An ‘Alternative’ New Military Justice Regime for The Australian Defence Force: if not a military court then an Australian Court Martial Tribunal

Abstract

My foregoing paper (Denton, David H, A Proposed New Military Justice Regime for the Australian Defence Force During Peacetime and in Time of War (September 6, 2019). Available at SSRN: https://ssrn.com/abstract=3551788 or http://dx.doi.org/10.2139/ssrn.3551788) argued the ADF needs to proceed further in the reorganization of its military justice system and establish a Chapter III court, which must be a specialist military court (military court). However, if the Government of the day decides against establishing such a court then there is still a need to establish an independent and transparent military tribunal to hear military offences of a more serious nature.

This paper supports the establishment of an ‘alternate’ new form of court martial system in a new service tribunal herein called, the Australian Court Martial Tribunal (ACMT). The ACMT would provide a new system of dispensation of military justice, somewhat similar in structure to the failed AMC. However, the ACMT would be a service tribunal which would require review and confirmation of its orders, within the chain of command, to avail itself of its ‘apparent exceptionalism’ from Chapter III of the Constitution.

Accordingly, this paper analyses an alternative solution to that proposed by the thesis. The analysis considers the establishment of a new ‘court martial system’, the ACMT, outside the chain of command yet reviewable within it by the JAG or outside of it by the DFDAT.

Keywords: Australia, military law, court martial, military court, Australian Court Martial Tribunal