Hearsay ... the Journal of the Bar Association of Queensland
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Issue 70 - Oct 2014
Book Review: Justice in Arms: Print E-mail

book_justice.jpgMilitary Lawyers in the Australian Army’s First Hundred Years

Edited by Bruce Oswald and Jim Wardell
Big Sky Publishing 2014, (575pp)

Reviewer: Michael Burnett

Justice in Arms: Military Lawyers in the Australian Army’s First Hundred Years is a tour-de-force, examining the development and evolution of the Australian Army Legal Corps (the Corps). The book itself comprises a series of essays variously authored but harmonised by Oswald and Wardell’s editing to provide a comprehensive survey of the personalities, legal framework and historical weigh points responsible for fashioning this significant military organisation. Each of the topics is comprehensively examined chronologically, commencing from the Boer War in the immediate pre Federation setting and concluding with discussion of involvement in operations most recently conducted in Afghanistan. The book’s eleven chapters each relevantly address discrete periods along the Corps’ timeline broadly by reference to significant military events, such as immediate pre Federation to the Armistice; the period between world wars; World War II; the Vietnam War and subsequent operations. Additionally, those chapters are appropriately punctuated by specific chapters addressing events of relevant chronological consequence such as the Japanese War Crimes trials and a personality of significance to the Corps and its development, the mercurial Maurice Ewing.

Plainly, the editors have been keen to ensure this is not simply a collection of anecdotes. In the early chapters addressing the evolution of the role of army lawyers great care has been taken to address both the historical and legislative framework relevant to its then principal function; military discipline. That duty informed the Corps’ immediate relevance and development. For instance, it details the early operation of the Army Act 1888 (Imp) and the circumstances and basis for the proclamation of the Australian Military Regulations and Orders (AMR&Os). On that count, the book is not only a useful source of relevant technical knowledge but also a record of both the professional and political forces which combined following the events of WWI to persuade the Parliament to modernise and reform by indigenising that part of the Imperial military discipline regime adopted at federation. I hazard to suggest the author’s scholarship, authoritatively footnoted in those chapters, will prove to be on par with Clode’s works addressing the like evolution of military discipline law in the United Kingdom.

But this is more than an arcane legal text of interest only to military historians and army lawyers. It is very much also a chronicle of the characters, some good and some not so good, whose personalities weave a rich pattern into the very fabric of the Corps, enlivening its well justified high standing and esteem.  More poignantly for readers of Hearsay the book chronicles the involvement of many members, both past and present, from the Queensland Bar.  I have earlier mentioned the mercurial Maurice Ewing. An entire chapter is devoted to this officer who ruled his AALC fiefdom with an iron fist for 20 years before retiring home to Queensland to practise in chambers with the late Sir James (Jim) Killen, former Minister for Defence in the Fraser government. Others of note include former judges Sir Harry Gibbs, Ken Townley, and D.M. Campbell (father of Campbell QC) each of whom had seminal roles in the Japanese war crimes trials that followed WW II. Lesser known but equally important officers of that era instrumental in the Corps’ development, particularly in the engagement of legal officers in operational headquarters, were the eccentric UQ and Oxford educated Fry and the progressive Elson-Green.  It’s worth reading the chapter concerning Fry for the delight in following his mischievous manoeuvres, supported by LTGEN Blamey, in seeking to outwit the then JAG Justice Bowie Wilson in his efforts to have himself, as judge advocate in a courts martial, seated to the immediate right of the President rather than at the end of the bench removed from the courts martial panel. Another of his battles with the Canberra military legal establishment concerned his campaign, again with Blamey’s support, to be appointed DJAG in the western desert against its will.

For older members of the Bar, names such as Kelly (later Justice Kelly SPJ), Gately, Vince Green, Mason Allen and McGhee serve as a reminder of its contribution to Australia’s involvement in the Vietnam conflict with each of those members serving in that theatre in various capacities in discipline proceedings. For the modernity, the names of McConachy and Streit will be known to many. Those members served in Rwanda and Afghanistan respectively in their capacity as army legal officers. Of more general note, are the names of all officers who have held or at the time of print hold commissions on the roll of the Australian Army Legal Department and the Corps. From that list other past and present members of the Queensland Bar  include: the late Peter Alcorn, Ashton, the late Justice Barry of the Supreme Court,  Bates, the late Arnold Bennett QC, Campbell QC, Cooke, Crowley QC,  de Jersey QC (now His Excellency Governor of Queensland), Drummond QC,  Judge Durward QC (now DJAG-Army), Forbes,  the late Judge Gibney, Glynn QC, Greenwood QC,  Helman, Hiley QC (now of the NT Supreme Court),  the late Justice Hoare, Hughes QC,  M Katter, McDermott, McKinnon, the late Judge C McLoughlin, Morgan, Morley QC, Nolan, O’Driscoll, Pearce, Perry QC, Pratt QC, the late Justice Ryan, the late Chief Judge Shanahan,  Judge Smith, the late Justice Stable, Thomas QC, Trafford –Walker and Winn to record those whose names are most recognisable.

The book’s strength is with its treatment of personalities, legal history and relevant military events to the mid1990s. Some might seek to criticise the lighter touch evident from that time. However this lighter touch also coincides with the significant structural changes that occurred within the defence organisation from the early 1990’s. In addressing that issue in the penultimate chapter the author there addressed the reorganisation of the legal branch of each of the three services into a tri-service organisation. Unfortunately for each service, including the Corps, following that reorganisation the prominence of each service’s legal branch was substantially diminished as legal services were delivered in a tri-service environment.  Although not discussed in the book, the prescience of that reorganisation has been recently demonstrated by the pivotal role of legal support to the success of joint operations generally in the Middle Eastern Area of Operations. Plainly, the prominence of the Corps in that environment was diminished as the legal duties were spread across the three branches in a tri-service environment. That said, this opens the next chapter in the evolving story of the Corps to be addressed at a later time.

In his foreword which expertly summarised the book the Chief Justice of Australia, the Hon R.S. French A.C. observed,

“This book brings to life an important part of Australia’s 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”.

For those reasons alone this is a book which will appeal to a broader audience than army lawyers. It is a book that is essential reading for any person wishing to develop a thorough appreciation of the role of law within the Australian defence environment, its framework and development in an historical context.

MJF Burnett


1. Deputy Judge Advocate General – Air Force; a Judge of the Federal Circuit Court of Australia.

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