The Defence of Superior Orders (and Related Defences) in Australian Military Law

This paper considers the continued utility of the defence of superior orders, given the recent Brereton Inquiry Report that concluded there was credible evidence that a small number of Australian soldiers had committed war crimes in Afghanistan. These are allegations only, and anyone accused of wrongdoing is entitled to the presumption of innocence. This article considers whether, if a soldier is shown to have committed wrongdoing, they might have a defence by arguing they were ordered by a superior to commit the wrongful act.