Alison Duxbury

The curious case of the Australian Military Court

On 26 August 2009 the High Court of Australia delivered its decision in Lane v Morrison.1 In two separate judgments the seven judges ended the life of the Australian Military Court (AMC), a body established pursuant to the defence power in the Commonwealth Constitution2 less than two years previously. The High Court’s ruling created a lacuna in Australia’s military justice system and resulted in a hurried return to the former system of courts martial and Defence Force magistrates, which the AMC had been created to replace.3 Simultaneously, the Federal Parliament passed legislation designed to ‘impose disciplinary sanctions on persons corresponding to punishments imposed by the AMC’4 in the 171 decisions made by the AMC in its short history.5 Recognising that the reemergence of courts martial and Defence Force magistrates was an interim solution, in June 2010 the Attorney-General introduced a Bill into Parliament to create a new court, the Military Court of Australia.6 This latest court is intended to place the military justice system on clear constitutional foundations in accordance with Chapter III of the Constitution, thus removing, or at least decreasing, the possibility of future challenges. While the proposed court will no doubt constitute a federal court for the purposes of the Constitution, it does not provide defendants with other constitutional protections, including trial by jury.

The Commonwealth Secretariat and the implementation of human rights

Abstract The Commonwealth Heads of Government have articulated a broad vision of human rights for all Commonwealth citizens. It is the role of the Commonwealth Secretariat as the main agency for joint endeavours within the Commonwealth to implement that vision. This article evaluates the Secretariats progress in implementing the pledges made by other Commonwealth organs in the field of human rights. It argues that the Secretariat has made significant progress in a number of areas since the adoption of the Harare Declaration in 1991, but more work needs to be done in order to deliver a complete system for the promotion and protection of human rights.

The reform of military justice

© Cambridge University Press 2016. At the conclusion of World War I a committee established by the United Kingdom Army Council was tasked with examining the ‘law and rules of procedure regulating Military Courts-Martial, both in peace and war, and to make recommendations’. In its 1919 report to Parliament, the committee began by noting the ‘enormous expansion of the Army during the European war’ and the ‘corresponding increase in the number of Courts-Martial’. Sadly, it also stated that the difficulties in dealing with the volume of legal work were exacerbated by the fact that ‘so many of the regular officers who were familiar with military law’ were lost in the first few months of the war. The need for reinforcements ‘rendered it impossible to devote much attention to the legal side of the training of new officers’. The committee was of the opinion that given the difficult circumstances, as a whole, the work of courts martial during the war was ‘well done’, although it made a number of recommendations for future improvements. Such recommendations included redrafting the Army’s disciplinary code to remove repetition and overlapping provisions and the appointment of trained legal advisers with experience in military discipline to assist in a number of matters, such as the work of courts martial and legal education. The committee commented on a range of matters, including the distinction between courts martial held on active service and in times of peace, the difficulties in ensuring justice while on operations, particularly where troops were in proximity to the enemy, and the rights of soldiers when charged with offences. In the (nearly) one hundred years since this report was written, the military justice system in the United Kingdom has been subject to a number of different reform efforts, not least due to the entry into force of the European Convention on Human Rights (ECHR) in 1953 and the adoption of the Human Rights Act 1998 (UK). Such reforms are not limited to the armed forces of the United Kingdom. As the chapters in this book demonstrate, military justice systems throughout the world, whether they are separate from the civilian justice system, as in the United Kingdom, or a part of that system, are in a state of transition.

Military Justice in The Modern Age

This chapter examines the US practice of not charging its service members with war crimes. The chapter briefly explains how the United States asserts criminal jurisdiction over its service members before turning to how the US military reports violations of the laws of war. It then sets out the US methodology for charging such violations as applied to its service members, and compares this methodology to that applied to those tried by military commissions. The chapter then discusses the varied meanings of the term ‘war crimes’ and the way in which the 1949 Geneva Conventions can provide a benchmark against which the elements of offences, and their punishments, can be compared. While the US practice fares adequately in this comparison, the argument for a pragmatic approach to charging over the expressive value of a war crime charge is rendered untenable as a result of the disparate manner in which the United States charges detainees when compared to its own service members.