SENATOR JOHN FAULKNER
Minister for Defence
Wednesday, 26 August 2009
023/2009
AUSTRALIAN MILITARY COURT
Today the High Court of Australia handed down its decision in the case of Lane v Morrison.
The case related to a challenge to the constitutional validity of the Australian Military Court
(AMC) and the Director of Military Prosecutions.
The High Court unanimously found that the provisions of the Defence Force Discipline Act
establishing the AMC were invalid, because the AMC was exercising the judicial power of the
Commonwealth but did not meet the requirements of Chapter III of the Constitution.
The Minister for Defence, Senator John Faulkner, said the Government respected the Court’s
decision and will move military justice to a judicial system that meets the requirements of
Chapter III of the Constitution.
As an interim measure, the Government will reinstate, by legislation, the pre-2007 military
justice machinery to give Defence a level of certainty in military justice matters.
The Australian Military Court was established in October 2007 by the former Government,
following a series of Senate Committee reports recommending extensive changes to the
system of military justice.
Under the AMC, military judges presided over cases and operated outside the chain of
command. However the AMC stopped short of meeting Chapter III requirements such as
those governing the appointment and tenure of judges.
Senator Faulkner said: “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.”
“The Government will review the High Court’s decision carefully and consider alternative
models for establishing the jurisdiction in a Chapter III court. I will work closely with the
Attorney-General given his responsibilities in this area” Senator Faulkner said.
Reinstating the military justice machinery which pre-existed the establishment of the AMC will
allow time for options which meet the requirements of Chapter III to be developed and
legislation introduced. The system, which involves trials by court martial and Defence Force
magistrates, will be reinstated only on a temporary basis.
“The Government is committed to resolving the future of the military justice system, and will
be making further announcements once the full implications of the High Court’s decision have
been considered” Senator Faulkner said.
The Government will also examine the implications of the decision for past and current cases,
and take any necessary action to ensure the validity of past sentences and to minimise
disruption to ongoing cases.
Media comment:
Colin Campbell (John Faulkner):
0407 787 181
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