With Australia's military justice system in a state of disarray, Justin Whealing looks at why military law experts believe a shift away from the court martial system is not necessarily in the best interests of justice.

When Attorney-General Robert McClelland and former Defence Minister John Faulkner announced on 24 May 2010 that a dedicated court for the armed services, the Military Court of Australia (MCA), would be established, it was hoped the announcement would bring an end to the uncertainty surrounding the military justice system.

Instead, more questions have emerged.

The new court, which is hoped to start hearing matters late next year, has been criticised by military law experts and military bodies on the basis that it would not provide for fair and proper trials.

The MCA is due to replace the Australian Military Court (AMC), which was declared unconstitutional by the High Court last year after less than two years in operation.

On top of debate regarding a new Military Court, the charging of three Australian soldiers in Afghanistan for offences relating to the death of five Afghani children in February 2009 has provoked a storm of invective and bile towards the Director of Military Prosecutions (DMP) from high-profile media commentators.

With that argument continuing, in late October Justice Virginia Bell of the High Court granted leave to the appeal of a former army captain, Paul Nicholas, to a full-bench of the High Court. Nicholas was sacked after the AMC found him guilty of attempting to pervert the course of justice in relation to a $1900 expenses claim.

If the appeal is successful, it is probable that the 171 decisions of the AMC will be declared invalid.

After the High Court declared the AMC was unconstitutional, the Rudd Government introduced legislation that effectively recognised the decisions of the AMC. This was something that barrister Alexander Street dubbed as being akin to "a masterpiece of creative imagination whereby Parliament is seeking to re-declare valid what the High Court has declared invalid".

Street was the barrister in the celebrated Lane v Morrison case, where he successfully acted for a sailor charged with indecent assault against a superior officer. The High Court found that no charges could be laid against Lane, as the AMC was constitutionally invalid.

With the AMC declared unconstitutional and the new Military Court of Australia not yet operational, the Australian Government has gone back to the old system of trials by court martial and a defence force magistrate.

"After Lane v Morrison, the Commonwealth was pushed into a corner," says James Stellios, a constitutional law expert from the ANU and a consultant with Clayton Utz. "It could have reverted back to the old system of court martial or set up a new court addressing those concerns."

The government did propose a new court, but it didn't stop the impression that the military justice system is in a state of disarray.

"Military justice in Australia has been in a state of flux for some time now," says Bruce Levet, a barrister and military law expert.

Levet is acting for Paul Nicholas in his case before the High Court. He has previously acted for Judy Kovco in the inquest into her son Jake Kovco's death, the first Australian soldier to die in Iraq.

Levet believes that while reform of the military justice system was needed, and that the court martial system had some limitations, the AMC and MCA do not provide for more rigorous trials for members of the defence force.

"It is a lot fairer for the soldiers to br tried under court martial," he says. "I have been involved in a number of court martials, and they are as fair a form of trial in the military context as I think you could have."

The move away from the court martial system

The reform of Australia's military justice system started in 2005 after the handing down of a report by the Senate Foreign Affairs, Defence and Trade Committee.

The committee was established after a number of unsuccessful High Court challenges to the court martial system, and some high-profile cases of bullying and harassment in the military, including instances of defence personnel taking their own lives.

At the time, the court martial system was also coming under fire internationally, with court decisions in the United Kingdom and Canada ruling that military tribunals were not compliant with human rights obligations.

The committee recommended a number of reforms, including the establishment of the DMP and a dedicated military court that would replace the court martial system.

The Howard Government duly established the AMC in October 2007, but did not heed the recommendations of the committee to establish a court in accordance with Chapter III of the Constitution.

"The committee had some concerns that the system of military discipline didn't display sufficient degrees of independence and impartiality in the military," Stellios says. "It recommended that parliament establish a Chapter III Court (for the military), but for operational reasons, the government didn't decide to do that."

Stellios says the AMC was then established to have a greater degree of independence and impartiality, as compared to the court martial system, and that it was this greater degree of independence from the chain of command, but outside the realms of Chapter III provisions, that eventually led to its demise.

For Neil James, the executive director of the Australia Defence Association (ADA), the move away from a court martial system represents a classic case of needless intervention.

While acknowledging the need for the creation of the DMP to be independent of the ADF chain of command as "a much needed reform to improve fairness for defence force personnel facing disciplinary or criminal charges", he says the previous court martial system was fair and was the best method to uphold military discipline and justice.

"Moving away from courts martial, which are actually disciplinary tribunals, to try to create a court ... was, in retrospect, quite a serious mistake," James says.

Professor Simon Bronitt, the director of the Centre of Excellence in Policing and Security at Griffith University, and former associate director of the Australian Centre for Military Law and Justice at the ANU, believes it was inevitable that Australia would move away from a court martial system. He says that human rights concerns and Australia's international obligations necessitated such a move. "The creation of the DMP and the establishment of a military jury system (AMC), although it didn't survive the constitutional challenge, were steps in the right direction towards improving the quality of military justice and to bring it to meet the international standards of a fair trial under international human rights law."

Problems with the MCA

While a new court needed to be established after the AMC fell over, the criticisms of the proposed MCA have been long and loud.

In announcing the establishment of the MCA, the Attorney-General said it would be established under Chapter III of the Australian Constitution, while existing judges of the Federal Court and Federal Magistrates Courts with the requisite background "may be offered" dual commissions to the new military court.

"This new specialist court will deliver a system of military justice for ADF members that combines the necessary independence and constitutional protections for the judiciary, with an understanding of the vital importance of military discipline in the operation of our armed forces," former Defence Minister Senator Faulkner said at the time.

Many legal experts, however, are not convinced.

Levet has written to the Department of Defence outlining his concerns that the new court might also be declared unconstitutional because it does not provide for a trial by jury. This is something that Neil James is also concerned about, adding that "a number of our members (which includes lawyers and barristers) think that it probably won't survive a High Court challenge".

In a statement on its website, the ADA says that the Australian soldiers charged with offences in Afghanistan "will fortunately get a fairer trial by court martial than they would in the proposed new MCA being foisted on the ADF by out-of-touch politicians and civilian lawyers".

Bronitt is also concerned by the structure of the MCA.

"Some really innovative aspects of military justice innovation, which was the military jury, are now lost," he says. "It is lost under the idea of Section 80 of the Constitution where anyone who is indicted in relation to a federal matter is entitled to a jury trial.

"But that is easily circumvented if you characterise the matter as non-indictable, as all military matters no matter how serious will be characterised as non-indictable.

"What you gain with one hand, you lose with the other, and I am particularly sad to see that innovation (trial by jury) lost in the reformation of the Military Court of Australia."

With the legal jury still out with regard to the constitutional validity of the proposed MCA, the only seemingly sure bet is that its constitutional validity will be challenged.

Levet, who says barristers were salivating at the prospect of picking up the brief in Morrison v Lane (which brought down the former AMC), believes military law barristers will also be falling over themselves to pick up any briefs that might flow from decisions of the MCA in the future.

As Levet told Lawyers Weekly last month: "If you have a good case, you might run a defence on the facts, but if you are not able to do that, you would challenge the jurisdiction of the Court to hear the matter.

"I think there would be a very strong chance that such a challenge would be successful."

Similar to the debate about when Australia's involvement in Afghanistan will end, the question of when Australia's military justice system will reach a peaceful conclusion also remains unanswered.