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 whether engaged in war or parading in
peace. As old as the existence of armed forces is the concept of discipline and
a special law to enforce that discipline has been part of armies since the
early Roman times.
The current Australian military law (2005)
the Defence Force Discipline Act (DFDA), mentions some of the history behind
military law as follows:
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 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.
The Provost Marshal (PM) would become an
indispensable figure throughout the history of Australian military law as he
became responsible for administering the new codified military 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:
THE
SOLDIER’S POCKET BOOK
FOR FIELD SERVICE
BY
GENERAL VISCOUNT WOLSELEY
K.P. G.C.B. G.C.M.G.
ADJUTANT GENERAL TO THE FORCES
FIFTH EDITION, REVISED AND
ENLARGED
WITH ILLUSTRATIONS
London
MACMILLAN AND CO.
1886
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 establishment of police for Divisions &c, is as follows:
|
Distribution |
Officers |
Sergt-Majors |
Sergeants |
Corporals |
Privates |
|
Hd Qrs of Army Corps ……………. |
I |
.. |
.. |
.. |
.. |
|
" " " (Mounted) ……. |
.. |
I |
I |
I |
8 |
|
" " " (Foot) …………. |
.. |
1 |
I |
I |
8 |
|
Cavalry Brig (Mounted) …………… |
.. |
.. |
I |
I |
8 |
|
Hd Qrs 1st Division (Mounted) …….. |
.. |
.. |
I |
I |
8 |
|
" 2nd " " …….. |
.. |
.. |
I |
I |
8 |
|
" 3rd " " …….. |
.. |
.. |
I |
I |
8 |
|
1st Brig Foot Police …………………. |
.. |
.. |
I |
I |
8 |
|
2nd " " …………………. |
.. |
.. |
I |
I |
8 |
|
3rd " " …………………. |
.. |
.. |
I |
I |
8 |
|
4th " " …………………. |
.. |
.. |
I |
I |
8 |
|
5th " " …………………. |
.. |
.. |
I |
I |
8 |
|
6th " " …………………. |
.. |
.. |
I |
I |
8 |
|
|
I |
2 |
12 |
12 |
96 |
For the Hd Qrs of an Army consisting of 2 or more Army Corps there should
be 1 sergt and 4 privates mounted, and 1 seregt, 1 corpl and 6 privates
dismounted.
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’.
As the power of inflicting summary punishment is no longer vested in the PM, he must in future, on the march, or during the progress of operations when he considers it advisable to make an example by the immediate punishment of a man whom he or any of his assistants have taken in the act, or against whom some inhabitant may complain of violence, &c, apply to the nearest CO to assemble a summary court-martial to try the prisoner. The Army Act of 1881 lays down the following rules on the subject.
Summary Cts Martial – 104. (a) A summary CM may be convened by the CO of any corps or portion of a corps on active service, or by any offr in immediate command of a portion of a body of forces on active serve.
105. (a) Not less that 3 offrs must be appointed, unless the convening offr is of opinion that 3 offrs are not available, in which case 2 may be appointed.
113. (a) The witness for the prosecution will be called, and the prisoner will be allowed to cross-examine them and to call any available witnesses for his defence.
114. (a) A member of the ct or a witness may take an oath with such ceremonies and in such manner as makes the same binding on his conscience, and the words ‘you’ and ‘So help you God’ may be varied or omitted for the purpose.
116. (a) In the case of an equality of votes on the finding the prisoner will be acquitted.
117. (a) The ct, if consisting of 3 or more offrs, may award any sentence which a general CM can award; but if the ct pass sentence of death the whole ct must concur.
118. (a) Except in the case of acquittal the finding and sentence of the ct shall be valid only in so far as the same are confirmed by proper military authority.
120. (a) In the rules with respect to summary CM, unless the context otherwise requires, the expressions ‘practicable’ and ‘available’ mean respectively practicable and available, having due regard to the public service.
