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The Curious Case of the Australian Military Court

On 26 August 2009 the High Court of Australia delivered its decision in Lane v Morrison.1 In two separate judgments the seven judges ended the life of the Australian Military Court (AMC), a body established pursuant to the defence power in the Commonwealth Constitution2 less than two years previously. The High Court’s ruling created a lacuna in Australia’s military justice system and resulted in a hurried return to the former system of courts martial and Defence Force magistrates, which the AMC had been created to replace.3 Simultaneously, the Federal Parliament passed legislation designed to ‘impose disciplinary sanctions on persons corresponding to punishments imposed by the AMC’4 in the 171 decisions made by the AMC in its short history.5 Recognising that the reemergence of courts martial and Defence Force magistrates was an interim solution, in June 2010 the Attorney-General introduced a Bill into Parliament to create a new court, the Military Court of Australia.6 This latest court is intended to place the military justice system on clear constitutional foundations in accordance with Chapter III of the Constitution, thus removing, or at least decreasing, the possibility of future challenges. While the proposed court will no doubt constitute a federal court for the purposes of the Constitution, it does not provide defendants with other constitutional protections, including trial by jury.