Denial of rights for our brave Diggers
Written by Professor David Flint AM   
Sunday, 24 October 2010
Why do our parliaments guarantee a gold-plated justice system for hardened criminals, but weight the dice against the bravest of the brave –those who are prepared to die for their country?

The recent decision of Brigadier Lyn McDade, the Director of Military Prosecutions, to prosecute three soldiers from No 1 Commando regiment over events which took place early last year has drawn attention to the changes the federal parliament made to the military justice system in 2005.

The High Court ruled that one key aspect of this -- replacing courts martial with courts outside of the command structure -- was constitutionally invalid.

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The other principal change -- the creation of a singularly powerful DMP -- was not in issue.In the current controversy, it is being claimed the office is no more than the military equivalent of the Directors of Public Prosecutions.

It is not.

It now has the power to prosecute breaches of military discipline, a power which had long been vested in all commanding officers of the army, RAN and RAAF.

To this have been added powers similar to those of the magistracy in committal hearings in ordinary criminal cases. These hearings test whether a prosecution is sufficiently well based to proceed to a full trial before a judge and a jury. In the US these are still heard by that most democratic common law institution, the grand jury.

This means one person, sitting in Canberra behind closed doors, now exercises both the disciplinary powers, formerly the preserve of all commanding officers in the field, together with the powers of a magistrate in a committal hearing.

In the US, the exercise of these powers is divided between at least four officers who will probably be different in each case.In addition, the accused is entitled to attend and participate in the committal-style hearing and to see and object to all advice received by his commanding officer.

The Americans have never attempted such a dangerous concentration of power as we have.

.If their politicians were unwise enough to follow this Canberra precedent, the constitution would fortunately stop them from committing such an error.

The result is that Australian soldiers are denied three fundamental pre-trial rights.To understand the outrage which has been visited upon our soldiers, recall that all of these rights are enjoyed by the most hardened criminals charged with a serious crime.

The first is the right to examine the DMP's witnesses before the trial.

The second is the right to know what the DMP's case is against them before the trial.

The third is the right to argue and to make submissions to an impartial person that the DMP's case is inadequate and should not proceed to trial.

Before 2005, prosecutions were initiated by commanding officers and heard before courts martial.This is because military justice is interrelated with line command and the discipline necessary to maintain a fighting force.

The DMP cuts across and thus undermines the chain of command.It neutralises an important part of the authority commanding officers must have.

This is recognised in the Constitution by the vesting of the command in chief of the naval and military forces of the commonwealth in the Governor-General.It is also recognised in the power to make laws and the executive power with respect to the naval and military defence of the commonwealth and of the several states.

Transferring these powers to bodies outside of the chain of command is not only unfair to serving soldiers, it is militarily incoherent.

Just imagine if such a position had existed in World War II.Had prosecutions been launched whenever civilians were inadvertently and unintentionally killed, the AIF, the RAN and the RAAF would have been rendered impotent.

The Menzies and Curtin governments would never have proposed such a position over the armed forces as the DMP.United in their allegiance to king and country, acknowledging the terrible sacrifices that the soldiers, sailors, airmen and nurses were making, they also had more common sense.

For the sake of the morale of the armed forces, the government should introduce legislation immediately to abolish or significantly change its creation, the Director of Military Prosecutions.

Instead, the government should consider the practice in the US where a trial by a general court martial is preceded by what is in effect a military committal hearing.

There, the commanding officer consults with the command judge advocate about the proposed case.After that, if the commanding officer thinks the case justifies a court martial, he must first appoint a commissioned officer to conduct an investigation and to report back.

This necessarily involves an impartial hearing in which witnesses may be examined and cross-examined.The investigating officer must have no other role in the case.

This is unlike the current Australian practice, where the DMP combines the roles of the US commanding officer, the judge advocate, the investigating officer and the prosecutor.The investigating officer's report on the pre-trial hearing is circulated to all interested.

The commanding officer must then obtain written advice on the report from the judge advocate.

This is made available to the accused.

It is only at this stage that the commanding officer can decide whether or not to proceed to trial by court martial.All of the members must be serving in the armed forces.

The point is that an American soldier is actively involved throughout this process.In Australia, he is kept in the dark.In the US, everything takes place within the armed forces.

Soldiers know that other soldiers are making the decision whether or not to prosecute.And finally, the chain of command is not undermined by transferring what are essentially the powers and discretion of the commanding officers to an extraneous powerful and over-centralised office.

The current Australian model, which is both unjust to our soldiers and potentially damaging to the future defence of our commonwealth, calls out for immediate reform.

 

                                                         David Flint is an emeritus professor of law

                  ( On 12 October, we published another view from Dr Neil James of the Australian Defence Association.)  

On 26 October, Alan Jones on 2GB broadcast the following comment and interview:

http://www.norepublic.com.au/images/stories/20101027 David Flint Alan Jones.mp3