In a decision that has taken some (but not all) by surprise, the High Court has ruled that the Australian Military Court (AMC) is constitutionally invalid.

Facts

The AMC was created in 2006 by the inclusion of section 114 in Division 3 of Part VII of the Defence Force Discipline Act 1984 (Cth) (the Act).

Section 114 states:

“(1) A court, to be known as the Australian Military Court, is created by this Act.

Note 1: The AMC is not a court for the purpose of Ch III of the Constitution.

...

(1A) The AMC is a court of record.

...”

The effect of section 114 was to discard the court-martial process and to create in its place the AMC which would have the jurisdiction to determine military justice issues.

The plaintiff enlisted in the Royal Australian Navy on 30 March 1998 and was discharged on 14 March 2007. In August 2007 he was charged with two offences on the basis of an incident that allegedly occurred in August 2005, namely an act of indecency without consent and assaulting a superior officer.

The plaintiff was originally courtmartialled by the Director of Military Prosecutions (DMP). The 2006 amendment contained transitional provisions that deemed the DMP to have withdrawn the court-martial request and to have referred the charges to the AMC for trial.

The plaintiff denied that the alleged conduct took place and sought to restrain the defendant from trying the charges.

The Constitution and military justice

The judicial power identified in Chapter III of the Constitution is that of the Commonwealth and the powers to create federal courts are found in sections 71, 72 and 122.

Historically, the defence power in section 51(vi) has supported the administration of military justice by court-martial as it was: “directed to the maintenance of the defining characteristic of armed forces as disciplined forces organised hierarchically”. In the 1990s, concerns were raised that the Australian military justice system was not striking the right balance between the requirements of the armed forces on the one hand, and the rights of its personnel on the other.

In 2005, the Senate Foreign Affairs, Defence and Trade References Committee inquiry into the system’s effectiveness specifically recommended the creation of a military court under Chapter III. However the Government rejected this approach, basing the AMC’s validity on advice that its:

“jurisdiction is only exercised under the military system where proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline”.

Judgment

In a unanimous verdict, the High Court held that the provisions of Division 3 of Part VII of the Act were constitutionally invalid.

The Court cited with approval its decision in the Boilermakers’ Case (R v Kirby; Ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254), where it held that:

“the existence in the Constitution of Chapter III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss 71 - 80.”

French CJ and Gummow J held that the AMC was intended to be a Court under Chapter III but was not created under Chapter III, and section 51(vi) does not allow for military jurisdiction under a “legislative” court.

Their Honours found that the jurisdiction of the AMC was not based on the defence power because there was clearly an intention of the legislature to create a body with the characteristics of a Court under Chapter III. The records of its proceedings would be conclusive evidence of that recorded within, and it had the power to punish for contempt of court.

The Court rejected the Commonwealth’s submission that the AMC, as a replacement for the court-martial system, was merely a “modernisation” of terminology and not a matter of substance. The Commonwealth further submitted that the AMC was merely a body styled as a court but one that did not exercise the judicial power of the Commonwealth. Their Honours considered this to be an attempt to create a system of “legislative courts”, similar to that in the United States, and rejected that submission outright.

Hayne, Heydon, Crennan, Kiefel and Bell JJ held that the AMC was purporting to exercise the judicial power of the Commonwealth, and this power can only be exercised by Courts created under Chapter III.

Their Honours found that the AMC was designed to satisfy the principles of impartiality, judicial independence, and independence from the chain of command in matters of military discipline. It was this independence from the chain of command which was the chief feature distinguishing it from earlier forms of military tribunals that have not exercised the judicial power of the Commonwealth.

The AMC was designed to make binding and authoritative decisions on guilt and punishment which would be enforced without further review by the chain of command. For the AMC to make such binding determinations pursuant to the Act was to exercise the judicial power of the Commonwealth, which it cannot validly do because it is not constituted in accordance with Chapter III.

The Court found that it was not possible to sever, excise or read down section 114 or Division 3 of Part VII. It was clearly the intention of the legislature to create a body with the characteristics of a Chapter III court. Further, even if the stipulation of being a court of record was removed this would not assist because the AMC was established to exercise the judicial power of the Commonwealth.

The High Court:

  • declared that Division 3 of Part VII of the Act was invalid, and
  • ordered a writ of prohibition directed to the defendant, prohibiting him from proceeding further with the charges relating to the plaintiff.

Consequences

Quite apart from the unusual circumstances of Australia not currently having a military tribunal, there is a clear question over the validity of the decisions made by the AMC since it was convened in October 2007.

The Government has enacted legislation to reinstate the pre-2007 machinery as an interim measure while it determines the construction of a military justice system that meets the requirements of the Constitution.