A brief history of Australian military law
All armies of the
world have some form of military law to govern their troops during war and
peace, with the Australian Army being no exception. Military law is
unfortunately necessary to maintain discipline and morale among the troops
engaged in war or parading in peace. As old as the existence of armed forces is
the concept of discipline and a special law code to enforce that discipline has
been part of soldiering since the early Roman times.
As Australia
relied heavily upon Britain when forming the new Commonwealth of Australia in
1901 including the raising of Australia’s own military forces, British doctrine
and procedures were adopted by the new Government and military forces. As such,
Australian military law is a direct descendant of British military law.
The current Australian military law titled
the Defence Force Discipline Act (DFDA) 1982, mentions some of the older
(British & European) history behind military law:
As old as armies and navies are, the idea of a special discipline and a special body of law applicable to the armed forces, usually taking the form of a curtailment or abolition of such rights as the soldier would have had as a citizen. In Roman times the foundation of military law was the complete subjection of the soldier to the will of the commander. The harshness of this system is apparent from the following description by the Roman scholar Cicero:
"The general was at liberty to behead any man serving in his camp and to scourge with rods the staff officer as well as the common soldier; nor were such punishments inflicted merely on account of common crimes, but also when an officer had allowed himself to deviate from the orders which he had received or when a division had allowed itself to be surprised or had fled from field of battle"
The harshness of military discipline in the Middle Ages is illustrated by reference to the Ordnances of King Richard I of England. For example, "whoever shall commit murder aboard ship shall be tied to the corpse and thrown into the sea: if ... on land ... tied to the corpse and buried alive or ... if a robber be convicted, boiling pitch shall be poured over his head and a shower of feathers be shaken over to mark him, and he shall be cast ashore".
As late as the 18th Century the eminent English legal writer Blackstone charged that the military system of justice was not built upon any settled principles, but was entirely arbitrary in its decisions and was something indulged rather than allowed as law.
In the 19th Century the system of military justice as it applied in the British Army and the Royal Navy was radically reformed with the implementation in 1847 of the Naval Discipline Act and, in 1879, of the Army Discipline and Regulation Act. These Acts brought the code of disciplinary laws into line with the more humane standards of the day and conferred upon naval and military personnel a broader range of rights under the law than had hitherto existed.
Further information about the history of
military law, especially in relation to disciplining the troops can be gauged
from an article in the Australian Army Journal 1950 by C. Soden, which states:
DEFAULTERS
The problem of defaulters and their treatment has been a headache for unit commanders since the beginning of armies.
Today the defaulter no doubt feels hurt if a little overstaying of leave is rewarded with a few days’ CB or a small forfeiture of pay. Compared to the soldier of olden times he gets off lightly. When Cromwell established England’s first Regular Army such trivial acts as swearing, leaving camp by an unauthorised exit and throwing away any unused powder carried the death penalty.
In early medieval times private soldiers had practically no rights at all, and could be ridden down, killed or punished in any way by their officers. About the middle of the Fourteenth Century Richard III decided that other ranks should have the right to defend themselves against a military charge before sentence was pronounced. The innovation, however, was not much of an advance on previous practice, for the defence consisted of ‘Trial by Battle’ or ‘Trial by Water’.
In ‘Trial by Battle’ the accused was stripped to the waist, furnished with a plain wooden stave, and pitted against an armoured opponent equipped with sword and shield. If the accused won, which must have been very rarely, he was held to be innocent.
In ‘Trial by Water’ the offender was trussed up like a fowl and tossed into a deep stream or pond. If he sank he was guilty, if he floated he was innocent. There is no record of anyone being found innocent.
In Tudor times sergeants, the only NCO rank then in existence, were empowered to inflict summary punishment ranging from a blow on the head to a death blow with sword or axe, and no questions asked. The following extract from Colonel Elliott’s ‘Medieval Armies’ gives some idea of the summary punishment powers of sergeants - ‘And if when the firemaster calls on the varlet to give a goodly stone to ye mortar and he does not do so, then shall he call on him again and yet once more so to do. If then the varlet still sets not his hands to the stone, so shall the firemaster use his weapon that the rogue is no more’.
Some pretty drastic discipline was probably necessary among the gunners of those days. The metal of primitive cannon, while being good enough to stand up to explosions of powder only, very often disintegrated into small pieces when a large stone was added to the charge. Since the gun crew of varlets usually suffered a similar fate, a little forceful action was necessary to ensure a good loading job.
The Restoration marked no great change in the Cromwellian code of discipline. For merely being suspected of setting alight to the powder magazine in what is now Hyde Park a trooper of Hallingsby’s Regiment was sentenced to be slowly burned to death between two greenwood fires.
By Marlborough’s time military offenders were not only permitted to speak up in their own defence, but were entitled to call witnesses to support their statements. The reform, however, was more apparent than real, for the military code of the time seems to have been based on the assumption that every private soldier, even though not proved guilty, had guilt in his mind. Consequently the scales were heavily weighed against the accused before he came up for trial.
Moderately serious offences brought punishment of anything from a dozen to a thousand lashes. In nearly every case serious offences carried the death penalty.
In the London area military executions were usually carried out in Hyde Park. At first the offender was placed anywhere on the grassland to receive the volley. Not infrequently this offhand procedure caused casualties to the spectators, particularly to those who got behind the target. In 1715 a stone wall was erected half-way between what is now Hyde Park Corner and the Marble Arch. This wall was used as a backstop until 1806, when the execution place was moved to the Tower of London.
The practice of ‘Drumhead Court Martial’ was instituted in Marlborough’s armies in order to give a little dispatch to the trial of offenders in the field. In the dreary years of campaigning in the Low Countries discontent with their miserable conditions caused an increasing volume of major offences, such as striking an officer, refusing to obey orders, etc. To enable him to cope with the situation Marlborough was given an authority, under which commanding officers could try, convict and execute an offender within an hour or so. It was stipulated, however, that visual evidence of the power to inflict the death sentence should take the form of conducting the trial over a symbol of royalty.
At that time each unit was provided with three sets of drums. The company Drums and the larger Battle Drums were usually without ornamentation, but the Command or Headquarters Drums were richly emblazoned with the royal coat of arms. The Command Drums were used, therefore, to signify that the proceedings took place with the authority of the sovereign.
The procedure was for the unit commander to place his right hand on the drumhead while delivering sentence. The topmost drum was then turned face about, indicating that in the case being tried the power of the court had come to an end. In effect this meant that the court had no power to entertain an appeal against the sentence, which was usually executed forthwith.
Brigade flogging, which was reserved for offences such as neglect of duty or stealing from a comrade, was carried out with some ceremony. The brigade was drawn up in square formation, facing inwards. In the middle of the square stood a large commissary wagon on which the prisoner was securely lashed to a tripod. On either side of the wagon stood the senior battalion sergeant, a company drummer and two privates with cat-o’-nine-tails.
On the signal being given by the adjutant, the sergeant ordered the drummer to beat a flam, on which the private mounted the wagon and took post on either side of the prisoner. In response to a second flam they began to apply their ‘cats’ to the bare back of the prisoner, the time being set by a slow, steady beat of the drum. When the battalion quota of lashes had been inflicted the wagon moved along to the next unit, where fresh floggers took over the task. When the sentence was very heavy five hundred to a thousand lashes were not uncommon-the victim was revived from time to time by being doused with pails of cold water.
Each succeeding unit commander had the power to cancel the remainder of the flogging if he considered the victim too far gone to endure any more. But so harsh was the code of discipline that this power was seldom exercised.
That rare old volume ‘Old Times Under Arms,’ records an instance in 1729 in which a man sentenced to 800 lashes died on the triangle before half that number had been inflicted. But that did not deter anyone, the remainder of the sentence being inflicted on the corpse. In response to the public outcry against such brutality it was directed that where necessary infliction of the sentence should be spread over a longer period, the victim being given a few days to recover from each instalment.
In 1790 the accepted custom of branding the letter ‘D’ with a hot iron on the hand or forearm of deserters was changed to the more humane practice of tattooing. Acceptance of the change, however was left to the direction of unit commanders, and did not become general throughout the army for several years.
Gradually prison terms superseded the death penalty and excessive flogging, though sentences limited to fifty lashes were not unusual right up to 1890. From then onwards the more civilised and humane outlook of society forced drastic changes in the military code of discipline. Better conditions of service and a more intelligent official approach gradually broke down the hostility which had hitherto generally existed between officers and men. Intense pride in the regiment became the well-spring of British military discipline.
A further example of the treatment of
"defaulters" and a rare glimpse into the world of the Regular Soldier
of the Australian Army in the early part of the 20th Century is
Richmond Cubis’s excellent work ‘A History of A Battery’ (Page 109) where he
records:
The evildoers, those gunners who had committed some dreadful military crime, such as failing to polish brass buttons, still resented marching in the felon's detachment which followed the battery, marching to St Matthias Church on Sunday mornings. (Their dismay stemmed from the possibility, that they might be detected in disgrace by their girlfriends)
Military law has been
further expressed in many ways throughout history. In the 18th
Century the eminent English jurist, Blackstone, described the military system
of justice as being "built upon no settled principles, but is entirely
arbitrary in its decisions and is something indulged rather than allowed as
law". Early in the 19th Century, Clemenceau said;
"Military justice is to justice what military music is to music".
