Australia High Court rules military justice system unconstitutional

The High Court of Australia ruled Wednesday that the Australian Military Court (AMC) is unconstitutional. The High Court held that the AMC employed the judicial power of the Commonwealth while AMC judges functioned within the hierarchy of the military, which was a violation of chapter three of the Australian Constitution. The ruling casts doubt on approximately 170 cases that the AMC has ruled on since its inception in 2007.

The case that prompted the ruling was brought as an appeal by a sailor, Brian Lane, over a 2005 charge of indecent assault on a superior officer. Lane had argued the AMC did not have jurisdiction over the case and that the legislation creating the court was invalid. In response to the ruling, the Minister for Defence John Faulker said that, "the Senate Committee had recommended a Chapter III court with oversight by the Attorney-General, and greater independence from the military. The legislation establishing the AMC fell short of these recommendations." Faulkner also said the previous military justice system will be reinstated, which consisted mainly of trials by court martial and Defence Force magistrates.

The AMC was established in October 2007 by the former government, after a series of Senate Committee reports were critical of the system of military justice and recommended extensive changes. While the AMC was created as a tribunal, the Senate Committee report had originally recommended that it be created as a court independent of the chain of command in the military and in full compliance with the constitution.

(Published by Jurist - August 26, 2009)

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