Trial by jury
A key issue raised by the majority of witnesses and submissions was the
effect of clause 64 of the Military Court Bill. Clause 64 provides that
all charges of services offences are to be dealt with otherwise than on
These witnesses and submissions highlighted that clause 64 would effectively
circumvent the protection in section 80 of the Constitution for trial by jury
for indictable offences.
Witnesses and submissions outlined their concerns regarding the constitutional
validity of this proposed arrangement and its fairness for those accused of
In her Second Reading Speech, the Attorney-General outlined two reasons
for not including the option of trial by jury in the Military Court Bill:
First, service offences are created for the purpose of
maintaining discipline in the ADF. The military justice system complements and
does not replace the criminal law in force in Australia, and so need not mirror
the civilian court process. However, when ADF personnel commit criminal
offences within Australia, they will continue to be tried by jury within the
civilian criminal law system. Second, where there is need to try a service
offence overseas, a requirement to empanel a civilian jury would create
significant practical barriers to the prosecution of offences.
The Attorney-General also noted that the High Court 'has held that
it is for parliament to decide which offences are to be tried on indictment and
which can be tried other than on indictment'.
Section 80 of the Constitution provides:
The trial on indictment of any offence against any law of the
Commonwealth shall be by jury, and every such trial shall be held in the State
where the offence was committed, and if the offence was not committed within
any State the trial shall be held at such place or places as the Parliament
In 1928, in the case of R v Archdall,
the High Court held that the parliament was not required to lay down an
indictment procedure for an offence which carried a penalty of one year's
imprisonment. In that case, Justice Higgins stated that 'if there be an
indictment, there must be a jury; but there is nothing to compel procedure by
Later High Court decisions have continued to apply this narrow interpretation
of section 80 of the Constitution, however there have also been strong dissenting
judgements made by High Court justices to this approach. In White v
Director of Military Prosecutions, Justice Kirby noted that a
'persistent minority' had rejected 'this view as inconsistent with the function
of [section 80] as providing a guarantee of jury trial which could not so
easily be circumvented':
I favour what is presently the minority view. It is more
harmonious with the language, constitutional context, purpose and function of
the section. The contrary view renders trial by jury for the applicable federal
offences optional in the hands of the very governmental agencies against whom
jury trials can be a precious protection for the individual. That cannot be the
meaning of the Constitution.
Associate Professor Alison Duxbury, Dr Rain Liivoja and Associate
Professor Matthew Groves pointed out that clause 64 of the Military Court Bill
touches on a wider tension in constitutional law:
On the one hand, several members of the High Court recently
stated that a useful starting point for questions about the constitutional
validity of the military discipline system was the assumption that members of
the military retained the normal rights and obligations of civilians. On the
other hand, s 80 [of the Constitution] is currently regarded as a very
weak right. The High Court has held that the Commonwealth Parliament can
effectively circumvent s 80 by specifying that the trial of an offence
(however serious) is not to be on indictment.
Several submissions noted that the current interpretation of section 80
of the Constitution has been subject to criticism because it enables the parliament
to circumvent a fundamental constitutional protection. These submissions also
highlighted the 'persistent minority' view within the High Court.
For example, Mr Alexander Street SC provided the
committee with his analysis of High Court decisions made in relation to section
80 of the Constitution.
Mr Street concluded that, in his opinion, the current interpretation of section
80 of the Constitution is based on 'unpersuasive and substantially unreasoned
early High Court of Australia authority arising from legislation not consistent
with the standards of our modern multicultural society'.
To try and define discipline offences that give rise to
exposure to imprisonment in excess of two years as not indictable offences
within s80 is, in my opinion, bound to be held invalid. The Constitution is not
a frozen fossil in the principles of interpretation.
Mr Street also pointed out that section 73 of the Constitution creates
an integrated court system, with the High Court at the apex, and that a
Chapter III military court would sit within that system. He noted that 'it
is very important to understand that there are significant advantages and
protections which give rise to greater transparency, greater accountability and
consequently...greater acceptability and greater confidence if one takes this
step forward towards creating a chapter III court'.
