Why Military Matters: Re Colonel Arid; Ex parte Alpert and the 'Service Connection' Test versus the 'Service Status' Test: Competing Approaches to the Triggering of the Defence Power

Abstract

With political changes afoot in both Australia and the United States, it is timely to review military regimes and remind ourselves how greatly they matter. Section 51(vi) of the Constitution authorises the Commonwealth Parliament to legislate with respect to: ‘The naval and military defence of
the Commonwealth and of the several States and the control of the forces to execute and maintain the laws of the Commonwealth…’ One of the concerns in relation to s 51(vi) has been whether this provision supports the establishment of military tribunals and, further, whether these tribunals can
be regarded as exercising judicial power of the Commonwealth and thus be regarded as properly constituted courts for the purposes of Ch III of the Australian Constitution. The High Court’s 2004 decision in Re Colonel Aird; Ex parte Alpert has established that military tribunals and, more generally, the military discipline system will be regarded as constitutionally
valid and a properly constituted court for the purposes of Ch III provided that it is applied to conduct which can be regarded as ‘service connected’ or invoked for the purposes of enforcing and maintaining discipline among the defence forces. This article examines the decision in Aird’s Case and the associated ‘service connection’ test as a basis for supporting the constitutional validity of the military tribunal system. The concluding section of the article develops some further observations on the newly created Australian Military Court.