Defence of the Indefensible? Reassessing the Constitutional Validity of Military Service Tribunals in Australia

Abstract

Soldiers must be treated in the first instance with humanity but kept under control by means of iron discipline. In the past fifty years the High Court of Australia has scrutinised the constitutional validity of military service tribunals on several occasions. Each time, the validity of service tribunals to conduct trials and impose punishment in relation to the particular offence has been upheld on the basis that it derives from a proper exercise by the legislature of its power under s 51(vi) of the Constitution. On no occasion has this been considered by the Court as a whole to involve a breach of the separation of powers doctrine. ..