In the Examination of Ct Martl proceedings prior to confirmation, Sos and GosC will remember that the validity of a GCM sentence, tested by the ADA, depends on the observance of the following conditions:
These several points are to be observed by the Presidents of cts before they transmit the proceedings to one or other of the Military authorities who are responsible for confirmation (Sec 55); (a) Her Majesty (b); any offr deputed by HM (Sec 119).
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.
Passports: The first duty of the PM is to make out a list of all those (not soldiers) attached to the army in any capacity, either as servants (public or private), or as sutlers, or as belonging to societies for the relief of the sick or wounded, or as newspaper correspondents. In his book each man should have a page, upon which should be noted all particulars regarding him. Men having wives with them, to have their description also entered. To each must be issued a ticket of residence, which, like the passports formerly in general use abroad, should have an exact personal description of the holder, to prevent its being transferred. Photographs of every one to whom a passport is issued should be kept in the book, and a duplicate attached to the passport itself; every one applying for a passport to hand in to photos of himself for that purpose; the copy attached to the passport to be stamped and signed by the PM and by the holder of it. Every one to be obliged to carry his passport about on his person at all times. Each passport to be numbered and the number to correspond with the page in the general registry, to which there should be an alphabetical index. The following information should be contained in the passport and registry, to be made out thus:
|
Ticket of Residence No: - |
Name . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
Country . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Occupation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
If a foreigner, has he a passport . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Intended residence in camp, &c . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
" business . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Name of any one in camp who will vouch for his respectability . . . . . . . |
|
|
Height . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Colour of eyes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Do hair . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Age . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
Any marks about him . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
|
|
His signature . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . |
named above, has permission to remain ……………. until further orders.
By command
(Signed)
Camp (date) of 188…
The police offr of each divn will keep a similar register of all such people following, or belonging to his divn the number of each entry to correspond with that in the general register kept by the PM. It will be his duty to see that no stranger lives with his divn without such a register, and he will arrest any one not possessing one, and take him before a SO of his division. It would be a good plan to institute a fine for any remissness in these regulations, or for the loss, by accident or carelessness, of such registry. Of course, if there were grounds for supposing that there was anything criminal in the matter, the offender should be expelled from the theatre of war or otherwise summarily punished.
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 cavly)&, 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 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.
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:
1. Without orders from his superior officer, leaves his guard, picquet, patrol, or post; or
2. forces a safeguard; or
3. forces or strikes a soldier when acting as sentinel; or
4. being a soldier, acting as sentinel, sleeps or is drunk on his post, or leaves his post before he is regularly relieved; or
Mutiny and Sedition
5. causes or conspires with any other person to cause any mutiny or sedition in the Military or Naval Forces of the Commonwealth, or in any other of His Majesty’s Forces; or
6. endeavours to seduce any person in such forces from allegiance to His Majesty, or to join in any mutiny or sedition; or
7. join in, or being present does not use his utmost endeavours to suppress any mutiny or sedition in any such forces; or
8. coming to the knowledge of any actual or intended mutiny or sedition in any such forces does not, without delay, inform his Commanding Officer of the same; or
Striking or threatening a superior officer
9. strikes or uses or offers any violence to his superior officer, being in the execution of his office; or
10. strikes or use or offers any violence to his superior officer, or uses threatening or insubordinate language to his superior officer; or
Disobedience to a superior officer
