Simon Lee (LCDR, RANR)
Barrister at Owen Dixon Chambers West
Most people when they hear the expression “military law” may first think of martial law, military government or law imposed by a military junta as opposed to a lawfully and democratically elected body of people making laws. In the terms more specific application in Australia, military law is the law (like others) has its source in the Australian Federal Constitution.
Military law has been defined as follows:
“Military Law may therefore be defined as the body of rules of law which govern the relationship between the nation and its army and individual subjects outside the army, between soldiers and the army organisation, and between individual members of the army.” [Australian Military Law, A. N. Lewis, 1936, p5]
That is a slightly outdated definition of military law as it encompasses a far broader more expansive field such as, listing a range, military administrative law, military commissions (experience of the United States), military compensation law, military discipline law, military operations law, air law, sea law, space law, international human rights and international humanitarian law (IHL) during armed conflict, laws of armed conflict (LOAC) amongst many other related areas of law.
From the Australian Federal Constitution derives the defence power of the Commonwealth pursuant to s 51(vi). All other statutes which regulated the Australian Defence Force (ADF) have the same origin.
Practice and careers in Military Law
Military lawyers work in all of the above areas. There are careers in the Permanent Navy, Air Force and Regular Army, public servants and Reserve Forces. One can either practise full-time or part-time, in uniform or not.
Initial training involves introduction to the three broadly most important areas of operations, discipline, and administrative law fields. Broadly speaking operations law is about the effective, best precise and humanitarian use of the full range of military and kinetic force available to the ADF (from considerations such as targeting, human intelligence, detainee policy, to LOAC and IHL and beyond). Discipline law is focused on the application of the Defence Force Discipline Act 1982 (Cth) to the conduct and behaviour of members of the ADF. Of course, like any other citizen ADF members remain subject to the civil and criminal jurisdictions of the States, Territories and the Commonwealth. Administrative law in the military arena involves the issue of Notices to Show Cause (why termination of service, loss or rank or command should not take place, etc).