10 September 2009

Australian Senate passes interim military justice bills; American lawmakers should heed important lesson from down under

Today the Australian Senate passed the Military Justice (Interim Measures) Bill (No. 1) 2009 and Military Justice (Interim Measures) Bill (No. 2) 2009. Both bills will now head to the lower house for approval.

Last month the High Court held, in Lane v. Morrsion, that the Australian Military Court, or AMC, established in 2007 was unconstitutional. The two interim bills revert the military justice system back to the court-martial system. But Defence Minister, Senator John Faulkner (ALP-NSW), emphasised on the Senate floor that the bills were "interim measures only." "Until the government can legislate for a Chatper III court, which I can say to the Senate, it will do as a matter of priority," said Faulkner.

Opposition Defence Minister, Senator David Johnson (Liberal-WA), who served as defence minister in the Howard Government when the AMC was first established, noted on the Senate floor that in 2006 "a number of senators said to the [Howard] government, said to the department [of defence] . . . this will not work." "We put them on notice that this was problematic, you can not have judicial powers unless you adopt them pursuant to the Australian Constitution. But no, as is common, the defence force knew better . . . the parliament was ignored and here we are today," said Johnson.

Johnsons comments on the Senate floor were in reference to the 2005 Senate report on military justice which can be found here and a later 2006 Senate recommendation which suggested that the AMC be created as a Chapter III court. But the defence department had lobbied against a Chapter III court and critical recommendations of senators were ignored. Thus creating the current problem.

U.S. lawmakers, in relation to the American military justice, and any reforms, should heed a critical lesson from mistakes of Australian lawmakers . . . it's not always wise to just listen to the defense department when you are reforming the system.

For example, the Pentagon, under the Bush administration, had lobbied two separate Congresses against the enactment of the Equal Justice for Our Military Act bills -- which would grant American troops equal access to the highest court within the United States in review of courts-martial. During the G.W. Bush years, whilst the Pentagon was lobbying against the bills, the American Congress saw fit to grant its enemies more procedural due process rights -- when it past the Military Commission Act of 2006 -- in accessing the Supreme Court of the United States than a serviceman or servicewoman who is defending the United States.

Australia teaches us an important lesson; that it's not always wise to solely listen to your defence department concerning basic due process protections for your citizens especially those citizens who serve in uniform to protect and defend you.

No comments:

Post a Comment