Some submissions also foreshadowed the circumvention of section 80 of
the Constitution by clause 64 of the Military Court Bill as a likely basis for
a constitutional challenge. For example, Associate Professor Duxbury, Dr Liivoja
and Associate Professor Groves submitted:
If this issue is not corrected, the trial of very serious
offences in a military court without the use of an indictment (and the
associated right to a trial by jury) could provide a tempting vehicle for the
High Court to reconsider the arguably literal interpretation [of section 80 of
the Constitution] that currently prevails. If the High Court approached the
question as one of substance rather than form, the trial of very serious
offences in military courts could be contrary to s 80. Put simply, it could be
argued that such offences are an impermissible evasion of s 80.
The academics went on contend that a 'separate but logically related
point' is that, if the Military Court of Australia fully complies with the
requirements of Chapter III of the Constitution, then it may be argued
that 'the apparent evasion of s 80 essentially threatens the institutional
integrity of the Military Court of Australia, which is incompatible with its
status as a Chapter III court'.
At the hearing, Associate Professor Groves commented:
[T]he High Court could look at the provision which deems
offences not to be ones of indictment. The High Court could...say, 'Just because
you say they are not does not mean in constitutional terms that we think
otherwise.' The decision of the High Court in Lane v Morrison and also
its recent migration decisions emphatically make the point that the words of
the legislature are one thing; their constitutional meaning is quite another.
And it is the second issue which is the province of the High Court and the
High Court alone.
At the public hearing, an officer from the Attorney-General's Department
highlighted that the approach taken in the bills is consistent with the legal
advice the government has received and follows a long line of High Court
Some of the [witnesses appearing before the committee have]
referenced the fact that there have been dissents in the past which have been
quite powerful, but they consistently have been dissents. From our perspective
we think it is a fairly settled area of law that it is for the parliament to
decide what indictable offences are and hence trigger the need for a jury.
In this particular case, the government has decided as a policy decision
that they are not to be indictable offences.
The EM to the Military Court Bill emphasises that the Defence Force
Discipline Act complements, and does not replace, the criminal law in force in
If conduct is to be prosecuted as a criminal office, service
personnel, like civilian citizens, will be afforded a trial by jury if
prosecution is of a criminal offence by a civilian Director of Public
Prosecutions on indictment.
However, a number of submissions pointed to the seriousness of the offences
that will be dealt with by the Military Court and argued that this factor means
that trial by jury should be available to defendants. Others considered that the
lack of trial by jury before the Military Court for serious service offences means
that the existing system of service tribunals should be maintained. For example,
the Law Council of Australia argued that 'given the serious offences considered
by the Military Court and the capacity for the Military Court to impose
sentences of life imprisonment, trial by peers should not be abrogated'.
The Australia Defence Association also noted that the provisions of the
Military Court Bill would mean that 'a judge, sitting alone without a jury (or
court martial board), will be empowered to sentence offenders up to and
including life imprisonment'.
Mr David McLure listed the serious offences which could be dealt with by
a single judge of the Military Court:
A single judge of the [Military Court] will have the power to
try members of the ADF for a number of [Defence Force Discipline Act] offences
punishable by life imprisonment, such as s 15B aiding the enemy whilst captured,
s 15C providing the enemy with material assistance, s 16B offence committed
with intent to assist the enemy and s 20 mutiny. No civilian court will have
the jurisdiction to deal with those offences. Additionally, a single judge of
the [Military Court] will have the power to try civilian offences picked up by
[Defence Force Discipline Act] s 61 which are also punishable by life
imprisonment, such as murder (Crimes Act 1900 (ACT) s 12) and
numerous offences in the Criminal Code 1995 (Cth).
The Returned and Services League of Australia (RSL) provided the
committee with its commentary on the 2010 legislation, which also did not treat
service offences before the proposed Military Court as indictable offences. The
RSL noted that nothing in any other areas of the law 'in any way discriminates
members of the [ADF] from other Australians in so far as their rights as
citizens are concerned'.
In denying trial on indictment of any offence, more
particularly a serious service offence, the legislation denies trial by jury of
a kind envisaged in s.80 [of the Constitution]. In doing so, the [Military
Court Bill] denies the service member the protection of a jury trial for the
determination of charges of serious offences carrying on conviction penalties
of potentially lengthy terms. The service member is denied the "protection"
from having his/her guilt or innocence being determined by judge sitting alone.
