Abstract
To understand the Australian military and its justice system requires a knowledge of its development since 1788. The essence of this article is to briefly examine the historical development of the legal basis of each stage of Australian naval and military discipline, from colonial times until the current period. As will be seen the ‘chain of command’ is considered crucial to the military justice system as an incidence of the management and functioning of the military. Specifically, this article addresses the following points: the historical development of military justice, the structure of the Australian Defence Force, the chain of command; and the constitutional exceptionalism of military justice.
Highlights
Since the first armies were raised in ancient times there have been systems of military justice
Gilissen[7] suggested a means of classification based on the three main existing systems of law: the common law system, the Roman law system and the socialist system, whereas John Stuart-Smith, Francis Clair and Klaus suggested a classification based on the jurisdictional powers of military courts
Howsoever the systems may be classified, there are significant differences between the systems based on common law (Anglo-Saxon tradition) and civil law
Summary
Since the first armies were raised in ancient times there have been systems of military justice. Gilissen[7] suggested a means of classification based on the three main existing systems of law: the common law system, the Roman law system and the socialist system, whereas John Stuart-Smith, Francis Clair and Klaus suggested a classification based on the jurisdictional powers of military courts. They distinguished four different systems: one in which military courts have general jurisdiction; one in which they have general jurisdiction on a temporary basis; one in which jurisdiction is limited to military offences; and one in which they have jurisdiction solely in time of war.[8]. With this background to the genesis of military justice, the present article turns to review how military justice has developed in Australia from colonial times until the present
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Free) 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a call
