Chief of Army address to the Australian Army Legal Corps Conference
I am delighted to address this conference of the Australian Army Legal Corps and I congratulate you on celebrating your 70th anniversary. Your Corps has made a substantial, indeed, indispensable contribution to the Australian Army since its inception. I suspect that far too few soldiers, let alone the wider community appreciate that the first military officers with legal qualifications served overseas with our Colonial contingents during the Boer War.
Since that humble beginning, lawyers have served on operations with our Army and, from the first, many of our people have chosen to serve the cause of law and justice after completing their military service. Indeed, many young officers who served in the First and Second AIFs went on to distinguished careers in the law. Sir Victor Windeyer was in fact an arms officer during his military service, and subsequently became a justice of the High Court of Australia.
For one fifth of the history of the High Court of Australia, two men who had been majors in the Australian Army Legal Department and the Australian Army Legal Corps were Chief Justice. The Right Hon Sir John Latham (Chief Justice 1935-1952) was Divisional Legal Officer, HQ 4th Division from July 1925 until February 1926, when he transferred to the Reserve of Officers (presumably to give more energy to being Commonwealth Attorney-General!).
The Right Hon Sir Harry Gibbs (Justice 1970-81, Chief Justice 1981-87) transferred to the AALD in January 1943 and so, seventy years ago this month, became an original member of the Australian Army Legal Corps. Their lives and achievements serve as a powerful reminder of the volunteer ethos of so many distinguished lawyers.
As you all know Army has access to some of the finest minds in the Australian legal profession at almost pro bono rates. The old jibe that military history is to history what military music is to music does not apply to military justice. Both through our regular and reserve components we are served by dedicated and talented lawyers with exemplary levels of legal skill and professional military competence.
When I perused your corps history I was inevitably drawn to the era during which I have served, which comprises the last three and half decades. Bruce (Ossie) Oswald brought a wealth of personal operational experience to bear in his thoughtful analysis of this period.
Indeed, I found it immensely stimulating. It in no way diminishes the noble efforts of those who kept the flame flickering in the Australian Army Legal Corps and its antecedent bodies such as the AALD, to note that the role of the Australian Army Legal Corps has matured greatly over the past two decades. The contribution of lawyers to the Army through the great global wars of last century and Vietnam was consistently excellent. However, I believe that the Corps has really come of age over the period since Vietnam as the proliferation of global norms pertaining to the employment of military force, and the changing texture of the battle space, has demanded much more from all of us.
Any skepticism on the part of the ‘bayonets’ as to the value you provide has been dissolved by the professionalism of the men and women who have deployed along side them in every theatre since the end of the Vietnam War, whether in Rwanda or Somalia through to Timor Leste, Iraq and Afghanistan.
In particular, the complex character of peace keeping, peace monitoring and humanitarian support operations has made timely, relevant legal advice a vital part of every commander’s planning and conduct of operations.
Legal advice on targeting and the use of force, detention and interrogation of prisoners, and the treatment of non – combatants is absolutely essential to the successful conduct of military operations across the spectrum of operations. It supports our strategic centre of gravity in an era when, without legitimacy, the use of force is counter-productive.
Your corps has responded magnificently to this challenge and to the changing character of war, which, as I have observed, features intrusive media scrutiny of the employment of force and unprecedented complexity in the battle space.
Much has been written about hybrid war, counter-insurgency, and wars of various generations. But one phrase that has endured and actually conveys a helpful message to practitioners is the term coined by British soldier–scholar General Sir Rupert Smith. He referred to “War amongst the People.”
That is the key feature of modern operations – whether fighting wars like Afghanistan or less violent operations such as those we have been conducting in the Solomon Islands and Timor Leste.
Western Armies are obliged to exercise unprecedented levels of discrimination in the application of the unprecedented capacity for violence, which we possess. Indeed, discrimination rather than discretion is the defining characteristic of our application of violence. Though we may be tempted to despair by the practical impact on our mission which this burgeoning legal complexity entails, it is a trend that I see continuing. As a consequence, military lawyers will become even more integral to our operational success in the future.
Again, as I mused over the history of the Legal Department and the Australian Army Legal Corps I arrived at a rough binary construct through which I have tried to interpret my own experience of legal advice as a commander at senior levels in peace and on operations.
Overwhelmingly, I have been a happy client as an operational commander. I paid my bill without even looking at the time sheets!! Since becoming Chief of Army, I have made different demands upon my legal advisors. This is a function of a couple of factors.
Firstly, I am simultaneously empowered and constrained by a number of statutes, norms and conventions. The role of Armed Forces, especially standing Armies, was one of the contentious issues that gave rise to the foundation of limited constitutional government.
My status as a service Chief is the product of long evolutionary process. Many of my friends who run large corporations assume that I am some form of benign dictator, yet I sense that I actually am more constrained in my exercise of authority than most of them. Of course there is a rich history as to why that is the case.
The complexion and content of the social -contract between the soldier and the state has fluctuated over time depending on societal norms, the presence of existential threats to the state, and broader conceptions of human rights as well as the balance between the judiciary, the legislature and the executive.
No matter where the border has been drawn, at any given time, the principle of civil supremacy has been rigorously adhered to, as it should have been. But the relative freedom I felt on operations, even within the increasingly complex legal environment I’ve described, contrasts starkly with the relative lack of freedom I feel as Chief of Army. I have found it frustrating at times.
Let me make it clear that when I say my experience ‘in barracks’ has been less satisfactory than my experience on operations I am not for one moment denigrating the efforts of my legal advisers.
Indeed this year, by far my most difficult as a senior officer, I have felt amply supported by my Australian Army Legal Corps advisers in confronting a plethora of difficult issues. No doubt most of you are acutely aware of the scandal around the reported activities of the self-styled ‘Jedi Council.’
