Barristers in Military Service

Thank-you David for taking the time to be interviewed for Hearsay. As mentioned earlier, Hearsay Editor, Richard Douglas KC, requested an article for Hearsay as to the Bar and military law. As a Major General, what were your command roles until last year?

Thanks Dom. So, I finished in a command role for my Army career as Commander of the 2nd Australian Division, one of Army’s two divisions. I had all of the reserve brigades of the Army under my Command, as well as the Regional Force Surveillance Group. That group consists of the Indigenous Units, Pilbara Regiment, NORFORCE and 51 Far North Queensland Regiment, an Artillery Regiment, a Signals Regiment and a newly raised logistics force support element.

And then I’ve been very lucky in a full-time, part-time career where I’ve commanded at every level from platoon, company, battalion, brigade and division. Of those command appointments, about half of them were as an Army reservist and about half of them were as a full-time Army member.

And the role as Major General and those later command roles were they full time?

Not all of them. I was a reserve battalion commander and reserve brigade commander. I started off as a reserve brigade commander, but then obviously COVID intervened and Joint Task Force 629 was stood up in 2020, as a response to the COVID pandemic and also as an early response to the Royal Commission into the Bushfires. In that role, I was a Joint Task Group Commander. In fact, Dom, you came and worked as the legal officer in the headquarters of JTG 629.3 which is the Queensland JTG. Thank you for your service.

Other than yourself and Major General Michael Cowen, now Chief Judge Advocate of the Australian Defence Force, are there other Queensland barristers who have reached “two star” rank?

Jack Kelly [Major General The Honourable J. L. Kelly CBE, RFD, QC, former Queensland Supreme Court Judge and also Judge Advocate General] and Michael Cowen [Major General M. Cowen AM, KC, Chief Judge Advocate] were appointed to the rank of Major General. Their paths were very different. Jack Kelly was a World War II officer with combat experience. He went on to undertake a legal career including a judicial career. Michael Cowen KC undertook non-legal reserve service in the British Army before he came to Australia There are a number of distinguished “one stars”. Judge Paul Smith [Brigadier His Honour Judge P Smith AM DCJA] and Judge Michael Burnett [Air Commodore His Honour Judge M. Burnett AM DCJ] are of that ilk.

Did they come up through the legal side of the reserves?

Judge Burnett did. Judge Paul Smith started at the Queensland University Regiment, so he had an infantry start and then at a point in time made the choice to go to legal. Justice John Logan [The Honourable Justice J. Logan RFD] is another example of that. He loves to say he was an Intelligence Officer, a Captain and then obviously his legal career took off and he then became a legal officer. It is all about a choice you make along your reserve career as to whether you want to do something that’s not related to the law completely – like being Infantry or in Air Force or Navy doing their core skills – or do you make a transition to becoming a military lawyer in the reserve.

As a Brigadier, one of your leadership roles was as Adjutant General. Was that Adjutant General of the Australian Army or the Australian Defence Force?

No, the Army. In most armies the Adjutant General is responsible for all of the non-combat elements of their armies. An example is in the UK, where the Adjutant General comments the legal corps, and the military police, along with other functions, HR and those sorts of things. In Australia, the Adjutant General was more like a compliance ANO auditor. So I did command the Military Police, but I also commanded the compliance assurance unit that made sure that Army was compliant with all of its legal and statutory requirements and managed external audits from organisations like ANAO.

And were you a reserve officer when you commenced at the Bar?

I was. When I transferred from Army to the Army Reserve I was at law school, finishing my law degree. I went to work at Ashurst as a graduate lawyer. When I chose to go to the bar I made that choice to remain a reservist.

What was your rank at that point in time when you commenced at the Bar?

I was a Major, so still relatively junior, post sub-unit command. I was a Company Commander in 6 RAR, including operationally in East Timor, but that was a moment of choice. I did approach the head of Defence Legal about, you know, “would you be interested in me coming as a lawyer”. I was about to get promoted to Lieutenant Colonel and he said ‘yes we’d welcome you as a Captain’. So I chose to stay in my corps as an infantryman and get promoted to Lieutenant Colonel and be a Battalion Commander and I’m eternally grateful for that advice from the head of defence legal.

When you came to the bar, what was your sense as to how many reserve officers in all three services there were, in different corps practising as counsel in Queensland?

