THE MIKIVERSE

Military courts in tatters

Brendan Nicholson
August 27, 2009 - 12:53AM

THE military justice system is in chaos after the High Court ruled yesterday that the Australian Military Court was constitutionally invalid.

At least 170 cases heard by the court in the past two years are in question and may have to be reheard.

Amid the confusion, one defence force member held in a military facility was last night being prepared for release as a result of the unanimous High Court ruling.

The decision has forced the Federal Government to return temporarily to the discredited system of courts martial, in which personnel appeared before a panel of officers.

Defence Minister John Faulkner said the Government was seeking urgent legal advice on a new system to replace the military court, which was set up by the Howard government in 2007.

The challenge to the validity of the military court was brought by Brian George Lane, a former seaman who was charged by the Navy with indecently assaulting a superior after he allegedly ''tea-bagged'' an army sergeant.

Mr Lane allegedly placed his genitals on the forehead of the sergeant, who was asleep on a motel bed, at the end of a day of golf and drinking in 2005.

The two men were on a recruitment drive in the Queensland town of Roma.

Mr Lane, 40, who denies the charges, said he could not overstate his relief, although he could still be pursued under a future system.

''It's been quite harrowing,'' he said of the case. ''I've been sick in the stomach just about the whole time.''

Senator Faulkner said that of the cases heard by the military court and now hanging in the balance, about 40 per cent related to defence travel card fraud.

Others were for assault, theft, indecency and damaging service property.

Sentences ranged from fines and loss of rank and seniority to two months' detention.

The court was created following a damning 2005 investigation by a Senate committee that ruled that the military had failed to properly investigate cases of violence, abuse and racism over decades.

But the Howard government angered families of victims by rejecting the committee's call for civilian police and courts to deal with offences within the ADF.

The committee had emphasised that, to demonstrate its independence, the new court should be established outside the defence chain of command.

But the ADF argued this would undermine its system of discipline, and the Howard government opted for a form of tribunal with military judges.

The High Court judges said the military court had in effect been operating under the judiciary powers of the constitution, even though it purported to be a tribunal established under the defence powers.

Chief Justice Robert French and Justice Bill Gummow said the previous government had taken the risky approach of trying to give the military court the ''reputation of the judicial branch of government for impartiality and non-partisanship'' without using the judicial power, but that it had also gone beyond the defence power.

Constitutional expert Professor George Williams, of the University of NSW, said the decision showed the former government should have followed the Senate committee's recommendations more closely. ''I wasn't surprised. The body was set up in a way that was always constitutionally suspect,'' he said.

''They were always taking a risk doing it this way. Anyone subject to the jurisdiction … could have brought the case.''

He said it might be difficult for the Federal Government to retrospectively validate previous decisions through legislation, because further constitutional challenges could then be made.

ADF chief Angus Houston said an effective military justice system was crucial so that ''we are able to give impartial and fair justice to our people''.

With JOEL GIBSON, PETER GREGORY

This story was found at: http://www.theage.com.au/national/military-courts-in-tatters-20090826-ezr7.html