Tuesday, December 13, 2016

Fragmentation of military appeals resisted in Australia

Wellington barrister Chris Griggs, Global Military Justice Reform's globetrotting contributor from New Zealand, has kindly filed the following post:

Chief of Navy v Angre [2016] FCAFC 171 (9 December 2016) is an interesting recent decision of the Full Court of the Federal Court of Australia (the civilian appellate court to which appeals lie from the Defence Force Discipline Appeals Tribunal (DFDAT)).  In Angre, Australia’s Chief of Navy appealed against a decision of the DFDAT in which that Tribunal allowed the calling of evidence under what it found to be an implicit power in its empowering legislation, rather than an explicit power to permit fresh evidence (which it appears would not apply to the facts of the case at bar).  Senior counsel for the Chief of Navy argued in the Federal Court that there was no such implicit power.

The DFDAT had yet to determine the substantive appeal.

The Federal Court rejected the appeal (and an associated attempt to engage judicial review), relying on a longstanding principle of Australian law that a right of appeal may only be exercised in respect of the substantive judgment of the court below, not an interlocutory decision. The leading case on this, applied by the Federal Court in Angre, is Director-General of Social Services v Chaney [1980] FCA 108.  Senior counsel for the Chief of Navy attempted to distinguish Chaney unsuccessfully.

It is unknown to this author whether a similar approach would be taken in other jurisdictions.  The question would not arise in New Zealand, because interlocutory appeals are explicitly permitted by section 7 of the Court Martial Appeals Act 1953, which is consistent with the ordinary criminal law of appeals in Part 6 of the Criminal Procedure Act 2011.  It seems that military law on both sides of the Tasman is remaining in step with the ordinary of law of those countries – but the band is playing a different tune!

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