26 August 2009

High Court strikes down Australia's reformed military justice system

Today the High Court of Australia, in Lane v. Morrison [2009] HCA 29, unanimously struck down, as unconstitutional, the recently created Australian Military Court, or AMC.

Chief Justice French and Justice Gummow issued an opinion and a separate opinion was issued by Justices Bell, Crennan, Hayne, Heydon and Kiefel. Both opinions held that laws creating the AMC required it to use the exercise of judicial power of the Commonwealth conferred under Chapter III despite it being stated in the legislation it wasn't a court under the Constitution. Thus the High Court ordered a writ of prohibition barring the court from proceeding in cases.

In 2006, Parliament passed sweeping reforms to Australia's military justice system in response to a 2005 Senate inquiry which found serious problems with the military justice system. Parliament replaced the court-martial system with a standing court, the AMC, which was to display some features commonly associated with courts. The AMC commenced on 1 October 2007. But ex-Royal Australian Navy sailor Brian Lane brought a challenge to the new system after he was charged for a 2005 incident which alleged he had placed his genitals on a Royal Australian Army sergeant's forehead - - known as "teabagging."

A month after the AMC commenced, Lane was charged in November 2007 with "an act of indecency without consent" contrary to section 61(3) of the Defence Force Discipline Act 1982, or DFDA, involving the 2005 incident. Lane has denied the incident happened and has maintained his innocence. Alexander W. Street, SC, of Seven Wentworth Barristers' Chambers, who represented Lane argued the importance of the hierarchical command structure to the system of military justice which was derived from that of the United Kingdom at the start of federation. Street argued that there is an incompatibility between the 2006 amendments to the DFDA and section 68 of the Constitution.

The Attorney General for the State of Western Australia supported Lane's challenge and argued that the 2006 amendments went beyond what as a matter of history was encompassed by the administration of military justice by a hierarchical command structure. The Justices also held that creating the AMC as a court of record established it as binding and authoritative on decisions of guilt or innocence independently from the chain of command of the defence force including that of the Governor-General who serves as command-and-chief. "It is to exercise the judicial power of the Commonwealth," noted the justices.

CJ French and Justice Gummow held that "once [Parliament] decided to deal with the 2006 amendments not by the creation of a Chapter III court but by the creation of the AMC, the amendments became vulnerable to [] attack now successful made upon the validity of the AMC. The power conferred by section 51(vi) [of the Constitution] does not extend to the creation of a "legislative court." The High Court rejected the creation of "legislative courts" as used in the United States -- noting the American Congress had created Article I courts such as the Tax Court and the Foreign Intelligence Surveillance Court.

Justices Bell, Crennan, Hayne, Heydon and Kiefel held that "for the AMC to make a binding and authoritative determination . . . pursuant to the DFDA is to exercise the judicial power of the Commonwealth. There is no dispute that the AMC is not constituted in accordance with Chapter III. . . . the AMC cannot validly exercise the judicial power of the Commonwealth."

Further, CJ French and Justice Gummow noted that appeals from the AMC to the Defence Force Discipline Appeal Tribunal, which as an administrative body and not a court, would be repugnant to Chapter III of the Constitution, in particular to section 73(ii) which provides for the appellate jurisdiction of the High Court of Australia.

In response to the High Court's decision, Minister for Defence, Senator John Faulkner (ALP-NSW) issued a press release (found here) in which he indicated that as an interim measure, the Government will reinstate, by legislation, the pre-2007 military justice machinery to give Defence a level of certainty in military justice matters.

"The Government is committed to resolving the future of the military justice system, and will be making further announcements once the full implication of the High Courts' decision have been considered," said Faulkner.

"The Senate Committee had recommended a Chapter III court with oversight by the Attorney-General, and greater independence from the military. The legislation establishing the AMC fell short of these recommendations. The Government will review the High Court's decision carefully and consider alternative models for establishing the jurisdiction in a Chapter III court. I will work closely with the Attorney-General given his responsibilities in this area." Faulkner said.

The High Court's decision can be found here. The transcript of Faulkner's press conference can be found here.

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