06 Aug 2010

The establishment of the Military Court of Australia

by James Stellios

The new Military Court of Australia should avoid the constitutional problems identified by the High Court in Lane v Morrison.

The Commonwealth Government has introduced legislation into Parliament to establish the Military Court of Australia (Military Court of Australia Bill 2010). The introduction of the Bill follows the decision of the High Court last year to invalidate the creation of the Australian Military Court.

Background to the new Military Court of Australia

In its 2005 report on the effectiveness of Australia's military justice system, the Senate Foreign Affairs, Defence and Trade Committee recommended the creation of a military court that would comply with the constitutional requirements for a federal court. To that point, military justice in Australia was administered by military tribunals within the chain of command.

The Senate Committee formed the view that military tribunals were not sufficiently independent of military command structures, and their concerns were heightened by British and Canadian decisions which held similar military tribunals had breached human rights standards.

The rise and fall of the Australian Military Court

In response to the Senate Committee's report, the Commonwealth Government agreed that the independence of the military justice system might be enhanced by the establishment of a military tribunal – the Australian Military Court – operating independently of the chain of command.

However, largely for operational reasons, it declined to follow through with the Committee's recommendation that the new military tribunal be set up as a court that satisfied constitutional requirements. Thus, although described as a court, and having court-like features like judges and a jury, the Australian Military Court was not a court for constitutional purposes.

In its decision last year in Lane v Morrison (2009) 239 CLR 230, the High Court struck down the Australian Military Court. The main reason for the decision was that the Australian Military Court was operating outside the chain of command and, therefore, was impermissibly exercising judicial power. Judicial power can only be exercised by a proper court, and the Australian Military Court was not a proper court for constitutional purposes. Thus, it was its independence from the command structures that brought it undone.

The Commonwealth's response

The High Court's decision placed the Commonwealth Government in a difficult position. It could return to a military tribunal system within the chain of command; set up a military court that complied with constitutional requirements; or it could adopt a combination of the two.

On the one hand, returning to a military tribunal system would have cut across the policy reforms of 2006 to enhance the independence of the military justice system and, as hinted at by a couple of High Court judges in Lane v Morrison, may have created a tension with Australia's international obligation to afford a fair and public hearing by an independent and impartial tribunal under Art 14(1) of the International Covenant on Civil and Political Rights.

On the other hand, creating a court within the constraints of constitutional requirements would affect various operational aspects. For example, military juries have always been constituted by military officers who are familiar with military processes and practices. However, a jury for constitutional purposes would have to be randomly selected from the broader community to comply with constitutional requirements.

The creation of the Military Court of Australia

By the introduction of the Military Court of Australia Bill 2010, the Commonwealth Government has decided to take the third option and create a constitutional court – the Military Court of Australia – to hear serious military offences, but to leave the less serious offences for internal military control.

The new Court will comprise an upper division that will try very serious military offences and a lower division that will hear other serious offences. Even less serious offences can be heard by the new Court if the defendant so chooses.

Operational concerns appear to have been accommodated by the design of new court. Judges of the new Court are to have service experience or familiarity with the military, although, to maintain independence from the chain of command, they cannot be currently serving members or reservists. Although it is expected that the Court will hear most matters in Australia, the Court will also be capable of deployment overseas.

There will be no jury. The constitutional requirement of a trial by jury only kicks in when an offence is tried on indictment. These offences will be tried other than on indictment, thereby avoiding the need for a jury system and sidestepping the difficult question of drawing jury members from the broader community.

The creation of the Court will resolve many issues

The establishment of the new Court will resolve a lot of issues that have plagued the military justice system. As a policy matter, it will largely give effect to the recommendations of the 2005 Senate committee report to enhance the independence of the system. Indeed, following Lane v Morrison, this policy objective could only be achieved by the creation of a constitutional court.

Further, the operation of military tribunals has been the subject of a string of constitutional cases questioning how far the military tribunal system can go in hearing military offences. The High Court has had difficulty identifying a clear test in this respect. The creation of a constitutional court to hear serious military offences, and the availability for an opt-in mechanism by a defendant charged with a less serious offence, will largely displace these issues.

Remaining constitutional issues

Some constitutional issues will, however, remain. In Lane v Morrison the argument was run that section 68 of the Constitution – the provision that vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen's representative – prevents Parliament from taking military discipline away from the chain of command. Two judges rejected the argument, however, the other five left the question open. Undoubtedly, this will lead to further litigation, although the chances of the argument being successful are remote.

Further, the decision not to have a jury may provide a new opportunity for the reconsideration of long-standing principles. The High Court has held that Parliament can choose whether or not it wants to use juries for federal offences, however, those judgments have never rested on firm foundations and have been punctuated by a series of dissenting judgments. That serious military offences can be tried by judge alone may provide the High Court with an opportunity to reconsider these issues.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.