I’d say quite a few, and I’d make the observation that there are quite a few who are from ex-military service, and some that quite surprise you. Dominic O’Sullivan KC was a ready reservist. He tells me fondly he remembered doing his ready reserve service as a way of helping fund his way through university. So you’ve got those who served and there’s lots of them at the Bar who then become barristers and then don’t have any further connection to the military in any meaningful way. And then there are those – quite a lot, including in 35 West Chambers – over the years who served and continue to serve in the military in legal or in general service. Even at the Administrative Review Tribunal, where I am now, there are quite a few members who are serving reserve legal officers.

In addition to all of the different command roles you enjoyed over the years, were there specific legal activities that you undertook – like inquiries or legal reviews as a Commander – where you were using your legal experience?

I did the inquiry officers’ course that the Inspector General ADF conducts. I undertook an inquiry that ended up in the full Federal Court in the decision of Martincevic where my name is unfortunately through that decision way too many times as an inquiry officer, not as a legal officer. I made certain findings which the Court took into account when they made their decision. That was a termination of service case. As I became more senior, I found my time consumed more with command roles and therefore it wasn’t really appropriate that I do inquiries going forward. I did often become the Appointing Authority for others to do inquiries where I would then get the report and then have to make decisions about the recommendations and implementation from those.

And as a Commander in those different roles did you find your legal experience and legal training coming into play or being used?

It wasn’t the dominant element but I’m sure my legal team when I was a Divisional Commander might have a different view. I had a very good legal team, including reserve lawyers, including John Lo Schiavo and people like that, who’s now a full Colonel, who were always a little bit apprehensive at the fact that their Commander was also a lawyer and therefore might be double-guessing their advice. But I made the point often that I wasn’t an expert in military law.

I was a military commander and I understood administrative law, but I wasn’t there to be the lawyer. They were there to be my lawyer and give me advice and then I would you know accept it. I think it kept them certainly on their toes about the idea that I understood and might be a bit more robust about their opinions.

In the Chief of Army’s Advisory Committee I’m certain sometimes they certainly thought I was the lawyer in the room because I brought that skill that no one else in the room necessarily had as their background to the senior leadership of the Army. So, I think, certain Chiefs of the Army were either grateful or not grateful for me to give them that advice.

As Commander of the 2nd Division where was your geographical work location or headquarters?

So the headquarters is in Sydney at Randwick Barracks, in the Eastern Suburbs. The brigades are in each of the capital cities and then the units are spread pretty much all over the country.

So a great privilege of that job was to visit soldiers in the Torres Strait, Arnhem Land, the Pilbara, Kimberley, Tasmania, and many country towns in Queensland, New South Wales, Victoria and South Australia. And, again, there were many lawyers or law students who were doing their officer training and doing it in a way such that they would graduate from Duntroon as a young lieutenant but not to legal corps, to infantry or to engineers or to something else. It was a great privilege to meet those young committed people.

How did reserve service work practically with practice at the bar up until your appointment to Command the 2nd Division?

There was always a tension there. I often said I was just doing two jobs badly because you know the demands on you at the bar, especially if you’ve got a litigation practice. It’s intense. I used to tell my superiors, including Chief of Army, that if I was in court it was like me being in a compartmented room. You couldn’t get hold of me, that’s what I’m doing for the day so my phone won’t be answered or you just won’t be able to get hold of me. I found it very tough at different command jobs.

When I had staff roles it was much easier but for all those touch points through your career where you’re in a command role for two or three years at a time. The clear loser was my family. The bar was your primary source of income. Reserve service was great fun but it wasn’t lucrative.

It was appropriately paid but not lucrative so you needed to cover your costs at the bar. You just manage that tension and carve out time and become really good at prioritising things at points in time. I found the hardest part was finishing up as Commander of 2nd Division part-time for the last two months after I commenced my full-time appointment at the Administrative Review Tribunal, trying to clean up the last two months of that as I was going out the door.

So being back again to being not just one job was very demanding.

Thank you for taking the time to talk about so many different things.

My pleasure Dom.

Thank you Judge for taking the time to be interviewed for Hearsay as to the Bar and military law.

You’re quite welcome.

What Australian Defence Force appointments or legal roles have you had?

When I commenced, I was a legal officer initially in the Australian Army. Because I had an interest in aviation – I used to fly – I transferred to the Air Force Legal Panel in about 1990. I was based at Amberley and principally then performed the role of a base legal officer, which involved just attending to all sorts of issues that arose at the time. I was in practice at the Bar, but I would go up there to do a week’s duty. I would take along a briefcase full of briefs, and when I had time on my hands – as you often did – I’d do a bit of work.

