A brief history of Australian military law

Researched and written by Antony Buckingham, Australian MP History Website, 2014, www.home.iprimus.com.au/buckomp

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:

    1. 1901 - Federation of Australia and creation of Australian laws;
    2. 1903 - Defence Act 1903;
    3. 1904 - Australian Military Regulations and Orders (AMR&O);
    4. 1941 - Manual of Military Law 1941 - Australian Edition;
    5. 1964 - Army Law Manual (ALMs) Volumes 1 and 2; and
    6. 1982 - Defence Force Discipline Act (DFDA) although commenced operation in July 1985.

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

  1. Discipline is the regulation of conduct to conform to a standard laid down by rules administered by persons in whom authority is vested by those rules. Discipline requires exact and immediate obedience to orders in all circumstances. A ground for complaint does not justify disobedience. The order must be obeyed, but complaint may be made afterwards. (AMR&O 289 to 294)
  2. By means of discipline, a body of men may be controlled and worked, as a composite whole, to carry out tasks in which, without discipline, the same men would become a rabble whose uncoordinated efforts would end in disaster, not only to the object sought to be achieved, but also to the individuals.
  3. Reliable discipline cannot be produced by fear of punishment alone, particularly in Citizen Forces. Reliable discipline exists only when there is mutual confidence and respect between officers, WOs, NCOs and men, and when a common determination exists to subordinate everything to duty (AMR&O 304 (1)).
  4. It is the duty of every officer, WO and NCO to win the confidence and respect of his men by showing himself efficient, impartial in the administration of discipline, and careful of their welfare. The hard work and training necessary to produce discipline will not be irksome if men are well fed and looked after. The success of the AIF is an example of this.

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.

  1. WOs and NCOs are not unnecessarily to be reproved in public (AMR&O 303).
  2. The use of outside influence is forbidden, as being inconsistent with discipline. (AMR&O 307)
  3. Publication of military information is forbidden. (AMR&O 309, also DA 73a and 73d)
  4. All ranks are forbidden to attempt to prejudice the decision of questions under investigation by the publication, anonymously or otherwise, of their opinions, or to attempt to raise discussion in public about orders, regulations, or instructions issued by their superiors. (AMR&O 310)
  5. Praise or censure of superiors is forbidden. (AMR&O 313)
  6. On this point, refer to AMR&O 316.
  7. On this subject, refer to AMR&O 337.
  8. Refer to AMR&O 322, on the subject of gambling.
  9. On this subject, refer to AMR&O 334.
  10. As to intoxicating liquor, refer to AMR&O 318, 319, 320, 321 and 335.
  11. As to religion, refer to AMR&O 323.
  12. Explain that all the above are designed to assist in producing and maintaining discipline, and are not mere arbitrary rules.
  13. The CO is particularly responsible for discipline. (AMR&O 1423), and it is the duty of all to assist him. (AMR&O 305) As to his duties, see AMR&O 311.
  14. Military law provides powers of punishment. It has no terrors for the good soldier. It is not aimed at him. In every army will be found men of objectionable character. The power of punishment is provided for the purpose of preventing bad example from operating as an injurious influence.
  15. COs are required to use every effort to prevent the commission of offences and to suppress any tendency to screen their existence. (AMR&O 300) All officers are required to give their utmost aid and assistance to the CO. (AMR&O 305) This applies equally to WOs and NCOs.

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.

  1. Officers, WOs and NCOs should adopt towards their subordinates such methods of command and treatment as will not only ensure respect for authority, but will also foster the feelings of self respect and personal honour essential for military efficiency. (AMR&O 301 and 302) All in whom the power of command is vested, of whatever rank, should endeavour, by courtesy, fair dealing, impartiality, and by taking an interest in the welfare of those under them, to win their confidence in order that they may come to their superiors with their troubles and feel sure that they will receive wise and just consideration.

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:

  1. These notes replace the disciplinary sections in the Field Service Pocket Book which are not applicable to the AMF in their entirety.
  2. The object of these notes is to assist officers of the Australian Military Forces on war service in the administration of military law. In particular they have been designed to meet the change from peace to war conditions. No attempt has been made to deal exhaustively with the matters which have been included, as the notes would then have become too voluminous and would not have achieved their object. The Manual of Military Law (which contains the Army Act and the Rules of Procedure) and the Defence Act and Australian Military Regulations and Orders must, therefore, be consulted for further details.
  3. Punishment is the last resort in obtaining obedience to military law. All ranks should understand that the provisions of the Acts and regulations represent boundaries fixed in the common interest and within which all members are in honour bound to conduct themselves. With such a foundation, discipline is a positive attitude of mind and not merely a negative virtue. In the words of AMR and O 304, ‘Discipline maintained by punishment alone is a poor sort of discipline which would not stand any severe strain. What must be aimed at is that high standard of discipline which springs from a military system administered with impartiality and judgement so as to induce in all ranks a feeling of duty and the assurance that while no offence will be passed over, no offender will be unjustly dealt with. All ranks having authority must administer discipline with firmness while remembering that arrogance and abuse of power are productive of resentment in the lower ranks and equally destructive of discipline as weakness of administration, which creates contempt of authority.’ The avoidance of petty restrictions, and the issue of clear decisive orders at all times are conducive to good discipline

