27 May 2010

New Australian military court announced

Earlier this week Attorney General Robert McClelland and Minister for Defence Senator John Faulkner (NSW-ALP) announced a new military court under Chapter III of the Australian Constitution.

Last year, in Lane v. Morrison, the High Court struck down the Australian Military Court, or AMC, as unconstitutional. I have previously discussed the Lane case and the AMC here, here and here.

"Judicial officers appointed to the new Military Court of Australia will have the same independence and constitutional protections that apply in other federal courts,' said McClelland.

Faulkner said that "this new specialist court will deliver a system of military justice for ADF members that combines the necessary independence and constitutional protections for the judiciary, with an understanding of the vital importance of military discipline in the operations of our armed forces."

“Timely and fair trials in the new court will enhance military justice and promote discipline in the ADF, which in turn will contribute to improved morale and operational effectiveness. . . After last year’s High Court ruling that the Australian Military Court (AMC) established by the former government was unconstitutional, I announced that the Government would move quickly to put interim arrangements in place to ensure continuation of the military justice system, and that we would move to a Chapter III resolution for the military justice system,” Faulkner said.

The new AMC will form part of a restructured federal court system in which the Federal Magistrates Court will continue to hear general federal law matters. Existing Judges of the Federal Court and Federal Magistrates Courts with the requisite background may be offered dual commissions to the new military court.

“Under the new arrangements, a lower tier of the Family Court will be established and commissions offered to Federal Magistrates who undertake mainly family law work,” said McClelland.

The new structure is supposed to achieve a more integrated and efficient system in order to effectively deliver legal and justice services to both the civilian and defence community.

The Government has indicated that it will continue its consultations with the courts and the Law Council of Australia in finalising the restructure process.

It is anticipated that legislation to establish the new Military Court will be introduced this year, with a view to the new court commencing operation in late 2011. (When this occurs Nick, Sean and I will give our thoughts and analysis on the legislation.)

Here are the facts:

1. The Military Court of Australia will be established as a separate Court in accordance with Chapter III of the Constitution, which gives the Commonwealth Parliament power to create federal courts and set out the extent of their jurisdiction.

2. The new Court will have jurisdiction to try serious service offences.
  • Less serious offences, which comprise the vast majority of service offences, will continue to be heard by summary authorities at unit level.
3. Any Australian Defence Force member who is charged with a service offence, even at summary level, may elect to have the matter heard in the Military Court of Australia.

4. It will hear most matters in Australia (regardless of where they are committed) and will also be capable of deploying where necessary.
  • Where the Military Court of Australia determines that it would be inappropriate or impossible for the Court to deploy, Defence will arrange for the matter to be tried overseas by a court martial or Defence Force magistrate.
5. The Military Court of Australia will be administered by the Federal Court and will consist of separate upper and lower Divisions, comprising judicial officers at the level of Federal Court judge and Federal Magistrate respectively.
  • The upper Division of the Military Court of Australia will try very serious service offences (which will be defined in the Military Court of Australia Regulations), and hear appeals from decisions of the Military Court of Australia in the first instance and appeals from a decision of a Defence Force magistrate or court martial deployed overseas.
  • The lower Division of the Military Court of Australia will try serious service offences (as opposed to “very serious service offences”) and matters where an accused has made an up-front election or which have been referred by a summary authority.
6. Service offences will be tried by the Military Court of Australia other than on indictment, and therefore without a jury. Judicial officers of the Court will be required to have service experience or familiarity with the services, in addition to the usual criteria for appointment to a federal court.
  • They will be independent of the military chain of command.
  • They cannot be ADF permanent or reserve members.
7. Judicial officers of the Court may hold dual commissions with the Federal Court or Federal Magistrates Court, or be appointed only to the Military Court.

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