On duty I would deal with all sorts of issues, domestic issues, military issues, discipline issues, but not much operational law in those days. Rather it comprised a broad cross-section of matters. I would appear in court-martials, and CO hearings and other summary hearings. Initially, I appeared as defence counsel, before being appointed regularly as a prosecutor.

After a number of years, I was appointed as a Defence Force Magistrate Judge Advocate. In 2008, the system was stood on its head. It was abolished, and the Australian Military Court was introduced. That was a bit of a debacle. It lasted about 18 months. Following that I was appointed to be the Deputy Judge Advocate General – Air Force.

I undertook that role for about seven years and upon retirement from that role, took up the role of a Section 154 Reviewing Officer. That is an officer who basically conducts desktop reviews of trials, or reviews of petitions; rather like a desktop appeal. Otherwise, throughout the course of my military career, I’ve undertaken numerous inquiries, either as counsel assisting in boards of inquiry or as an inquiry officer under the Defence (Inquiry) Regulations.

That’s my broad background. Along the way, there was a bit of operational law and quite a deal of discipline and administrative law and all, of course, in the Defence setting.

Does your role as Deputy Judge Advocate General, statutory basis and how does it differ from the section 154 review role?

Each of those roles I’ve just pronounced: the role of Deputy Judge Advocate General, indeed the Judge Advocate General, section 154 Reviewing Officer, Defence Force Magistrate / Judge Advocate, entails a statutory appointment.

Their term varies, but by and large you’re appointed by the Governor General as I recall, or at least in relation to, certainly my appointment as Deputy Judge Advocate General, and in relation to the section 154 Reviewing position those appointments are made by the Chief of Air Force or CDF.

Have others served as Deputy Judge Advocates General who are or were barristers in Queensland?

There are quite a number, but principally they have been Army. The best known was the late Justice Jack Kelly [Major General The Honourable J. L. Kelly CBE, RFD, QC]. He was the Judge Advocate General in the 1970’s.

Indeed there’s a piece of Queensland legislation described as the Jack Lawrence Kelly Enabling Act, which was necessary to be passed in order to permit him to sit as both a Judge and undertake the statutory role of Judge Advocate General. That’s not necessary now, but used to be the case. There’s been a change in the constitutional arrangements addressing that. Beyond that, I think I’m probably the only other Reserve Officer who’s undertaken that duty, apart of course from Judge Smith [Brigadier His Honour Judge P. Smith AM DCJA] who’s effectively my counterpart in the Army. He’s a Brigadier and he now is the Deputy Judge Advocate General for the Army. There is also Air Commodore Clive Wall [Formerly Judge Clive Wall RFD, KC] and Brigadier Stuart Durward [Formerly Judge Stuart Durward S.C.], who were both Deputy Judge Advocates General.

Returning to when you commenced as a Barrister, what rank were you at that time?

Upon my initial appointment I was Commissioned as a Captain in the Australian Army. That was in 1985. I transferred across as a Flight Lieutenant and then progressed essentially through the ranks from Flight Lieutenant through to Air Commodore.

Have you always been effectively a Legal Officer or a Specialist Legal Reservist or have other categories or specialist roles been added on to the legal role?

I’ve always been a Specialist Reservist. Curiously enough, when I went to enlist at a recruiting centre in about 1984, the Army was looking for lawyers in particular because they’d just enacted the Defence Force Discipline Act and they were expecting this deluge of disciplinary work to arrive, and they wanted to fill the ranks with advocates and people who knew a little bit about courts.

I’d only just gone to the Bar, so it seemed like a good idea at the time. So I never pursued the general training, through the Initial Officer Training Course that used to be offered out at Wacol, and instead went directly into the Army Legal Corps.

How many Legal Reserve Officers, in all three services, there were at the Bar here in Queensland during your time at the Bar?

My guess – and it’s changed a lot over the last 40 odd years – is that when I first joined the panel there would have been probably about 20 Barristers in Brisbane who had some military connection.

Not all of them had been Legal Officers. There was, for instance, John McGhee, who the older members of the Bar may recall. He’d retired from the Army with the rank of Major, after 20 years’ service (including in Vietnam) and came to the Bar.

There was Mick Ewing [Brigadier Maurice Ewing], who had been the Director of Army Legal Services. Upon his retirement he came to the Bar. So there were quite a few people who had actually been career Officers in the Army, as well as a number of people who had come across from other services.

