Australian Army Legal Corps - Justice In Arms: Military Lawyers In The Australian Armys first Hundred Years

JUSTICE
IN ARMS

MILITARY LAWYERS IN THE AUSTRALIAN
ARMYS FIRST HUNDRED YEARS

AUSTRALIAN ARMY LEGAL CORPS

EDITED BY BRUCE OSWALD AND JIM WADDELL

Copyright Commonwealth of Australia

First published 2014

Copyright remains the property of the Commonwealth and apart from any fair dealing for the purposes of private study, research, criticism or review, as permitted under the Copyright Act, no part may be reproduced by any process without written permission.

All inquiries should be made to the publishers.

Big Sky Publishing Pty Ltd

PO Box 303, Newport, NSW 2106, Australia

Phone: 1300 364 611

Fax: (61 2) 9918 2396

Web: www.bigskypublishing.com.au

Cover design and typesetting: Think Productions

Printed in China by Asia Pacific Offset Ltd.

See National Library of Australia for Cataloguing-in-Publication entry

ISBN: 978-1-922132-50-5

JUSTICE
IN ARMS

MILITARY LAWYERS IN THE AUSTRALIAN
ARMYS FIRST HUNDRED YEARS

AUSTRALIAN ARMY LEGAL CORPS

EDITED BY BRUCE OSWALD AND JIM WADDELL

THE AUSTRALIAN ARMY HISTORY COLLECTION

Winning with Intelligence
Judy Thomas

Duntroon
Darren Moore

The Warrior Poets
Robert Morrison

The History of the Royal Australian Corps of
Transport 19732000
Albert Palazzo

Defenders of Australia
Albert Palazzo

The Fight Leaders
D. Butler, A. Argent and J. Shelton

Operation Orders
Pat Beale

Little by Little
Michael Tyquin

Red Coats to Cams
Ian Kuring

Bowler of Gallipoli
Frank Glen

Vets at War
Ian M. Parsonson

Only One River to Cross
A.M. Harris

The Fragile Forts
Peter Oppenheim

Hassett: Australian Leader
John Essex-Clark

Persian Expedition
Alan Stewart

The Chiefs of the Australian Army
James Wood

Never Late
Gordon Dickens

To Villers-Bretonneux
Peter Edgar

Madness and the Military
Michael Tyquin

The Battle of Anzac Ridge 25 April 1915
Peter D. Williams

Doves Over the Pacific
Reuben R.E. Bowd

The Lionheart
David Coombes

Battlefield Korea
Maurie Pears

Chemical Warfare in Australia
Geoff Plunkett

A Most Unusual Regiment
M.J. Ryan

Between Victor and Vanquished
Arthur Page

Country Victorias Own
Neil Leckie

Surgeon and General
Ian Howie-Willis

Willingly into the Fray
Catherine McCullagh

Beyond Adversity
William Park

Crumps and Camouflets
Damien Finlayson

More than Bombs and Bandages
Kirsty Harris

The Last Knight
Robert Lowry

Forgotten Men
Michael Tyquin

Battle Scarred
Craig Deayton

Crossing the Wire
David Coombes

Do Unto Others
Alan H Smith

Fallen Sentinel
Peter Beale

Sir William Glasgow
Peter Edger

Training The Bodes
Terry Smith

Bully Beef and Balderdash
Graham Wilson

Fire Support Bases Vietnam
Bruce Picken

Toowoomba to Torokina
Bob Doneley

A Medical Emergency
Ian Howie-Willis

Dust, Donkeys and Delusions
Graham Wilson

The Backroom Boys
Graeme Sligo

Captains of the Soul
Michael Gladwin

CONTENTS

Chapters:

Colonel Jim Waddell

Colonel Jim Waddell

3 We are more concerned with the good soldier than the bad one in war:
the Australian Army Legal Department 19391942

Lieutenant Colonel Lachlan Mead

4 Not exactly heroic but still moderately useful: Army legal work
during the Second World War 19391945

Lieutenant Colonel Lachlan Mead

Lieutenant Colonel Lachlan Mead

Major Peter Cumines and Captain Andrew Mitchell

Lieutenant Colonel George Karsai

Colonel Ken Northwood

Colonel David Wilkins

Brigadier Andrew Dunn

Colonel Bruce Oswald

Appendices:

2 Judge Advocates General and Deputy Judge Advocates General,
Australian Military Forces

3 Judge Advocates General and Deputy Judge Advocates General,
Australian Defence Force

by the Hon R.S. French, AC, Chief Justice of Australia

This book brings to life an important part of Australias legal history the role of Army legal officers in the Australian Army from Federation to the beginning of the twenty-first century. It is no mere sequence of minor biographies. It is a history which brings out the dynamic interaction of institutional and political imperatives in tension and the personalities who managed those tensions over the decades. It is populated by colourful characters and legal luminaries. The book contains a total of 11 chapters, written by nine different authors. It is comprehensive, detailed and absorbing. As it demonstrates, military justice is rightly concerned with discipline and cohesiveness. Reflecting broader societal norms, it is also concerned with the rule of law and respect for the rights, liberties and fair treatment of the men and women of the armed services. Those concerns and the tensions which they can generate emerge from the history. So too, does the increasing complexity of the legal environment in which the Australian Army, in common with the other defence services, works particularly in joint and peacekeeping operations with operational constraints.

The first two chapters of the book, written by Colonel Jim Waddell, cover the period from Federation to the end of the First World War and thereafter the establishment of the Australian Army Legal Department (AALD) and its operation up to the beginning of the Second World War. The constitutional birth of the Australian Army began with the transfer of control of administration of defence from the states to the Commonwealth of Australia following Federation on 1 March 1901. The Defence Act 1903 (Cth) set up a legal framework for military discipline which was to last for 80 years. It applied the Army Act 1881 (UK) to Australian soldiers on active service except to the extent of its inconsistency with the Defence Act. Soldiers not on active service were governed by a modified Disciplinary Code and Regulations.

The first lawyers involved in the Australian Army were officers with legal qualifications who served in the Boer War. Among them was Major J.T. Thomas, a Tenterfield solicitor. He defended Morant, Handcock and Witton at their courts martial in 1902. Morant and Handcock were executed for shooting Boer prisoners and a German missionary. Colonel Waddell cites a view propounded by Dr John Bennett that the failure of the defence case can be attributed in large measure to Thomas ineptitude and inexperience. A more celebrated lawyer of the time was Major Robert de Courcy Talbot, who became the first Deputy Judge Advocate General. He provided a number of important advices to the Commonwealth Government including an advice about the legal status of the contingents which had been dispatched to South Africa in 1902 by the Commonwealth in response to a request from the British Government. His appointment as Australias first Deputy Judge Advocate General was apparently not uncontroversial. It attracted a rather bizarre attack by