In our June 2010 edition, we reported on the announcement by the Attorney-General and the Minister for Defence of the establishment of a new federal court, the Military Court of Australia (MCA), and the key features of the MCA. Since then, the Government introduced enabling legislation, the Military Court of Australia Bill 2010 (Cth) (Bill), into the House of Representatives. The Bill received its second reading speech on 24 June 2010. However, due to the prorogation of the 42nd Parliament and the dissolution of the House of Representatives on 19 July 2010, the Bill has lapsed. However, with the return of the existing government following the recent election, this Bill continues to remain relevant as it could be re-introduced once the new Parliament is convened.

According to the Explanatory Memorandum, the objective of the Bill is to establish the MCA under Chapter III of the Australian Constitution. The Bill is intended to replace the interim measures in the Military Justice (Interim Measures) Act (No. 1) 2009 (Cth), which re-established the pre- 2007 system of courts martial and Defence Force Magistrates. Those interim measures were put in place after the provisions of the Defence Force Discipline Act 1982 (Cth) establishing the Australian Military Court, which commenced in October 2007, were invalidated in August 2009 by the High Court’s decision in Lane v Morrison (2009) 252 ALR 605. Accordingly, even though the Bill has lapsed, it may be reintroduced in the new Parliament or other alternative legislative measures may  be introduced to replace the interim measures currently in place.

The Bill contains provisions dealing with the following matters:

  •  the creation of the MCA under Chapter III of the Australian Constitution comprising two divisions (the Appellate and Superior Division and the General Division) (Pt 2),
  •  the composition of the MCA by the Chief Justice, other Judges and Federal Magistrates (Pt 2, Div 2),
  •  the appointment and terms and conditions of the Judges and Federal Magistrates (Pt 2, Div 3),
  •  the management responsibilities of the Chief Justice (Pt 3, Div 2), the establishment of registries (Pt 3, Div 3) and the role of the Registrar, other officers and staff of the MCA (Pt 3, Divs 4 and 5),
  •  the arrangements of the business of the MCA, including where sittings may be held and the MCA’s power to punish for contempts of its power and authority (Pt 4),
  •  the original jurisdiction of the MCA, including procedures relating to charge sheets, pre-trial matters such as pre-trial hearings and disclosure by the parties, and matters relating to pleas, trials and verdicts (Pt 5),
  • the appellate jurisdiction of the MCA (Pt 6) and appeals to the High Court (Pt 7),custody and bail arrangements (Pt 8),
  • • sentencing and punishment, including sentencing principles, suspension and remission of punishments, and restitution and reparation orders (Pt 9), and
  • • practice and procedure of the MCA including records and conduct of proceedings, evidence and witnesses, orders and judgments and the making of rules dealing with practice and procedure (Pt 10).  

According to the Attorney-General, the MCA “meets the strict constitutional requirements for an independent court, but also retains a clear military character”.  

The Bill was referred to the Senate Standing Committee on Legal and Constitutional Affairs for report by 21 September 2010. However, due to the prorogation of Parliament, the Committee determined not to continue the inquiry. If the Bill is reintroduced in the new Parliament, the Senate may again refer it to the Committee for inquiry and report