The Australian Military Court was established in 2007 by legislation supported by both sides of the Parliament.
The Court’s establishment followed a series of Senate Committee reports over a number of years recommending extensive changes to the system of military justice.
On 26 August 2009, the High Court of Australia handed down its decision in the case of Lane v Morrison. The case challenged the constitutional validity of the Australian Military Court.
The High Court found unanimously that the provisions of the Defence Force Discipline Act 1982 establishing the Australian Military Court were invalid, because the Australian Military Court purported to exercise the judicial power of the Commonwealth, but did not meet the requirements of Chapter III of the Constitution.
Chapter III of the Constitution ensures judicial independence from the executive and the legislature by providing that federal judges have tenure until they reach a fixed age of no more than 70, and that they can only be removed for proved misbehaviour or incapacity following a request from both Houses of Parliament to the Governor General.
The Australian Military Court legislation claimed that the court was not a court under Chapter III of the constitution, as the appointment and tenure of its judges did not comply with Chapter III.
However the High Court found in Lane v Morrison that it was exercising judicial power, which the Constitution only allows to be exercised by a Chapter III court.
The Military Justice (Interim Measures) Act (No. 1) 2009 was then passed by the Parliament, again with bipartisan support, to reinstate the pre-2007 military justice arrangements.
The reinstatement of the pre-2007 military justice system was required to allow time for the consideration and development of options for a new military justice system which meets the requirements of Chapter III of the Constitution.
The Military Justice (Interim Measures) Act (No. 1) 2009 provided for a tenure of up to two years for the Chief Judge Advocate and the Judge Advocates.
This tenure is due to expire in September this year.
The Military Justice (Interim Measures) Amendment Bill 2011 will continue the appointment, remuneration and entitlement arrangements for the Chief Judge Advocate and the two full-time Judge Advocates for an additional two years or until the Minister for Defence declares, by legislative instrument, a specified day to be a termination day, whichever is sooner.
The Department of Defence and the Attorney-General’s Department are currently working to finalise the details of a Military Court of Australia Bill and associated consequential and transitional provisions.
This important legislation will establish a permanent, effective and constitutionally sound system of military justice for Australia’s defence forces.
This process will take some time, and there is currently no certainty that it will be complete and be enacted by the Parliament by September this year.
This Bill will ensure the continuity of these key military justice appointments until legislation establishing the Military Court of Australia takes effect.
I commend the Bill to the House.