Click to increase image sizeClick to decrease image size Notes 1 [The author acknowledges the help and encouragement of John Kleinig]1Nico Keijzer, Military Obedience (Alphen aan den Rijn: Sijthof & Noordhoff, 1978) 31. 2 Charles M. Clode, The Military Forces of the Crown, Their Administration and Government (London: John Murray, 1869), vol. 2, 37. 3 Manuel M. Davenport, “Professionals or Hired Guns? Military Loyalties are the Difference,” in Military Ethics, Reflections on Principles—The Profession of Arms, Military Leadership, Ethical Practices, War and Morality, Educating the Citizen Soldier, ed. Malham W. Wakin, Kenneth H. Wenker and James Kemf (Washington, DC: National Defense University Press, 1987) 5, 7–9. 4 Australian Constitution, sect. 68. See also Commonwealth v. Quince (1944) 68 CLR 227, at 255 . 5 Lt. Col. Laura A.H. Di Silverio and Lt. Col. Stephan J. Laushine, Divided Loyalties: Civil-Military Relations at Risk (2002) 6, available at: http://www.au.af.mil/au/awc/awcgate/awc/laushine.pdf 6 It is, however, a defense to following a unlawful order if a person “did not know and could not reasonably be expected to have known” that the order was unlawful (DFDA, sect. 14). Allowing such a defense is essentially a matter of fairness: “To expect the soldier in combat to evaluate whether his superior's order is justified, on pain of severe punishment if mistaken, would often be unfair. Such evaluation will frequently require knowledge of considerations beyond his awareness. If the law requires him to make an independent legal judgment whenever he receives an order, it also risks eliciting his disobedience to orders that appear wrongful from the soldier's restricted perspective but which are actually justified by larger operational circumstances.” (Mark J. Osiel, “Obeying Orders: Atrocity: Military Discipline, and the Law of War,” California Law Review 86 [1998]: 939, at 968). 7 Antony Beevor, Inside the British Army, rev. ed. (London: Corgi, 1991), 299. 8 See Osiel, “Obeying Orders,” 1043. 9 See Osiel, “Obeying Orders,” 1027. 10 Senate, Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia's Military Justice System (2005), 130, available at: http://www.aph.gov.au/senate/committee/fadt_ctte/completed_inquiries/2004-07/miljustice/report/index.htm 11 T.B. Millar, Australia's Defence (Singapore: Donald Moore Books, 1965), 3. 12 Senate, Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia's Military Justice System (2005) 128. 13 Senate, Foreign Affairs, Defence and Trade References Committee, The Effectiveness of Australia's Military Justice System, (2005) 130. The Senate made similar findings at pages 139 and 185. 14 Di Silverio and Laushine, Divided Loyalties, 12. 15 Di Silverio and Laushine, Divided Loyalties. 16 Charles M. Clode, The Administration of Justice under Military and Martial Law (London: John Murray, 1872), 14. 17 Keijzer, Military Obedience, 50–51. 18 Commonwealth v. Wright (1956) 96 CLR 536. 19 There are numerous employment law texts that make this point. For a more recent and engaging work, see: Mary Gardiner, “His Master's Voice? Work Choices as a Return to Master and Servant Concepts,” Sydney Law Review 31 (2009): 53. 20 Attorney-General (NSW) v. Perpetual Trustee Co. (LTD) (1952) 85 CLR 237, 249 per Dixon J. 21 Enid Campbell, “Oaths and Affirmations of Public Office,” Monash University Law Review 25, no. 1 (1999): 133, at 155. 22 38 USC sect. 5303. 23 There is one case in which a soldier did not apply for his veteran's pension when it fell due because he wrongly believed that he had been dishonorably discharged and automatically disqualified: Cowie v. Repatriation Commission [1999] AATA 334. 24 At one time Australia followed its U.K. counterpart in having a category of discharge with “disgrace”; however, the DFDA has removed that provision. The only punitive legislation that Australia appears to have had is the War Gratuity Act 1945 (Cth). The Schedule to the Act disqualifies soldiers from receiving benefits under that Act who have been absent without leave [for a prescribed period], who have been dismissed or had their commission cancelled by a court martial, or discharged for ignominy, had a sentence of penal servitude, been dismissed for “disgrace,” or “Run,” or misconduct, or similar grounds that would bring the armed forces into disrepute. 25 Hilaire McCoubrey, The Obligation to Obey in Legal Theory (Aldershot, UK: Dartmouth, 1997) 162. 26 Keijzer, Military Obedience, 146 quoting Thomas Hobbes, Elementa Philosophica de Cive (1642), chap. 12 para 1. 27 William Shakespeare, King Henry V, Act IV, Scene 1. 28 Instructions for the Government of Armies of the United States in the Field (1863), General Order No. 100. 29 Keijzer, Military Obedience, 47. 