Another was a Naval Officer, Peter Baston, who still practises. Another was Alistair Twigg. He’d been a Navigator in the Air Force who’d retired after having studied law to undertake practice at the Bar, at least for a short time. So there were quite a number.

Over the years the numbers have varied, largely depending upon the service you were in and the sort of work that they had you doing. In more recent times the amount of discipline work that used to be around has diminished significantly. Indeed, that’s a matter of some concern to people in Canberra and is the subject of an inquiry at the moment.

There has been a tendency, in my view, in recent times, that disciplinary matters might be addressed more appropriately by administrative procedures. A policy position which seems to have some favour is that people who are addressed by the disciplinary system probably aren’t fit for service. Accordingly, the view is: “Why bother going through the trouble of having a discipline procedure when you’re simply going to discharge them.” There are some self-evident problems with that approach, the most obvious of which concerns the presumption of innocence and the standard of proof.

You mentioned appointments as both a Judge Advocate and Defence Force Magistrate. Were there many court-martials or Defence Force Magistrates hearings, particularly in that period when you were at the Bar?

There were. I sat as both, of course. The difference being that a Defence Force Magistrate has a somewhat lesser jurisdiction but sits alone as a single judge, and a judge advocate sits either in a restricted or general court-martial. A general is a five-panel member and a restricted is a three-panel membership.

My recollection is broadly that it was probably 50-50. You’d probably find 50% of the matters might be disposed of before a Defence Force Magistrate. The other 50% disposed of before the superior tribunals.

Within that superior tribunal grouping, there were probably only a handful that were ever disposed of by a general court-martial. I certainly did quite a number of them, but I’d say the predominant number of trials were convened before restricted court-martials. It’s quite a complex exercise getting people together.

You have to have some understanding of the command system and the way in which commands are divided, where people are pulled from across the country to serve in a limited pool of people who are available to serve in that role. It’s quite a logistical exercise bringing all these people together, together with, of course, witnesses, counsel and all the other bits and pieces of paraphernalia associated with conducting any sort of trial.

When at the Bar, did you undertake much other legal activity such as being a counsel assisting or counsel representing in particular inquiries?

I had roles in both, and often times mostly in administrative inquiries concerning what might be described as workplace relations issues such as unacceptable behaviour and so forth. Long before even the modern regulations came into being, the Defence Force has had a particular view about these matters.

But perhaps the most interesting inquiries I’ve done have been related to aircraft events and incidents. I conducted an inquiry that went for about 16 or 17 months involving the Deseal/Reseal Program concerning a process that was causing quite a deal of harm to airforce personnel engaged in the maintenance of F111 fuel tanks. I was the lead counsel assisting in that matter.

I was also counsel assisting in relation to the loss of an aircraft. We lost an F-111 in Malaysia in the late 1990s on exercise when it impacted an island peak. And then there were a number of other inquiries, minor inquiries that we conducted relating to incidents that happened, taxing aircraft on the ground, tankers running into aircraft, all that sort of stuff. That was happening on a pretty regular basis and probably still does, I might say, but that was the sort of work that you’d be doing principally in the inquiry space.

Did reserve service work, in a practical sense, in terms of daily practice at the bar?

Look, sometimes it did, but sometimes it didn’t. For instance, when I undertook a role as counsel assisting in that large board of inquiry, that lengthy board of inquiry, I literally took 15 or 16 months out of my practice. Surprisingly, when I got back to practice, it was as though I’d never left.

But at the time, there was quite a degree of anxiety about whether or not you’d have a practice to go back to. Aside from that, other things such as the aircraft incident involving the F-111, that was rather like an inquest. Once it started, it went in dribs and drabs and people were fairly accommodating of the fact that I was a reservist taking time out of my practice to assist them so were very helpful.

So they did everything they could to make it work for me. So it didn’t cause me a great deal of grief. Concerning general duties, we’d regularly go out to the base in days gone by when we were involved in preparing for operational law matters. I’d regularly go out to the base, for instance, on a Tuesday night when the squadrons would be doing some bombing practice and we’d sit around until the early hours of the morning, waiting for the aircraft to fly off, undertake their mission, return and examine the video footage of the mission and the ordnance dropped and so forth and give LOAC advice in relation to those matters. That was always a bit exhausting the next day. But by and large, you’re able to work around all those issues.

But like anything, what you put into it really informs what you get out of it. So I was pretty happy to do that stuff and quite enjoyed it.

Thank you very much for taking the time to speak, Judge.

Not at all.