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ARTICLE · 28 SEPTEMBER 2009

Australian Military Court Constitutionally Invalid

In a decision that has taken some (but not all) by surprise, the High Court has ruled that the Australian Military Court (AMC) is constitutionally invalid.

AustraliaGovernment, Public Sector
Merridy Woodroffe
Merridy Woodroffe
Calum Henderson
Calum Henderson
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In a decision that has taken some (but not all) by surprise, the High Court has ruled that the Australian Military Court (AMC) is constitutionally invalid.

Facts

The AMC was created in 2006 by the inclusion of section 114 in Division 3 of Part VII of the Defence Force Discipline Act 1984 (Cth) (the Act). Section 114 states:

"(1) A court, to be known as the Australian Military Court, is created by this Act.

Note 1: The AMC is not a court for the purpose of Ch III of the Constitution.

...

(1A) The AMC is a court of record.

..."

The effect of section 114 was to discard the court-martial process and to create in its place the AMC which would have the jurisdiction to determine military justice issues.

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