14 September 2009

Australian Parliament passes interim military justice system

After several hours of floor debate this evening, the Australian House of Representatives voted to pass the Military Justice (Interim Measures) Bill (No. 1) 2009 and Military Justice (Interim Measures) Bill (No. 2) 2009 which are now on their way to Royal assent. Last week the Senate had passed both bills a day after their introduction.

Passage of the two bills now provides Australia with an interim military justice system after the High Court struck down the Australian Military Court, or AMC, as unconstitutional last month in Lane v. Morrison. The AMC had been created in 2007 as a result of sweeping military justice reforms in Australia. But the Howard Government ignored a 2005 Senate report as well as 2006 recommendations from various lawmakers when it created the AMC.

The interim system reverts back to the courts-martial system while lawmakers draft legislation to constitute an independent Chapter III constitutional court for the military. Under the interim bills, servicicemembers' civilian rights will not be affected should any member be convicted by courts-martial. There will be no civil disabilities and the conviction will be confined to solely the military life.

The AMC was a half-breed court similar to an Article I United States Court but didn't have full protections of a Chapter III court (which are similar to Article III U.S. courts). The High Court, in Lane, rejected the adoption of the AMC half-breed-legislative-created court.

During this evening's most fascinating debate, House lawmakers were concerned with the old court-martial system being unfair and flawed especially in relation to the disparity of treatment between enlisted and officers. (I'm having deja vu on the American system and a 2002 U.S. News & World Report article which can be found here.) It has previously been shown that Aussie enlisted personnel are disciplined much more severely than officers who commit an identical offence. Under the previous system, which will now become an interim system, most officers didn't face any court-martial whilst an enlisted personnel would face court-martial and harsh penalties if convicted.

Parliamentary Secretary for Defence Support Michael Kelly (ALP-Eden-Monaro, NSW), a retired Army colonel who also served as a military lawyer, spoke on the House floor about the former court-martial system being just a transitional arrangement while the government drafted a new system. Kelly, to stress the need for a more permanent impartial and independent system, told Members about a story of an Army officer who he had served with, and witnessed, assault another officer but that officer wasn't court-martialed. He indicated it would have been different if it had been an enlisted man.

Peter Lindsay (Liberal-Herbert, QLD) indicated that he supported the interim solution but stressed that "it would have been better to have been debating a permanent solution in the best interests of the ADF and the wider community tonight rather than a temporary solution."

Defence Minister, Senator John Faulkner (ALP-NSW), issued a press release this evening in which he indicates that "the Government is now preparing a permanent judicial solution in which serious offences will be tried by a court which meets the requirements of Chapter III of the Constitution. The move to a Chapter III court will be considered in close consultation with the Attorney-General."

I've previously written about the interim bills and the Lane case here, here and here. When tonight's House debate transcript is available I'll update this post.

No comments:

Post a Comment