In 1982, Mr
Gordon Scholes the then Australian Shadow Minister for Defence said: "the
existing laws relating to discipline in the Defence Force as having remained in
operation for a period which would not have been tolerated in the civil law of
any State or in any comparable country".
Having read the
above we can see and appreciate why military law and in turn military police
have evolved. Military law has always been controversial and quite often seen
as hard, unfair and biased especially by the troops who often felt its'
justice. This was especially so when dealing with wartime volunteers or
conscript troops who joined to fight a war and did not readily accept or
understand the intricacies of the Army's ways.
A good starting
point for British/Australian military law is 1881. The Imperial Army Act 1881
(UK), provided the foundation for military law of the British and in turn the
Australian Army and would establish the "tone" of military law to
this day. For the first time, the soldiers' rights would be in theory protected
and a system of fairness and equity would be present for the soldier. As part
of the new military law system an important military appointment would be
created titled the Provost Marshal (PM). The PM became the senior
disciplinarian and defacto Army policeman who would become an indispensable
figure throughout the history of British and Australian military law as he
became responsible for administering the new codified law on the troops. The
Royal Military Police website (2006) states the following in connection to the
Provost Marshal and evolution of his involvement in military law:
The office of the Provost Marshal (PM) is one
of the most ancient in Britain and the British Commonwealth and it is difficult
to establish its origins with any certainty. William of Cassingham, who was
appointed Military Secretary of the Peace by King Henry III on 28 May 1241, was
probably the first named Military Policeman. Queen Elizabeth I created provost
marshals in the English counties to apprehend lawless disbanded soldiery.
Offenders arrested were hanged on the spot. These Provost Marshals were the
first County Chief Constables. The duties of the PM seem essentially the same
today as they were in the 17th century; the maintenance of
discipline, the prevention of crime within the military and the arrest and
bringing to trial of soldiers committing offences against military law.
THE NAPOLEONIC WARS
Wellington asked for a Provost Marshal to be appointed to hang looters and by
the end of the Peninsular War the Provost Marshal controlled 24 Assistant
Provost Marshals. The assistants were also authorised to hang offenders and
eventually each division had its own Assistant Provost Marshal.
In the early 1800s Wellington raised the Staff Corps of Cavalry as a Military
Police Corps. Until a uniform was approved members of the Staff Corps of
Cavalry were identified by a red scarf tied around the right shoulder of their
original uniform which could well be the origins of the red cap which
identifies the modern Military Policeman.
In 1855 the Provost Marshal recommended that the additional manpower he
required be of a certain calibre. They must have at least 5 years service, of
sober habits, intelligent, active and discreet. This development was the
beginning of the existing organisation of the Corps of Military Police. On 1
August 1877 this small unit raised in 1855 was formerly established as a
distinct corps for service both at home and abroad.
General Viscount
Wolseley (British Army) wrote a Soldier’s Pocket Book in 1886 covering many
subjects for use by Army Officers in the field with one of those subjects being
military law (The Imperial Army Act 1881). The General’s book is a fine piece
of military history to study and learn how military law has evolved into the
product it is today and the evolution of military law and its application to
the Australian and British Army. Some of the more relevant paragraphs of this
fine works state:
Police – No system of police is laid down in our regulations for an army in the field. We must, therefore, be guided by the regulations of foreign armies, and by the establishments that were brought into existence in our Crimean army, up to the date of its leaving for home. An offr. Of at least the rank of a captain should be named Provost Marshal for a corps of 2 or 3 Divns. With a larger force, or if the army is divided, an assistant PM will be required.
The Provost Marshal – The Army Act of 1881 thus described his duties: ‘For the prompt repression of all offences which may be committed abroad, P-Ms with assistants may from time to time be appointed by the GO of the GOC. The PM or his assistants may at any time arrest and detain for trial persons subject to military law committing offences, and may also carry into execution any punishments to be inflicted in pursuance of a CM, but shall not inflict any punishment of his or their own authority’.
Too much care cannot be taken in selecting offrs to act as PMs; they should have a good knowledge of soldiers, be of determined character, and of pleasing manners; severe, but just. It is advisable that they should speak the language of the country; if they do not, interpreters should always accompany them on the line of march, and be permanently attached to them. Interpreters, especially in the east, are often villains. In how many instances have I seen the greatest injustice done through their machinations, and the greatest injury done to the public service by their ill treatment of the inhabitants. The army that employs them has to bear all the odium their falsehood, dishonesty, and often their stupidity, give rise to. As a general rule, the PM should encamp with Hd Qrs; it is advisable that he should be intimately associated with the offr in charge of the intelligence department, as both should work hand in hand. As regards a police establishment, we have the very best material in the Irish constabulary to draw upon. It was made use of when the army was first organised in the Crimea, but it was mismanaged, and had no useful result.
Punishments with an Army in the field must be summary: The laws which in peace suffice to keep the population of cities in order, will not answer the same purpose in armies during war. The former is an aggregate of men, women, and children, of all ages and all classes, both as regards position and education; the soldiers of an army are, as a general rule, of one class in all respects, are in the prime of youthful manhood, full of fire, passion, and recklessness, and not brought into contact with the softening influences of old men and respectable women; they are men in growth, such an assemblage would be a mischievous mob and not an army. All camp followers, or individuals of any sort accompanying an army, either for business or pleasure, are to be made amenable to such punishments. On the march the PM and his assistants must hover about along the outskirts of the line of march, visiting every village and all large farm houses, & to see that stragglers are not there, as it is by such men that crimes are committed. He should make prisoners of all stragglers, and send back soldiers under escort to their respective corps. When on the march, all GOsC, or others in detached commands at some distance from the main body, will aid the PM by giving him guards, taking charge of prisoners, giving him patrols (they should, if possible, be cavalry)&, when he applies for them, unless in their opinion there are sufficiently good military reasons for refusing to do so.
If under such circumstances the PM considers he has not been properly supported, he must bring the matter to the notice of the C of the S or AG, who will inquire into it. When in camp, the PM and his assistants must be always on the move, visiting the neighbouring villages, and places at which they think breaches of order or discipline are likely to be committed. He must render every protection in his power to the inhabitants of the country, and be always prepared to inquire into their complaints. This will go far towards encouraging them to bring in provisions for sale. He will take charge of the markets (the positions of which will be, in the first instance, pointed out by the Divisional AAG). He is responsible for their good order and cleanliness. His police look to the former, and he must obtain fatigue parties or use defaulters to insure the latter. He will bring to the notice of the staff of Divns any want of cleanliness in the vicinity of their camps, all irregularities at watering places. All guards, whether commanded by offrs or NCOs, must take charge of any prisoners handed over to them by the PM, or any of the police acting under his orders. Those in command of the guards to take down in writing he crime and the ame of the police offr handing the prisoner over. If such prisoners have not been reclaimed previous to the guard being relieved, they must be sent to their regtl guards with a report of the circumstances.
Taking it for granted that the base of our army
is a seaport, the town should be under the closest police surveillance. It must
have a PM, with a sufficient police staff to keep order. He should take his
orders from the offr in immediate command as to the individuals to whom
passports should be granted to enable them to visit the army in the field. All
foreigners must come with regular passports from their own ministers.
Travelling gentlemen, newspaper correspondents, and all that race of drones,
are an encumbrance to an army; they eat the rations of fighting men, and do not
work at all. Their numbers should be restricted as much as possible. Strangers
of all sorts upon arriving at any military post en route to join the army, must
be at once visited by the PM, or other offr in police charge, their registers
examined, compared with their appearance, and signed by such offr. It must be
remembered that the enemy will do all he can to have paid spies in your camp.
No stone should be left unturned to discover them, large rewards being offered
to any one who will inform on them.
It is with these procedures and
understanding that military law was applied to the troops and could be
considered a starting point for the modern military law of today.
Australian military law
In layman's terms, Australian military law
as it has applied to the Australian Army (not including amendments, precis or
explanatory guides) has evolved throughout Australian Army history as follows:
It is interesting
to note that a purely 100% Australian "home grown" military law
without reference or links to UK law or the British Army did not eventuate
until 1982. This is when the current ADF military law known as The Defence
Force Discipline Act 1982 (DFDA) was tabled in the Australian Parliament and
passed for commencement into service in July 1985 nearly 85 years after the
Federation of Australia. This could be considered by some an appalling period
of time despite the fact that the Australian Army had fought in two major World
Wars, a Police action in Korea, counter insurgency in Malaya, Borneo and
Vietnam continuously using an outdated and defective military law during the
period. This was even more ridiculous when by the, mid to late 1950s Australian
soldiers were being charged and tried under a British code (although modified
for Australia) that had already ceased operation in the UK.
