OFFICIAL OPENING OF THE AUSTRALIAN CENTRE FOR MILITARY LAW AND JUSTICE

Australian National University

Thursday, 8 May 2008

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Thank you Robin [Prof Creyke, Director, Australian Centre for Military Law and Justice] for your kind introduction.

Acknowledgments:

·     The Vice Chief of the Defence Force Lieutenant General Ken Gillespie

·     Head of Defence Legal Mark Cunliffe,

·     And other honoured guests…

·     welcome to audience; and

·     acknowledge traditional landowners, Ngunnawal People.

I am very pleased to be here this morning for the official opening of the Australian Centre for Military Law and Justice within the Australian National University College of Law.  It is a special privilege to return to the university that I graduated from a little over 35 years ago.

And it is an exciting development in the field of military law to see the establishment of a Centre with such a broad scope

In particular, the focus of the Centre on the development of a high quality, internationally and domestically focused research capability across the entire spectrum of military law, will fill a significant scholarly niche.

The high operational tempo of the Australian Defence Force since the end of the twentieth century has seen the profile of our sailors, soldiers and airmen and women rise to prominence in the public consciousness.

Our military personnel are highly respected for the work that they do, both in Australia and overseas.

In order for our military to maintain the high standards they have achieved, we must continue to provide them with the tools they need to carry out their operations.

Legal support is a vital element for the conduct of any operation however it is not merely limited to matters that traditionally fall within the concept of military operational law.

Military Justice is not limited to the military discipline system, but also encompasses such issues as the right of members to complain about matters affecting their service and the systems established to facilitate that right.

The Australian public expects a fair and impartial system that can integrate fully with the aims of the Australian Defence Force in maintaining high standards of discipline.

But an effective and accessible military justice system is also critical when it comes to recruiting and retaining a professional and highly skilled military force.

This, of course, has a direct link to operational effectiveness.

This leads me to the question of why the establishment of the Australian Centre for Military Law and Justice is so important.

First, there have been rapid and significant changes in the law affecting the Australian Defence Force in recent years.

In the field of operations law, we have seen the introduction and subsequent amendment of Part IIIAAA of the Defence Act dealing with the call out of the Defence Force in a domestic emergency situation, including a legislative basis for shooting down aircraft.

We have also seen the introduction of Division 268 into the Commonwealth Criminal Code, which implements the Rome Statute of the International Criminal Court.

This Division creates a substantial number of offences, including genocide, crimes against humanity and war crimes, that are obviously of particular relevance to military operations. 

In relation to military justice matters, the Senate Inquiry into the Effectiveness of the Military Justice System, concluded in 2005, has kick-started rapid change.

Since 2005, Defence legislation affecting military justice has been amended almost annually.  

In particular, the transparency and oversight of the military justice system was enhanced by the establishment of the Inspector‑General of the Australian Defence Force as a statutory appointment. 

In the field of military discipline law, key developments include:

·     the establishment of the Australian Military Court and the introduction of military juries;

·     the establishment of the position of the Director of Military Prosecutions as a statutory appointment, and

·     changes to extend and simplify the summary discipline system.

In the field of military administrative law, the most visible change has been the establishment of the Chief of Defence Force Commission of Inquiry.

And now work will begin to assess those changes.

Reform is not enough.

It must be independently reviewed to determine the effectiveness of the overhaul.

And today I am announcing that Sir Laurence Street, a former Chief Justice of NSW, along with Air Marshal Les Fisher, a former Chief of the Air Force, will begin a review to ensure Australia’s Military Justice System truly does deliver impartial, rigorous and fair outcomes.

Sir Laurence Street brings a wealth of legal and military experience to the review, while Air Marshall Fisher brings extensive knowledge of Defence gained through almost 40 years in the Air Force.

Investigations; prosecutions; trial procedures; conduct of inquiries and complaints; how audits and reviews of the military justice system are conducted; how ADF members are trained…It has all changed in the past two years

and it is of the utmost importance that this review makes sure we have balanced the rights of individuals with effective discipline.

And it is to our great benefit that along with the review, will also come the academic focus on military law offered by this Centre.

Because paradoxically, notwithstanding the rapid change I have just described, there has been limited sustained research into military law issues in Australia until now.

I imagine that this is partly a product of a level of unfamiliarity and perhaps also reflects some hesitation in tackling issues within an organisation that is so steeped in rich and proud tradition.

Study into military law issues is a key way to guide sensible change.

Academic research has the potential to highlight areas where problems may arise, but also to recognise the achievements that have been made.

A scholarly approach to issues enables consideration of matters in a systemic way, rather than as a reaction to rapidly changing operational situations or current areas of media focus.

In the field of academic writing, there is not a single law journal in Australia dedicated to broad issues of military law.  That has meant that there have been limited opportunities for military legal scholars to publish their work.

The research area is less bare.

The Asia Pacific Centre for Military Law, a collaboration between Defence Legal and the University of Melbourne, has been established for a number of years.

The focus of this Centre has generally been concerned with matters affecting military operations in the Asia Pacific region, especially international humanitarian law.

The Australian Defence Force also has its own Military Law Centre.

While its responsibilities do extend to research into military law issues, essentially the Military Law Centre co-ordinates, formulates and delivers the training necessary for the professional development of legal officers in the Australian Defence Force. 

Given its range of other vital functions, there is only limited capability in the Military Law Centre to conduct concerted and sustained research.

The Australian Centre for Military Law and Justice here at the ANU will be something different. 

While still incorporating research into operational law, the Australian Centre for Military Law and Justice will also delve more comprehensively into all facets of legal endeavour related to the ADF, especially in the fields of military administrative and discipline law.

The future work of the Australian Centre for Military Law and Justice offers intriguing and exciting possibilities for reform, based upon the conclusions of its research.

It is the natural complement to the postgraduate teaching program for Defence lawyers that has been running here at the ANU since 2006.

And I see other synergies to be to be achieved by Defence working in concert with the Centre and scholars to develop research into issues of mutual interest.

Clearly, academic study of military issues undertaken in isolation, and without an understanding of the unique environment of the military, will be of limited value.

I therefore welcome the Centre’s willingness to consider opportunities for interaction with the Australian Defence Force Military Law Centre and, more generally, with Defence legal officers and other military specialists.

As I said at the start of this address, it is truly an exciting development in the field of military law to see the establishment of this Centre and to contemplate the potential for sustained scholarly consideration of a broad range of military law issues.

It is my great honour to formally declare the Australian Centre for Military Law and Justice officially open.

Media contacts:

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