The relationship between the Crown and the armed forces in Australia

Abstract

Charles Clode wrote the following words on the relationship between the Crown and the armed forces in Military Forces of the Crown: Their Administration and Government in 1869: In the first place, he is bound to obey and to give his personal service to the Crown under the punishments imposed upon him for disobedience by the Mutiny Act and Articles of War. No other obligation must be put in competition with this; neither parental authority nor religious scruples, nor personal safety, nor pecuniary advantages from other service. All the duties of his life are, according to the theory of Military obedience, absorbed in that one duty of obeying the command of the Officers set over him. Callinan J cited this passage with approval in X v Commonwealth in 1999. The High Court has consistently affirmed a view of the relationship between the Crown and members of the armed forces in Australia which is unique and Victorian. It appears in cases from Marks v Cth (1964) to Coutts v Cth (1985), X v Cth (1999) and Jarratt v Comm of Police for NSW (2005). Despite some dissent and caution as to the use of nineteenth century military texts, nonetheless the High Court has relied heavily on historical material and perceptions. Given this emphasis on history, this paper will examine the historical antecedents of the relationship between the Crown and the armed forces to which the High Court refers. It will consider the extent to which the legal principles governing that relationship were subject to change over time or in fact remained relatively unmodified. In doing so, this paper will consider the extent of divergence, if any, in the relationship of the Crown with British and Australian armed forces. In this way, the paper seeks to illuminate a connection between law and history, and see whether the relationship between the Crown and the armed forces is a fenceline through the past.