Military justice is coming under fire from a number of fronts. Justin Whealing reports
Depending on your viewpoint, legal issues around defence have either become really interesting or are a total shambles.
On 11 October, Defence Minister Stephen Smith received Volume One and the first tranche of Volume Two of a report into allegations of abuse in the Defence Force that he labelled the "DLA Piper Report". That was a fair enough description at the time he commissioned the report in April, in the wake of the Skype sex scandal at the Australian Defence Force Academy.
The three lawyers who were writing the report - Melanie McKean, DrGary Rumble and Professor Dennis Pearce -were all employees of DLA Piper, with McKean a partner and Rumble and Pearce special counsels.
However, by 11 October that had all changed substantially. McKean had left the firm with five other partners in August to join the new Canberra office of HWL Ebsworth, and Rumble and Pearce joined her just over one week after the report was handed to the Minister.
On 19 October the Federal Opposition used Senate Estimates hearings to question the independence of DLA Piper in being entrusted with the Review, given they are on all 15 of the Department of Defence and Defence Material Organisation (DMO) legal panels and receive millions in fees for that work.
With Volume Two of the Report due to hit the Minister's desk later this month - but no timetable for its public tabling, there is conjecture about who is now handling the report, if it is biased, when it will be released and if it will continue to be called the DLA Piper Report, as none of the three authors now work for the firm.
"There is a general air of uncertainty that has been ongoing for some years in relation to the military discipline system"
Bruce Levet, Barrister, Henry Parkes Chambers
Anthony Willis, the DLA Piper client relationship partner for Defence, told Lawyers Weekly that "no decision has been taken in respect of the future work coming out of the Review. Having most of the lawyers who have done most of the work on staff, DLA Piper is well placed and, naturally, is keen to assist the Minister or the Department to undertakefurther work if required".
HWL Ebsworth would not comment on whether there are any ongoing matters the firm is handling with relation to the inquiry, and all three of the report's authors declined to shed any light on the situation when asked by Lawyers Weekly.
The state of flux that the Defence abuse inquiry finds itself in is a perfect microcosm that illustrates the level of confusion and conjecture that currently plagues the state of military justice in general.
On 24 May 2009, Attorney-General Robert McClelland and former Defence Minister John Faulkner announced that a dedicated court for the armed services, the Military Court of Australia (MCA), would be established to bring to an end the uncertainty surrounding the military justice system.
That hasn't happened.The MCA was to replace the Australian Military Court (AMC), set up by the Howard Government in 2007, because that was declared unconstitutional by the High Court in 2009. However, the MCA is not yet operational, with the Government, already battling contentious legislation such as the proposed mandatory pre-commitment on pokies and refugee policy, showing no appetite to try and pass it through Parliament in light of criticism rom a number of military law experts and military bodies that the proposed new court could also be unconstitutional.
Therefore, the Government has gone back to the old system of trial by court martial and a defence force magistrate to try members of the armed services, which is what the AMC, back in2007, tried to circumvent.
It is clear that military justice in Australia is in a state of confusion. "There is a general air of uncertainty that has been ongoing for some years in relation to the military discipline system," says Bruce Levet, a barrister with particular expertise in military law. "It's an un-necessary air of uncertainty.
We need to get back to that which is tried and true. In other words, the current interim measures (court martial system) need to be retained on a permanent basis."
Levet is well qualified to make such comments. A member of the Army Reserve, he has acted on a number of high-profile military cases, including acting for Judy Kovco in the inquest into her son Jake's death in Iraq - the first Australian soldier to die there - and the appeal to the High Court regarding the sacking of former army captain Paul Nicholas, who was dismissed after the now defunct AMC found him guilty of perverting the course of justice.
Levet describes the court martial system asbeing "a Rolls Royce" system of military discipline, and believes that if the Military Court of Australia was ever established, it wouldn't last long.
"If this was a discipline rather than a justice system, you could say a court martial juryor a Defence Force Magistrate provides the appropriate degree of fairness," he says. "But in a situation where you are purporting to exercise the judicial power of the Commonwealth, to not have a jury I would say is unconstitutional."
"The department has briefed DLA Piper. That is not an independent law firm"
Brian Briggs, practice group leader, military law claims, Slater & Gordon
Brian Briggs, the practice group leader of military law claims at Slater & Gordon, is currently seeking the establishment of an ex gratia scheme to pay former members of the Defence Force who have been found to be abused.
He says the Department of Defence has given clients the cold shoulder with regard to the abuse inquiry. "They don't talk to our clients," he says. "The Department has briefed DLA Piper. That is not an independent law firm. As far as I am aware, DLA Piper has never run a member's claim - they have only opposed them.
"They didn't ask us for any input and whenever we come out and go to the media, the Minister has heart palpitations."
Briggs was interviewed for an episode of ABC TV's 4 Corners program in June that looked at abuse in the Defence Force.
He says that based on previous experience, he is not hopeful the review will establish a comprehensive compensation system for members of the Defence Force found to be abused.
"I don't have faith in the whole process, to tell you the truth," he says. "Alot of the feedback I got from clients with respect to the whole review was that there was too much paper work, they couldn't get through, they got answering machines, they just got fed a whole stack of forms, it was all too overwhelming, it rekindled old memories and they don't want to get involved in it."
They had over 1000 claims lodged and I reckon that was the tip of the iceberg of what was out there."
After a week in which horse racing was the focus for the country, the smart tip is that the problems facing Defence will not be resolved anytime soon.