Justice at the Sharp End: Improving Australia's Military Justice System

University of New South Wales Law Journal, Vol. 28, No. 2, 2005

U of Melbourne Legal Studies Research Paper No. 149

30 Pages Posted: 8 Jun 2006

See all articles by Andrew D. Mitchell

Andrew D. Mitchell

University of Melbourne - Law School

Tania Voon

University of Melbourne - Law School

Abstract

This article examines from a legal perspective how the current Australian approach to offences allegedly committed by defence force members could be modified to enhance fairness and legitimacy, without losing sight of the objectives and constraints of military operations. We begin by providing an overview of legal and practical features of the current system of military justice under the DFDA. We then assess the constitutional validity of military service tribunals under the DFDA, recalling not only the requirements set out in the Australian Constitution but also the rationale for these requirements as relevant to military service tribunals. We pay particular attention to the High Court's most recent pronouncements on this issue, in Re Colonel Aird; Ex parte Alpert. Our analysis leads to a new framework for determining which offences a service tribunal that is not a Chapter III court should be entitled to try. We then review and evaluate the recommendations of the Senate Committee regarding military discipline in its report on "The effectiveness of Australia's military justice system," pointing out areas of correlation with our own proposed framework. Our analysis demonstrates how Re Aird may be reconciled with the Senate Report and how the Constitution ensures both justice and effectiveness in the Australian Defence Force ("ADF").

Keywords: Military law, military justice, constitutional law

JEL Classification: K39

Suggested Citation

Mitchell, Andrew D. and Voon, Tania, Justice at the Sharp End: Improving Australia's Military Justice System. University of New South Wales Law Journal, Vol. 28, No. 2, 2005; U of Melbourne Legal Studies Research Paper No. 149. Available at SSRN: https://ssrn.com/abstract=906968

Andrew D. Mitchell (Contact Author)

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia
+61383441098 (Phone)
+61393472392 (Fax)

HOME PAGE: http://www.law.unimelb.edu.au/staff/Andrew%20Mitchell

Tania Voon

University of Melbourne - Law School ( email )

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Register to save articles to
your library

Register

Paper statistics

Downloads
87
rank
283,634
Abstract Views
984
PlumX Metrics