At the public hearing, Mr Street characterised the establishment of the
Military Court as a change from an 'analogue' military discipline system to a 'digital'
military justice system.
Mr Street drew a distinction between offences tried before a Chapter III court
and those heard within the military discipline system:
Defence will always have to maintain a discipline system
within the command structure; it is essential. That discipline system within
the command structure is fundamental to the most important active duty in a war
zone environment. In those circumstances, discipline in the field is something
that command exercises every day. But command discipline is something quite
different from what a court can do. A court does not exercise discipline. A
court created under chapter III will resolve controversies...[and, in effect] criminal
matters. That is a material difference in understanding the function being
Further, Mr Street argued that the Military Court 'does need a jury if
you are going to give it, as it is currently proposed, the power to hear
charges that, on their nature, are ones which have all the hallmarks of being
indictable offences because then you are materially impacting on the rights
that [accused persons] would otherwise have had in respect of those criminal
The Attorney-General's Department highlighted the distinction between civilian
criminal offences and the service offences which the Military Court would deal
Service offences are complementary to, and do not replace, the
criminal laws in force in Australia. The Military Court has jurisdiction to
hear service offences only. There are some instances where a service offence
may be seen to be similar to a civilian criminal offence. However, this does
not mean that serious service offences should be tried in an identical way to
criminal offences without recognising the unique purpose of service offences to
substantially serve the purpose of maintaining or enforcing service discipline.
The Attorney-General's Department also advised that the 'establishment
of the Military Court is not intended to change the essential nature of the
military justice system':
The 2005 report of the Foreign Affairs, Defence and Trade
Committee described the military justice system as including the discipline
system (dealing with offences under the [Defence Force Discipline Act]) and the
administrative system (dealing with matters affecting administration, command
and control). To describe a distinction between the Court dispensing military
justice and commend dispensing military discipline does not take into account
administrative law mechanisms which are also part of the broader military
The discipline system within which the Military Court would
be established, is, and will continue to be, a single system to deal with
service offences which are created for the essential purpose of maintaining and
enforcing service discipline.
The Attorney-General's Department also noted the importance of the
Military Court's capacity to prosecute serious offences committed by
defence personnel overseas:
The Military Court will have jurisdiction in relation to
serious service offences committed outside Australia by Australian Defence
Force members. It is important for a military justice system to be capable of
operating effectively overseas where required as well as in Australia. Other
Australian courts have limited jurisdiction over offences committed outside
Australia. In situations where the Military Court decided that there is a need
to try service offences overseas, the requirement to empanel a civilian jury
would impose significant practical barriers to the prosecution of service
The capability and merits of civilian juries were raised in relation to
the Military Court, and particularly service offences. Some submissions to the
inquiry drew attention to the statement in the EM to the Military Court Bill
that 'a civilian would not necessarily be familiar with the military context of
Several witnesses and submissions disputed this argument as a reason for
excluding trial by jury in the Military Court. For example, Ms Gabrielle
Appleby and Professor John Williams argued:
[The] criminal justice system asks a lot of juries, and they
are often required to understand complex evidence, often provided by scientific
and medical experts. It does not seem congruent with our acceptance that juries
are able to understand this, to argue that they will not have, or not be able
to gain, an understanding of the context of service offences.
Similarly, Mr Street commented:
There is, in fact no military discipline offence so called,
in my opinion, that a civilian criminal jury could not determine. Other than
the prejudicial conduct offence under s60...any suggested requirement for
specialist military discipline knowledge for the constitution of the jury is,
with the greatest respect, a myth.
The RSL also highlighted that the Australian general public includes
'hundreds of thousands' of men and women who have served in the armed forces:
Many thousands of ex-servicemen and ex-servicewomen would in
the past, and continue to be associated with the jury system. In terms of so
called military context of service offence issues, there would be tens of
thousands who by reasons of service or training understand or are able to
understand the nature of service in the ADF and relevant issues.
