Legislation to establish the Military Court of Australia lapsed when the Commonwealth Parliament was prorogued ahead of the 2013 Australian federal election. Like the legislation that created the Australian Military Court (which the High Court declared unconstitutional in 2009), it purported to allow for court sittings on foreign soil. Before sitting in another country, however, the Military Court of Australia would need to have regard to 'the international legal basis' for its own presence there. This article examines the circumstances in which the proposed Court's power to sit in another country would be exercised in accordance with international law. It argues that an overseas sitting of the Military Court of Australia would be, as a matter of public international law, fundamentally different to an overseas hearing before any of the current mechanisms of Australian military justice.
The article concludes that the Military Court of Australia would only have a sound 'international legal basis' for sitting in another country if it had express or implied consent to do so, or if Australia was engaged in a military occupation of the territory on which it sat.
Prior to the 2013 Australian federal election, a proposal of the Labor government to overhaul the Australian system of military justice was before Parliament. If it had passed, it would have created the Military Court of Australia ('Military Court') as the primary organ of Australian military justice and would have relegated present mechanisms to 'back-up' status. (1) The proposal lapsed when the Parliament was prorogued on 5 August 2013.
This was not the first time in recent years that Parliament had sought to make military justice more independent and transparent by replacing its traditional institutions with a 'court'. Indeed, the fact that both major parties have proposed such a course in recent years makes it likely that the Parliament will consider it again before long. A previous attempt by the Coalition government, the 'Australian Military Court', (2) was declared unconstitutional by the High Court in August 2009. (3) The Military Court of Australia Bill 2012 (Cth) ('Military Court Bill') and the Military Court of Australia (Transitional Provisions and Consequential Amendments) Bill 2012 (Cth) ('Transitional Bill') (together, 'the Bills') sought to create a successor that repelled any future constitutional attack. (4)
This article examines one particular aspect of the Military Court--the provision made for it to sit overseas--from the standpoint of public international law. The Military Court Bill provides that, if it is 'both necessary and possible', the Military Court may sit outside Australia. (5) Before sitting in another state ('Ruritania'), (6) however, the Court must have regard, among other things, to the international legal basis for its own presence there. (7) This article examines the circumstances in which the Military Court should consider that basis to be sound; put another way, it examines the circumstances in which the power to sit in another country would be exercised in accordance with international law.
Part II discusses the present system of Australian military justice, the former Australian Military Court, the successful High Court challenge to it and the proposed Military Court. Part III establishes that a sitting of the Military Court (in Australia or elsewhere) is an exercise of Australian sovereign power, but a fundamentally different type of sovereign power to that exercised by a court martial. Because of that difference, the question of whether a sitting in Ruritania violates Ruritanian sovereignty is distinct from the question of whether the presence of the Australian Defence Force ('ADF') does so. Part IV argues that the Military Court would only have a sound 'international legal basis' for sitting in Ruritania if it had express or implied consent to do so, or if it was engaged in a military occupation of Ruritanian territory.
