Tuesday, June 23, 2020

Service connection down under

A case is pending in the High Court of Australia that could have major implications for that country's military justice system -- or at least for the allocation of jurisdiction in cases of potential concurrent jurisdiction as between civilian and military courts. In Private R v. Cowen & Anor., No. S272/2019, the court's website provides this summary:
Where member of defence forces charged with assault occasioning bodily harm pursuant to s 24 of Crimes Act 1900 (ACT) as purportedly applied to defence members and defence civilians by s 61(3) of Defence Force Discipline Act 1982 (Cth) – Where person charged objected to jurisdiction of Defence Force Magistrate to hear and determine charge on basis that prosecution could not reasonably be regarded as substantially serving purpose of maintaining or enforcing service discipline – Where objection to jurisdiction dismissed – Whether writ of prohibition should issue to prohibit Defence Force Magistrate from hearing and determining charge – Whether certain provisions of Defence Force Discipline Act 1982 (Cth), insofar as they purport to confer jurisdiction on “service tribunal” to hear and determine charge against “defence member” for offence against Crimes Act 1900 (ACT) solely on basis of person’s status as “defence member”, are beyond Commonwealth legislative power in circumstances where alleged offence committed in Australia but not on “service land” or “service property”, where persons involved were off duty, in time of peace and civil order, and where civil courts said to be reasonably available.
Australia's military justice system has been under scrutiny for years, and Parliament tried without success to institute reforms, only to have those set aside by the High Court. It is anybody's guess whether Private R's case will usher in a new era with a less voracious understanding of the proper scope of subject matter jurisdiction. Will the country go the way of Canada (in Stillman) and the United States (in Solorio)?

The parties' written submissions are on the court's website. The plaintiff's reply concludes by observing that
the mere fact that a defence member is alleged to have committed an offence of violence in peacetime in Australia does not automatically lead to the conclusion that there is the requisite service connection justifying a military trial. It is only where there is conduct involving circumstances sufficiently connected with military service (and where civil courts are not reasonably available) that a military trial can "reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline" and thus a valid exercise of the defence power. . . . [T]hose circumstances are absent in the present case.
The Australian has this coverage. 

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