However, Associate Professor Matthew Groves listed a number of factors
which complicate the use of trial by jury in relation to the military justice
system. In particular, he indicated that 'there is a tension between
potential trial by jury, which protects people but necessarily delays things,
on the one hand, and, on the other hand, the need for the military to sort
things quickly'. Further, he noted that the criminal law distinction between
summary and indictable offences does not translate to the military context and
'most people would agree that a civilian jury would be particularly
ill-equipped to assess that particular context'.
The importance of continued involvement by military officers, rather
than civilian juries, in the trials of service offences was raised by several
submitters and witnesses. Mr David McLure emphasised that the importance of
'the involvement of military officers in the military trials' has been
previously recognised in earlier reforms to the military justice system. He
noted that the EM to the 2006 legislation creating the Australian Military
Court accepted that 'knowledge and understanding of the military context and
culture is essential'; and observed that 'one of the ways [the previous Australian
Military Court] system sought to engender credibility with, and acceptance of,
the Defence Force was to involve military juries in the determination of serious
Mr McLure concluded that the 'reality is that the [currently proposed Military
Court] will be viewed by many if not most members of the ADF as an externally
imposed system in a way that the court martial and [defence force magistrate]
system is not'.
In contrast, Professor John Williams observed that civilian juries could
also serve to provide an additional function for the Military Court by
contributing to civilian oversight of the military. He stated that 'civilian
oversight, input and moderation in the area of the criminal justice system or
the military justice system is also something in this context we should be
At the hearing, the Chief of the Defence Force advised that the proposed
bills remain faithful to the Senate Foreign Affairs, Defence and Trade
Committee's 2005 report on military justice. He noted that the 2005 report 'was
silent as to the requirement for juries' and that this 'implied that chapter
III judges would be the trier of fact and law' in the Military Court.
Civilian and military juries and legal advice were considered
along with a number of models when we worked with the Attorney-General's
Department [on the development of the bills]. Only the model proposed provides
the following: that the trier will understand the nature of service in the ADF;
that it is a constitutionally guaranteed independence and impartiality; and
written reasons for both verdict and sentence will be provided.
An officer from the Department of Defence also emphasised the unique
character of service offences in relation to civilian juries:
Our view would be that a judge that meets the qualifications
in the bill is better placed to understand the nature of service offending than
a civilian jury. Service offences are not criminal offences. It is not a
criminal jurisdiction like you would see in the civilian world. There is a
range of service offences, such as disobeying a lawful command, disobeying a
lawful general order and assault on a superior officer, that have a very strong
discipline nexus to them that perhaps would not be readily apparent to a
civilian jury...[T]he best way to address that issue is to have a judicial figure
who is independent, who has the requisite training experience and who
understands the nature of service offending—this is the best adjudicator of
fact in the circumstances.
Consistency with service tribunal system
The consistency of the proposed Military Court with the previous service
tribunal system, particularly courts martial, was raised. A number of submissions
took issue with the characterisation of service offences being tried without a
jury, as articulated in the EM to the Military Court Bill, as being 'consistent
with the current determination of service offences under the [Defence Force
Discipline Act], which also does not provide for a trial by civilian jury'.
For example, the Law Council of Australia noted that general and restricted courts
martial guarantee all servicemen and women the right to a trial by their fellow
Similarly, Mr Alister Abadee commented that 'experience has long shown
the value and efficacy of a system of courts-martial to act as a
quasi-disciplinary tribunal of peers in administering discipline for service
offences'. He also noted that '[o]nce the power to discipline peers is taken
away from a particular segment of the community for whose protection it exists,
and transferred to a civilian judge, it can cause great resentment'.
Serving personnel are entitled to expect that the tribunal of
fact...has a full understanding of the exigencies of service life and its
operations...[T]he true test is at the pointy end of hard cases concerning purely
service offences involving deadly operations in the fog of war. It is difficult
to conceive that an accused charged with a disciplinary offence in that context
would prefer to have his or her liberty...hang in the balance of a civilian judge
with little real exposure to such activities.
Several submitters and witnesses argued that the roles played by members
of a jury and members of a court martial panel are analogous in protecting the
rights of the accused.
