9 months ago

LSB March 2018_Web

MILITARY LAW 2010 until

MILITARY LAW 2010 until February, 2013. On his third day, 15 December, 2010, a suspected illegal vessel ran onto rocks on Christmas Island during a massive storm. Forty eight died and 42 were rescued. The ensuing coronial inquest in Western Australia (WA has legislative jurisdiction over Christmas Island) finally absolved the Commander BPC of any personal responsibility and BPC of any as an entity, but not without considerable stress in the process. Andrew managed the BPC involvement in the coronial, instructing Australian Government Solicitor to defend BPC and its Commander. His two years at BPC were during the height of the “refugee crisis”, which saw one to two suspected illegal vessels entering Australia’s waters each day. This was an incredible experience working with the highest levels of government on the crisis, making significant decisions under the Migration Act 1958 and the principles of the Law of the Sea. Sea Shepherd’s antiwhaling campaign was also high on the BPC agenda during those years as BPC has responsibility of search and rescue (SAR) in the Antarctic region. In fact, BPC is responsible for a SAR region covering 10% of the world’s ocean surface. Andrew was selected to be the Chief Legal Advisor to the Chief of Navy and commenced this role in February, 2013. This was an incredibly rewarding role. Again, operating at the top level of an organisation he was involved in all significant legal decisions made by the Chief of Navy during his nearly three years in the role. Areas of law included contract, Law of the Sea, employment, Law of Armed Conflict, tort, maritime, criminal and administrative law. A small sample of significant incidents included allegations of bullying/bastardisation in ships and establishments, accidental incursions into Indonesian waters, the accidental gassing of sailors on a ship, a review and revision of the Naval Defence Act 1910 (repealed as a result of the review) and the Defence Act 1903, and contract disputes over the maintenance of ships. Following the Chief of Navy posting, Andrew undertook his third operational deployment as the Chief of Operations and Humanitarian Law for NATO in the Afghanistan Area of Operations (AO). Whilst not a member of NATO, Australia Commander Andrew Burnett in a US Navy helicopter during a two-hour flight from HMAS Sydney to Bahrain in 2003 is a contributing nation to the coalition in Afghanistan and is actually the eighth biggest contributor to that operation. From March to October, 2016 and based in Kabul, Andrew and his deputy provided operations law advice on the daily conduct of hostilities in the AO to the three Generals (one Australian and two US) responsible for the war. Providing advice under LOAC is a huge responsibility. No other field of law provides this level of responsibility and the strain is enormous. The tactical application of LOAC is governed by Rules of Engagement (RoE), which are the instructions to the units engaged in conflict. Every operation they undertake must be prosecuted in accordance with the RoE. A breach of RoE by Australian forces may also be a breach of domestic criminal law and may result in charges under the Defence Force Discipline Act 1982. Other duties included being a member of a team that investigated every allegation of civilian casualties in the AO; and investigating a “green on blue” incident (Afghan forces engaging NATO forces) where two Romanian special forces members were killed and one injured by an Afghan special forces police officer. It may seem odd that a Navy Legal Officer gives advice in a land-locked country on the prosecution of the land battle, but the modern ADF legal service is truly a tri-service group with significant cross training in all aspects of LOAC. Andrew replaced a Royal Australian Air Force Legal Officer and was himself replaced by an Australian Army Legal Officer. Apart from two weeks respite in the middle of the deployment when he met up with his wife Susan in Europe, this was a relentless seven day per week, 14 - 16 hour day undertaking which was the highlight of his Naval career. Following his return to Australia, Andrew took some post deployment leave and then attended a five-week course that prepared him for his current role as CO NHQ-SA. In his CO role, Andrew cannot practise law and any legal matters that arise are referred to his legal advisors in Sydney. He does, however, always provide his own views with the request for assistance! As a postscript, Andrew noted that the practise of the law in the Navy has changed significantly in the 20 years that he has been practising. Early in his legal career, lawyers dealt with discipline law (minor criminal law) and administrative law in the main and some lucky ones dealt with operations law. Over the last 20 years the opportunities to practise operations law have increased significantly as a result of Australia’s continued involvement in the war in the Middle East. This, and the general litigious nature of life now, has also seen a significant increase in the number of Navy Legal Officers over that period. Through all of this Andrew’s wife Susan and children Madeline and Cameron have supported him and tolerated his many extended absences interstate and overseas. B 14 THE BULLETIN March 2018

EVENTS Profession rings in new legal year udges, lawyers and support staff raised Ja glass to the year ahead at the Law Society’s “Happy New Legal Year” event at Adelaide oval on 8 February. More than 200 people braved the heat to welcome the new legal year at the David Hookes Bar, where Chief Justice Chris Kourakis and Law Society President Tim Mellor briefly addressed the crowd. Mr Mellor used the occasion to pay tribute to the often unheralded current and former court staff, whose knowledge, guidance and conscientiousness have helped numerous lawyers through times of panicked urgency and confusion. This was the second year the event has been held at Adelaide Oval after the success of last year’s event pointing to the likelihood of it becoming a regular fixture on the calendar. Traditionally, members of the legal profession would attend a church service to mark the start of the legal year, with the main purpose being to reaffirm allegiance to the Rule of Law. That tradition has fallen by the wayside in Australia, but some States still hold “multi-faith” ceremonies. After several years with no event to mark the start of the legal year, the Law Society decided to revive it, albeit in a far more informal way, so that colleagues and peers could connect and reflect on their important role and responsibility in the community. B Attendees mingling at the Happy New Legal Year event Tim White (left) and Michael Spencer Claire Wiebe (left), Natasha Hemmerling, Stefanie Magliani, and Alice Rolls Law Society President Tim Mellor addresses the crowd Chief Justice Chris Kourakis opens the New Legal Year Isabella Cecere (left), Melissa Harvey, and Steven Polyichanin Erica Panagakos (left), Bev Clark and Alysia Panagakos Sam Hooper (left) and Sam Joyce Deputy Leader of The Opposition Vickie Chapman MP (left), Martin Frayne SC and Lesia Iwaniw March 2018 THE BULLETIN 15

Platform July 2018