Today the High Court of Australia handed down its decision in the case of Lane v Morrison.The case related to a challenge to the constitutional validity of the Australian Military Court (AMC) and the Director of Military Prosecutions. The High Court unanimously found that the provisions of the Defence Force Discipline Act establishing the AMC were invalid, because the AMC was exercising the judicial power of the Commonwealth but did not meet the requirements of Chapter III of the Constitution.

The Minister for Defence, Senator John Faulkner, said the Government respected the Court’s decision and will move military justice to a judicial system that meets the requirements of Chapter III of the Constitution. As an interim measure, the Government will reinstate, by legislation, the pre-2007 military justice machinery to give Defence a level of certainty in military justice matters.

The Australian Military Court was established in October 2007 by the former Government, following a series of Senate Committee reports recommending extensive changes to the system of military justice. Under the AMC, military judges presided over cases and operated outside the chain of command. However the AMC stopped short of meeting Chapter III requirements such as those governing the appointment and tenure of judges.

Senator Faulkner said: “The Senate Committee had recommended a Chapter III court with oversight by the Attorney-General, and greater independence from the military. The legislation establishing the AMC fell short of these recommendations.”

“The Government will review the High Court’s decision carefully and consider alternative models for establishing the jurisdiction in a Chapter III court. I will work closely with the Attorney-General given his responsibilities in this area” Senator Faulkner said.

Reinstating the military justice machinery which pre-existed the establishment of the AMC will allow time for options which meet the requirements of Chapter III to be developed and legislation introduced. The system, which involves trials by court martial and Defence Force magistrates, will be reinstated only on a temporary basis. “The Government is committed to resolving the future of the military justice system, and will be making further announcements once the full implications of the High Court’s decision have been considered” Senator Faulkner said.

The Government will also examine the implications of the decision for past and current cases, and take any necessary action to ensure the validity of past sentences and to minimise disruption to ongoing cases.