For example, the Hon Alan Abadee AM RFD QC, representing the RSL, told the
[O]ffences under the Defence Force Discipline Act when they
are tried by a military tribunal, that tribunal, or more accurately the court
martial panel itself, plays the role somewhat akin to the role played by a
civilian jury of 12 in respect of ordinary criminal offences tried in the
ordinary criminal courts. What happens is, in terms of fairness, that not one
person determines sitting alone guilt or innocence, but rather the issue in
respect of serious service offences is determined by a panel of not fewer than
five in the case of a general court martial or not fewer than three in the case
of a restricted court martial. Indeed, in many ways the procedure that is
adopted in respect of the current court martial system is very much the
criminal procedure that is adopted in respect of trial of offences against the
ordinary civil law in terms of the trial being conducted on indictment by an
ordinary criminal court or civil court in Australia.
In terms of fairness in respect of an indictable offence, if
I can use the expression, fairness is met very much by trials being conducted
by 12 persons, multiple persons, acting together and reaching a unanimous
However, the Attorney-General's Department distinguished the role played
by courts martial panels from that of civilian juries in criminal trials:
In the current court martial system, the role of the court
martial panel is not akin to a jury but rather as superior officers in the
chain of command reinforcing the service discipline aspect of a service
offence. While a jury may be perceived as discharging a similar role, a jury
would in effect be performing a role more consistent with its civilian criminal
offence underpinnings, rather than reinforcing service discipline as a core
element of the military justice system.
At the public hearing, Associate Professor Alison Duxbury noted that
'there are a number of countries who have civilian judges in their military
justice systems because, of course, the military justice system is part of the
Conversely, Mr David McLure argued that the Military Court Bill proposes a
system 'out of step' with the civilian justice systems and the military justice
systems of Australia's allies. He outlined that, with the establishment of the
Military Court, Australia, in contrast to military justice systems in Canada,
New Zealand, the United Kingdom and the United States, would be the only
jurisdiction that 'limits the trial of serious service offences to civilian
judges without the option of a court martial panel or military jury'.
Mr McLure also highlighted that the proposal to conduct trials for
service offences without the involvement of military officers is not a policy
Rather, as clause 10 of the Explanatory Memorandum (EM) makes
clear, 'a jury in a Chapter III court could not be restricted to Defence
members and a civilian [jury] would not necessarily be familiar with the
military context of service offences'. It can be seen from this that the
proposal to conduct trials by a judge or federal magistrate sitting alone
without a military jury or court martial panel is the price to be paid for the
choice to establish the [Military Court] under Chapter III, based on the
recognition that it would be inappropriate for a military court to be
constituted by a civilian judge and civilian jury.
At the public hearing, Mr McLure stated that 'while it is true that
involving a civilian judge who is independent from the military does add a veneer
of respectability and credibility to the decision making [process], because
such decisions are clearly not necessarily influenced by the desires of the
military, what one loses at the expense of this is the experience that military
officers and military judges can bring to bear'.
Mr McLure argued that 'a system in which military officers participate in
the trial of serious offences with the assistance of a legally qualified judge
is likely to be a better one'.
He recommended that if 'the Parliament is determined to establish a
Chapter III court...it should explore constitutional reform in order to
permit a jury solely made up of military officers'.
The Australia Defence Association also disputed the policy justifications
for the establishment of the Military Court without a right to trial by jury for
serious service offences:
The exclusion of trial by jury stems directly and only from
the arcane legal mechanics of establishing such a specialist jurisdiction as a
court under Chapter III of the Constitution, rather than continue with courts
martial as disciplinary tribunals under the defence heads of power. Both the
unfairness and probable constitutional invalidity involved surely mean the
whole concept of a Chapter III court specifically for our defence force should
not proceed on this ground alone.
Reasons for judgement
At the public hearing, witnesses from the ADF emphasised that an
advantage of the Military Court is that judicial officers would be required to
provide reasons for judgement and decisions. In particular, the Chief of the
Defence Force stated:
Importantly, juries do not provide reasons for decisions;
judges do. Providing reasons for findings enhances the maintenance of service
discipline and far better supports the proposed appeal system.
