The Australian Defence Force’s internal legal system is being challenged by a veteran and lawyer, Mick Bainbridge.
Legal bills for ADF members opposing military charges in Court Martial and Defence Force Magistrate Proceedings are at the ADF’s expense only if they use Defence legal officers. While ADF members can choose to obtain external representation, this must be done at their own expense. Bainbridge argues that there is an inherent bias, since Defence legal officers generally identify with being an officer of the Defence Force first and only after, as a legal officer.
Greg Barns, the National Criminal Justice Spokesperson for the Australian Lawyers Alliance also supports this notion that funding for those who choose independent, civilian representation should not be declined due to the conflict of interest present in the situation where the accused is provided with a lawyer and the organisation prosecuting the accused is also paying the lawyer. This proposed system of funding legal fees for members even when they choose civilian lawyers for representation purposes, is currently adopted by the UK and there has been pressure for the ADF to move in a similar direction.
Nevertheless, the chances for reform in this area looks uncertain as the ADF has insisted that the efficiency of the current internal legal system is dependent on lawyers who have knowledge of the nature of military life and its laws, making them more reasonable. They further refute claims against this system by insisting that an ADF member still holds their Legal Professional Privilege and that this is recognised by the ADF.
However, it does bring to question the quality of representation the members have access to financially, should their lawyers have split loyalties and conflicts of interest as they are employed by the organisation they are representing against. Furthermore, the current system also denies the members the ability to have access to legal representation they trust should they prefer civilian representation through financial discrimination.
Ultimately, Defence remains a unique area with its complex laws, but this should not deny members of the ADF representation of their choice through restricting their funding. However, with more veterans speaking up, there may be reform in the future.
If you would like to enquire about any of the issues raised above, please do not hesitate to contact Freedman and Gopalan by calling 8917 8700 or by filling out the enquiry box.