25 April 2009

High Court hears argument on whether the creation of the Australian Military Court is unconstitutional

CANBERRA - Last Wednesday and Thursday the High Court of Australia heard oral argument in Lane v. Morrison. Brian G. Lane, an enlisted member in the Royal Australian Navy, was charged with commiting an indecent act and assaulting a superior officer. After the charges were formally listed on 25 March 2008, Lane objected to the jurisdiction of the newly created Australian Military Court, or AMC, as not a service tribunal. Thereafter, the charges were not listed until the High Court heard and decided Lane's appeal.

On 1 October 2007 the AMC was first established. The court's creation was a result of sweeping reforms to Australia's military justice system which abandoned the previous system of trial by court-martial. The AMC is judicially independent from the three branches of service chains of command and the executive. The AMC was created by Parliament pursuant to defence powers of the Australian Constitution. Military judges sitting on the AMC are appointed by the Governor General to fixed terms of ten years. There are several levels of appeal if a servicemember is convicted by the AMC. These levels or review consist of the Defence Force Discipline Appeal Tribunal, the Federal Court of Australia and the High Court as a last and final resort.

Lane objected to the jurisdiction of the AMC and the Office of Military Prosecutions as being unconstitutional pursuant to section 68 of the Australian Constitution on the grounds that it is independent from the command structure. That the AMC is exercising its own authority and is not part of a command, and it is not by command. Lane has also challenged the AMC is a federally created court of record in contravention of Chapter III, and thus in contravention of section 71 of the Constitution. Finally, Lane argues the Defence Force Discipline Act purports to confer the AMC a general criminal jurisdiction which is not subordinate and supplementary to the general criminal law and thus violated the separation of powers under Chapter III of the Constitution and is therefore beyond the powers conferred by section 51(vi) of the Constitution.

At the start of the oral argument, Chief Justice Robert S. French asked Lane's barrister, Alexander W. Street, SC, of Seven Wentworth Barristers' Chambers to commence with the second claim - the impermissible creation of the AMC. Mr. Street argued that the new military court is a court of record and as such carries two consequences. The first is an inherent power of contempt and the second is that the record is intended to be binding and conclusive for that court. The problem Mr. Street argued is that Parliament can only create a court within Chapter III of the Constitution and not outside it.

But Justice William Gummow wasn't buying Mr. Street's inherent contempt of power argument and implied that it is only a limited form of contempt. "Blind Freddie can see that this is intended to be a court at common law, forget about Chapter III," said Justice Gummow as he cut off Mr. Street in mid-sentence. Later in the argument Justice Gummow told Mr. Street "you seem to want to reopen a whole lot of cases." Mr. Street argued that the AMC is not going to enhance morale and discipline because it is outside the command structure. Additionally he argued the impact of loyalty and respect within a command that is built up by command exercising disciplinary powers are lost by the external entity of the AMC. Further Mr. Street argued that AMC offends section 71 and Chapter III of the Constitution. With that said, Justice Gummow said "what do you mean offends? You talk about violation and offence. Why do you not just talk about the text?"

Solicitor General Stephen Gageler, SC, arguing for the Commonwealth, noted that the 2006 amendment to the Defence Force Discipline Act "is that the institutions for administration of military justice have been made more independent and created circumstances which can lead to a great perception of impartiality than existed before. "

The case summary of Lane can be found here and an order dated 16 January 2009 by CJ French can be found here. Wednesday's High Court oral argument transcript can be found here and Thursday's here.

[Note: This author endorses the use of the new system of trial by the Australian Military Court and believes it to be more fair, independent and impartial than that of the previous trial by court-martial system.]

No comments:

Post a Comment