In addition, an officer from the Department of Defence commented:
[I]f somebody understands why they have been convicted
because the judge gave extensive reasons—and those reasons would obviously go
to the nature of the service offending, the service offence and the context in
which the service offending occurred—all that would be on the public record and
all of that would feed back into our discipline system across the Australian
Defence Force. You would in fact build up a system of military law, military
jurisprudence, that would address those issues, the reasons why conviction has
occurred and the reason for the offending. You do not get any of that with a
simple 'guilty' or 'not guilty' by a civilian jury. So we see real benefits in
terms of the jurisprudence that comes out of this and the understanding of the
service offending that occurs, and in our ADF members understanding that as
well. We actually see this as being something that is ahead of the jury system;
it is a real plus for us in terms of the maintenance of service discipline.
Similarly, the Inspector General Australian Defence Force, described the
requirement for reasons to be given for judgements by the proposed Military
Court as a 'welcome change which in practice should help in addressing the
concerns of those who are worried about the absence of a panel or jury
equivalent in Military Court trials'.
The Attorney-General's Department also advised:
Trial by a judge sitting alone means that service personnel
will be provided with reasons for both conviction and sentence. This does not
occur with current courts martial and would not occur with a jury trial. The
provision of reasons provides greater transparency and fairness for service
personnel, particularly in providing a clear basis for any appeal.
However, in a joint submission made following the public hearing, Mr David McLure
and Mr Alister Abadee disagreed with the suggestion that providing reasons
for judgements is an advantage of the Military Court which could not also be
provided by the existing service tribunals. They noted that, while in practice,
'court martial panels in Australia usually do not give reasons for their
decisions', in their experience 'it is not uncommon for panels to make some
comment when announcing their decision on punishment'.
Mr McLure and Mr Abadee argued:
[I]t is clear that it is not necessary to abandon the
existing system and create a Chapter III court in order to introduce a
requirement that all decisions be supported by a statement of reasons. This
could be achieved by a simple amendment to the [Defence Force Discipline Act],
requiring court martial panels to give reasons.
The committee welcomes the establishment of the Military Court, which
had its genesis in the Senate Foreign Affairs Defence and Trade References
Committee's report in 2005 into Australia's military justice system. The
proposed Military Court substantially accords with the recommendations of that
report and the committee agrees with the following finding:
Service members should still retain the right to access
independent and impartial tribunals for the determination of their guilt or
innocence. Their decision to serve and defend Australia should not mean that
they sacrifice the basic right to a fair trial possessed by every Australian
citizen. Where the military purports to exercise jurisdiction over Service offences...this
should only be done through a court created under Chapter III of the
The bills also make a number of other worthwhile reforms to Australia's
military justice system. In particular, the committee notes that the bills will
modernise the existing provisions relating to persons found unfit for trial or
persons acquitted on the basis of mental impairment. These persons will now be
dealt with similarly to persons within the civilian criminal justice system. The
provision for the statutory recognition and independence of the Office of
Director of Defence Counsel Services is also a significant improvement. The
proposed amendments reflect a commitment to the protection of the rights of ADF
members involved in the military justice system.
Appointment requirements and
The committee acknowledges the concerns raised during the inquiry regarding
the provisions for the appointment of judicial officers to the Military Court.
In the view of the committee, these requirements strike the right balance
between judicial independence and understanding of military service. In
particular, the committee agrees that the appointment of serving ADF members or
reservists to the Military Court would be inappropriate. Such a situation
would risk a perception of a lack of independence and impartiality on the part
of the court and, potentially, a constitutional challenge. Similarly, the
appointment of serving state judicial officers to the Military Court could
present practical and legal difficulties. The committee notes that former state
judicial officers will be eligible for appointment to the Military Court. Concerns
were also raised during the inquiry with other aspects of the Military Court's
establishment, for example, in relation to appeal processes. The committee
is satisfied, however, that these aspects are both justified and are not
unprecedented within the federal court system.
Residual use of courts martial and
defence force magistrates
The residual use of courts martial and defence force magistrates was a matter
of concern for some witnesses and submitters. In the view of the committee,
this is a pragmatic approach which will support the maintenance of military
discipline, even in situations where the Military Court determines it is
necessary, but not possible, for the Military Court to conduct trials overseas.
Situations which require the residual use of courts martial and defence force
magistrates are likely to be rare. Nonetheless, the committee is reassured that
the ADF understands the need to continue to maintain the expertise and training
within the ranks of the ADF to conduct trials in these service tribunals.
