Australian Military Court
Encyclopedia
The Australian Military Court (AMC) was a military service tribunal established in 2007 with the primary aim of maintaining military justice within the Australian Defence Force
. In August 2009, the High Court of Australia
ruled that the AMC was unconstitutional according to the Constitution of Australia
, putting the 171 cases the court had tried in doubt. In May 2010, the Australian Government announced a new Military Court of Australia
(MCA) to replace the provisional system established after the dissolution of the AMC and to provide an appropriate Military judiciary for the Australian Defence Force.
passed the Defence Legislation Amendment Bill 2006, adding Section 114 to the Defence Force Discipline Act
1982, and commenced on 1 October 2007. It replaced the previous systems of individually-convened trial by court-martial
or defence force magistrate.
, who was sworn in with the two Permanent Military Judges (Colonel Peter Morrison and Lieutenant Colonel Jennifer Woodward) on 1 October 2007.
Depending on the nature and severity of the offence, the Defence Force Discipline Act made provision for cases to be tried before a single judge, or in more serious cases (such as those committed in the face of the enemy, mutiny
, desertion
or commanding a Service offence), a jury. Although based in Canberra
, the AMC was able to conduct trials anywhere in Australian territories and overseas in operational areas where Australian forces were serving.
by a former Royal Australian Navy
Leading Seaman
, in the case Lane v Morrison commencing on 16 January 2009.
In August 2005, the sailor and three other military personnel were on a recruitment drive in the Queensland
town of Roma
. After a game of golf and consumption of a quantity of beer, he was alleged to have "tea-bagged
" a sergeant from the Australian Army
, that is, placed his testicles on the man's forehead as he slept in a motel bed. Two years later, the Navy charged him with indecent assault
on a superior officer, and he was scheduled to be tried before the Australian Military Court on 25 March 2008.
On 26 August 2009, the High Court ruled that the Australian Military Court was not a Chapter III Court
for the purposes of the Constitution of Australia
, and that the legislation creating it was invalid as it was a court of record
which "[was] to exercise the judicial power of the commonwealth" by making binding and authoritative judgements independent of the Australian Defence Force chain of command.
Senator Faulkner says the court will be independent of the military, but all court appointees will either have past military experience or knowledge of the services. "This new specialist court will deliver a system of military justice for ADF members that combines the necessary independence and constitutional protections for the judiciary with an understanding of the vital importance of military discipline in the operation of our armed forces", he said. "Timely and fair trials in the new court will enhance military justice and promote discipline in the ADF, which in turn will contribute to improved morale and operational effectiveness.
While judicial officers with knowledge of the military system are necessary, they may not be currently serving Defence Force or Reserve members. Mr McClelland says these measures will ensure the court remains independent. "Judicial officers appointed to the new Military Court of Australia will have the same independence and constitutional protections that apply in other federal courts", he said.
The shape and structure of the court is expected to be finalised and introduced to Parliament this year, with the court expected to begin operating in late 2011.
Australian Defence Force
The Australian Defence Force is the military organisation responsible for the defence of Australia. It consists of the Royal Australian Navy , Australian Army, Royal Australian Air Force and a number of 'tri-service' units...
. In August 2009, the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
ruled that the AMC was unconstitutional according to the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, putting the 171 cases the court had tried in doubt. In May 2010, the Australian Government announced a new Military Court of Australia
Military Court of Australia
The Military Court of Australia is a court of military justice for the Australian Defence Force set to commence in 2011. It replaces the previous and deemed unconstitutional Australian Military Court and has legal grounding under Chapter 3 of the Australian Constitution...
(MCA) to replace the provisional system established after the dissolution of the AMC and to provide an appropriate Military judiciary for the Australian Defence Force.
Establishment
The Australian Military Court was created when the Parliament of AustraliaParliament of Australia
The Parliament of Australia, also known as the Commonwealth Parliament or Federal Parliament, is the legislative branch of the government of Australia. It is bicameral, largely modelled in the Westminster tradition, but with some influences from the United States Congress...
passed the Defence Legislation Amendment Bill 2006, adding Section 114 to the Defence Force Discipline Act
Defence Force Discipline Act
The Defence Force Discipline Act of 1982 is the foundation of military law in Australia.It is legislation that governs the Australian military...
1982, and commenced on 1 October 2007. It replaced the previous systems of individually-convened trial by court-martial
Court-martial
A court-martial is a military court. A court-martial is empowered to determine the guilt of members of the armed forces subject to military law, and, if the defendant is found guilty, to decide upon punishment.Most militaries maintain a court-martial system to try cases in which a breach of...
or defence force magistrate.
Structure
The Australian Military Court consisted of a Chief Military Judge, two permanent Military Judges, and a part-time panel of reserve Military Judges. The first Chief Military Judge was Brigadier Ian Westwood AMOrder of Australia
The Order of Australia is an order of chivalry established on 14 February 1975 by Elizabeth II, Queen of Australia, "for the purpose of according recognition to Australian citizens and other persons for achievement or for meritorious service"...
, who was sworn in with the two Permanent Military Judges (Colonel Peter Morrison and Lieutenant Colonel Jennifer Woodward) on 1 October 2007.
