In search of certainty for military discipline

Article

Collins, Pauline. 2022. "In search of certainty for military discipline." Australian Bar Review. 52, pp. 1-20.
Article Title

In search of certainty for military discipline

ERA Journal ID37154
Article CategoryArticle
Authors
AuthorCollins, Pauline
Journal TitleAustralian Bar Review
Journal Citation52, pp. 1-20
Article Number1
Number of Pages20
Year2022
Place of PublicationAustralia
ISSN0814-8589
Abstract

In 2020, the High Court of Australia yet again addressed the reach of military jurisdiction for criminal offending by military members. This article considers the far-reaching decision in Private R v Cowen (2020) 383 ALR 1 in the context of the state of civil-military relations and discipline in the Australian Defence Force. Five out of the seven judges agreed the defence power under s 51(vi) of the Australian Constitution enables Parliament to decide how the control of the military can occur in disciplining service personnel. The article explores the court’s reasoning and critiques the judgment and its consequences for the civil-military control principle, and the needs of service personnel. The article concludes the area is ripe for Parliament’s attention in bringing military discipline up to 21st century standards.

Keywordsmilitary discipline, High Court, defence power
ANZSRC Field of Research 2020480705. Military law and justice
480702. Constitutional law
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Byline AffiliationsSchool of Law and Justice
Institution of OriginUniversity of Southern Queensland
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