“That’s not a knife . . . THIS is a knife!”1
For over one hundred years, U.S. service members have fought alongside the Australian Defence Force (ADF). On 4 July 1918, at the Battle of Hamel, the United States fought side-by-side with Australia. During that battle, Americans fought under the command of one of Australia’s most celebrated military officers, General Sir John Monash. After the fourth such mention during my visit with the ADF, I put down the book I was reading—In a Sunburned Country,2 Bill Bryson’s hilarious travel book about Australia—and read, Monash, The Soldier Who Shaped Australia.3 I highly recommend both books to learn more about Australian history and culture. However, to truly understand our allies and partners, there is no substitute for face-to-face engagements.
Recognizing the importance of enhancing interoperability through engagements, Lieutenant General (LTG) Charles N. Pede, The Judge Advocate General, and Commodore (CDRE) Peter Bowers, Director General Australian Defence Force Legal Services (DGAFLS), established a short-duration visit between the two countries. It was through this effort that I had the once-in-a-lifetime opportunity to spend seven weeks with ADF Legal in spring 2019. This article intends to familiarize the reader with the Visit Program, highlight the Program’s benefits, and discuss the Program’s future.
Visit Program with Australian Defence Force Legal
The objective of the Program is partner-nation training and education, interoperability with the ADF, and the opportunity to exchange ideas and perspectives in support of future coalition operations. This Program involved a robust schedule of attending academic courses and legal workshops; meeting with ADF Legal Headquarters personnel; and observing training exercises with brigade legal offices. Lodging in the officers’ mess and eating in their dining facilities provided additional opportunities to discuss issues with non-legal ADF members, from cadets to commanders. This provided me with a much more in-depth understanding of the ADF as a whole and the legal community’s role therein. This section provides an overview of the engagements and a small sample of some of the issues and policies discussed.
Academic Courses and Workshops
The Program began with observing Legal Training Module One (LTM 1), the initial course of the Legal Officer’s Specialist Officer Career Structure, a tri-service two-week training, which is loosely akin to the Army’s Judge Advocate Officer Basic Course (JAOBC). The Army, the Royal Australian Navy (RAN), and the Royal Australian Air Force (RAAF) conduct legal training together and will often advise leadership from different services. According to the Army career manager, seventy percent of O-3 postings are Army specific, but only two O-6 jobs are NOT joint billets. Attending LTM 1 provided an opportunity to learn the basics of ADF’s core legal disciplines: administrative law, discipline law, operational law, and the legal officers’ career structure. After LTM 1, new legal officers begin an apprentice-like program, during which they must complete sixteen consolidation tasks (e.g., giving a rules of engagement (ROE) brief) before advancing to the next level. There are five Legal Levels (LL) in the permanent force, and advancement is linked to training and individual service and promotion requirements.4 Unlike our judge advocates (JAs), who are certified and qualified upon completion of JAOBC, a legal officer cannot advise commanders or deploy until they reach LL 3, which can take three years.
A few weeks later, I had the opportunity to learn about Army-specific issues at the Junior Legal Officer Workshop Program, a two-day workshop for new Army legal advisors. Topics included training and progression; “raise, train, and sustain” for operations; and the debate over “broadly employable” versus “expert.” Sound familiar? Another familiar topic discussed at this training that is regularly debated among the Judge Advocate General’s (JAG) Corps leadership is whether mentorship should be formal or informal. The ADF has a formal mentoring scheme that requires a mentor be assigned within two months of being appointed as an ADF legal officer.5 The relationship lasts until the second anniversary of attaining LL 2 status. While it is a formal program, in many cases, new legal advisors choose their mentors personally or by recommendation based on common interests.
I also attended the Defence Legal National Joint Legal Issues Workshop—a bi-annual conference, similar to the World Wide Continuing Legal Education course—attended by over 300 ADF legal personnel and international guests. This workshop was a great opportunity to continue to build relationships and to hear about the strategic direction of the ADF. There were several common themes, including the ADF’s renewed focus on the Pacific and efforts to achieve greater integration of the services. Because of the ADF’s interconnected modality, it was surprising that many senior leaders discussed efforts to become more joint. All the speakers were informative; however, one speaker in particular reinforced the purpose of the Visit Program with his observations. Colonel David McCammon, speaking on “Taji—A Commander’s Perspective,” discussed the difficulties in working in coalitions when partners handle investigations and discipline law differently.
For example, a training death in the ADF will be investigated by an outside regulatory organization called “Comcare.” Based on Comcare’s investigation and conclusions, the Commonwealth Director of Public Prosecutions may then file charges against the ADF. In fact, during my visit, Comcare announced its recommendation that the Department of Defence be charged for a death that occurred during a live fire training. Another example is the discipline system. Under the Defence Force Discipline Act of 1982 (DFDA), jurisdiction is based on “service connection.”6 That is, the military has jurisdiction if prosecution could reasonably be regarded as substantially serving the purpose of enforcing service discipline. This differs from the “service status” test in the U.S. military. Additionally, the decision to prosecute a member resides with an independent prosecutor, not the commander. Understanding the differences in our coalition partners’ policies and procedures prior to operations will decrease friction and enhance interoperability.