Depending on the nature and severity of the offence, the Defence Force Discipline Act made provision for cases to be tried before a single judge, or in more serious cases (such as those committed in the face of the enemy, mutiny
Mutiny
Mutiny is a conspiracy among members of a group of similarly situated individuals to openly oppose, change or overthrow an authority to which they are subject...
, desertion
Desertion
In military terminology, desertion is the abandonment of a "duty" or post without permission and is done with the intention of not returning...
or commanding a Service offence), a jury. Although based in Canberra
Canberra
Canberra is the capital city of Australia. With a population of over 345,000, it is Australia's largest inland city and the eighth-largest city overall. The city is located at the northern end of the Australian Capital Territory , south-west of Sydney, and north-east of Melbourne...
, the AMC was able to conduct trials anywhere in Australian territories and overseas in operational areas where Australian forces were serving.
High Court challenge
The constitutional validity of the Australian Military Court was successfully challenged in the High Court of AustraliaHigh Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
by a former Royal Australian Navy
Royal Australian Navy
The Royal Australian Navy is the naval branch of the Australian Defence Force. Following the Federation of Australia in 1901, the ships and resources of the separate colonial navies were integrated into a national force: the Commonwealth Naval Forces...
Leading Seaman
Leading Seaman
Leading seaman is a junior non-commissioned rank or rate in navies, particularly those of the Commonwealth. When it is used by NATO nations, leading seaman has the rank code of OR-4. It is often equivalent to the army and air force rank of corporal and some navies use corporal rather than...
, in the case Lane v Morrison commencing on 16 January 2009.
In August 2005, the sailor and three other military personnel were on a recruitment drive in the Queensland
Queensland
Queensland is a state of Australia, occupying the north-eastern section of the mainland continent. It is bordered by the Northern Territory, South Australia and New South Wales to the west, south-west and south respectively. To the east, Queensland is bordered by the Coral Sea and Pacific Ocean...
town of Roma
Roma, Queensland
Roma is a town in the western Darling Downs area of Queensland, Australia, by rail WNW of Brisbane. It is situated at the junction of the Warrego and Carnarvon highways...
. After a game of golf and consumption of a quantity of beer, he was alleged to have "tea-bagged
Teabagging
To tea bag is a slang term for the act of a man placing his scrotum in the mouth of a sexual partner or onto the face or head of another person. The practice resembles dipping a tea bag into a cup of tea when it is done in a repeated in-and-out motion...
" a sergeant from the Australian Army
Australian Army
The Australian Army is Australia's military land force. It is part of the Australian Defence Force along with the Royal Australian Navy and the Royal Australian Air Force. While the Chief of Defence commands the Australian Defence Force , the Army is commanded by the Chief of Army...
, that is, placed his testicles on the man's forehead as he slept in a motel bed. Two years later, the Navy charged him with indecent assault
Indecent assault
Indecent assault is an offence of aggravated assault in many jurisdictions. It is characterised as a sex crime.Indecent assault was an offence in England and Wales under sections 14 and 15 the Sexual Offences Act 1956...
on a superior officer, and he was scheduled to be tried before the Australian Military Court on 25 March 2008.
On 26 August 2009, the High Court ruled that the Australian Military Court was not a Chapter III Court
Chapter III Court
In Australian constitutional law, Chapter Three Courts or Chapter III Courts are courts of law which are a part of the Australian federal judiciary, and thus are able to discharge Commonwealth judicial power...
for the purposes of the Constitution of Australia
Constitution of Australia
The Constitution of Australia is the supreme law under which the Australian Commonwealth Government operates. It consists of several documents. The most important is the Constitution of the Commonwealth of Australia...
, and that the legislation creating it was invalid as it was a court of record
Court of record
In common law jurisdictions, a court of record is a judicial tribunal having attributes and exercising functions independently of the person of the magistrate designated generally to hold it, and proceeding according to the course of common law, its acts and proceedings being enrolled for a...
which "[was] to exercise the judicial power of the commonwealth" by making binding and authoritative judgements independent of the Australian Defence Force chain of command.
New Military Court of Australia
On 24 May 2010 the Australian Federal Government through the Attorney-General Robert McClelland and Defence Minister John Faulkner announced the creation of the new Military Court of Australia, which replaces the interim measures put in place after the High Court invalidated the Australian Military Court in 2008.Senator Faulkner says the court will be independent of the military, but all court appointees will either have past military experience or knowledge of the services. "This new specialist court will deliver a system of military justice for ADF members that combines the necessary independence and constitutional protections for the judiciary with an understanding of the vital importance of military discipline in the operation of our armed forces", he said. "Timely and fair trials in the new court will enhance military justice and promote discipline in the ADF, which in turn will contribute to improved morale and operational effectiveness.
While judicial officers with knowledge of the military system are necessary, they may not be currently serving Defence Force or Reserve members. Mr McClelland says these measures will ensure the court remains independent. "Judicial officers appointed to the new Military Court of Australia will have the same independence and constitutional protections that apply in other federal courts", he said.
The shape and structure of the court is expected to be finalised and introduced to Parliament this year, with the court expected to begin operating in late 2011.
External links
- Australian Military Court – Fact Sheet (PDF)
- Defence Force Discipline Act 1982 (Commonwealth of Australia)