Military Court sentences in limbo

More than 170 military court decisions are in limbo after the High Court declared
the new Australian Military Court (AMC), the centrepiece of military justice
reforms, to be unconstitutional.
The decision gave a surprising and far-reaching victory to Brian Lane, a former
sailor charged with indecent assault for placing his genitals on a sleeping
colleague's forehead - a practice known as "teabagging" - after a drunken night out
in 2005.
He denied the charge and fought it all the way to the High Court.
Ruling on Mr Lane's case, judges ruled on Wednesday that the AMC, although expressly
not a court according to its legislation, was exercising the judicial power of the
Commonwealth and that made it invalid under Chapter Three of the Australian
Constitution.
Defence Minister John Faulkner said the government would review the case and develop
an alternative court model which did comply with the constitution.
"In the interim, it is critical that the Australian Defence Force (ADF) has a
functioning military discipline system, particularly when it is currently engaged in
operations overseas," he told reporters in Canberra.
"As an interim measure, the government will give appropriate priority to legislation
that temporarily reintroduces the pre-2007 military justice machinery for trials by
court martial and defence force magistrate."
Senator Faulkner said preliminary advice was that the government could legislate to
retrospectively validate AMC decisions in the 171 cases it has finalised since its
inception in October 2007.
"As a result of the decision of the High Court today, the validity of the decision
made by the AMC during its existence will be reviewed," he said.
"Defence will be seeking advice from the Australian government solicitor."
Some 40 per cent of cases related to defence travel card fraud with others for
assault, theft, indecency and damaging service property.
Sentences ranged from fines and loss of rank and seniority to two months' detention.
Senator Faulkner said he was unaware if any service personnel were still serving
jail terms imposed by the AMC.
Defence head Air Chief Marshal Angus Houston said the majority of defence discipline
matters, some 96 per cent, were dealt with by the summary system outside the court
system.
He said there had been extensive reform over the last four years and most of the
defence justice system was working well.
"A military justice system is essential to the workings of the Australian Defence
Force. It is important that we are able to give impartial and fair justice to our
people," he told reporters.
The AMC and other reforms stem from a 2005 parliamentary committee inquiry report
highly critical of the defence justice system.
That report recommended the creation of the Australian Military Court in a form
independent of the defence chain of command but in compliance with the Constitution.
The former government disagreed on grounds that there were more advantages to
creating the court as a tribunal.
Australia Defence Association executive director Neil James said there had always
been differing schools of thought about the AMC's constitutional validity.
"Until the High Court makes up its mind, you can't move forward," he told AAP.
"Reading between the lines of what the minister said today, they will just give the
job to the Federal Court, even if they have to constitute a separate division."
Mr James said the feeling in the military was that the AMC had been working well,
although some regarded the old court martial system as fairer.
"We are not going to go back to that because there is too much opposition," he said.