Defence of the Indefensible? Reassessing the Constitutional Validity of Military Service Tribunals in Australia
in Eugene Fidell and Dwight Sullivan (eds), Evolving Military Justice (Naval Institute Press, 2002) 246-270, 345-352
28 Pages Posted: 27 Sep 2015
Date Written: 2002
In the past fifty years, the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. However, while it is generally accepted that service tribunals exercise what would ordinarily be seen as falling within the definition of "judiciary power", there has been no unifying and satisfactory explanation as to why this does not breach the separation of powers doctrine. In addition, no clear majority position has emerged as to the limits of the functions of service tribunals or the criteria for determining which offences can be properly dealt with by service tribunals without usurping the role of the courts. In particular, there is no consensus as to whether it is acceptable for defence legislation to provide simply that all civil offences in a particular jurisdiction automatically constitute disciplinary offences for defence purposes which therefore fall within the realm of service tribunals.
Since the latest relevant High Court case, the composition of the High Court has changed dramatically. Only two of the present Justices, Gaudron and McHugh JJ, have delivered judgments on this issue in that Court, and on those occasions both Justices indicated that they disagreed with the reasoning of the majority in the prevailing authorities. If this issue came before the HIgh Court today, it is unclear how the other Justices would decide. However, it is quite possible that a majority of the Court would choose not to follow those authorities. In addition, the separation of powers doctrine has enjoyed a reemergence of sorts in recent years, exemplified by cases such as Brandy v. Human Rights and Equal Opportunity Commission. Finally, the Commonwealth Parliament Joint Standing Committee on Foreign Affairs, Defence and Trade very recently completed its inquiry into military justice in Australia. These circumstances present an appropriate opportunity to reassess the state of the law regarding military service tribunals in Australia, in anticipation of a more certain and defensible position being reached by the High Court in the near future.
Keywords: military service tribunals
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