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The Rise, Fall and Proposed Rebirth of the Australian Military Court

Published online by Cambridge University Press:  24 January 2025

Henry Burmester
Henry Burmester*
Affiliation:
Australian Government Solicitor
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Extract

In October 2007 a new era in Australian military criminal justice began with the establishment of an Australian Military Court (AMC). The AMC had, however, a short life, being found in August 2009 by the High Court of Australia to be contrary to Chapter III of the Australian Constitution. In May 2010 it was announced that a new Military Court of Australia, established in conformity with Chapter III, was to be established to replace the interim system put in place following the High Court’s invalidation of the first AMC. A Bill for a new military court was introduced to Parliament in 2010 but lapsed with the dissolution of Parliament for the 2010 election. No replacement Bill had been introduced as at the beginning of 2011. It is unclear when or whether a new military court will be established.

This article examines the reasons behind the establishment of the AMC and then considers the High Court decision in Lane v Morrison that unanimously held the AMC to be invalid. It then considers the implications for a replacement Chapter III compliant military court.

Type
Research Article
Information
Federal Law Review , Volume 39 , Issue 1 , March 2011 , pp. 195 - 211
Copyright
Copyright © 2011 The Australian National University

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Footnotes

The author has been publicly acknowledged as having provided advice to the Department of Defence in the development of the original proposal. He was not involved in the case before the High Court. The views expressed are those of the author and do not represent necessarily those of any Department or agency of the Australian Government. This article draws on a presentation to the Defence Legal Conference in December 2009 and on a paper by Andrew Buckland and Simon Thornton ‘Court in the Act: Military Justice and Chapter III of the Constitution’, presented at the Australian Government Solicitor Constitutional Law Forum, November 2009.

References

1 Lane v Morrison (2009) 239 CLR 230 ('Lane’).

2 Military Court of Australia Bill 2010 (Cth).

3 (2009) 239 CLR 230.

4 See generally Re Tracey; Ex parte Ryan (1989) 166 CLR 518, 554–63 ('Tracey’).

5 Defence Act 1903 (Cth) ss 55–6 (as the provisions were originally enacted); see Lane (2009) 239 CLR 230, 256–7 [81]–[84].

6 Tracey (1989) 166 CLR 518, 563; see also 542–44.

7 Ibid 545–49, 575–78.

8 (1991) 172 CLR 460.

9 (1994) 181 CLR 18.

10 (2004) 220 CLR 308.

11 (2007) 231 CLR 570 ('White’).

12 Commonwealth, Military Justice Procedures in the Australian Defence Force, Parl Paper No 125 (1999).

13 See especially ibid 120–3 [4.15]–[4.22].

14 Defence Legislation Amendment Act (No 2) 2005 (Cth); see also ibid 126–35 [4.33]–[4.63].

15 International Covenant on Civil and Political Rights, opened for signature 19 December 1966, 999 UNTS 171 (entered into force 23 March 1976).

16 Commonwealth, The Effectiveness of Australia's Military Justice System, Parl Paper No 134 (2005) ('The Effectiveness Report’).

17 Ibid xxi.

18 Ibid xxii.

19 Ibid 77–104.

20 Ibid 79.

21 See Commonwealth, Department of Defence, Government Response to the Senate Foreign Affairs, Defence and Trade References Committee ‘Report on the Effectiveness of Australia's Military Justice System', (2005) 15, quoted in Lane (2009) 239 CLR 230, 239 [18]; see also Lane (2009) 239 CLR 230, 254 [74]–[75].

22 Explanatory Memorandum, Defence Legislation Amendment Bill 2006 (Cth) [3].

23 Ibid [4].

24 Ibid.

25 See ibid [5]–[6].

26 Senate Foreign Affairs, Defence and Trade Committee, Parliament of Australia, Report on the Inquiry into the Provisions of the Defence Legislation Amendment Bill 2006 (Cth) (2006) 4–5 [1.22].

27 In his submission the JAG stated:

my suggestion to the MJI was that the AMC should be established pursuant to Chapter III, although I did express the view that this could possibly be problematical having regard to section 80 of the Constitution. I understand that subsequent advice to Government was to the effect that this would be so. Under the circumstances, I can have no concern about the decision to establish the AMC under the Defence power rather than Chapter III, but that fact does mean the risk of a successful Constitutional challenge will depend entirely upon the statutory safeguards guaranteeing the judicial independence and impartiality of the AMC.

