Justice at the Sharp End: Improving Australia's Military Justice System
University of New South Wales Law Journal, Vol. 28, No. 2, 2005
30 Pages Posted: 8 Jun 2006
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: Suggested Citation