tag:blogger.com,1999:blog-4070126256373578912.post5154964941000444032..comments2024-03-20T17:53:33.153-04:00Comments on Global Military Justice Reform: An important decision in AustraliaEugene R. Fidellhttp://www.blogger.com/profile/14694139458443207131noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-4070126256373578912.post-53987139870602601082020-09-10T15:23:30.398-04:002020-09-10T15:23:30.398-04:00Gene: I would not presume to comment on the import...Gene: I would not presume to comment on the importance, if any, of this judgment in the US sphere. American exceptionalism being what it is, it may have little or no jurisprudential impact. However, the reasoning of the plurality (and even some of the concurring judgments) echoes similar reasoning in Canada. Reference to R v Stillman, 2019 SCC 40 is brief and limited to observing that the SCC rejected the so-called 'impressionistic' approach (typically raised in Canada as the 'military nexus test'). Interestingly, in the subsequent paras, the HCA then examines the 'service connection' test (which is the Australian version of Canada's 'military nexus test'). The HCA had similar disdain for the 'service connection test' that the SCC had for the 'military nexus test'.<br /><br />I would suggest that it is not a matter of "... waiting some more ...". In Australia, as in Canada, I suggest that the connection/nexus test is dead. It is unwieldy and invites litigation. I would suggest that reform needs to arise from considered legislative reform. Often, in Canada at least, reform is typically prompted by appeals. Those driving the legislative machinery (who are not always Members of Parliament) will often act only when the results of an appeal force them to act.<br /><br />However, the framework in Australia may hint at potential reform in Canada. The upcoming appeal in R v Edwards will be largely inconsequential. Its focus will be on a CDS order, which reflects a broader legislative regime. The appeal to follow is R v Crépeau. Even then, there are multiple options to preserve judicial independence. Rory Fowlerhttps://www.blogger.com/profile/07686499120593905650noreply@blogger.com