Justice L W Roberts-Smith, Submission No P3 to Senate Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Inquiry into the Provisions of the Defence Legislation Amendment Bill 2006 (Cth), 19 September 2006, 1 [3].

Similar concerns, including as to the validity of the AMC ‘when it bears a greater resemblance to the [AAT] than a court', were expressed by the Law Council of Australia in its submission.

Law Council of Australia, Submission No P5 to Senate Committee on Foreign Affairs, Defence and Trade, Parliament of Australia, Inquiry into the Provisions of the Defence Legislation Amendment Bill 2006 (Cth), 26 September 2006, 4 [3].

28 As required by s 11(d) of the Canadian Charter of Rights and Freedoms (Canada Act 1982 (UK) c 11, sch B pt I), and art 6(1) of the European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222 (entered into force 3 September 1953), as amended by Protocol No 14 to the Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 13 May 2004, CETS No 194 (entered into force 1 June 2010)), respectively: see R v Genereux [1992] 1 SCR 259; Findlay v United Kingdom (1997) 24 EHRR 221; Grieves v United Kingdom (2004) 39 EHRR 2.

29 See, eg, North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45.

30 This was the 2006 Bill as amended following the Senate Inquiry.

31 See DFDA ss 114(1A), (2), as inserted by Defence Legislation Amendment Act 2006 (Cth) sch 1 pt 1.

32 See DFDA ss 188AD, 188AR(1), as inserted by Defence Legislation Amendment Act 2006 (Cth) sch 1 pt 1.

33 DFDA s 114(1), Note 1, as inserted by Defence Legislation Amendment Act 2006 (Cth) sch 1 pt 1.

34 Three other grounds raised by the plaintiff were not referred to the Full Court by French CJ on the basis that they were ‘unsustainable’ in light of the existing authority of the Court: Lane v Morrison (2009) 83 ALJR 377.

35 Lane (2009) 239 CLR 230, 250 [60] (French CJ and Gummow J); 261 [98], 266 [113], [115] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

36 Ibid 242 [28] (French CJ and Gummow J), 254 [76] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

37 Ibid 237 [9] (French CJ and Gummow J), 251 [65] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

38 (1989) 166 CLR 518, 540, 572.

39 R v Bevan; Ex parte Elias (1942) 66 CLR 452, 467, 468, 481 ('Bevan’).

40 Tracey (1989) 166 CLR 518, 537.

41 Ibid 539, quoting Attorney-General v British Broadcasting Corporation (1980) 3 All ER 161, 182.

42 (1942) 44 CLR 452.

43 Tracey (1989) 166 CLR 518, 539.

44 Ibid 540.

45 (2009) 239 CLR 230, 255–256 [78], see also 260–261 [96].

46 White (2007) 231 CLR 570, 594.

47 Ibid 596.

48 61 US 65 (1857).

49 White (2007) 231 CLR 570, 596, quoting Dynes v Hoover, 61 US 65, 79 (1857).

50 (1989) 166 CLR 518, 541.

51 (1942) 66 CLR 452, 467.

52 Ibid 466 (Starke J), 481 (Williams J); Tracey (1989) 166 CLR 518, 537, 539, 540 ('the real question … is not whether a court-martial … is exercising judicial power. There has never been any real dispute about that’) (Mason CJ, Wilson, Dawson JJ), 572–574 (Brennan and Toohey JJ), 582 (Deane J), 598 (Gaudron J); Re Nolan; Ex parte Young (1991) 172 CLR 460, 489, 491 (Deane J), 497 (Gaudron J); Hembury v Chief of General Staff (1998) 193 CLR 641, 648 [13] (McHugh J); Re Aird; Ex parte Alpert (2004) 220 CLR 308, 319 [31] (McHugh J).

53 (1989) 166 CLR 518, 541. See also R v Bevan (1942) 66 CLR 452 at 467–8 (Starke J); R v Cox; Ex parte Smith (1945) 71 CLR 1, 23 (Dixon J).

