29 August 2011

Blog is on holiday until 3 October 2011

The blog will be on holiday until 3 October 2011. I have been busy with completing DVA-TIP courses and will also be undergoing foot surgery next month. Sean has been called to active duty in the Army Reserve for several months and is overseas. And no one knows where Nick is - presumably holidaying in some warm spot or in the cold skiing.

Starting in March 2012 we will be devoting a section of the blog to Australian DVA claims and discussing published decisions from the VRB, AAT, Federal Court and High Court.

14 August 2011

This week in Parliament, Courts and Tribunals (15 August 2011)

The following legislative activities, which affect Australian servicemembers, veterans or concern military justice issues, relate to freedom of information or national security, are occurring this week in the Parliament of Australia:

Parliament returns from its Winter recess on Tuesday, 16 August 2011, however, there are no committee hearings concerning the subject matter of this blog.

High Court of Australia

Monday, 15 August 2011

There is a hearing at 0930 in Melbourne but the case does not involve the subject matter of this blog.

Tuesday, 16 August 2011

There are two cases being heard starting at 0930 in Sydney but they do not involve the subject matter of this blog.

Federal Court of Australia (Full Court)

No cases are being heard this week which involve the subject matter of this blog.

Defence Force Discipline Appeal Tribunal

The DFDAT next sits on 15 and 16 September 2011.

Veterans' Review Board

For a full list of this week's cases in Brisbane, Canberra, Melbourne, Perth and Sydney go here.

10 August 2011

High Court rules that interim military justice system was a valid act of Parliament

Today the High Court of Australia ruled in two separate cases, Nicholas v The Commonwealth [2011] HCA 29 and Haskins v The Commonwealth [2011] HCA 28 that the Military Justice (Interim Measures) Act (No 2) 2009 is a valid law of the Commonwealth Parliament.

In 2009 the High Court stuck down, in Lane v. Morrison [2009] HCA 29, as unconstitutional the Australian Military Court, or AMC, which had been created in 2007. Shortly thereafter the Australian Parliament enacted two laws as an interim measure to restore some form of military justice and discipline - reverting back to the previous court-martial system before the AMC was first created.

Able Seaman Haskins was found guilty by the AMC of 11 counts of misusing a Defence Travel Card. and sentenced to serve a severe reprimand and to detention of 42 days.

Captain Nicholas of the Australian Army was tried before the AMC and was convicted on two counts of obtaining a financial advantage, one of engaging in conduct tending and intended to pervert the course of justice and one of attempting to pervert the course of justice. He was sentenced to reduction in rank to Lieutenant, a reprimand and dismissal from the Army.

In response to the High Court's decision in Lane, Parliament enacted the Military Justice (Interim Measures) Act (No 2) which gave effect to certain punishments and orders made by the AMC.

Nicholas main challenge to the interim military justice measure was that he claimed the act is a bill of pains and penalties and was unconstitutional pursuant to Ch III of the Constitution.

Haskins challenge was to question whether or not on the interim act's construction does it provide lawful authority justifying his detention.

The High Court rejected both challenges to Parliament's interim military justice system.