Attorney General Nicola Roxon told ABC Radio that the former government’s legislative attempt to establish a military court was found constitutionally invalid by the High Court in 2009 in the matter of Lane and Morrison. The current Government put in place an interim system of court martials and Defence Force magistrates, and developed a comprehensive legislative framework for a distinct military court.

The Military Court of Australia Bill 2012 will establish the Military Court of Australia under Chapter III of the Constitution to provide a permanent and constitutionally sound system of military justice for Australia’s defence forces.

The new Court will provide a system dedicated to trying serious service offences and Roxon said in a statement yesterday it will ensure independent and transparent military justice for service personnel on a long-term basis. 

In 2005, the Senate Foreign Affairs, Defence and Trade References Committee report, The effectiveness of Australia’s military justice system, recommended that the Australian Defence Force abolish the court martial system and introduce a system of trials of serious service offences by a permanent military court established under Chapter III of the Constitution.

The new Military Court of Australia will replace the interim system of military justice that has been operating since 2009.

The interim system was put in place following the High Court’s decision in Lane v Morrison, which found the Australian Military Court unconstitutional.

“The Military Court of Australia will be a separate court with the same independence and constitutional protections as other Federal courts," Roxon said.

“The Government has worked closely with the defence and legal communities to ensure that the Military Court of Australia will provide fair and effective justice for Australia’s service personnel.”

Minister for Defence Stephen Smith said the reforms to Australia’s military justice system would strengthen operational effectiveness and discipline in the Australia Defence Force.

“Military Court Judges will be able to sit overseas and on military bases, so the Court will be flexible enough to meet the needs of the ADF,” Mr Smith said.

The Court has been designed so it has a proper appreciation of the nature of service offences and the impact that they can have on maintaining service discipline.

Uniformed legal officers will continue to prosecute and to defend Defence personnel charged with a service offence.

Judicial officers of the Military Court must, by virtue of their training or experience, understand the nature of service in the ADF – but cannot be serving ADF members or reservists, due to the need for judges to be independent from the chain of command.

Existing judges of the Federal Court of Australia and Federal Magistrates of the Federal Magistrates Court may be appointed to the Military Court and so be dual commissioned.  Certain administrative functions will be performed using existing Federal Court systems and resources.

Smith said the bulk of disciplinary and less serious charges will continue to be dealt with and reviewed by commanders at the summary level unless the serviceman or woman elects trial by the Court.

The Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 will provide arrangements for transition to the new Military Court and includes additional enhancements to the Australian Defence Force military discipline system, not directly associated with the establishment of the Military Court.