This lack of action is further amplified by
K.E. Enderby's words:
'In England
the problem of justice in the Armed Forces had been considered by the Darling
Committee in 1919, an interdepartmental committee in 1925, the Oliver Committee
in 1938, the Lewis Committee in 1948 and the Pilcher Committee in 1950, all of
whom made recommendations and published detailed reports"
and, Air Commodore the Hon. Mr. Justice
Michael Grove, RFD, in his article where he states:
'I can
remember looking at a report of a committee established in 1952 which
recommended that a uniform code be developed. So did others over the next
thirty years until eventually there was sufficient legislative will to
implement the recommendation.'
It is clear that
reform was on the agenda many times throughout the Australian Army's history,
however, for one reason or another, the issues faded into insignificance. The
Army's business is the ability to prosecute war rather than prosecute offenders
along with the absolute ability to maintain total discipline among troops.
Generals understand bullets and bombs and not briefs and writs and finding time
or access to those at the top to explain and implement change is often
difficult. This is particularly so when times of crisis end and a relieved
country returns to peace with the military being unimportant until the next time
it is needed. Also, the fact of trying to change, alter or introduce new
legislation or to rewrite or reform military law was an embuggerance in itself.
The application of military law
It is the only
law in Australia, operated by personnel at its lowest level (the Junior NCOs of
the Armed Forces) who are not qualified legal or law enforcement personnel
(except for qualified personnel of the Royal Australian Corps of Military
Police – the Army’s police force) where their enforcement of the law allows for
punishments of restriction of liberty's, fines, detention or imprisonment.
The Commanding
Officer or CO plays a pivotal role in the application of military law within
the unit although very rarely does he come from a qualified legal background.
Performing a role similar to a Magistrate the CO administers justice in
accordance with military law and his "whims and whoes" in regards to
a soldiers behavior. The power of the CO is absolute within the guidelines of
military law granting him or her the power to restrict liberty, fine or place
in detention; however, not imprison or dismiss from the forces which is the
domain of the court martial or military court.
Military law is
further unique by the operation of the "court martial" system to
dispense justice, which is the military version of a Magistrates Court. Court
Martial's developed under "leveller" influences in the Cromwellian
Army as soldier's rights were beginning to be enshrined into a form of code or
rules which eventually became law (military law). The court martial is reserved
for the more serious offenders within the military where punishments can be
awarded that entail imprisonment or dismissal from the forces. The court
martial is as old as military law; however, a court martial is not a court of
law and operates very differently from such. The High Court of Australia (1998)
ruled the following in connection with the nature and purpose of a court
martial:
A court martial is not a court of law. Although it is obliged to dispense justice it has been held that it does not exercise the judicial power of the Commonwealth. It is a body constituted, ordinarily, by lay people. The participation of a member with legal training would be wholly accidental. These features of courts martial are recognised by the detailed provisions made concerning their procedures both by the Discipline Act and by the Rules.
A court martial has large powers. The imposition of a punishment of military detention may deprive a citizen of liberty. Rules of procedure have been enacted, or made, both to reduce the risks of unreasonable, irregular or unsafe convictions of the accused and to enhance the confidence of serving officers and of the community more generally in the integrity of military justice. Whereas a greater measure of flexibility might be accorded to a judge exercising the judicial power of the Commonwealth in the ordering of procedures of the court (because by training and experience the judge could ordinarily be expected to protect the essential rights of the accused) the same may not necessarily follow in relation to a non-judicial administrative body with large powers to convict an accused person and to order that he or she be detained, fined and otherwise compulsorily dealt with.
However, having
said the above, it is apparent via cases before the High Court throughout the
last 50 years that the Justices "sway" to and fro from this opinion
depending upon the circumstances. Often, when the Justices ruled one way
{supporting that military law was wrong} they would go the other based on
advice from the JAG stating something along the lines of "requirement to
maintain discipline and morale within the Defence Forces". With such
overwhelming opinion and lack of military experience most Justices accept the
advice given and ruled in favour or set aside their verdict on military law. In
some ways, the actions of the courts may have contributed to the stagnation of
military law in Australia.
Military law is
further defined and separated from civil law, in that the needs of the Defence
Force to maintain discipline and morale, is given precedence over the
individual rights and outcomes for the soldier. In the civilian world, a person
is innocent until proven guilty. In the military world, especially until more
recent times, the saying 'march the guilty bastard in' would be heard as
Commanders at all levels would consider their course of action for a
belligerent soldier.
So what is the nature and purpose of
military law?
The Manual of Military Law 1941 - Australian
Edition, explains this well and is still the basic nexus of Australian military
law to this day:
Military Law : Its Nature
Whilst, however, remaining subject to the ordinary law of England (and of Australia) he has become subject also to an entirely distinct code known as ‘military law’, which governs the members of the Army and regulates the conduct of officers and soldiers as such at all times and at all places, in peace and in war, at home and abroad.
Its Purpose
The object of this special code of law is twofold -
(i). To provide for the maintenance of discipline among the troops and other persons forming part of, or following, the forces, for which purpose acts and omissions which in civil life may be mere breaches of contract - eg, desertion or disobedience to orders - must, if committed by soldiers even in time of peace, be made punishable offences, whilst in war every act or omission which impairs a man’s fighting efficiency must be dealt with severely; and
(ii) to provide for administrative matters, such as terms of service, enlistment, discharge and billeting. The term ‘military law’ may, therefore, be used properly as including provisions of both the above classes, but in practice it is more often used with reference to the disciplinary provisions alone.
Australian military law - Peacetime 1900
to 1939
During the period
1900 – 1939, the Australian Army operated and applied Military law via the
Defence Act 1903 (DA 1903) which included the Imperial Army Act 1881 (British
military law) known as the Army Act. The use of the Army Act was a byproduct of
colonialism and politics when raising the new Australian Military Forces in
1901 and reflected the predominantly "militia" or part-time nature of
Australia's military forces at the birth of our nation and the Australian Army
in 1901.
The DA 1903
incorporating the Imperial Army Act including its Rules of Procedures (court
martial, etc.) were further modified and adapted by the introduction of the
Australian Military Regulations and Orders (AMR&O) in 1904. The AMR&O
formed the regulatory base for the discipline and administration of the Army in
peace and war whether in Australia or overseas and covered a great variety of
subjects. The AMR&O's were vitally important to Australian military law
during the period and were the only Australian content locally implemented that
influenced or even resembled Australian military law. The AMR&Os were read
and used in conjunction with the DA. Military law at this time was further
divided under the British code and DA/AMR&O by stating whether "on
active service" or "not on active service." On active service
status (war time) meant a soldier was subject to all laws, rules, regulations
and orders applicable including the British Imperial Army Act and its Rules of
Procedure and was expressed in this manner in the Defence Act 1903:
Application of Army Act. &c.
235. Members of the Military Forces shall, at all times, while on Active Service, be subject to the Army Act, save so far as is inconsistent with the Act, and shall be liable to be to be arrested, tried, and punished in the manner laid down in the Army Act, and the Rules of Procedure and Regulations made thereunder.
This allowed the
Australian Army to deal with almost every offence/matter before it, giving the
Army total control over a soldier regardless of circumstances or location where
the offence/matter was committed. This further meant that every offence
committed under active service status would be heard and tried by a unit CO or
court martial and not subject rarely to civilian court jurisdiction.
"Not on
active service" or peace time Australia restricted the Army’s ability to
administer total control and discipline over the troops and allowed for certain
offences to be heard and tried by the civil courts and was expressed in this
manner in the Defence Act 1903:
OFFENCES NOT ON ACTIVE SERVICE
Enumeration of Offences not on Active Service, Offences in respect to
Guards, Sentries, &c.
236. When not on Active Service every person, subject to military law, who commits any of the following offences, that is to say:
Mutiny and Sedition
Striking or threatening a superior officer
Disobedience to a superior officer
Insubordination
Neglect to obey
Desertion
Absence from duty without leave
Scandalous conduct of officer
Disgraceful conduct of soldier
Drunkenness
Permitting Escape
Irregular Detention
Escape from confinement
Damage to or loss of equipment, horse, &c.
False accusation or false statement
False answer on enlistment
Traitorous words
Ill-treating a soldier
Withholding soldiers pay
Fails to assist magistrate in punishment of civil offences
Conduct to prejudice of military discipline
Connivance at desertion
Falsifying official documents
False declaration
Neglect to report and signing in blank
False evidence
Enlistment of soldier or sailor discharged with ignominy or disgrace
Injurious disclosures
This is further defined by the current DFDA
in explaining the difference between the old codes of military law and those of
today:
When members of the Army were not on war service (ie when serving in Australia in peace time), they were subject to what may be termed the Australian code. This, in fact, incorporated part of the British code in that DA s 88 applied those provisions of the British code that related to the procedures to be followed at trials by courts martial and the confirmation and review of findings and sentences of courts martial.
The remainder of the Australian code was prescribed in the Defence Act and the Australian Military Regulations. As the offences prescribed in the Australian Military Regulations were mostly taken verbatim from the British code, the principal difference from the code that was applicable to members on war service were:
a. there were no service offences of treason or treachery;
b. offences against the ordinary law (other than the Defence Act) were not triable;
c. punishments imposable by officers dealing with offences summarily were restricted ( DA s 108); and
d. all offences, regardless of their relative seriousness, carried the same maximum punishment of imprisonment for three months.
