PAULINE THERESE COLLINS: CIVIL-MILITARY 'LEGAL' RELATIONS: WHERE TO FROM HERE?

• Author: Yin, Kenneth

(BRILL NIJHOFF, 2018) ISBN 978-90-04-33824-1 (321 PAGES)

I INTRODUCTION

This eminently readable book 'investigates civil military theory and the place of civilian courts in that theory'. (1) An overarching theme is that the 'failure to acknowledge the civilian courts' role in maintaining civilian institutional control over the military leaves an unacknowledged gap that has potential consequences for the civil-military relationship'. (2) The author posits that 'part of this absence may well have been perpetuated by a self-imposed judicial position of deference towards the military'. (3) As an Australian Army Reserve legal officer in active service at the time Re Tracey; Ex parte Ryan (3) which had a profound impact on Australian civilmilitary judicial relations, was delivered, this reviewer can personally confirm the veracity of Professor Collins' observations concerning the perpetuation of this 'deference'.

Presenting her work as a coherent whole was a significant undertaking, as the author had to grapple with various underlying themes spanning disparate jurisprudential concepts, and geographically covering the three selected model-States, the United Kingdom, the USA and Australia.

II CHAPTER SYNOPSIS

Chapter 1, 'Civil-Military 'Legal' Control' probes the jurisprudential and socio-political tensions that underpin civil-military relations. This chapter contains detailed jurisprudential analyses of arrangements for balanced power sharing and control of institutions in a democracy, namely: the executive, (within which is located the military, the tool used to provide defence of the nation); the judiciary; and legislature, diagrammatised as a three legged stool.

The mutual support provided by each leg then results in the achievement of harmony to ensure citizens' protection. (5) In broad yet precise strokes the author explains the socio-political tensions that might lead to an imbalance in this arrangement, exemplified by her reference to 'the US Supreme Court's sweeping deference to the American military' (6) and her suggestion, in like terms, that in Australia, this deference is 'the dominant position of the court'. (7)

Chapter 2, 'Civil-Military "Power" Relations' explores the need to have a strong military institution as part of the broader framework for the discussion of civil-military relations. (8) It introduces a central theme in her work that the State's responsibility for keeping society safe is expressed in the normative principle of...