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
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
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,
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).
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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