"Not on
active service" differed also by the underlying fact that military law
during the period was expressed by the maxim that a soldier was a citizen first
and subject to civil law first with military law second. This was further
amplified in The Defence Act 1903-1912, which stated and is the fundamental
basis of all jurisdiction and punishment throughout the history of the
Australian Army even to this day:
Offences punishable by military as well as civil law should not as a rule be tried by court-martial, when the offence is not of a military character and is punishable by a competent civil or criminal court.
This was in
direct relation to the fact that Australia maintained a militia Army during the
period that were only subject to military law when parading on a part-time
basis for varying periods of time each year and by virtue of the Australian
constitution; military law is subordinate to civil law. The concept of a full
time Regular Army subject to military law on a daily basis would not eventuate
until the 1950s. This also goes towards explaining why military law reform was
slow during the period; militia troops were more difficult to discipline
because of the infrequent attendance at parades than the day to day employment
of Regular troops.
So, as we can see
from the information above, a soldier on active service was governed by every
law British and Australian that was relevant. A soldier on peacetime service in
Australia was only governed by the DA and AMR&O’s; however, the British
Army Act applied for the purpose of court martials and their procedures.
Peacetime
soldiering during the period posed very few military law problems for the
Australian Army. The very small Regular Forces or Permanent Military Forces
(PMF) troops of the time were dealt with by their unit commanders, Company
Commanders and Commanding Officers relevant to the military law delegation of
their position to hear, try and sentence military offenders as laid down in the
DA/AMR&O.
In cases where a
PMF soldier committed an offence that was not strictly a military offence i.e
fraud, serious theft, etc, that would require it to be dealt with by a civil
court, it was sometimes referred to the civil courts for action. This is
amplified by comments from the WW2 Jag during the 1946 Board of Inquiry
investigating ‘The Court Martial System and Administration of Military Places
of Detention’. The JAG stated: a pay Sergeant who had misappropriated mess
funds was taken before Paddington Court and appeared before a Police Magistrate
who became acquainted with our rules.
During the same
enquiry, the JAG also stated about 57 court martials were heard during the,
inter war period 1919 –1939. This was very different when it came to the
Militia or part-time soldier of the period whose part-time service restricted
any custodial or full time punishment awarded to be served. The Militia troops
of the period paraded on a part-time basis every year although any unit
punishment awarded during the training periods could be undertaken in
accordance with the DA 1903/AMR&Os. However, there are no records to
indicate that any Militia troops were ever charged and dealt with by Court
Martial’s during this period. This lack of court martial experience regarding
the Militia Army was to have consequences in the coming war (WW2). A generation
of Army commanders had no experience in dealing with these maters, which
contributed in some ways in the early part of the war to soldiers being poorly
dealt with by military law.
Along with this,
went the universal problem of untrained legal persons interpreting a legal
document. Remembering that soldiers of all ranks from Corporal to General were
responsible for enforcing military law at their unit level, in which they often
found time consuming and very difficult to operate, was a problem that has
plagued the Australian Army to this day.
This was very
much the case in times of war, when NCOs and Officers were recruited or
conscripted quickly and were not given the depth of training or the years of
experience that a Regular soldier would have achieved in peace time. Also,
military law in wartime gave Commanders far more power over the life of a
soldier than was obviously necessary in peacetime. In fact, this would be one
of the many catalysts in the creation of the Australian Military Police Corps
in 1916, the lack of ability, knowledge and control of the troops, especially
when on leave or in the rear areas and applying military law effectively to
deal with those problems.
Further
understanding of military law during this period can be assessed from analysing
a publication produced and used by the Australian Army for military law
training. Titled ‘Australian Military Forces Notes for Lectures on Discipline
and Military Law – 1930’ this book provides a unique opportunity to gauge and
understand military law and its application to the troops of the period:
GENERAL OBSERVATIONS ON DISCIPLINE
In all circumstances, every officer, WO and NCO should see that everything reasonably possible is done for the health and wellbeing of his men. In relation to food, shelter, and sanitation, the fulfilment of this obligation is vital to fighting efficiency, but, in order that discipline may rest on the secure foundation of the men’s reliance upon and trust in their superiors, the obligation must be extended to all the men’s duties and recreations.
Emphasise the necessity for tact and common sense in enforcing discipline and for remembering that its requirements vary with circumstances. (AMR&O 301, 302, 304 (2), 305 and 312). WOs and NCOs, being in close contact with the men, have many opportunities of gaining their confidence and respect, and, by their influence, of checking any tendency to want discipline, and particularly by setting an example in soldierly conduct at all times.
First offences, not of a serious nature, should be dealt with by admonition, punishment being resorted to only when admonition has failed. (AMR&O 300) There have been cases, on active service, in which soldiers thought to be incorrigible have behaved well and gallantly when put on their honour.
Discipline and
its relationship to managing soldiers of the 1930s especially part time Militia
men was further assisted with ‘Notes for Sergeants’ issued in booklet form and
provided free of charge by the Australian Army to NCO’s to refer and improve,
stating:
DISCIPLINE has been defined as the habit, engrained
into a soldier’s nature by his training in peace time, which produces
instinctive obedience to the word of command.
Discipline in a unit is upheld
by the authority of the officers, assisted by the intelligent co-operation of
the non-commissioned officers and private soldiers.
Without discipline all
military bodies become mobs, and worse than useless; but discipline enforced by
punishment alone is a poor sort of discipline, which does not stand
strain. What should be aimed at is that
high state of discipline which springs from a military system administered with
impartiality and judgement, whereby all ranks are imbued with a sense of duty,
and know that while no offence will be passed over no offender will be unjustly
dealt with.
All ranks having authority
should administer discipline with firmness, always remembering that arrogance
and abuse of power produce resentment in the lower ranks, and are as
destructive of discipline as is that weakness of administration which creates
contempt of authority.
The object of discipline is to
secure intelligent concentration of effort.
The success of all military operations depends upon the ability of the
commander to enforce his will upon those under him in the execution of his
plans.
The cheerful, intelligent and
energetic performance of duty in any circumstances is an unfailing evidence of
discipline. This means that the trained
and disciplined soldier is expected to put his best effort into everything he
does, endeavouring to carry out the spirit of his orders, and using his own
judgement and initiative when orders can no longer reach him.
Good discipline is generally
characterised by a smart and soldierly appearance, and by precise and accurate
execution of drill.
The best discipline may be
expected only when there is reliance by the rank and file on their
non-commissioned officers, a reliance born or respect and of the belief in
their ability to command. Efficiency in
non-commissioned officers will make the maintenance of discipline a
comparatively easy matter.
Non-commissioned officers
will, therefore, realise the importance, in fact the necessity, of being
thoroughly capable of carrying out their work.
In dealing with citizen
soldiers, strict attention on the part of non-commissioned officers to all
small details will be necessary. All
concerned should be most particular that the usual compliments paid to rank are
strictly carried out, such as saluting, standing at attention, and the
invariable use of the expression ‘Sir’ when addressing officers. A good deal of discretion must be used in
enforcing this with citizen soldiers but if tact is displayed there will seldom
by any difficulty. Quick obedience and
attention to the work on hand must be fostered.
Success may be looked for as long as non-commissioned officers handle their command firmly and tactfully, always remembering that example is the best instructor, and that the men will be largely influenced by what they observe in the superior ranks.
Obedience is the first duty of
a soldier, and should be rendered unhesitatingly; orders should not be
questioned, nor the advisability of instant compliance with them be made a
subject for discussion. The action of
obedience should be mechanical in the quickness with which it follows the order
received, while in the execution the soldier can prove by the intelligence he
displays that he is more than a mere machine.
Soldiers should be obedient
and respectful to all officers and non-commissioned officers, nor reply when in
ranks if checked for neglect or irregularity.
His thinking himself aggrieved will by no means excuse disobedience or
disrespect; but his complaint, if made afterwards in a regular and respectful
manner, entitles him to a fair hearing and immediate remedy.
Members of the citizen forces
are always on duty during continuous training, or when in uniform; and they
shall be considered to have been on duty, although not in uniform, in respect
to any act done, or omitted, by them in a military capacity, or with
intentional reference to their military capacity.
A private soldier who disobeys
an order distinctly given or resists the authority of a non-commissioned
officer, should be dealt with immediately and reported to the officer
commanding his company or to the adjutant.
When a non-commissioned officer has to arrest a soldier he should
invariably obtain the assistance of one or more privates to conduct the
offender to the guard room, and should himself avoid in any way coming in
contact with him. Except in cases of
personal violence, or when on detached duties, land corporals with less than
four years service should not arrest private soldiers, but should report the
offence to the platoon or orderly sergeant, who should act as the circumstances
require.
The use of outside influence
to support application for personal advantages or to represent complaints is
contrary to discipline; the only proper course is to apply through the
recognised official channel. Any attempt
to obtain favourable consideration of requests or grievances by other means
will prejudice the application, and will be severely dealt with.
Attempts to obtain favourable
consideration for such applications by the use of outside influence will be
regarded as an admission on the part of the applicant that his case is not
sufficiently good upon its own merits.
Non-commissioned officers are
forbidden, when in uniform or on duty, to institute or attend any meeting,
demonstration, or procession for any religious or political purpose.
