find the latest legal job
Senior Associate - Litigation & Dispute Resolution
Category: Litigation and Dispute Resolution | Location: Melbourne CBD & Inner Suburbs Melbourne VIC
· Come work for a firm ranked in Lawyers Weekly Top 25 Attraction Firms
View details
Associate - Workplace Relations & Safety
Category: Industrial Relations and Employment Law | Location: Brisbane CBD & Inner Suburbs Brisbane QLD
· Employer of choice · Strong team culture
View details
Freelance Lawyers
Category: Banking and Finance Law | Location: All Perth WA
· Freelance opportunities through Vario from Pinsent Masons
View details
Freelance Lawyers
Category: Other | Location: All Adelaide SA
· • Qualified lawyer with a strong academic background
View details
Freelance Lawyers
Category: Other | Location: All Melbourne VIC
· • Qualified lawyer with a strong academic background
View details
Caught in the crosshairs

Caught in the crosshairs

Military justice is coming under fire from a number of fronts. Justin Whealing reports Depending on your viewpoint, le

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

Compensating diggers

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.

Like this story? Read more:

QLS condemns actions of disgraced lawyer as ‘stain on the profession’

NSW proposes big justice reforms to target risk of reoffending

The legal budget breakdown 2017

Caught in the crosshairs
lawyersweekly logo
Promoted content
Recommended by Spike Native Network
more from lawyers weekly
Oct 23 2017
Lawyers slam rushed consultation for SA repeat offenders bill
The Law Society of South Australia has expressed concern for a proposal to roll out new laws amendin...
Oct 23 2017
The pursuit of happiness in the law
A panel of legal experts have explored how to define success in the legal profession, and how lawyer...
Queensland University of Technology, ruby milestone
Oct 23 2017
Queensland law school reaches ruby milestone
Celebrating 40 years since establishing a law course in 1977, the Queensland University of Technolog...
Allens managing partner Richard Spurio, image courtesy Allens' website
Jun 21 2017
Promo season at Allens
A group of lawyers at Allens have received promotions across its PNG and Australian offices. ...
May 11 2017
Partner exits for in-house role
A Victorian lawyer has left the partnership of a national firm to start a new gig with state governm...
Esteban Gomez
May 11 2017
National firm recruits ‘major asset’
A national law firm has announced it has appointed a new corporate partner who brings over 15 years'...
Nicole Rich
May 16 2017
Access to justice for young transgender Australians
Reform is looming for the process that young transgender Australians and their families must current...
Geoff Roberson
May 11 2017
The lighter side of the law: when law and comedy collide
On the face of it, there doesn’t seem to be much that is amusing about the law, writes Geoff Rober...
May 10 2017
Advocate’s immunity – without fear or without favour but not both
On 29 March 2017, the High Court handed down its decision in David Kendirjian v Eugene Lepore & ...