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More martial than court: from exceptionalism to fair trial convergence in Australian courts martial

Brasch, Jacoba, Law, Faculty of Law, UNSW

2011

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  • Title:
    More martial than court: from exceptionalism to fair trial convergence in Australian courts martial
  • Author/Creator/Curator: Brasch, Jacoba, Law, Faculty of Law, UNSW
  • Subjects: Fair trials; Court martial; Military justice
  • Resource type: Thesis
  • Type of thesis: Ph.D.
  • Date: 2011
  • Supervisor: Byrnes, Andrew, Law, Faculty of Law, UNSW
  • Language: English
  • Print availability: T/2011/132 (Please speak to a staff member at the Library Help Zone)
  • Permissions: This work can be used in accordance with the Creative Commons BY-NC-ND license.
    Please see additional information at https://library.unsw.edu.au/copyright/for-researchers-and-creators/unsworks

  • Description: The Australian military justice system has been reviewed by six separate inquiries since 1997, with each one recommending the adoption of fair trial standards of independent and impartial adjudication, as accepted in the civilian criminal justice system and required by the norms of public international law. Yet, despite the numerous recommendations for civilianising reform, the Australian military has resisted change, consistently arguing that its separate system of justice was not only fair, but should remain in-house. Nevertheless, reform has occurred. Thus, two competing propositions emerge: on one hand, the military is resistant to civilianising reform, yet, on the other, reform has and is occurring. The question then is, why. Accordingly, the argument advanced in this thesis is: because of the nature of the military as a total institution, civilianising reforms to the Australian military justice system only occur when the military is coerced to do so by external forces.This hypothesis is examined in a number of ways:1. critically assessing the bodies of literature which argue for, or against the separate military justice system, as well as literature which assesses military justice from a human rights, fair trial perspective. 2. applying two separate sociological theories: ‘total institutions’, which assists in understanding why the military is resistant to civilianising reform of its justice system. ‘Isomorphism’ assists in understanding how reform occurs to an otherwise resistant entity. 3. identifying the fair trial flaws of the Australian military justice system, with particular emphasis on the right to an independent and impartial trial.4. analysing the Australian military’s response to the six inquiries held between 1997 and 2005, 5. identifying the motivators for civilianizing reform in comparative jurisdictions. Consequently, the thesis draws upon these themes to identify the legal, social, and political contexts in which reform has occurred. The recognition of these factors also allows for the development of a predictive framework to identify the conditions precedent to fair trial civilianisation of the Australian military justice system.

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