After LTM 1, I spent two weeks with headquarters personnel at Defence Legal Division in Australia’s capital, Canberra. The Defence Legal Division is an integrated organization that includes Army, RAN, and RAAF legal personnel—similar to the Office of The Judge Advocate General (OTJAG), but joint. I met with the Head Defence Legal,7 the DGAFLS, and several Directors and staff who report to DGAFLS. We discussed a variety of issues, including domestic law and treaty obligations applicable to the ADF in combat operations. Perhaps most relevant to coalition operations, we discussed the impending changes to Australia’s ROE doctrine.8
I spent a day with Australia’s only combatant command—Headquarters Joint Operations Command (HQJOC). In addition to operations and other real-world activities, HQJOC conducts joint exercises. During my visit, legal advisors were preparing for Pacific Sentry 19.3, a Chairman of the Joint Chiefs of Staff-sponsored, bilateral Command Post Exercise (CPX) between Australia and the United States. United States Army Pacific Command (USARPAC) served as a four-star Combined Joint Task Force (CJTF) for the exercise. The Visit Program afforded me the opportunity to meet the ADF legal advisors who would participate in the exercise from several different locations, including the CJTF Headquarters.
Army Forces Command
I spent my final weeks in Australia with the Forces Command Headquarters (FORCOM) and two of its three regular force combat brigades: 1st Brigade in Darwin and 7th Brigade in Brisbane. The brigades continuously rotate; they switch between “ready, readying, or resetting.” During my visit, 1st Brigade was the readying brigade, and was participating in a CPX. 7th Brigade was the ready brigade, and was serving as the opposition force for the same exercise. I did not have an opportunity to observe 3rd Brigade, which was resetting. The legal briefing style and content were very similar to my experience as a brigade judge advocate. Spending several days with each office allowed for conversations about a brigade legal officer’s general legal duties, which include advising on disciplinary charges, reviewing summary proceedings for legal sufficiency, investigations, reviewing minor contracts, and operational law issues. It was a great opportunity to see issues on a tactical and operational level and to gain a different perspective on the many topics I had learned about.
Benefits of the Visit Program
The opportunity to spend time in Australia, with the purpose of building relationships and learning, is a career highlight for an extroverted life-long learner, such as myself. More importantly, the relationships established and the understanding of ADF perspectives and legal obligations springing from that experience are already paying dividends for the U.S. Army. During Pacific Sentry 19.3, my relationships facilitated staff integration and information sharing at all echelons. Additionally, my familiarity with various Australian domestic laws, treaty obligations, and national caveats helped me identify where legal authorities differ and could be leveraged to expand the legal maneuver space on the battlefield.
Australia is a leading Western world power, especially in the Pacific, whose voice carries significant weight in the development of international law by a nation state. Our countries have common national security interests and have committed to work together to preserve those interests. Understanding each other’s operational restrictions and interpretation of law will help our countries identify commonalities so that we can strengthen our combined efforts. We improve this understanding through continued engagements.
The Future of the Visit Program
In spring 2020, an ADF legal advisor will take part in the second phase of this important Program, spending time with the U.S. Army JAG Corps. The ADF legal advisor was the 1st Brigade Legal Officer who hosted me during my visit to Darwin. Her visit will begin in late February with an introduction of the Army JAG Corps at OTJAG and U.S. Army Legal Services Agency, followed by attendance at the National Security Law of Armed Conflict course at The Judge Advocate General’s Legal Center and School in Charlottesville, Virginia. Around the same time, another member of the JAG Corps will have the amazing opportunity to participate in the Visit Program with the ADF in Australia. Whether going to Australia or hosting an ADF legal officer in the United States, this Program provides an excellent opportunity to build relationships, exchange ideas and perspective, and learn more about a critical partner.
From the Revolutionary War to the Global War on Terror, the United States has fought in many wars with our coalition partners. With the growing interdependence of the world’s economies, cultures, and populations, it is likely the United States will continue to fight as part of a combined force. Interoperability, not only of equipment, tactics, techniques, and procedures, but also of a common understanding of legal support to operations between the military forces, will be critical to success. Coalition partners will have different operational restrictions impacting military decision-making procedures, which may appear to limit or hinder the mission. Understanding our differences can decrease tension, and even create opportunities when we look to maximize our unique authorities and capabilities. Gaining this legal interoperability can best be achieved through face-to-face engagements. The Visit Program with the ADF provides the opportunity to build relationships while gaining an in-depth knowledge of one of our closest allies. The Australian and U.S. militaries have fought together since World War I, and through initiatives like the Visit Program, we will continue to increase our readiness and effectiveness as future coalition forces. TAL
1. Crocodile Dundee (Rimfire Films 1986) (Australian comedy).
2. Bill Bryson, In a Sunburned Country (2000).
3. Grantlee Kieza, Monash, The Soldier Who Shaped Australia (2015).
4. Australian Defence Force, ADF Legal Officers’ Specialist Officer Career Structure (LOSOCS) Policy (25 July 2019).
5. Director General Australian Defense Force Legal Services Directive No. 2/2015, Mentoring Scheme for ADF Legal Officers (Oct. 26, 2015).
6. Based on a 2005 report on the Effectiveness of Australia’s Military Justice System, Australian Military Courts were established in 2007. They were found unconstitutional in 2009 in Lane v Morrison. Lane v Morrison  HCA 29 (Austl.). Parliament enacted legislation ratifying the approximately twelve decisions made by the Australian Military Court. The Australian Defence Force is currently working under the pre-2007 system of tribunals and disciplinary officer scheme.
7. The Head Defence Legal is two-star equivalent. Head Defence Legal can be civilian or military, but has historically been filled by civilians. DEFGRAM 385/2004 (15 July 2004).
8. Australian Defence Doctrine Publication 06.01 contains Rules of Engagement doctrine. Because the briefs I received are for Official Use Only or a higher classification, the new doctrine is not discussed in this article.