II Australian Military Justice--Present Arrangements and Proposed Reforms
The Defence Force Discipline Act 1982 (Cth) ('DFDA') contains the substantive offences of Australian military justice, (8) as well as the mechanisms for investigation, determination of guilt, and punishment. It applies to Australian 'defence members', 'defence civilians' (together, 'defence personnel'), and prisoners of war. (9) The Act operates extraterritorially, (10) so it can be used, for example, to charge an Australian soldier with a sexual assault allegedly committed while on leave in Thailand. (11) Charges may presendy be tried by one of the following means (in decreasing order of formality, seniority, jurisdiction and powers of punishment, roughly speaking): court martial, Defence Force magistrate, summary authority and discipline officer. (12)
Following a conviction by court martial, Defence Force magistrate or summary authority, a 'reviewing officer' conducts an automatic review (13) using grounds similar to those used by a court of criminal appeal. (14) This officer has power to quash the conviction, order a retrial, (15) substitute a conviction of a lesser offence, (16) reduce the sentence, (17) or order acquittal. (18) Further reviews may be conducted on petition or by the Chief of the Defence Force or a service chief. (19) This review procedure is additional to the appeals to the Defence Force Discipline Appeals Tribunal. (20)
While the DFDA does not explicitly authorise the conduct of trials outside Australia, it does so impliedly--the whole of the Act applies extraterritorially (21) and, in particular, there are different rules concerning representation where a trial before a court martial or a Defence Force magistrate is held outside Australia. (22) Of the 29 trials for offences allegedly committed overseas held between 2000 and 2004, only four were held outside Australia. (23) As at September 2012, the last court martial held overseas was in 2006. (24)
The Australian Military Court
In 2005, a Senate committee examined The effectiveness of Australia's military justice system. It noted that '[overseas jurisdictions have increasingly moved towards structures that impart greater independence and impartiality' (25) and concluded that '[a]n independent Permanent Court, staffed by independently appointed judges possessing extensive civilian experience, would extend and protect Service personnel's inherent rights and freedoms, leading to more impartial, rigorous and fair outcomes'. (26)
In response to the 2005 report, Parliament passed the Defence Legislation Amendment Act 2006 (Cth), which abolished courts martial and Defence Force magistrates (27) and replaced them with the Australian Military Court ('AMC'). (28) The AMC was described as a 'court of record' (29) and was comprised of officer-judges (30) of specified rank (31) and legal experience. (32) The AMC operated outside the chain of command: its decisions were not reviewable except by the Defence Force Discipline Appeals Tribunal (which itself lies outside the chain of command) (33) and its judges were ineligible for promotion (except for an automatic promotion midway through their ten-year terms). (34) Contempt of the AMC was criminalised, (35) but the AMC only had power to punish for contempt by defence personnel. (36)
Like the proposed Military Court, the AMC was empowered to sit outside Australia by the operation of s 117:
(1) The Australian Military Court may sit at any place in or outside Australia.
(2) The Australian Military Court may, at any stage of proceedings in the Court, order that:
(a) the proceedings; or
(b) a part of the proceedings;
be conducted or continued at a place specified in the order, subject to such conditions (if any) as the Court imposes. (37)
Lane v Morrison
In 2009, a naval reservist--Brian George Lane--successfully challenged the constitutionality of the AMC in the High Court. Although the decision turned primarily on questions of Australian constitutional law, some of the observations made by the Court are relevant to the issues here considered. (38)
The 'judicial power of the Commonwealth' of Australia may only be exercised by courts that comply with ch III of the Constitution. Since it was common ground that the AMC did not comply, (39) the key issue was whether the AMC exercised 'the judicial power of the Commonwealth'. If it did, the AMC would be unconstitutional.
The Commonwealth denied that the AMC exercised the judicial power of the Commonwealth, pointing to (a) the legislative notation that the AMC was 'not a court for the purposes of Chapter III of the Constitution' (40) and (b) previous explanations by the High Court that courts martial exercise 'military judicial power' (an element of the defence power) and did not, therefore, need to comply with ch III. (41)
These arguments were rejected. The Court emphasised that the AMC differed from the institutions of military justice that it had previously considered because it was empowered to make 'binding and authoritative decisions ... without further intervention from within the chain of command'. (42) It was the 'independence of the [AMC] from the chain of command which [was] the chief feature distinguishing it from earlier forms of service tribunal'.43 This independence meant that the AMC was not an internal disciplinary mechanism, but rather exercised the judicial power of the Commonwealth and was invalid for failing to comply with ch III. The Court also found that the description of the AMC as 'a court of record' supported this conclusion (44) without being necessary to it. (45)
Following the decision, the previous system of courts martial and Defence Force magistrates was restored. (46) During its life (October 2007--August 2009), the AMC conducted 21 trials before a jury and 110 before a judge sitting alone. (47) It did not sit abroad.
The Military Court of Australia Bill 2012
Following the demise of the...