The Constitutional Status of Military Tribunals: Paradigm Lost, Paradigm Regained: a Critical analysis of New Zealand Military Justice in the Light of International Trends

Abstract

The New Zealand military justice system consists of a number of tribunals presided over by military officers without legal training who may impose punishments ranging from simple reprimands to imprisonment for offences under the Armed Forces Discipline Act 1971 and other statutes. The overall constitution and procedures of these tribunals has undergone little change in New Zealand since the 19th century, despite significant changes in other countries which share a common constitutional and military heritage and despite significant legal developments, both internationally and domestically. New Zealand's obligations under the International Covenant on Civil and Political Rights and its domestic obligations under the New Zealand Bill of Rights Act 1990 relating to the structure of military courts and tribunals are explored in this thesis. The method of analysis employed is comparative and analytical. Recent military justice developments in Australia, Canada, the United Kingdom and the United States are reviewed and compared with the New Zealand system. The principles emerging from overseas cases are examined and applied to the current statutory structure of New Zealand military tribunals. This thesis concludes that New Zealand military tribunals fail in significant respects to offer the guarantees of independence and impartiality required under section 25 of the New Zealand Bill of Rights Act 1990 and Article 14(1) of the International Covenant on Civil and Political Rights, as well as failing to comply with the fundamental rules of natural justice. A list of recommendations is offered in the final chapter which, if implemented, would bring the military justice system into compliance with New Zealand's domestic and international human rights obligations.