The impact of the ‘civilianisation’ of military administrative law on the ‘command power’

Introduction Military administrative law encompasses those decisions concerning military personnel and operations which are amenable to merits or judicial review and which fall outside of the purely disciplinary law process. In Australia, military administrative law has long been ‘civilianised’ in the sense that it is interpreted in accordance with general administrative law principles and is amenable to judicial review. There are certain exceptions - for example, military justice proceedings pursuant to the Defence Force Discipline Act 1982 (Cth) (DFDA) (a type of administrative disciplinary procedure dressed, at the higher levels, in the paraphernalia of criminal law) are specifically exempted from the jurisdiction of the statutory framework for federal judicial review in Australia. However, the concept of the ‘command power’ (perhaps generally definable as the power to require conduct or some other form of obedience, twinned with a power to impose or recommend a sanction for non-compliance) has long been viewed as a Rubicon for judicial review - the boundary beyond which judicial review could not, should not and would not tread in relation to military administrative decision-making. This chapter deals with the concept of ‘the command power’ as it relates to administrative law, with particular reference to the Australian context. It is my contention that many aspects of the command power have always been relatively ‘civilianised’. In order to examine the command power, this chapter shall begin with a brief description of two key concepts that inform this issue: ‘civilianisation’ and ‘military administrative law’. With these terms defined, the analysis will then turn to an examination of the nature of the command power, including a consideration of who can exercise the power and the forms that it takes. The analysis will conclude with some thoughts on the reviewability of exercises of the command power and its susceptibility to judicial review. Key background concepts ‘Civilianisation’ The variety of ways in which military justice may be said to have been ‘civilianised’ has been distilled and explored by Matthew Groves. At the macro level, ‘civilianisation’ has always been part of the Australian system of military law, given that: the boundaries of military law are set by the civilian government and those boundaries are ultimately policed by the government itself. The civilian courts assist in this ‘policing’ or ‘border control’ function … by exercise of their authority to declare and interpret the law.