Trial by jury
The maintenance of military discipline in the ADF is a vital component
of its effectiveness, both in times of peace and war. In the committee's view, defence
personnel do not cease to have the rights and protections of Australian
citizens, however, they do give up some rights by voluntarily enlisting in
armed service and becoming subject to military discipline, including the
service offences listed in the Defence Force Discipline Act. Even a 'defence
civilian', a person other than a defence member who accompanies the defence
force on operations, must consent in writing before becoming subject to defence
No right to trial by jury existed previously for those charged with serious
service offences tried before courts martial or defence force magistrates. The committee
does not agree with the comparisons made during the inquiry between trial by
jury and trial before a court martial panel. In particular, a court martial
does not provide a trial by peers as this service tribunal is entirely composed
of officers of rank more senior than the accused.
The committee also notes that the Defence Force Discipline Act will
continue to oblige the Director of Military Prosecutions to seek the consent of
the Commonwealth Director of Prosecutions before commencing prosecutions for
serious offences which may be brought within the military justice system.
Further, arrangements between the Director of Military Prosecutions and the
Australian Directors of Public Prosecutions will ensure that, where defence
personnel are alleged to have committed offences in Australia with civilian
criminal law equivalents, those trials will appropriately be held in civilian
courts where trial by jury is available for indictable offences.
The committee acknowledges the legitimate concerns expressed by
witnesses and submitters regarding the fairness of trials being held before a
single judicial officer of the Military Court for ADF members accused of
serious service offences. In particular, the committee recognises the
longstanding work of the Returned and Services League of Australia and the
Australia Defence Association in advocating for the interests of ADF members on
this issue. However, in the view of the committee, the legal framework and the practical
requirements of the military justice system complicate the introduction of
trial by jury for serious service offences. These practical requirements
will be highlighted when the military justice system is required to operate
overseas, as a Military Court trial held in an operational setting would not be
able to empanel a jury.
The committee considers that the establishment of the Military Court
will have a positive impact on military discipline and confidence in the
military justice system. The committee also notes departmental advice that the
vast majority of service offences will continue to be dealt with summarily by
ADF commanders. The Military Court will have a 'strong service character'
as in most cases prosecutors, defence counsel and the defendant will be defence
personnel. Further, the judicial officers of the Military Court will be
required, by reason of experience or training, to understand service within the
ADF. The judicial officers of the Military Court will also provide reasons for
judgement which will clarify and support the application of military discipline
in the future.
While the committee acknowledges that dissenting High Court views have
been expressed regarding the character of section 80 of the Constitution, the
literal interpretation of section 80 has been affirmed in a consistent series
of High Court decisions. The current legal position is that it is for the parliament
to determine which offences will proceed on indictment. There remains a risk of
a constitutional challenge to the establishment of the Military Court as a
Chapter III court without the option of trial by jury for serious service offences.
Accordingly, the Australian Government should prepare a contingency plan
in the event that this should occur. Nonetheless, the Australian Government is
entitled to rely on its legal advice in relation to section 80 in establishing
the Military Court under Chapter III of the Constitution.
As a final note, the committee expresses its concern that important
components of the policy rationale for the provisions establishing the Military
Court, and the other proposed reforms, were not included in the explanatory
memoranda to the bills and were only provided by the Attorney-General's
Department when specifically requested by the committee in questions placed on
notice. This information would have been particularly useful in clarifying
some of the legal, technical and practical issues surrounding the establishment
and proposed operation of the Military Court, and in assisting the committee to
finalise its deliberations and the content of its report at a much earlier
stage than was ultimately the case. The committee considers that this
additional information should be added to the explanatory memoranda of the
bills to assist subsequent interpretation of their provisions.
The committee recommends that the explanatory memoranda of the Military
Court of Australia Bill 2012 and the Military Court of Australia (Transitional
Provisions and Consequential Amendments) Bill 2012 be amended to incorporate
the additional policy rationale for the provisions of the bills that was
received in evidence from the Attorney-General's Department during the committee's
Subject to Recommendation 1, the committee recommends that the Military
Court of Australia Bill 2012 and the Military Court of Australia (Transitional
Provisions and Consequential Amendments) Bill 2012 be passed.
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