LSB March 2018_Web

PRESIDENT’S MESSAGE
Profession’s proud history of
service reflects close relationship
between law & military
TIM MELLOR, PRESIDENT
This week I looked again at the honour
board above the main staircase at the
Supreme Court building which records the
names of members of the professional
and law students who enlisted in the First
World War.
A close interrelationship between the law
and the military is probably not sufficiently
appreciated. The theme of this month’s
Bulletin examines some aspects of that
relationship. I use the term “military” in
this context as including the operations
of all three services (Navy, Army and
Air Force) which make up the Australian
Defence Force (ADF).
Over the whole of the history of the
colony and the State of South Australia,
members of the legal profession have
served in general military roles and have
fought and died in the course of military
service. The honour board in the Supreme
Court lists 85 names, including 12 who
died on active service. It includes Arthur
Blackburn, a Victoria Cross recipient, and
numbers of others who were decorated.
Given the size of the profession and the
population of the State at that time, this
was a significant proportion of those
eligible to enlist who volunteered for that
service. The list has many names which
remain familiar a century later - judges,
politicians and statesmen, and names still
incorporated in firms operating to this day.
The honour roll for the Second World
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THE BULLETIN March 2018
War is equally extensive. And so it has
continued in other conflicts in Korea,
Vietnam and, in this century, East Timor,
Afghanistan and the Middle East. In all
these conflict there have been lawyers
serving in general military roles.
Still others who might not have been able
to undertake active military service, have
taken on other wartime roles in support.
The situation of military service by
lawyers specifically in the role of lawyers
has been a feature since after the Second
World War. The ADF has increasingly
required and valued the abilities and
assistance of lawyers in the conduct
of operations and in the maintenance
of military discipline. In the immediate
aftermath of the Second World War a
number of South Australian lawyers were
diverted from their other military duties
to deal with war crimes. Consistent with
the operation of the rule of law, and in
that strained and emotive context, they
undertook roles as judges, prosecutors and
also as defence counsel.
South Australian lawyers have held, and
continue to hold positions on International
Criminal Tribunals dealing with war crimes
from more recent conflicts.
The rights and obligations of States
in the conduct of military operations
are extensive and complex. They entail
the application of international law, and
numerous specific treaty and convention
Military decisions about issues such as targeting,
and operations which may directly affect noncombatants,
involve assessments and judgments as
to the law.
obligations. Military commanders rely
on lawyers to give them the advice that
ensures that their conduct of warfare
occurs within the bounds of those legal
obligations.
An important aspect of military training
is the instruction which is provided by
military lawyers to all rank levels in the
ADF as to the laws of armed conflict, to
which they are all subject.
Military decisions about issues such
as targeting, and operations which may
directly affect non-combatants, involve
assessments and judgments as to the law.
There have been hundreds of members
of the Law Society and the legal
professional generally who have served
or are still serving in these roles. In many
instances, this has been in full time military
service, but in the majority of cases this
has been as reservists. In recent years
there have been a number of reserve legal
officers who have been deployed for active
service in war zones.
Away from that direct involvement,
the legal profession provides advice and
representation to members of the ADF
as our clients. There are a number of legal
issues which particularly affect members
of the ADF. These include matters of
military justice and discipline. In addition
the pressures of service life entail a
number of specific health and welfare
concerns for ADF members and their
families. These concerns often have legal
consequences.
Whilst we plainly practise in a vastly
different world than that in which our First
World War predecessors operated, I am
confident that they would still recognise
those qualities of service and professional
concern which mark our profession. B