A brief
history of Australian military law
All armies of the world have some form of military law
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.
A
brief reflection on the historical aspect of British (Australian) military law
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 conscripts who joined to fight a war and did not
readily accept or understand the intricacies of the Army's ways.
The
beginning of a codified military law
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 on how military law has evolved into the product it is today and its’ application
to the Australian and British Army. Some of the more relevant paragraphs 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 anyone 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 court rooms 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 required. Also, the fact of trying to
change, alter or introduce new legislation or to rewrite or reform military law
was difficult.
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 woes" in regards to a soldiers behavior. The power of the
CO is absolute within the guidelines of military law granting him or her 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
"leveler" 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 offences within the military where punishments can be
awarded that entail imprisonment or dismissal. 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 mostly petty crimes
and strict military 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 matters, 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 gained 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 fulfillment 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, 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 perception issues 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 preceding
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 martialed over the incident, he was found
to have no case to answer for and the charge dismissed as his unit was on
combat operations and there was no military corrective facility or detention
compound in the Australian area that could be used.
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, 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 scrutiny of the military justice
system forced the Government and the Australian Defence
Force to rethink military law and its' 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.
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.