This does not apply to (a)
Attendance at church or funeral services.
(b) Attendance at charity gatherings for which authority has been duly
obtained.
Deliberations or discussions
by non-commissioned officers or soldiers with the object of conveying
approbation or censure of their superiors are prohibited. Commanding officers are to refuse to allow
subscriptions for testimonials in any shape or form to superiors on quitting
the service or on being removed from the corps.
For the first
time in Australian history we can see a very able and honest intent to
demystify military law and its application to the troops. Much of what is
written above would be very relevant to today and no doubt went great lengths
towards fostering an understanding among the troops of military law. Whilst it
is obvious that this instruction would have been provided to both PMF and
Militia troops of the day, it is unknown as to what extent or level of rank the
instruction was aimed at. From reading the text of the document and further gauging
its intent, it would be fair to say these instruction/notes was aimed towards
the Officer or NCO, so as to enable lessons to the troops about their place and
duties within military law.
WW1
Australian
military law during WW1, was the same as peace time law except with the major
differences of the Active Service status which meant that all offences whether
regarded as civil or military could be tried by military law and the
punishments awarded more severe.
It was found
during WW1, that many Officers and NCOs did not understand how to apply
military law and its procedures to their soldiers, with the consequence that
many soldiers were either not disciplined or they were disciplined poorly and
sometimes unlawfully. This in turn led to low morale among the troops who
considered they had been harshly dealt with under the military law system,
which lead to further problems of hatred and disdain towards military law.
Similar problems would continue to plague the Australian Army through to today.
To deal with these problems, one solution was to print "pocket books" or "precis" of military law that detailed the Army Act (British) laws and procedures that applied directly to the Commanding Officer/Company Commander level and allowed inexperienced commanders to interpret and understand military law. These pocket books/precis were an expedient way to correct deficiencies in NCO/officer training. One such example of this was a "precis" carried in book form by Australian Army officers in WW1 titled PRECIS of MILITARY LAW and KINGS REGULATIONS for YOUNG OFFICERS by Major R.L.C. BROOKER, price 9 pents and published by WILDING & Son Ltd, SHREWSBURY, England.
Due to fiscal
problems preceeding the war years along with the fact that Australia’s Army was
very small during the period, Australian written technical and instructional
manuals were rare and considered an unnecessary expense especially when British
Army manuals were readily available and could be easily purchased from the
British Army as part of the Australian Defence budget. However, manuals
produced and sold at good book stores in the UK and Australia written by former
Officers and other individuals were available for private purchase for those
who wanted to "brush up" on the fineries of military law. Such were
the standards of the day that Officers were forced to purchase
handbooks/manuals written on the subject of interpreting and applying military
law. One could only imagine what an Officer who did not care about military law
would read? It appears that this was a popular and easy way of demystifying
military law and making up for the lack of military law training provided to
Officers and Senior/Junior NCOs. However, it must be remembered that an Army at
war does not have time to teach and train men in all matters military and
manpower requirements at the front override neat packaged peace time training.
Strong and fair leadership, mutual respect and trust among the troops would
always fare much better than the "book" (British Army law manual) and
this in many cases is what kept the ‘diggers’ going in times of hardship and
horrors of war.
By the end of the
First World war, Australian troops would return home with a hatred and disdain
of military law that in many cases had let them down and not served their
purposes of fairly maintaining discipline and morale among the troops.
Unfortunately, military law would fall by the wayside again during peacetime
and the opportunity to update and modernise military law was not undertaken
despite much evidence that it had not served the Australian Army well during
the war. This was emphasized in a small way by the large numbers of Australian
soldiers in detention or field punishment during the war although this must be
tempered with many other factors like unsuitability for soldiering, fear,
fatigue, poor leadership and man management of the troops.
From 1901 through
to the start of WW2, military law had not progressed and would continue without
significant or a major change towards the Second World War although some
limited improvements would occur.
WW2 and an Australian
Military Law
The Second World
War would bring a new independence to the Australian Army, with a strong sense
of pride and nationalism, that said Australian troops would be controlled, directed,
administered and disciplined by the Australian Government, Australian Generals
and Australian military law. For the first time, British Generals would not be
dictating the terms of Australian Army troop involvement in any conflict or
military operation, including interfering on how that force would be
disciplined or punished.
Unfortunately,
military law had not changed or progressed during the period between the two
wars and Australian troops would be subject again to a complex and difficult
military law. Considering the problems Australian troops experienced with the
use and application of military law during the First World War, it was
unfortunate although not unexpected that improvements or reform would not
occur.
Considering the
peace time constraints, Government fiscal problems and the small Regular Army
or Permanent Military Force members (PMF) who served in the Australian Army
during the 1920s and 30s, it is understandable why these reforms were not
progressed. Australian troops would approach the next war with a vastly
outdated military law despite the technological revolutions in weaponry,
technology and scientific understanding of modern warfare. However, all was not
lost and in a small way attempts were made to address the problems; however,
the same DA/AMR&O not on active service/on active service conditions
applied.
In 1941, the
first ever Manual of Australian Military Law - Australian Edition, was printed
and issued, that contained the Defence Act offences, Imperial Act, AMR&O
and trial procedures relevant to Australian soldiers. Certain elements of the
British military law manual were retained in the Australian version pertaining
only to trial procedures and common law. However, having said the above, it was
an immense improvement as Commanders at all levels now had access to relevant
military law in one book directly applicable to Australian soldiers. For the
first time in Australian history, Australian soldiers would be tried and dealt
with by an Australian military law edition endorsed by the Australian
Government/Army and relevant to Australian interests.
As was the case
during the First World War, the implementation and understanding of military
law would prove a problem for Commanders at all levels and the "pocket
book" system was instituted again. Pocket books were produced officially
through the Australian Army and issued to those personnel who required them. As
well, precis or pocket books written by former soldiers were available for
private purchase through Angus & Robertson book stores and others detailing
the necessary points of military law that NCOs and Officer's could apply when
deciding on the correct course of action to take when disciplining soldiers.
The pocket books/precis were a "guide" only and to be used in conjunction
with the Australian Army military law manual. It was a simple and very
effective way of solving the problems that war time NCOs and Officer's faced
when dealing in military law. An Army raised during war sometimes lacks the
opportunities of concise and detailed instruction on the finer points of
military law when compared with the need for the soldier to fight, with
military law training given low priority. As was proved from the First World
War, the "pocket book" system, common sense, wise guidance from
Regular Army Officers and SNCO would guide the new Officer or NCO in military
law matters.
An example of a
privately written and available for private purchase precis/book on military
law was available through Angus & Robertson titled ‘How to
deal with Military Offences by Liet- Colonel G.I. Adcock, V.D, Barrister at
Law. The book further stated:
This book is intended to answer, as simply as possible, the question of how a
military offence is dealt with and what punishment may be awarded.’ Books like these were available and no doubt
significantly contributed towards the understanding of military law during the
period.
The first
official Australian Army issue "pocket book" or "notes" on
military law to aid commanders at all levels in operating military law was the
instruction/booklet dated and issued on 1st September 1939 titled Australian
Military Forces – Notes on the Administration and Discipline on War Service
Part 1. This document was vital in making
it easier for war- time commanders to interpret and administer military law and
summarised the relevant parts in plain language that commanders would have to
apply on a daily basis. Whilst a valuable aid it still did not provide the
detail and simplicity required for hastily trained war time soldiers and a
further document/s would be necessary.
By 1943, the Army
assisted the military law process by introducing a "standard suite of
forms" that simplified the process of the paperwork involved in charging
soldiers. This suite greatly assisted the standardisation of paperwork and
procedures especially for Court Martials and provided clear guidance and
explanatory notes for compilation. On 01 May 1943, a second publication
following on from the 1939 version including more detailed and concise notes,
pocket size, was issued that went into greater detail and procedure on how
military law was to be applied at unit level. This document of 60 pages enabled
commanders at all levels to understand the law and procedures required to
discipline troops on active service and thereby provide a more balanced and
logical approach to military law.
In reality, this
document is what the Australian Army should have produced in the first place
some 40 years earlier and spelt out the system to be applied. Printed below for
the benefit of the reader, this is the way military law was applied to the
Australian soldier in times of war and peace from 1901 through to the 1980s
with various minor modifications along the way and read as follows:
INVESTIGATION OF CHARGES
The summary of
evidence was an important document and as we can see from the story so far,
vital in the operation of military law. The summary dates back to the original
military law of the 1881 Army Act and was originally known as a Summary Court
Martial designed to prevent the Provost Marshal or his staff from summarily
dispensing punishment to the troops which was often resented. The summary
allowed for a trial of the offender and evidence to be presented. The summary
was the mainstay of military law from 1901 through to the 1960s and was vital
in the application of military law.
Unfortunately,
many summaries were so poorly done that they became useless or irrelevant to
the disciplinary proceedings which resulted in the soldier being poorly judged
and sentenced that many felt they were a victim of the military justice system
rather than a person treated fairly by the court/proceedings. Often, officers
who had the responsibility of recording the summaries did not understand what
they had to do and the judicial requirements involved. Many recorded
irrelevant, unacceptable hearsay or inadmissible information that under normal
circumstances would not be accepted by the courts and often did not explore or
test the relevance or validity of information supplied. Poor summaries
contributed greatly to the problems of Australian military law during the
period.
