Oppn vows support to fix military court

The opposition has promised bipartisan support to repair the military justice system
but only if the federal government scraps plans to abolish the Federal Magistrates
Court.
Opposition legal affairs spokesman George Brandis said the simplest way to overcome
Wednesday's High Court decision invalidating the Australian Military Court (AMC)
would be to create a military division of the Federal Court.
That's backed by defence lobby group the Australia Defence Association (ADA), which
said the best solution for a reconstituted AMC would be as a division of the Federal
Court.
ADA said that in whatever form, the court needed to be able to deploy to military
operational areas and its members needed an understanding of the military to ensure
credibility with defence personnel.
Senator Brandis said the High Court decision declaring the AMC constitutionally
invalid affirmed that Commonwealth judicial power could only be exercised by courts
established under Chapter III of the Constitution, including the Federal Court and
the Federal Magistrates Court.
"The best way for the government to solve the problem of the now struck down
Australian Military Court is to create a Military Division of the Federal Court and
of the Federal Magistrates Court," he said.
Under that scheme, the Federal Magistrates Court would hear minor summary matters
while the Federal Court would try more serious cases.
The Federal Magistrates Court was created by the coalition in 1999 to hear the
numerous minor cases clogging Federal Courts.
In May, Attorney-General Robert McClelland announced that Labor would scrap this
court, transferring functions to the Federal and Family courts in order to save time
and money.
Senator Brandis said Labor should now reconsider that decision.
Defence Minister John Faulkner said the Federal Court was one possible solution but
the first job was to re-instate the former court martial system, perhaps as soon as
parliament sits next month.
"That very much is a temporary measure and something that I would hope would be able
to be replaced in the near future by a system that sees service offences being tried
by either the existing Federal Court in its general jurisdiction or a new military
division of the Federal Court or perhaps even a new court established specifically
to deal with such offences," he said.
In its decision, the High Court ruled 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.
The AMC was only established in October 2007 and the High Court decision leaves in
limbo 171 finalised AMC decisions.
Finger-pointing over this very significant reverse to reforms to the military
justice system have been muted because responsibility for the AMC appears to be
shared evenly.
The AMC resulted from a bipartisan Senate committee report in 2005 which found
wide-ranging problems with the military justice system.
It recommended the AMC be created in a form which complies with Chapter III of the
Constitution, although that was rejected by the coalition government on advice from
Defence. The ensuing legislation creating the AMC received bipartisan parliamentary
support.
Former prime minister John Howard said the court was established by his government
in good faith.
"We had advice and the advice was that it was a perfectly sound proposal," he told
ABC radio.