only from a practical, but also from an administrative view”.1 However, Gleeson CJ has more recently summed up the problem that this ‘exceptionalist’ approach poses to the High Court when he observed that “history and necessity combine” to compel the conclusion that the defence power, rather than a strict reading of the Constitution itself, authorises the current disciplinary system of the Australian Defence Force (ADF).2 The current ADF military justice system established under the Defence Force Discipline Act 1982 (Cth)(DFDA) commenced its operations on 3 July 1985. It made fundamental changes to the scope and coverage of military discipline in terms of personnel and the legal framework. In 2005, the Senate’s Report on “The Effectiveness of Australia’s Military Justice System” prompted the Government to announce significant reforms to the military justice system. The principal change was the establishment of a non-Chapter III permanent Australian Military Court (AMC) to replace the ad hoc convened courts martial and Defence Force Magistrates’ (DFM) trials. In Lane v Morrison (2009) 239 CLR 230, the High Court of Australia unanimously declared that the AMC was unconstitutional as it breached Chapter III.3 As a consequence of the striking down of the AMC, in 2009 the Parliament restored the court martial system 1 Re Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, per Starke J at 468. See also Stenhouse v Coleman (1944) 69 CLR 457; R v Cox; Ex parte Smith (1945) 71 CLR 1; Re Tracey; Ex parte Ryan (1989) 166 CLR 518, McWaters v Day (1989) 168 CLR 289; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18; Re Colonel Aird; Ex parte Alpert (2004) 220 CLR 308; White v Director of Military Prosecutions (2007) 231 CLR 570; Lane v Morrison (2009) 239 CLR 230. 2 White v Director of Military Prosecutions (2007) 231 CLR 570, [14]. 3 Declaration: Division 3 of Part VII of the DFDA was invalid. v (inclusive of trials before DFMs) as an ‘interim measure’ which had been in existence under the DFDA before the establishment of the AMC. This also means that the recommendations of the 2005 Senate Report have yet to be implemented (although partial attempts were made in 2010 and then again in 2012).4 This thesis concludes by proposing the establishment of: • a specialist Chapter III military court to sit in Australia in which more serious service offences are to be charged on indictment requiring a trial before a Chapter III military court judge and civilian jury; and • a new form of service tribunal to address the problem where a Chapter III military court cannot, and, or will not, sit outside Australia in war or war-like operations, to hear trials of service offences herein called the Australian Court Martial Tribunal (ACMT). The ACMT will be presided over by a military presidential member sitting with a military jury of either six or 12 members (depending on the seriousness of the service offence). 4 Military Court of Australia Bill 2010 (Cth) and subsequently Military Court of Australia Bill 2012 (Cth) were introduced to establish a properly constituted Chapter III military court to try service offences under the DFDA but both these bills lapsed on the proroguing of the respective Parliaments. vi TABLE OF CONTENTS Thesis Declaration iii Abstract v Table of Contents vii Acknowledgements xiii Authorship Declaration: Sole Author Publications xv PART A: THE FOUNDATIONS OF MILITARY JUSTICE 1 1 Thesis: Introduction 3 1.1 Australian Military Justice Disciplinary System 3 1.2 Methodology: Doctrinal and Reform-Oriented Research Approaches 5 1.3 Structure of the Thesis 6 1.4 The goal of the thesis: To examine whether it is possible to