Other problems
identified with military law during the period were:
Prejudicial Behaviour
The overuse of
Prejudicial Behaviour charges in place of the correct offence/law; it was much
easier and less work to charge a soldier under Prejudicial than another
offence. Also the standards of proof were much lower for prejudicial than other
offences making it easier for units to charge and soldier and therefore
maintain discipline and morale.
Debits from
pays
Debits from a
soldier’s pay without his knowledge was a major problem. Often a soldier would
find his pay debited for something he did not know about. When he tried to
enquire about the debit he seemed to hit a "brick wall" concerning
the debit. Units were debiting pays without informing the soldier why or
charging him with an offence to obtain the debit. Quite often a soldier lost
equipment through no fault of his own; however, would be debited by unit Q
staff for the cost. Army Legal suggested that automatic debits be stopped and
soldiers to be charged with offences and heard before his CO before money is
taken from their pay.
Fail to Comply
Many soldiers
were charged with Fail to Comply, which was a military offence designed to
cover soldiers not complying with unit orders, guidelines or procedures. The
only problem was that most soldiers were unaware that they had committed, a
Fail to Comply offence. Quite often when charged the soldier would be
completely ignorant of the fact surrounding the offence and was often found
guilty of an offence that he did not know he committed. This was a major
miscarriage of justice towards the soldier and one that the Army struggled with
during the war and even to this day, finding a way to notify every soldier on
the battlefield that he could not do something or not go somewhere.
Women’s
Services (AWAS, WAAFs, WRANS)
Another problem
that was found difficult to deal with in the Service’s was offences committed
by female members of the Services. Military law in this area was found lacking
on most occasions as the male dominated forces at this time and social belief
of the period was of the opinion that women do not commit crime. This was in
stark contrast to what the commanders of the Women’s Forces were telling the
Generals who incidentally wanted the same offences as male soldiers to apply as
there were many women who were flaunting the system knowing they would not get
punished. Many women in the Service’s lived "on the edge" during the
war behaving in a manner that would not affect them normally especially
concerning promiscuous and socially unacceptable behaviour.
Detention –
sentencing period
One of the more
bazaar aspects of sentencing with detention was the remission days. If a
soldier served 28 or more days he would be entitled to a few days remission off
his sentence which would mean he would serve less days than originally awarded.
Many Commanders were not happy about this especially as they wanted to set an
example to the soldier concerned. Their solution was to give the soldier under
28 days for example 27, which would mean the soldier would serve a full 27 days
in detention without loosing days through remission. This was a big problem
during the war and one that undermined the spirit of the law.
Much effort and
educating occurred within the framework of fighting wars and some improvments
were implemented. The forms’ suite, updated pocket books and guides and a
better understanding of the processes involved clearly solved many of the problems
that existed previously and provided for a better and more judicially respected
military law. The same problems would still apply however in relation to
whether on active/not on active service although the Australian Military Law
manual was much improved by having the essential and necessary legislation and
doctrine in one manual totally applicable to Australian troops.
Once again, the
recent war proved that Australian military law was lacking and efforts were
required to update it. Towards the end of WW2, complaints were rife from
embittered soldiers and their families about the way Australian military law
had treated them. This was particularly so in connection with detention as
approved under Australian military law. A major enquiry into reforming Australian
military law was undertaken by Mr Justice Reed who recommended wide and
sweeping changes; however, through a series of delays, reviews and
pigeon-holing the much needed reforms were never enacted and Australian troops
soldiered on into the post war period with inadequate laws again. It would take
more than 20 years for any major improvement to occur.
Post WW2 period 1945 – 1960
One major
improvement that did occur in the post WW2 period was the introduction in 1955 of
the Court Martial Appeals Act. Prior to this time, Australian troops dealt with
by Court Martial had no legislative right of appeal over a Court Martial
decision although review of the finding was mandatory. With the introduction of
the Appeals Act, Australian soldiers now had the right to appeal to an
alternative tribunal which was an extension of the Court Martial system;
however, not a civil court if they felt aggrieved over the Court Martial
system. This was a bold leap towards a fairer system and identified weaknesses
and injustices with the Australian military law system.
In 1955 the
Australian Army produced another publication designed to provide essential
guidance to Commanders at all levels in the correct and lawful operation of
military law now that the Australian Army was operating in peace-time. This
publication was very necessary considering that most of the Officers and NCOs
during WW2 and just after operated on war-time military law which allowed
considerable and often total control over a soldier. However, the change to
peace-time restricted that control and required different attitudes and
procedures to enforce and administer military law.
Titled ‘Notes on
the Administration of Discipline in Respect of Members of the Military Forces
not on War Service 1955’ this pocket book spelt out the procedures in detail
for the operation of military law. These procedures were in essence the
procedure adopted for the next 40 years during peacetime and slightly adapted
when the Australian Army was deployed on operations/active service. Printed
here for the benefit of the reader it allows the reader to understand the
processes used by the Australian Army during the period:
Once again the Summary of Evidence was required and
still employed as the main way that soldiers were investigated and charged
during the period only ending when changes occurred to Australian military law
in the 1960s.
A new Australian military law for the
1960s
The Australian
edition of the WW2 law manual remained in force until the early 1960s when the
Army Law Manual (ALM) Volumes 1 and 2 were introduced in 1964. The ALMs contained
those Acts, Regulations, Orders, Appointments and Determinations made under the
Acts and Regulations which were applicable to, and by, the Australian Army.
Volume 1 of the ALM replaced the faithful and judicious AMR&Os thus ending
an historic phase in Australian military law history. The ALMs further ratified
the High Court of Australia held that the legislation providing for the trial
by court martial of members of the Defence Force was valid in accordance with
the Government's jurisdiction via the constitution. This was a significant step
as previously many cases were heard before the High Court during WW2 involving
certain circumstances where soldiers were unlawfully tried by court martial.
The ALMs would serve the Australian Army in war and peace up until the 1980s.
The Navy and Air Force still had separate military law codes, as had been the
case since the Federation of Australia in 1901. The same problems as previously
mentioned prior to the introduction of the ALMs still existed although tempered
by updates and new provisions in other areas especially in the conduct of
investigations and procedures.
Military law
would be further tested during this period as National Service and the Vietnam
War along with changing social attitudes/behaviour towards laws and punishment
in general would force the Defence Force to rethink and change military law.
The first major
event to test Australian military law at this time concerned the Australian
Army and the treatment of its' soldiers undertaking field punishment. The
Gunner O'Neill incident at Nui Dat, South Vietnam, 1966, tested the Army and
the Australian people where O'Neill, after failing to attend a field punishment
parade was awarded time in "restraints". Because his unit was engaged
in combat operations at the time, the Battery Commander (BC), Major Tedder, 105
FD BTY, was forced to handcuff O'Neill to a star picket in a weapon pit by day
and handcuffed to a stretcher at night in the Orderly Room. The public outcry
over this action and concern by the Australian Army would force the Australian
Defence Force to cease "restraints" as a means of field punishment
forever.
After a major
investigation was launched by the CGS, Lt Gen Wilton, deficiencies and
irregularities were identified and corrected with the use and interpretation of
field punishment. From this time on, Units and Commanders at all levels, were
more cautious and humane when awarding and monitoring field punishment. It's
interesting to note, that most units made a point of writing into their routine
orders (RO), that restraint was not to be used in field punishment and
highlighted the relevant army order that prohibited the use of such restraint.
Whilst Tedder was court martialled over the incident, he was found to have no
case to answer for and the charge dismissed based on the fact that his unit was
on active operations and there was no military corrective facility or detention
compound in the Australian area that could be utilised.
The second major
turning point for Australian military law concerned the conscientious objectors
that so "steadfastly" refused military service during Australia's
involvement in the Vietnam War. One of the most notable conscientious objectors
was Simon Townsend, a newspaper reporter for the "Sun" newspaper.
After failing to attend a medical call up for National Service in 1968, Simon
was arrested and placed in military custody at the Army's corrective facility
known as the 1st Corrective Establishment (1 MCE) located at Holsworthy, NSW.
Whilst in custody, Simon refused to obey any orders given to him in connection
with carrying out military type activities and as a result was awarded solitary
confinement that entailed bread and water, known as punishment diet number one,
for three days. He also had to sleep on a concrete floor with a bible, a bucket
for toilet use, no furniture, no bed, no books or magazines, as they were
considered unnecessary when undergoing this form of punishment.
Simon made his
plight known to the world via a letter smuggled out by his girlfriend at that
time who had the letter published in a newspaper. The public outcry was
enormous with all sections of the community, including the RSL, appalled at
such harsh treatment of its soldiers and found it hard to believe that such
"barbaric" punishment could still be awarded in the 1960s. By the end
of 1968, solitary confinement without furniture, magazines etc, was ceased and
the punishment diet abolished, and never to be used again. 1 MCE was required
to cancel any servicemen under sentence who was undergoing the diet or solitary
confinement at that moment when the signal was received from Army HQ.