30 Keijzer, Military Obedience, 158–70 citing numerous U.S. cases including the 1969 trial of Lieutenant William Calley for the murder of 102 unresisting Vietnamese in the Village of My Lai during the Vietnam War. 31 See generally, Elizabeth Lutes Hillman, “The ‘Good Soldier’ Defense: Character Evidence and Military Rank at Courts-Martial,” Yale Law Journal 108 (1998–1999): 879, where the author argues against the doctrine of a “separate society” and that the defense should be limited. Compare with Randall D. Katz and Lawrence D. Sloan, “In Defense of the Good Soldier Defense,” Military Law Review 170 (2001): 117. 32 Andrew E. Taslitz, “Foreword: Loyalty and Criminal Justice,” Howard Law Journal 49 (2006): 407, quoting George P. Fletcher, Loyalty: An Essay on the Morality of Relationships (New York: Oxford University Press, 1993), 5. 33 Donald Kagan (ed.), Problems in Ancient History (New York: Macmillan, 1966), vol. 2, 313. 34 Re Bolton; Ex parte Beane (1987) 162 CLR 514. 35 Orloff v. Willoughby (1953) 345 U.S. 83, at 91. 36 Orloff v. Willoughby (1953) 345 U.S. 83, 92. 37 Orloff v. Willoughby (1953) 345 U.S. 83, 93. 38 Orloff v. Willoughby (1953) 345 U.S. 83, 93–94 (emphasis added). 39 Orloff v. Willoughby (1953) 345 U.S. 83, 96. 40 Orloff v. Willoughby (1953) 345 U.S. 83, 97. 41 Orloff v. Willoughby (1953) 345 U.S. 83. 42 Marks v. Commonwealth (1964) 111 CLR 549, 584, 586–587. 43 Major Keith Joseph, “The Ethics of Conscientious Objection,” Australian Defence Force Journal no. 160 (2003) 11, at 15. 44 Parker v. Levy (1974) 417 U.S. 733. 45 The nearest direct equivalent under the DFDA is section 60(1) which provides:A defence member is guilty of an offence if the member does an act that is likely to prejudice the discipline of, or bring discredit on, the Defence Force.Maximum punishment: Imprisonment for 3 months. 46 The DFDA has never adopted the offense of conduct unbecoming an officer and gentleman. 47 Parker v. Levy, 746–7. 48 Parker v. Levy, 749. 49 Parker v. Levy, 751. 50 Parker v. Levy, 760. 51 Parker v. Levy, 774. 52 Parker v. Levy, 779. 53 Parker v. Levy, 782. Gaudron J made a remarkably similar point in Re Nolan; Ex parte Young (1991) 172 CLR 460, 497–8: “Times change. Whatever may have been the situation in earlier times, there is now no insuperable difficulty in bringing members of the armed forces stationed in Australia before the ordinary courts.” 54 Parker v. Levy, 786. 55 Stuart v. Chief of Army (1999) FCA 501 (13 April 1999) (Unreported). 56 Re Tracey; Ex parte Ryan (1988) 166 CLR 518, 558. 57 See generally Re Tracey; Ex parte Ryan (1988) 166 CLR 518 and Re Nolan, Ex parte Young (1991) 172 CLR 460 where this issue is considered by the High Court extensively throughout. 58 Re Tracey; Ex parte Ryan (1988) 166 CLR 518. 59 Re Nolan; Ex parte Young (1991) 172 CLR 460. 60 McBride links: Jean McBride v the United Kingdom - 1396/06 [2006] ECHR 1164 (09 May 2006); McBride, Re Application for Judical Review [2003] NICA 23(3) (13 June 2003); McBride, Re Application for Judical Review [2003] NICA 23(1) (13 June 2003); McBride, Re Application for Judical Review [2003] NICA 23(2) (13 June 2003); McBride, Re Application for Judicial Review [2003] NIQB 72 (05 December 2003); McBride, Re An Application for Judicial Review Rev 1 [2005] NIQB 54 (29 June 2005). 61 The nearest equivalent provision in the Defence Act 1903 is section 123F(a) which reads:A person shall not be permitted to serve in the Defence Force if:(a) that person has been convicted of a crime that, in the opinion of the Chief of Navy, the Chief of Army or the Chief of Air Force, as the case requires, is such as to render that person unsuitable for service in the Defence Force. 62 R v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452. This is the only Australian case and related history which bears any similarity to the McBride cases. Two Australian seamen were sentenced to death by hanging in World War II by a court martial under British military discipline laws. The judgment itself does not reveal the extraordinary lengths the Australian Government went to in order to have the death sentences commuted. For a fascinating account of the ramifications of the case, including the impact of the case on the passing of the Statue of Westminster in Australia, see: Brian D. Beddie, “The Australian Navy and Imperial Legislation,” War & Society 5, no. 2 (September 1987): 73. See also: Chris Clark, “The Statute of Westminster and the Murder in HMAS Australia, 1942,” Australian Defence Force Journal no. 179 (2009): 18, and the references contained therein. 63 Solorio v. United States 97 Law. Ed, (2d) 364, 376 (1987). 64 Re Tracey; Ex parte Ryan 166 CLR 518, 567 (1988). Additional informationNotes on contributorsMitchell JonesMitchell Jones is a student of military law and legal history at the Australian National University with a particular interest in the notion that the military represents a special society and the deference that is taken by the courts to decisions made by the military establishment in relation to its members. The views expressed in this essay are the author's own and do not reflect the views of the Australian Government or the Australian Defence Force