The Attorney-General and the Minister for Defence have recently announced the establishment of a new federal court, the Military Court of Australia (MCA), under Chapter III of the Australian Constitution. This follows the decision of the High Court in Lane v Morrison (2009) 252 ALR 605 last year, which found that the legislation creating its predecessor, the Australian Military Court (AMC), was invalid because it required the AMC to exercise the judicial power of the Commonwealth without being set up as a court established under Chapter III (in which the power to create the federal judiciary is contained). The MCA will replace the interim military justice measures that have been in place since Lane v Morrison. It is anticipated that enabling legislation will be introduced this year, with a view to the MCA commencing operation in late 2011.

In addition to being a Chapter III court, the key features of the MCA will include the following:

  • jurisdiction to try serious service offences (less serious offences will continue to be heard by summary authorities at unit level)
  • Australian Defence Force (ADF) members charged with a service offence, even at summary level, may elect to have the matter heard in the MCA
  • separate upper and lower Divisions comprising judicial officers at the level of Federal Court judges and Federal Magistrates respectively:
    • the upper Division will try "very serious service offences" (to be defined by regulation) and hear appeals from decisions of the lower Division and appeals from decisions of Defence Force magistrates or court martials deployed overseas
    • the lower Division will try "serious service offences" and matters where an accused has made an up-front election or which have been referred by a summary authority
  • service offences will be tried other than on indictment and therefore without a jury
  • judicial officers will be required to have service experience or familiarity with the services in addition to the usual criteria for appointment to a federal court. In particular they:
    • will be independent of the military chain of command, and
    • cannot be permanent or reserve members of the ADF, and
  • judicial officers may hold dual commissions with the Federal Court of Australia (FCA) or Federal Magistrates Court (FMC), or be appointed only to the MCA (it is likely that judges of the FCA with the requisite military background or familiarity may be offered dual commissions to the upper Division of the MCA).

According to the Minister of Defence, the MCA "will deliver a system of military justice for ADF members that combines the necessary independence and constitutional protections for the judiciary, with an understanding of the vital importance of military discipline in the operation of our armed forces".

The Government has also announced changes to the structure of the federal court system more generally, including the:

  • retention of the FMC to hear general federal law matters but with responsibility for its administration passing to the FCA, and
  • restructuring of the Family Court into two divisions: an Appellate and Superior Division which will hear complex first instance family law and child support cases as well as appeals; and the General Division which will hear all but the most complex family law cases (as the FMC does now).

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