The public outcry
and public scrutiny of the military justice system forced the Government and
the Australian Defence Force to rethink military law and its' position in the
future. As a result, 'A report of the committee of inquiry into the Services'
Detention Arrangements" was tabled in March 1969 and recommended wide and
sweeping changes to the detention system. However, as always nothing changed
and the report was not implemented and even if it was, it quite often poorly
implemented anyway that its reforms were defeated.
Also, Australia's
involvement in the Vietnam War and the large deployment of Australian Army
personnel clearly identified the many weaknesses of Australian military law.
The inadequacies and archaic structure of the military law system would reveal
many problems with commanders at all levels requiring far more tact, leadership
ability and understanding than ever before.
The introduction
of National Service, the unpopularity of the war and changing attitudes towards
authority and social behavior would force commanders to be the most liberal
operators of Australian military law since its' inception in 1901. Commanders
were now applying military law with much compassion and "lee way" and
interpreting the law with a more common sense approach.
Minor infractions
were being dealt with at lower levels and fines of a few pounds were awarded.
Even more serious cases were dealt with in the same manner with fines,
confinement to the unit area and stoppage of leave or rest days being the
preferred option over detention or some other form of custodial punishment.
This does not mean that the Australian Army was "soft" or
"slack" when it came to enforcing the law and military discipline to
its troops during the Vietnam War.
The following
information concerning the Discipline of Australian Soldiers in Vietnam
provides an opportunity to understand the application of discipline to
Australian soldiers during the Vietnam War and states:
The Military always has had discipline. During the Vietnam conflict the Army's discipline effort was directed at controlling soldiers when they were out of combat.
It was usually then that soldiers sought distractions from the experience of combat, through alcohol, sex, drugs and sometimes gambling, all of which they found in abundance in Vung Tau at the Rest in Country Centre which they shared with the Americans, ARVN and (unknowingly) the VC.
The Army, on the other hand, was concerned with limiting the loss of manpower and efficiency due to absence without leave, drunkeness and sexually transmitted disease. It also sought to maintain good relations with the Vietnamese civil authorities, on whom it depended for support. Finally it hoped to avoid politically damaging disapproval in Australia of the worst soldierly behavior.
In 8 RAR 1 in 4 soldiers were formally charged with an offence during their year in Vietnam. Most offences were of a trivial nature and attracted a small punishment. Of the charges made most were made by Officers and NCO against Private soldiers. In 8 RAR 237 Private soldiers were charged with 1 or more offences whilst CPLs and LCPLs were charged with 44 offences. Only 1 SGT and SSGT were charged. No Officers or WO were charged during their year in Vietnam.
Of the total charges laid in 8 RAR of 382, 339 were offences relating to leave, 41 relating to operations against the enemy.
Drugs offences were very rare among Australian troops. They mostly occurred when on leave at the R and C centre in Vung Tau. Often, very drunk soldiers would purchase cigarettes or borrow cigarettes from US servicemen or ARVN troops that unknowingly contained marijuana or purchase from the establishments.
Out of Operations
Most related to leave in Vung Tau - AWOL, not having a current valid leave pass, broke curfew (2200 hrs at 1 ALSG), insubordination to Military Police. Consumption of alcohol was often a factor in the offence, not the offence itself.
Operations
UD of weapon, not cleaning weapon, sleeping whilst on picket.
Military law
creaked along during the 60s and 70s with the 1980s bringing major and wide
sweeping changes to military law and propelled the Australian Army, Navy and
Airforce into the modern world.
The 1980s
By the 1980s, it
was considered that the existing military law was outdated and unnecessarily
complex. Attitudes had changed both within the military and outside, which were
forcing a rethink of Australian military law. Finally, this maze of legislation
was replaced by the Defence Force Discipline Act 1982 and implemented on 3 July
1985. The Defence Force Discipline Act contained for the first time in one Act,
the disciplinary law applicable to the three arms of the Defence Force who
would now come under one generic law instead of three separate individual
codes.
In Purcell's article he states the following examples of how the previous military law failed Australian troops throughout history. Purcell describes the Minister for Defence at that time, Mr Killen explanation of why military law was changed and the DFDA introduced where he said that Killen described the present law as a "Serbonian bog of archaisms". Killen went on to describe some of the oddities contained in the old military law which created offences for "duelling", "behaving in a scandalous manner unbecoming the character of an officer and a gentleman", "by beating drums, negligently occasioning false alarms on the march" and "conniving at the exaction of any exorbitant price for a house or stall to a sutler"
Further, the
failure to update and rationalise military law meant that it continued to place
excessive reliance on the dragnet offence of conduct to the prejudice of good order
and military discipline. Thus, one or other of the existing codes failed to
make specific provision for offences such as failure to comply with standing
orders, absence from place of duty, or minor assaults and disturbances; while
none of the codes makes provisions for driving offences and drug offences. Also
missing from the existing law were any detailed provisions on the conduct of
investigations by Service Police or any comprehensive provisions for review of
convictions and punishments imposed by Service tribunals.
The following information taken from the
DFDA explains a brief outline of its operation:
The Act also provides tribunals with power to try civilians accompanying the Defence Force outside Australia or on operations against the enemy for some of these offences in certain circumstances. Civilians are not otherwise liable to be tried by service tribunals, nor are any offences created by the Act triable by civil courts.
The Act creates a system of internal appeals against and review of convictions and punishments, complementary to the system of external appeal to a tribunal (comprising not less than three judges) against, and review of, convictions provided by the Defence Force Discipline Appeals Act.
The DFD Act also provides for related matters such as investigation of offences, suspension from duty, powers of arrest, power to order restitution of stolen property or payment of reparation for damage or loss caused, conviction without punishment, approval of certain punishments by higher authority, suspension and remission of punishments, execution and enforcement of punishments and parole.
In 1995 further
modification was made to the DFDA, allowing for minor offences to be dealt with
more expediently and efficiently. DFDA states:
as a result of a 1989 Report of the Defence Force Discipline Legislation Board of Review, in 1995 an additional discipline regime, the "discipline officer", was introduced to deal with minor disciplinary infringements. The discipline officer is not a service tribunal and does not deal with service offences thus avoiding the complexity associated with trials by service tribunals.
The Disciplinary
Officer would only hear cases of a minor nature and could only award basic
punishment of restriction of privileges (ROP) for a few days, loss of leave or
a reprimand. It was designed to avoid wasting valuable training time in units
by formally convening a hearing and charging soldiers over minor disciplinary
occurrences.
The next
amendment to the DFDA was the introduction of the Criminal Code Act 1995, which
took effect from 15 December 2001. The Criminal Code Act 1995 was new
Commonwealth legislation that "standardised" offences as recognised
by the Commonwealth. This legislation affected all Commonwealth Departments with
Defence forced to amend DFDA. The introductory letter concerning the new
legislation stated:
Criminal offences are deconstructed (broken up) into individual elements. An offence now consists of two types of elements, the physical elements (what we used to refer to as the actus reus) and the fault elements (mens rea), which are clearly delineated. The Criminal Code deconstructs offences into physical elements of conduct, circumstance and result of conduct and attaches a fault element to each physical element. The aim of doing this is to provide certainty and clarity in relation to the scope and effect of each offence, and to give consistency as to how criminal offences are legally interpreted. The idea is that you will be able to know by looking at the offence, what the physical element is and which fault element (intention, knowledge, recklessness or negligence) must be proved in relation to it. You would be aware that at the moment there are a number of DFDA offences for which it is not clear from looking at the offence whether the prosecution must prove a fault element to make out the offence.
You would also be aware that the DFDA contains a number of strict liability offences, even though they are not labelled as such in the Act. One of the underpinning principles of the Criminal Code is that each physical element of an offence has a corresponding fault element. There is a presumption that proof of fault is required for statutory offences, so the idea of strict liability does not sit well with the Code. The Code consequently requires that if an offence is strict (or absolute) liability, it must say so and there must be a good reason for it. In terms of the DFDA this means that there has been significant work done to deal with the strict (and absolute) liability offences.
The Code has a statutory preference for defences only to impose the lesser ‘evidential’ burden of proof on defendants. Currently, the DFDA requires the greater burden of proof on defendants of the ‘balance of probabilities’ for statutory defences. However, approval has been given to retain this legal burden of proof for statutory defences. Additional defences provided in the Code itself will still only require the lesser evidential burden of proof.
As we can see
from the above paragraphs, the maturing and equity of Australian military law
was evolving, slowly. Long gone are the days of the CO charging a soldier based
on little evidence or fairness, with a new system defining exactly what is
required to confirm a guilty verdict.
To gain further
knowledge of the history and development of Australian military law, it is
interesting to note how the law has changed over the past 100 years. The
following is a study of those changes. Drunkenness has always been a common
offence among soldiers and tracing the offence through the history of
Australian military law is an interesting exercise in the evolution of
Australian military law.
The Australian
Military law offence for drunkenness, has been viewed the following ways
throughout the history of the Australian Army:
The Defence Act
1903 - 12, Regulations and Standing Orders dated 1908 states:
commits the offence of drunkenness, whether on duty or not on duty.