I do not propose to traverse the specifics of those matters, which are subject to ongoing investigation and proceedings. But the professionalism and dedication of Colonel Bronwyn Worswick and her team were in the very finest traditions of the Australian Army Legal Corps and the Army at large.
Yet I have on occasions bridled against legal restrictions and complicated processes that constrain on our ability to protect both the victims of bad behaviour and the reputation of our Army.
As the Army comes home from its longest war, leaders at all levels are going to need the Australian Army Legal Corps to be as adept at finding ingenious solutions to the problems of peace time soldiering as you have been on operations.
As I have reflected on this, I have learnt that the relationship of the military justice system to the broader systems of statute and common law is a fascinating topic. Our military-specific microcosm clearly reflects the delicate balance between executive authority, human rights and judicial power which is the foundation of the rule of law in our society.
Again, I stress that I am not criticizing you. Rather, I am opening up discussion of a problem, which I as Chief of Army, and you as my legal advisers must address with skill and judgment.
To reiterate the obvious, our system of military justice may only be adequately understood in the context of the intricacies of our Federation, defined by its separation of powers and the specifically enumerated powers of the Commonwealth in that Federation.
I am acutely aware that the General who seeks to be his own lawyer has a fool for his counsel. But over the course of my career it is my perception that there has been a steady evolution of the once vital prerogative of command, as statute and regulation have reshaped its scope.
From my perspective as a non-lawyer, in some respects this process is an encroachment by (non-military) law on the expansive powers once seen as essential to functional military command. It seems to me that military leaders have been caught in a somewhat contradictory pincer movement between growing calls to increase efficiency and efficacy of action within our Army, and the subjection of that power to public control in very practical ways.
But it is a pincer movement which has been executed by Australian democracy. To strike an effective balance between command powers and legal circumscription, without undermining the rule of law, we are going to need, as never before, military lawyers with superb skills and ingenuity to assist us in navigating the veritable minefield created by recent developments in Australian jurisprudence.
While we arguably have been collateral damage of the expansion of Commonwealth statutory power to some extent, I concede that we left ourselves vulnerable to this very result through unacceptable abuse of the power that resided in us.
Judicial scrutiny has been matched by legislative scrutiny of how we have exercised the power entrusted to us. The scandal involving 3 RAR over a decade ago is one of the more glaring examples. But there have been others, some of which inspired the raft of inquiries into our justice system and broader culture.
It is the unfortunate reality that many of the test cases, which have focused the attention of Parliament on redefining the extent of our command powers, were the product of blatantly poor leadership. But to adapt a legal aphorism, perhaps easy cases also make bad law.
Again let me make it quite clear I would not, and do not, cast aspersions on decisions of the High Court of Australia and the Parliament elected by our own people.
Restraint of the power of the executive, and parliamentary oversight of the military, are ingenious achievements of parliamentary democracy. They protect the state against the Army and the Army from itself. The trust invested in us by the public relies on their confidence that our sword is only drawn in prescribed circumstances, which are governed by law not human impulse.
Part of our subjection to the law of our land must now reflect the recognition of individual rights, and the balancing of those rights with the exercise of judicial and executive power.
In my view, it is the introduction of the concept of the individual, and their rights vis a vis the exercise of prerogative power (especially in the context of military discipline), that defines the modern discourse.
Today, the concern can be understood as the protection of the integrity of the individual from the unlimited exercise of military command, perhaps one of the only remaining areas in which the historical remnants of unfettered prerogative rule survive.
Of course, one of the great strengths of liberal democracies such as ours is that we do not cower before an elite military caste. Even our professional soldiers are citizens at all times. Nonetheless, it seems to me that balance has shifted in an alarming way. I would suggest that the pendulum has swung towards the individual to a point which is now having a very practical and immediate effect on our ability to command the Australian Defence Force.
This year I have had to deal with some incidents of appalling behaviour. At every turn my legal advisers have been of immense assistance. But as I have dealt with various scandals I have wondered whether more junior leaders either enjoy such lavish resources or have any real understanding of their powers and obligations.
I have been struck at how legalistic our culture has become. This of course reflects a wider societal trend. But we have reached the point where it may be about to seriously impede the effectiveness, cohesion and discipline of the Armed Forces.
Quite frankly, as Chief of the Army, I have been restrained from removing some people from the Army whose conduct, if replicated in any reputable civilian organisation, would have seen them removed from their office and walked to the door by a security guard. That is no exaggeration.
I have little doubt that the cumulative effect of legal change incrementally introduced by Parliament in circumscribing my ability to respond to these incidents would astonish the public, if they understood that generally the delays and diluted responses are forced by process rather than lack of command will. I suspect many Parliamentary representatives would be equally surprised at the effects, in some respects unintended, of their reform.
Where do we go from here?
This is a state of affairs that may almost now be beyond legislative remedy, though I would welcome advice about that. In any event I believe that the tapering of our operational tempo affords us time and opportunity to really examine the status of the profession of arms and how we are regulated and how we in turn regulate ourselves.
In particular I would welcome discussion as to how our disciplinary and legal frameworks cope with a much more individualistic workforce most of whom are avid users of social media. Both of these trends empower individuals, but at considerable risk to the reputation of the Army.
In my experience, our systems have not kept abreast of these trends. The Australian Army Legal Corps must be at the forefront of the debate about how we regulate the conduct of our Army at home when immersed in the permissive, self-regulating environment the social and technological revolution has created.
I, and our leaders at every level, have never needed you more. I salute you for your service to our Army and the nation. I ask that you use this opportunity to ask how you can adapt to the challenges of peace with the same efficacy that you adapted to the intense period of operations which forcefully demonstrated the value and values of your Corps.