11. disobeys in such manner as to show a wilful defiance of authority any lawful command given personally by his superior officer in the execution of his office, whether the same is given orally, or in writing, or by signal, or otherwise; or
12. disobeys any lawful command given by his superior officer; or
Insubordination
13. being concerned in any quarrel, fray, or disorder, refuses to obey any officer (though of inferior rank) who orders him into arrest, or strikes, or uses, or offers violence to any such officer; or
14. strikes, or uses, or offers violence to any person, whether subject to military law or not, in whose custody he is placed, and whether he is, or is not, his superior officer; or
15. resists an escort whose duty it is to apprehend him or to have him in charge; or
16. being a soldier breaks out of barracks, camp, or quarters; or
Neglect to obey
17. neglects to obey any regulation or other order; or
Desertion
18. deserts, or attempts to desert, His Majesty’s service; or
19. persuades, endeavours to persuade, procures, or attempts to procure, any person subject to military law to desert from His Majesty’s service; or
Absence from duty without leave
20. absents himself without leave; or
21. fails to appear at the place of parade or rendezvous appointed by his Commanding Officer, or goes from thence without leave before he is relieved, or without urgent necessity quits the ranks; or
22. being a soldier, when in camp or garrison, or elsewhere is found beyond any limits fixed, or in any place prohibited by any order, without a pass or written leave from his Commanding Officer; or
Scandalous conduct of officer
23. being an officer, behaves in a scandalous manner, unbecoming the character of an officer and a gentleman; or
Fraud by persons in charge of money or goods
24. being charged with or concerned in the care or distribution of any public or regimental money or goods, steals, fraudulently misapplies, or embezzles the same, or is concerned in or connives at the stealing, fraudulent misapplication or embezzlement thereof, or wilfully damages any such goods; or
Disgraceful conduct of soldier
25. malingers, or feigns or produces disease or infirmity; or
26. wilfully maims or injures himself or any other soldier, whether at the instance of such other soldier or not, with intent thereby to render himself or such other soldier unfit for service, or cause himself to be maimed or injured by any person, with intent thereby to render himself unfit for service; or
27. is wilfully guilty of any misconduct, or wilfully disobeys, whether in hospital or otherwise, any orders, by means of which misconduct or disobedience he produces or aggravates disease or infirmity, or delays its cure; or
28. steals or embezzles or receives knowing them to be stolen or embezzled, any money or goods the property of a comrade or of an officer, or any money or goods belonging to any regimental mess or band, or to any regimental institution, or any public money or goods; or
29. is guilty of any other offence of a fraudulent nature and before herein particularly specified, or of any other disgraceful conduct of a cruel, indecent, or unnatural kind; or
Drunkenness
30. commits the offence of drunkenness, whether on duty or not on duty; or
Permitting Escape
31. when in command of a guard, picquet, patrol, or post, releases without proper authority, whether wilfully or otherwise, any person committed to his charge; or
32. wilfully or without reasonable excuse allows to escape any person who is committed to his charge, or whom it is his duty to keep or guard; or
33. unnecessarily detains a person in arrest or confinement without bringing him to trial, or fails to bring his case before the proper authority for investigation; or
Irregular Detention
34. having committed a person to the custody of any officer, non-commissioned officer, provost marshal, or assistant provost marshal, fails, without reasonable cause, to deliver at the time of such committal, or as soon as practicable, and in any case within twenty-four hours thereafter, to the officer, non-commissioned officer, provost marshal, or assistant provost marshal, into whose custody the person is committed, an account in writing, signed by himself, of the offence with which the person so committed is charged; or
35. being in command of a guard, does not, as soon as he is relieved from his guard or duty, or if he is not sooner relieved, within 24 hours, after the person is committed to his charge, give in writing to the officer to whom he may be ordered to report the person’s name and offence, so far as known to him, and the name and rank of the officer or other person by whom he was charged, accompanied, if he has received the account above mentioned, by that account; or
Escape from confinement
36. being in arrest or confinement, or in prison, or detention barracks, or otherwise in lawful custody, escapes, or attempts to escape; or
Damage to or loss of equipment, horse, &c.
