Legal Basis of the Australian Defence Force Military Justice and Appellate Systems

Abstract

Throughout the course of English history from the Middle Ages onwards, courts martial were considered courts at law as they exercised the judicial power of the sovereign in military matters. This historical or traditional classification has relevance in the Australian context as the High Court of Australia has held that recourse may be had to historical or traditional classifications of a body to fully understand what that body truly is. Notwithstanding that, it is argued the High Court of Australia has chosen to give little weight to this important classification when it has considered the constitutional basis of courts martial in Australia. The validity of the current courts martial system in Australia, established under the DFDA, has now been directly challenged before the High Court on seven occasions. In each instance the High Court held the exercise of judicial-like powers by a non-Chapter III court, in respect of defence disciplinary matters, did not offend Chapter III of the Constitution due to the constitutional doctrine of ‘exceptionalism’. That is, although military service tribunals exercise judicial power, the High Court has held they do not exercise the judicial power of the Commonwealth under Chapter III but rather exercise an ‘exceptional’ power, and the source of such power is s 51(vi) of the Constitution – that is, the defence power. A properly constituted system of military justice requires an appellate system which is fair and operates independently of the chain of command. Since 1955, the ADF has been provided with an appellate tribunal system in the form of the Defence Force Discipline Appeals Tribunal (DFDAT). The DFDAT is not a Chapter III court, however, it operates outside the chain of command and has been well accepted by the ADF for over 60 years. The objectives of a properly functioning system of military justice are independence and impartiality. This chapter will analyse the issues of independence and impartiality so as to better understand whether the ADF has or can achieve these objectives.