ARTICLES OF INTEREST

DISCIPLINE IN THE FIELD SHOULD BE LEFT TO MILITARY COMMAND

A Personal Opinion by Kathryn Cochrane

Kathryn Cochrane is a barrister and Squadron Leader in the RAAF High Readiness Specialist Reserve. She was junior counsel in the High Court case of Lane v Morrison; this is her personal opinion, not the ADF’s.

Australian troops are angry over the charging of three members of the Special Operations Task Group for offences arising out of a compound clearance in Afghanistan in 2009. Source: The Australian

THE troops are angry with the director of military prosecutions, Lyn McDade.

The anger is over the charging three members of the Special Operations Task Group for offences arising out of a compound clearance in Afghanistan in February 2009.

Whether the troops’ anger lies in the fact the charges were laid at all, or whether they are angered by the fact a non-operational military lawyer laid the charges, or both, it all comes to the same thing. The troops are very angry.

Troops expect to be charged by those in the military who have field experience and campaign medals; those who know first-hand how military operations are conducted. The troops expect to be charged by “command”; they may not like it but they will respect it. Command only works through mutual trust. The troops do not expect to be charged by a lawyer – military or otherwise – who has never executed a military mission in a dangerous place, let alone faced live fire in the circumstances such as those of the three diggers. I agree with the troops.

I argue that the creation of a statutorily independent DMP is contrary to the constitutional arrangements that govern the military disciplinary system, and in fact, wrongly reshapes military discipline as a criminal jurisdiction. The application in military trials of criminal law principles – such as the “beyond reasonable doubt” standard of proof – ensures fair processes; it does not define the jurisdiction.

In 2005 the Defence Force Discipline Act was amended to introduce a statutorily independent DMP, the thin edge of the wedge. The view at that time was that command was too close to the disciplinary function; that it might exercise command “influence”. It was decided the power to charge should become independent of command to be at arm’s length.

The introduction of the statutorily independent DMP was followed by the creation of the statutorily independent Australian military court. Discipline would now be enforced by lawyers rather than lay tribunals of peer group military members constituted as a court martial.

The Australian military court did not survive the High Court constitutional law challenge that was Lane v Morrison, but the statutorily independent DMP did. That office will become entrenched when legislation is introduced to establish the Military Court of Australia as a division of the Federal Court of Australia.

How did we get here? Suddenly lawyers, including the DMP and Federal Court judges with no military experience, are considered better placed to judge what is necessary for military discipline than operational commanders.

The fact that the jurisdiction is to be exercised by a Federal Court means that what was once a specialist disciplinary jurisdiction, which did not result in a criminal conviction, is now a general criminal law jurisdiction that does. (Never mind that, under the constitution, the commonwealth has not been vested with a general criminal jurisdiction; that is the province of the states and territories).

Military discipline a function of the executive, and not the judiciary. That is why breaches of military discipline have always been tried by court martial. And don’t forget “the vibes”. Under the principle of the separation of powers established by the boilermakers’ case, the executive cannot exercise the powers of the judiciary nor vice versa.

The point of command is to exercise “influence”. After all, “discipline of the Defence Forces” is the very point of the specialist jurisdiction granted by the defence power under s.51(vi) of the constitution. The power of command of the defence force lies with the chief of the defence force and the single service chiefs by delegation from the governor-general as command-in-chief (s.68 of the constitution, and s.9 of the Defence Act). There is no power of command if there is no power to discipline. Under the defence power, the parliament can legislate its expectations of how the CDF is to exercise the disciplinary power (the Defence Force Discipline Act 1982). But the parliament cannot relocate the enforcement of discipline from command to the judiciary, which it is in the process of doing.

This brings me back to the DMP. The question command would pose in deciding whether the three diggers should be charged for a disciplinary offence is whether their conduct amounted to a breach of military discipline. Were they on an authorised mission? Did they apply their rules of engagement and standard operating procedures in an appropriate way? What was the intelligence? What were the conditions of the firefight? How would other troops in the same situation have responded if faced? If the troops carried out the orders as disciplined troops in accordance with the laws of war and the Geneva Conventions, then no charge would be laid.

The question a statutorily independent DMP applying criminal law principles would pose is whether the evidence is sufficient to establish a prima facie case, and if so, a charge should be laid and the matter go to trial. The decision to charge would be made by reference to the forensic elements of the offence rather than an exercise of any judgment as to context.

Turning breaches of military discipline into criminal acts is a dangerous shift. Whether the troops acted appropriately in the field would be an aspect of establishing whether the guilt of the offence could be established “beyond reasonable doubt”. But who would be in a position to make that judgment except command which is excluded from the process, because the DMP is statutorily independent of command?

The military jurisdiction is a disciplinary, not criminal, jurisdiction. Its primary question is: What is necessary to be done for the maintenance of military discipline? But the office of the DMP reflects criminal law institutions, considerations, including all the bureaucracy and delay, while blurring the line between the executive and the judiciary. Command, losing its right to manage its own discipline in the field, will be undermined. None of this is good for the troops in the field.