INVESTIGATION OF CHARGES

  1. Charges must be investigated without delay, but a soldier charged with drunkenness should not be tried until he is sober (usually 24 hours should be allowed to elapse from the time of arrest).
  2. Every charge against a soldier should be investigated in the first instances by the Company etc, Commander at his Company orderly room which will be held at such an hour as will ensure that a soldier remanded for disposal by the CO may be ready to go before him at the appointed time.
  3. The accused soldier is marched before his Company etc, Commander together with an escort and all witnesses. A soldier during the investigation is deprived of his cap and all articles which could be used as missiles.
  4. The Company Commander first reads out from the charge report the accused’s name and number and asks the accused: ‘Is that your name and number?’ This proves identity. The charge is then read out and the evidence of witnesses is given orally in turn. The accused may demand that the evidence be given on oath. The same form of oath or solemn declaration will be used as that administered at a district court martial. The oath reads thus: ‘I swear by Almighty God that the evidence which I shall give before this Court shall be the truth, the whole truth and nothing but the truth.’ The accused may cross-examine any witness. The Company etc, Commander may examine witnesses if necessary. If the accused is considered ‘not guilty’ or in the discretion of the Company etc, Commander he thinks the charge ought not be proceeded with, the charge is dismissed and the charge report (AA Form A4) is destroyed. If it is considered that there is a case to answer, the accused should be asked: ‘Do you wish to make any statement or to give evidence upon oath? You are not obliged to say anything or give evidence unless you wish to do so, but whatever you say or any evidence you give will be taken down in writing and may be given in evidence.’ The accused should also be asked whether he wishes to call any witnesses. If the Company etc, Commander has power to deal with the case summarily and contemplates doing so by a finding or award which will involved a forfeiture of pay or by an award of any but a minor punishment he must ask the accused whether he desires to be dealt with summarily or by court martial. If the accused elects to be dealt with summarily the punishment is then decided on after consideration of his conduct sheet. If the Company etc, Commander deals with the charge himself he will enter the punishment on AAF A4. If he remands the case to the CO he will enter that fact on AA Form A4.
  5. When the soldier has been removed from the presence of the Company etc, Commander the award cannot be increased.
  6. Whether the Company etc, Commander disposes of the case or reserves it for the CO he will send the charge report to the orderly room before the hour fixed for disposal of charges by the CO.
  7. If the unit furnishes a guard the particulars will be copied on to the Guard Report (AAF A18) if this has not already been done.
  8. The Company etc, Commander will attend the orderly room with the soldier’s conduct sheet, which will not be placed before the CO in a case reserved for his consideration until he decides that an offence has been committed.
  9. Should the accused have elected to be dealt with by his CO the procedure will be similar, but it at the conclusion of the hearing the CO thinks that the case ought to be proceeded with he shall:
  1. dispose of the case summarily if he has power;
  2. refer the case to the proper superior authority; or
  3. Adjourn the case for the purpose of having the evidence reduced to writing. This is done by the Adjutant or any other officer detailed for the purpose. For the Form to be observed see App VI of the AMR&Os.
  1. If the case is reduced to writing the CO will consider the evidence taken down (called the summary of evidence) and shall follow one of the following courses:
  1. dismiss the charge without rehearing;
  2. remand the accused for trial by court martial;
  3. refer the case to proper superior authority; or
  4. rehear the case and dispose of it summarily unless the accused elects to be tried by court martial.
  1. Before awarding punishment in a case in which the accused has the right to elect trial by a court martial, the CO should say: ‘Do you wish to be dealt with by me or by court martial? If you elect to be tried by a Court, higher authority will decide whether that Court will be a military or civil one.’ If on application for a court martial the superior authority directs trial in a civil Court, the accused will be so informed and will be given the opportunity of electing to be deal with summarily by his CO.
  2. Charges against an officer must first be investigated by his CO in order that he may determine whether the charge shall be dismissed or the case referred to superior military authority. If the officer requires it the evidence shall be taken in writing. The CO may assemble a Court of Inquiry to make preliminary investigations.

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:

  1. During World War II a pamphlet entitled ‘Notes on the Administration of Discipline on War Service’ was issued to assist officers of the AMF in the administration of military law. The pamphlet was favourably regarded by those who had recourse to it, and the object of these notes is to render the same assistance to officers in the time of peace. The notes are particularly designed to meet the change from war to peace conditions as a large proportion of the officers now serving in the AMF had not experience of military law in peace time until 15th April 1952, when peace time procedure became operative after having been in abeyance since 2nd September 1939.
  2. No attempt has been made to deal exhaustively with the matters which have been included, as the notes would then have become too voluminous and would not have achieved their object. The MMI which contains the AA and the RP (adapted and modified for application to the AMF) and the DA and AMR&O must therefore, be consulted for further details. The MMI, has, however, not been kept up to date for several years and, wherever practicable, officers whose duty it is to ensure that court martial procedure is properly observed should refer also to Part I of the 1951 War Office edition of the manual of Military Law.
  3. Punishment is the last resort for obtaining obedience to military law. All ranks should understand that the provisions of the Acts and regulations represent boundaries fixed in the common interest and within which all members are in honour bound to conduct themselves. With such a foundation discipline is a positive attitude of mind and not merely a negative virtue. In the words of AMR&O 304, ‘Discipline maintained by punishment alone is a poor sort of discipline which would not stand any severe strain. What must be aimed at is that high standard of discipline which springs from a military system administered with impartiality and judgement so as to induce in all ranks a feeling of duty and the assurance that while no offence will be passed over, no offender will be unjustly dealt with. All ranks having authority must administer discipline with firmness while remembering that arrogance and abuse of power are productive of resentment in the lower ranks and equally destructive of discipline as weakness of administration, which creates contempt of authority.’ The avoidance of petty restrictions, and the issue of clear decisive orders at all times are conducive to good discipline.

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.