37. makes away with, or is concerned in making away with (whether by pawning, selling, destruction, or otherwise howsoever), or loses by neglect, or wilfully injures his arms, ammunition, equipments, instruments, clothing, or any property belonging to a comrade, or to an officer, or to any regimental mess or band, or to any regimental institution, or any public property, or any horse used in the public service; or
False accusation or false statement
38. makes a false accusation against any officer or soldier knowing such accusation to be false; or
39. in making a complaint where he thinks himself wronged, knowingly makes any false statement affecting the character of an officer or soldier, or knowingly and wilfully suppresses any material facts; or
False answer on enlistment
40. being a member of the Defence Force is discovered to have made a wilfully false answer to any question set forth in the attestation paper which has been put to him by or by the direction of the officer or justice before whom he appears for the purpose of being attested; or
Traitorous words
Ill-treating a soldier
Withholding soldiers pay
43. being an officer or non-commissioned officer, and having received the pay of any officer or soldier, unlawfully detains or unlawfully refuses to pay the same when due; or
Fails to assist magistrate in punishment of civil offences
44. on application being made to him, neglects or refuses to deliver over to the civil magistrate, or to assist in the lawful apprehension of, any officer or soldier accused of an offence punishable by a civil court; or
Conduct to prejudice of military discipline
45. is guilty of any act, conduct, disorder, or neglect to the prejudice of good order and military discipline; or
Connivance at desertion
46. being cognisant of any desertion or intended desertion of a person subject to Military Law, does not forthwith give notice to his Commanding Officer, or take any steps in his power to cause the deserter, or intending deserter, to be apprehended; or
Falsifying official documents
47. in any report, return, muster roll, pay list, certificate, book, route, or other document made or signed by him, or of the contents of which it is his duty to ascertain the accuracy:
a. knowingly makes or is privy to the making of any false or fraudulent statement; or
b. knowingly makes or is privy to the making of any omission with intent to defraud; or
1. knowingly and with intent to injure any person, or knowingly and with intent to defraud, suppresses, defaces, alters, or makes away with any document which it is his duty to preserve or produce; or
False declaration
2. where it is his official duty to make a declaration respecting any matter, knowingly makes a false declaration; or
Neglect to report and signing in blank
3. when signing any document relating to pay, arms, ammunition, equipments, clothing, regimental necessaries, provisions, furniture, bedding, blankets, sheets, utensils, forage, or stores, leaves in blank any material part for which his signature is a voucher; or
4. refuses or by culpable neglect omits to make or send a report or return which it is his duty to make or send; or
False evidence
5. when examined on oath or solemn declaration before a court martial, or any court martial or officer authorised to administer an oath, wilfully gives false evidence; or
Enlistment of soldier or sailor discharged with ignominy or disgrace
6. having been discharged with disgrace* from any part of His Majesty’s Forces, or having been dismissed with disgrace from the Navy, is discovered to have afterwards enlisted in the Permanent Forces without declaring the circumstances of his discharge or dismissal; or
Injurious disclosures
7. whether serving with any of His Majesty’s Forces or not, without due authority, either verbally or in writing, or by signal or otherwise, discloses the numbers or position of any forces, or any magazines or stores thereof, or any preparations for, or orders relating to, operations or movements of any forces, at such time and in such manner as, in the opinion of the court, to have produced effects injurious to His Majesty’s service; or
8. commits the offence of fraudulent enlistment, **that is to say: When belonging to any portion of the Defence Force of the Commonwealth again enlists or enrols himself in the same or any other portion of the Defence Force, without first having obtained a regular discharge therefrom, or otherwise fulfilled the conditions enabling him to enlist;
shall, on conviction by court martial, or by a civil court, be liable to suffer one or more of the penalties set forth in paragraph 237.
9. For the purpose of sub-paragraph (53), the expression ‘discharged with disgrace from any part of His Majesty’s Forces,’ means discharged with ignominy, discharged as incorrigible and worthless, discharged for misconduct, or discharged on account of conviction for felony or of a sentence of penal servitude.
* See sub-para (56).
** See sub-para (57)
10. Where an offender has fraudulently enlisted, he may, for the purpose of sub-paragraph (55), be deemed to belong to any one of the regiments or corps to which he has been appointed, enlisted, enrolled, or transferred, as well as to that to which he properly belongs.
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 u