Military court is declared 'illegal' (High Court of Australia rules AMC unconstitutional)

The Australian ^ | 27th August 2009 | Michael Pelly

[naturalman1975]

AUSTRALIA'S supreme military disciplinary body has been ruled illegal by the High Court in a decision that has thrown military justice into turmoil.

.....

The High Court said the attempts to "improve" the system in 2007 had backfired because the court was exercising judicial power in breach of the Constitution.

Defence Minister John Faulkner said he would swiftly move to "temporarily" restore the old system of courts martial and defence force magistrates. This would be in place until the faults could be rectified.

Senator Faulkner conceded that the validity of 171 decisions handed down by the court was in doubt and that eight matters listed for trial would not proceed. Those now held in custody may have to be released.

The verdict on the court represents an amazing bungle by the previous government, which ignored advice by a Senate committee to create a body under Chapter III of the Constitution.

Chief Justice Robert French and justice Bill Gummow said "there was an attempt by the parliament to borrow for the AMC the reputation of the judicial branch of government for impartiality and non-partisanship ... and to thereby apply 'the neutral colours of judicial action' to the work of the AMC".

They noted it was a "court of record", but did not have proper appeal procedures and its judges did not have security of tenure. If the government wanted to establish such a court, it had to use Chapter III of the Constitution - in which the power to create the federal judiciary is contained - not the defence power contained in section 51 (6).

[naturalman1975]

This is a big deal - the AMC was set up to deal with a perceived risk of 'unfairness' in the previous Courts Martial system. Now it seems the civilian-based High Court is trying to assert a power over military justice, it has never had, by insisting any military court - and by extension any military tribunal - ever set up in Australia must act in the same way as a civil court.

[OneWingedShark]

Wow, that’s a BAD idea; especially here.

[Boogieman]

You cut out the best part of the article... how often do you get “Seaman” and “teabagging” in the same sentence in a news article?

[squidly]

the court was exercising judicial power in breach of the Constitution.

Our military courts do that every day of the week. Military justice isn't supposed to be the same as the civilian variety. I hope this doesn't give people here ideas, what with all those American jurists who are fans of using foreign legal precedents.

[Boogieman]

From the description of the one case though, it does seem there were some problems with this court. They were trying to charge a man with a criminal offense for a prank he (allegedly) pulled on his superior officer who was out drinking with him!

Also, if the judges are outside the chain of command, then who do they answer to? If it’s not a military authority, then how can they not be expected to answer to the requirements of a civillian court?

[naturalman1975]

From the description of the one case though, it does seem there were some problems with this court. They were trying to charge a man with a criminal offense for a prank he (allegedly) pulled on his superior officer who was out drinking with him!

The superior in question was asleep at the time and so any action took place without his consent. Sexual contact without consent is a crime. You certainly cannot assume consent of a person who is asleep.

Also, if the judges are outside the chain of command, then who do they answer to?

Ultimately the Governor General who, as well as being the Queen's representative in Australia, and therefore Australia's de facto head of state, is also Commander-In-Chief of all Australian Defence Forces under the Constitution. There is also provision in the Act for appeals to a specific Defence Force Discipline Appeals Tribunal, which would be appointed from state and federal judges.

If it’s not a military authority, then how can they not be expected to answer to the requirements of a civillian court?

In most cases, the AMC would function in a very similar way to a civilian court. The reason for using the Defence powers under 86(vi) of the Constitution, rather than the Judicial Powers in establishing the court primarily came down to the fact that previous High Court decisions had indicated that service tribunals (which the AMC was intended to replace) should be and could be established in that way. It will be interesting to find out why the High Court has either changed its mind, or found the AMC to be a different case.

[naturalman1975]

[naturalman1975]

Headlines like ‘Seaman discharged in teabagging incident’ may be funny, but the precise nature of this specific case pales into comparison with the fact that 170 other cases may now be invalid, and there are people serving sentences or who have been dismissed from the service by an unconstitutional court.

[Boogieman]

Thanks for explaining the details to me. It sounds like a real mess.

I still don’t think that prank rised to the level of sending a guy to jail though. Amongst young guys drinking, it’s often an “unwritten law” that if you pass out at a party, you are at the whim of your buddies for these type of stunts. If this happened between two civillians, the police would most likely have laughed at the idea of arresting someone over this. The situation in the military involving a superior officer is obviously more serious, but then again, the officer placed himself in a bad position by getting intoxicated while fraternizing with his men.