This was further
amplified in other chapters by stating which way the offence could be handled,
i.e, whether the person was on duty, warned for duty or misbehaved as a result.
The charge would look something like this:
The accused (number,rank, name, regiment or Corps), a soldier of the Permanent Military Force, is charged with having while on duty (in uniform) committed the following offence, namely drunkenness.
The Manual of
Military Law (British) 1929 states:
every person subject to military law who commits the following offence; that is to say, the offence of drunkeness(1) whether on duty or not on duty, shall on conviction by court martial, be liable, if an officer, to be cashiered, or to suffer such less punishmnet as in this Act mentioned, and if a soldier, to suffer imprisonment, or such less punishment as in this Act mentioned, and, either in addition to or in substitution for any other punishment, to pay a fine not exceeding five pounds(2). Provided that, where the offence of drunkeness is committed by a soldier not on active service or on duty, the sentence imposed shall not exceed the addition of the aforesaid fine.
NOTE
1. See generally as to this offence Ch.3, paras 42-48 and s46 (2) (3) and note. Witnesses should be required to state thier reasons for thier opinion that an accused was drunk.
2. Drunkeness is the only offence triable by court martial or CO for which a fine may be imposed. The fine, if awarded by court martial, cannot exceed five pounds; if by a CO it cannot exceed two pounds.
The charge was as
follows:
The accused, No.........., Private ................, Battalion, Regiment, a soldier of the Regular Forces, is charged with - (When on active service) drunkeness, in that he, at ..............., on ..................., (when on duty - [specify duty]) or having been previously warned for duty (specify duty), was drunk.
Note - if the offender has been warned for special duty, e.g. night picquet or in aid of the civil power, the nature of that special duty should be stated.
The Manual of
Military Law - Australian Edition 1941, states exactly the same as above for
the 1930s British military law manual.
The Army Law
Manual 1964 that was in use until 1985 states:
441 (R.272)In this Division simple drunkeness means an act of drunkeness not committed on active service nor on duty within the meaning of AMR 248, nor after having been warned for such duty, nor under such circumstances that by reason of the drunkeness of the offender was found unfit for a duty for which he had been warned.
442 (R. 273)In dealing with simple drunkeness unconnected with another offence, confine ment to barracks, when it may lawfully be awarded, should be added to a fine only when the circumstances are such as increase the gravity of the drunkeness. Detention should never be awarded for an instance of simple drunkeness punishable by detention, except when the amount of unpaid fines recorded against the soldier if Four dollars or more, in which case detention or some other form of punishment within the power of a CO ahould be awarded in the Citizen Forces on war service or the Permenent Forces.
443 (R. 274)When a private soldier is guilty of simple drunkeness, and in connexion therewith, is charged with a more serious offence for which he is tried by court martial, he should not be charged with drunkeness before the court martial unless he is liable to trial for it under AMR 248 or AA 46, and the CO considers that he should be tried for drunkenes; but as a record of the drunkeness, when a charge for it is not preferred before the court martial, imposing a fine, if appropriate, or making a note in the punishment column to the following effect: "No punishment; awaiting trial on another charge". If an entry of a conviction by a court martial is subsequently made, it should be bracketed with the note, which will not then be considered to be a seperate entry.
443A An officer imposing a punishment for simple drunkeness, in excercise of the powers of a commanding officer under Division 7 of the Australian Military Regulations, is to have regard to the following scale -
Occasion on which offence committed Punishment
First Admonition
Second Fine not exceeding 5 dollars
Third Fine not exceeding 10 dollars
Third (within six months) Fine not exceeding 20 dollars
Third (within three months) Fine not exceeding 40 dollars
The Defence Force
Discipline Act 1982 states:
Drunkenness on Duty etc
Section 37 of the DFD Act provides as follows:
"37.(1) A defence member who:
(a) is drunk on duty; or
(b) is drunk when the member; reports or should report for duty;
is guilty of an offence for which the maximum punishment is imprisonment for 6 months.
(2) For the purposes of this section, a person shall be deemed to drunk if, and only if, the person's faculties are, by reason of the person being under the influence of intoxicating liquor or a drug (not being a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called upon to perform."
EXAMPLE OF SPECIFIC OFFENCE
Example:
Who may commit: Defence member
Specimen charge:
DFD Act sec 37(1)(a)Drunkenness on duty
Being a defence member at .......... on .......... whilst on duty as the forward hand of HMAS VAMPIRE's ship's boat was drunk.
DFD Act sec 37(1)(b)Drunkenness on duty
Being a defence member at .......... on .......... when reporting for duty as a steward in the Officer's Mess at the School of Artillery was drunk.
Proof:
a. that the accused was a defence member;
b. that the accused was on duty (or reported for duty, etc); and
c. that the accused was drunk at the time.
Commentary:
"Drunk". As to what constitutes being drunk for the purposes of the offences in this section, see sub-section 37(2).
Any person may give his or her opinion whether or not the accused was drunk but the opinion will have little weight unless the witness describes the symptoms on which the opinion is based.
The time between when a member last consumed alcohol and when the member was required to report for or perform a duty is not necessarily an impediment to framing a charge under this section.
For example a member may present to work after having drunk heavily the previous evening and still retain a quantity of alcohol in his/her system that continues to act thereupon. Accordingly, it could
transpire that the accused could be regarded as being under the influence of intoxicating liquor (within the deeming provision of section 37(2) of the DFD Act) notwithstanding that the accused last
consumed alcohol a number of hours previously.
The new Criminal Code amendments to Chapter
4 of the DFDA, which affects all charges states:
Section 37 Intoxicated while on duty etc.
(1) A defence member is guilty of an offence if:
(a) the member is on duty, or reports or should report for duty; and
(b) the member is intoxicated (see subsection (3)).
Maximum punishment: Imprisonment for 6 months.
(2) An offence under this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3) For the purposes of this section, a person is intoxicated if, and only if, the person's faculties are, because of the person being under the influence of intoxicating liquor or a drug (other than a drug administered by, or taken in accordance with the directions of, a person lawfully authorised to administer the drug), so impaired that the person is unfit to be entrusted with the person's duty or with any duty that the person may be called on to perform.
SPECIMEN CHARGE:
s.37 Being intoxicated while on duty
Being a defence member at ............. on ............., (identifying details of accused) was intoxicated while on duty as a security sentry at the Joint Warfare Centre.
s.37 Being intoxicated when reporting for duty
Being a defence member at ............. on ............., (identifying details of accused) was intoxicated when he reported for duty as a steward at the Officer’s Mess at the School of Artillery.
PROSECUTION ProofS:
a. that the accused was a defence member (physical element);
b. that the accused was on duty (or reported for duty or was supposed to have reported for duty) (physical element);
c. the accused was intoxicated as defined in s.37(3) (physical element); and
d. no requirement for prosecution to prove a fault element on the part of the accused in relation to any of the physical elements in (a), (b) or (c) as this is an offence of strict liability under s.37(2).
Commentary:
Any person may give his or her opinion whether or not the accused was intoxicated but the opinion will have little weight unless the witness describes the symptoms on which the opinion is based ie. slurred speech, unable to maintain balance, unsteady on feet, dishevelled appearance, breath smelling of alcohol, bloodshot eyes etc.
The time between when a member last consumed alcohol and when the member was required to report for or perform a duty is not necessarily an impediment to framing a charge under this section. For example, a member may present to work after having drunk heavily the previous evening and still retain a quantity of alcohol in his/her system that continues to act thereupon. Accordingly, it could transpire that the accused could be regarded as being under the influence of intoxicating liquor (within the deeming provision of section 37(3)) notwithstanding that the accused last consumed alcohol a number of hours previously.
Conclusion
Military law is
unfortunately a vital and necessary law in order to maintain discipline and
order among the troops and is believed to be one of the many reasons why the
Australian Army is considered one of the world's best armies despite its small
size and range of equipment.
It is appalling
that it took the better part of 85 years for the Australian Forces to gain a
truly, independent military law that resembled some degree of sanity and
fairness for the troops. This is in contrast to the fact that many, civil laws
during the period were repealed or reformed to reflect modern values and legal
procedures in society. This ad's further weight to the evidence of lack of
reform and change throughout Australian military law history. That military law
was slow to change reflects that is was regarded as unimportant and not worthy
of the efforts of the Government and legal system both military and civilian to
develop an Australian military law that was both relevant and fair to the
Australian Army and the soldiers it governed.
Even the DFDA
today, whilst being the best military law to ever govern Australian troops throughout
the Army's history is still deficient in some areas and requires tweaks and
tinkering to bring it into the 21st century. This is especially so
when dealing with drugs and illegal substance use and issues covering aspects
of modern day crime that require careful and considerate thought in order to
achieve a successful prosecution.
Considering the
power that military law has over its audience and the range of punishments both
custodial and financial especially when applied by non-legal persons, it is
understandable why military law in Australia has been viewed as unfair and hard
especially by the troops it is supposed to serve.
At the end of the
day, military law must be a blend of tradition, realism and progress, which
must always be an ideal in a disciplined Defence Force in a liberal democracy;
however, we as a nation and a Defence Force have a long way to go.