establish for the ADF a new and constitutional military justice system to operate in times of peace and war 12 1.5 Overall Outcome 13 2 The Australian Military and its Justice System: Development, organisation and disciplinary structure 14 2.1 Historic Genesis of Military Justice 14 2.2 Historical development of the military law regime in England 16 2.2.1 Courts Martial 16 2.2.2 Judge Advocate 17 2.2.3 Articles of War (Imp) 17 2.2.4 The Mutiny Acts (Imp) 18 2.2.5 Naval Discipline Act 1866 (Imp) 19 2.2.6 Army Act 1881 (Imp) 19 2.3 Australian Military Justice — Background 20 2.3.1 Development of the Australian Colonies 20 2.3.2 Development of Australia’s Colonial Naval and Military forces 28 2.3.3 The Colonies of Australia Federate 34 2.4 Australian Military Disciplinary Structure since Federation 35 2.5 The establishment of the modern Australian Defence Force 37 2.6 Australian Military Justice System: the DFDA regime 39 2.7 Disciplinary Agencies of the ADF 42 2.7.1 Summary Authorities 42 2.7.2 Discipline Officer Scheme 43 2.7.3 Defence Force Magistrates 44 vii 2.7.4 Judge Advocate 44 2.7.5 Court Martial Panel 45 2.7.6 Courts Martial 45 2.7.6.1 General Courts Martial 46 2.7.6.2 Restricted Courts Martial 46 2.7.7 Judge Advocate General 47 2.7.8 Director of Military Prosecutions 47 2.7.9 Director of Defence Counsel Services 48 2.7.10 Number of Hearings: Courts martial, DFM and Summary Authorities 49 2.8 DFDA Sentencing Options 51 2.9 The Chain of Command 53 2.9.1 Meaning 53 2.9.2 The Reviewing Authority 57 2.10 Summary 58 3 Legal Foundation of the ADF Military Justice and Appellate Systems 59 3.1 Historical and Traditional Bases of Courts Martial in England 60 3.1.1 Background 60 3.1.2 Courts martial exercise ‘judicial power’ 61 3.2 Australian Military Justice — The Constitutional Impediment 67 3.2.1 The Judicial Power of the Commonwealth 67 3.2.2 The Boilermakers’ Principle 67 3.3 The Wartime Cases 69 3.4 The Peacetime Cases 75 3.5 The Disciplinary Appeal System: Defence Force Discipline Appeals Tribunal 81 3.5.1 Independence 83 3.5.2 Impartiality 86 3.5.3 Independence and Impartiality: United States Courts Martial 86 3.6 Independence and Impartiality: Australian Courts Martial 89 3.7 Summary 91 PART B: REFORMATION OF THE MILITARY JUSTICE SYSTEM IN AUSTRALIA 93 4 Sporadic Reviews of the Operation of the DFDA 95 4.1 Introduction 96 4.2 1997 DFDA Report 96 4.2.1 Background 96 4.2.2 Role of the Convening Authority 97 4.2.3 Director of Military Prosecutions 103 viii 4.2.4 Performance for Pay and Promotion 105 4.3 The 1998 Ombudsman’s Report 105 4.3.1 Background 105 4.3.2 Recommendations 106 4.4 1999 Military Justice Report 107 4.4.1 Background 107 4.4.2 Post Implementation of 1997 DFDA Report Recommendations 110 4.4.3 Establishing a Director of Military Prosecutions 111 4.5 2001 Parachute Battalion Report 117 4.5.1 Background 117 4.5.2 Establishing a DMP 121 4.6 2001 Military Justice report 122 4.6.1 Background 122 4.6.2 Establishing a DMP 125 4.7 Summary 126 5 The 2005 Senate Report into the ADF Military Justice System 127 5.1 The 2005 Senate Report 128 5.1.1 Background 128 5.2 Senate Identifies Significant Issues 131 5.2.1 Flawed Military Investigations 131 5.2.2 Flawed Prosecution Decisions 132 5.2.3 Insufficient Access to Legal Advice 132 5.3 The ADF asserts the military justice system works well 135 5.4 A Chapter III Court 137 5.5 Establish a DMP 138 5.5.1 DMP 138 5.5.2 Registrar of Military Justice 141 5.5.3 Director of Defence Counsel Services 141 5.6 Summary 142 6 Government attempts to create a Military Court for the ADF 144 6.1 The Government decides to create a military ‘court’ 145 6.2 Use of the term ‘court’ 146