54 Tracey (1989) 166 CLR 518, 583 (Deane J).

55 Ibid 573 (Brennan and Toohey JJ). See also R v Bevan (1942) 66 CLR 452, 467–8 (Starke J); White (2007) 231 CLR 570, 583–584 [8]–[9], 586 [14] (Gleeson CJ), 596 [52], 597–598 [57] (Gummow, Hayne, Crennan JJ).

56 Tracey (1989) 166 CLR 518, 598.

57 Lane (2009) 239 CLR 230, 260–261 [96]; see also White (2007) 231 CLR 570, 616–619 [123]–[134] (Kirby J).

58 Lane (2009) 239 CLR 230, 237 [10].

59 (1945) 71 CLR 1, 23 (emphasis added) (citations omitted).

60 Lane (2009) 239 CLR 230, 257 [84], 257–258 [86] (Hayne, Heydon, Crennan, Kiefel and Bell JJ), 248 [51] (French CJ and Gummow J). Cf Tracey (1989) 166 CLR 518, 537 (Mason CJ, Wilson and Dawson JJ):

a service tribunal, more particularly a court martial, has the power to determine authoritatively the liability of those charged before it, albeit subject to review or appeal. … [N]o relevant distinction can, in our view, be drawn between the power exercised by a service tribunal and the judicial power exercised by a court.

61 Lane (2009) 239 CLR 230, 257–258 [86] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

62 Mills v Martin, 19 Johns 7, 30 (NY 1821).

63 Lane (2009) 239 CLR 230, 259 [90].

64 Ibid 254 [75] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

65 Ibid 261 [97]–[98] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

66 The decision has been criticised also in James, Stellios, The Federal Judicature: Chapter III of the Constitution (LexisNexis Butterworths, 2010) 256–7Google Scholar [5.72].

67 See summary of overseas developments in The Effectiveness Report, above n 16, 90–96 [5.45]–[5.70].

68 Lane (2009) 239 CLR 230, 259 [90].

69 Ibid 256 [79] (Hayne, Heydon, Crennan, Kiefel and Bell JJ).

70 See, eg, ibid 238 [12] (French CJ and Gummow J), 257 [84] (Hayne, Heydon, Crennan, Kiefel and Bell JJ). Note that the DFDA pre-AMC did not itself require a reviewing authority to be of superior rank to the service tribunal the subject of review and thus to stand in any particular hierarchical relationship to the tribunal. On that basis it may be that the critical feature was that a tribunal's decision was ultimately reviewable by the Chief of the Defence Force or service chief (DFDA 1982 (Cth) s 155). It would seem that the availability of the prerogative of mercy (DFDA 1982 (Cth) s 189) was not sufficient.

71 Lane (2009) 239 CLR 230, 237 [10] (French CJ and Gummow J), 256 [79], 261 [98].

72 Ibid 248 [49]–[51], 250 [60] (French CJ and Gummow J).

73 Ibid 237 [10], 238 [12] (French CJ and Gummow J).

74 Ibid 238 [13].

75 Ibid 237 [9].

76 Ibid 243 [30] (French CJ and Gummow J).

77 Ibid 242 [27] (French CJ and Gummow J).

78 Ibid 238 [12]. Stellios, above n 66, 257–8 considers this a more persuasive reason for invalidity than the independence from command ground.

79 Lane (2009) 239 CLR 230, 266 [112].

80 DFDA 1982 (Cth) s 131B.

81 Military Justice (Interim Measures) Act (No 1) 2009 (Cth); Military Justice (Interim Measures) Act (No 2) 2009 (Cth). There are, however, challenges to the validity of the No 2 Act, to the extent it purports to give effect to punishments imposed by the AMC. These cases have been heard by the High Court and are reserved for judgment: see [2011] HCATrans 77.

82 Military Court of Australia Bill 2010 (Cth).

83 Department of Defence, ‘Defence comment on update by Director of Military Prosecutions on February 12, 2009 incident’ (Media Release, MECC 555/10, 26 September 2010).

84 See, eg, JusticePaul, Brereton, ‘The Director of Military Prosecutions, the Afghanistan Charges and the Rule of Law’ (2011) 85 Australian Law Journal 91Google Scholar.