Attempts to Create a Military Court for the Australian Defence Force

Abstract

The 2005 Senate Report recommended the establishment of a permanent Chapter III court with jurisdiction to deal with serious military service offences. The Liberal Government responded to the recommendations by refusing to establish a permanent Chapter III court. Instead it established the ‘Australian Military Court’ in reliance on the defence power in s 51(vi) of the Constitution. The legality of the establishment of this ‘court’ was later successfully challenged in the High Court of Australia in Lane v Morrison on the grounds it was a breach of Chapter III of the Constitution. In Lane, the High Court unanimously upheld the challenge and the Australian Military Court ceased to exist. The Government then urgently introduced interim remedial legislation to preserve the judgments of the Australian Military Court and reintroduced the military disciplinary structure which had previously existed under the DFDA. In 2010, and again after its re-election in 2012, the Government introduced bills into the Parliament to establish a permanent Chapter III ‘Military Court of Australia’. However, due to the proroguing of Parliament in 2013, and the election of a new Government, thereafter no steps were taken to consider such a bill. Currently, ADF disciplinary matters are dealt with under the old DFDA procedures, reintroduced as interim remedial legislation, which appears to have now become a permanent regime by default in failing to consider any alternative regime.