It is true that there is no constitutional imperative to make the Australian Military Court completely akin to a chapter III court. But it is also true that the further away the AMC is from those attributes, the greater will be the risk of a successful constitutional challenge.
— Judge Advocate-General Len Roberts-Smith 9 Oct 2006

When it comes to rolled gold, five-star stuff-ups, the High Court’s wrecking of Australian Military Court yesterday was the real thing. This was a debacle of the highest order, and entirely unprecedented. The High Court has, 7-zip, overturned an entire Federal Government judicial structure.

And in doing so, the Court has in passing inflicted serious damage on the reputation of the Howard Government.

The Howard Government was told repeatedly, even by its own senators, that this “Court” wouldn’t survive a challenge to its constitutionality. But its concern about upsetting the Australian Defence Force by establishing an external court rather than a military body to consider military prosecutions was too great.

It’s a while ago now, but remember the AMC was born out of tragedy. Australia’s military justice system was the subject of repeated internal and external inquiries in the late 1990s and the early part of this decade. A number of ADF victims of harassment and bullying took their own lives, with no consequences or apparent concern from the Defence hierarchy. There appeared to be a bizarre dichotomy in which serious cases of harassment were ignored while unfounded complaints of major crimes against decorated senior officers were pursued with near-vindictiveness.

It culminated in a major inquiry by the Senate Foreign Affairs, Defence and Trade committee that reported in June 2005. Its report — unanimous across the parties — was scathing of the system of military justice and comprehensive in its call for a number of reforms.

A critical component of the Committee’s report was the recommendation for a permanent military court to be established as a constitutionally-established court (under Chapter III of the Constitution) outside defence legislation and the Defence hierarchy “to ensure its independence and impartiality.”

The problem with that, from the Howard Government’s point of view, was that it removed the handling of serious military misconduct from the control of the military. The Howard Government had formed a near symbiotic bond with the ADF, lionising Major-General Peter Cosgrove and insisting that any failure to support Australia’s troops in Iraq and Afghanistan was indefensible.

As a result, it tried to have it both ways, establishing a tribunal purporting to be independent but within the ADF. In rejecting the Committee’s recommendation, it offered this explanation:

Current advice is that there are significant policy and legal issues raised by the proposal to use existing courts for military justice purposes. Chapter III of the Constitution imposes real constraints in this regard.

Important, a military court is not an exercise of the ordinary criminal law. It is a military discipline system, the object of which is to maintain military discipline within the ADF. It is essential to have knowledge and understanding of the military culture and context …. there is a need to understand the military operational and administrative environment and the unique needs for the maintenance of discipline … the judicial authority must be able to sit in theatre and on operations. It must be deployable and have credibility with, and acceptance of, the Defence Force … The Chapter III requirements are not consistent with these factors.

In addition, a Chapter III court would require its military judicial officers to be immune from the provisions of the DFDA subjecting them to military discipline. While this is appropriate regarding the performance of their judicial duties, the Government does not support making them exempt from military discipline in the performance of their non-judicial duties such as training.

Amid all that verbiage, the key reason is that the Government didn’t want to impose on the military judges without “credibility with, and acceptance of, the Defence Force”. What would a bunch of Civvy Street wig-wearers know about military life?

The Government was told almost immediately it had made a mistake. The Judge Advocate General, Len Roberts-Smith, told a Senate committee hearing into the bill establishing the court that he had great concerns about the constitutionality of the new court, which would exercise judicial powers but without proper judicial authority or the attributes required by the Constitution. The Government amended its bill in late 2006 without addressing the constitutional issue. In retrospect some of those amendments actually strengthened the successful case brought by Brian Lane in the High Court.

The Labor Opposition at the time explicitly warned about the constitutionality problem. In Parliament on 29 November 2006, Robert McClelland quoted Roberts-Smith, and moved a second reading amendment noting that the bill establishing the AMC was not in line with Chapter III of the Constitution.

The Government of course had control of both Houses and ignored the issue.

George Brandis this morning tried to claim the debacle was Labor’s fault too. “We should acknowledge that a mistake was made,” he said. “It was made by both sides, by the way, because the reforms to, or what were thought to be the reforms to, the military justice system that passed through the Parliament in 2006 were supported by both sides.”

Nice try Senator, but wrong, as McClelland’s speech and motion indicate.

In fact Brandis blames Robert Hill, now a Rudd appointee to the pending Carbon Trust. “The decision that was made by the then Defence Minister Senator Hill in the Howard Government was a decision made against the recommendations of a Senate Committee that looked into the military justice system in 2005 and recommended that the military judicial system had to be based on courts established under Chapter III of the Constitution, and the High Court yesterday agree with that view.”

Quite what legal advice the Government was getting on the issue at the time isn’t known. It is beyond reason that the Government’s top legal minds were unaware of the potential problem. But Australian Government Solicitor Chief General Counsel Henry Burmester QC — not exactly a constitutional slouch — told a Senate committee hearing “my assessment is that this model has a low risk of being successfully challenged … my assessment is that attacks on the grounds that it is not independent or impartial, or not sufficiently independent or impartial, are unlikely to succeed with such a model as we have in the bill.”

In the end, that appears to have not been the issue that troubled the High Court. Instead, the Court found that the AMC was exercising the judicial power of the Commonwealth because it was a “court of record” (one of the late amendments to the bill) and making findings beyond the confines of the ADF chain of command. In which case, without the appropriate establishment under Chapter III, it was unconstitutional.

Almost certainly, there are some lawyers inside the Australian Government Solicitor office who, having watched the Howard Government side with the military on the matter, are feeling vindicated today.

The Government is now putting in place emergency judicial measures, with the goal of implementing the original Senate committee report and establishing a Chapter III court. In John Faulkner, the military will get no comfort for their desire to keep things in-house.

Peter Fray

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