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
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
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
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
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.
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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