Case Note: Lane v Morrison [2009] HCA 29

The Australian Military Court was arguably a ‘half-way house3‘ towards a completely independent and impartial military justice system. Before the High Court of Australia, the Commonwealth argued that the Australian Military Court was a ‘modernisation’ of the existing system4.

The decision in Lane v Morrison [2009] HCA 29 (C3/2008), delivered on 26 August 2009 (“Lane“), was a ‘watershed’ for military justice in Australia, in that there was the ‘striking-down’ by declaration of Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) (“DFDA”). The decision is the conclusion of a long series of reviews as to the military justice system in this country5. The Australian Military Court, which the decision effectively abolished, was set up as part of the review process6, with the intention of ensuring the objective, just and fair resolution of discipline matters within the Australian Defence Force. The practical result of the decision in Lane is to revert to the system of military justice as existed prior to the creation of the Australian Military Court: that is the system of Courts Martial and Defence Force Magistrates.

The international jurisprudence that led to the creation of the Australian Military Court had some basis in the ‘human rights’ legislation enacted in the United Kingdom7 and Canada8. Those statutorily enshrined rights and freedoms made military discipline systems existing without independence from the ‘command structure’ potentially illegitimate.

In these circumstances, this article argues that the Australian Military Court was a ‘half-way house’.

 Brief summary of the case

The full bench of the High Court of Australia (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) in its decision in Lane ordered as follows:

“1. Declare that the provisions of Division 3 of Part VII of the Defence Force Discipline Act 1982 (Cth) are invalid.

2. Order that a writ of prohibition issue directed to the first defendant Colonel Peter John Morrison, a Military Judge of the Australian Military Court, prohibiting him from proceeding further with the charges relating to the plaintiff identified in the charge sheet dated 8 August 2007 and referred to the Australian Military Court for trial.

3. Second defendant to pay the costs of the plaintiff.”

The Court was unanimous in making the orders for the Plaintiff. The Court delivered two separate reserved judgments: French CJ and Gummow J9 ; and Hayne, Heydon, Crennan, Kiefel and Bell JJ10.

Creation of the Australian Military Court. The Australian Military Court was created by the insertion of new provisions in the DFDA11. The Australian Military Court replaced the Defence Force Magistrate and Court Martial system, which was historically based upon the English military justice system.

The Military Court was not a creation under Chapter III12 of the Constitution, as specifically confirmed by s 11413 of the amended DFDA. By s 140 of the (now repealed) Act, the Military Court did have the ability to hear matters in public, subject to restrictions. The ‘Judges’ were appointed for a term of 10 years, but their appointment was conditional upon their retention in the Australian Defence Force. Colonel Morrison and the other two Military Judges (so-called), were Officers of the Commonwealth under s 75(v)14 of the Constitution.

Facts. Brian George Lane, the Plaintiff, was a member of the Royal Australian Navy, before transferring to the Royal Australian Naval Reserve on 14 March 2007. On 8 August 2007 the Plaintiff was charged with offences which were alleged to have occurred in August 2005, when Mr Lane was a member of the Royal Australian Navy. The charges included an alleged “act of indecency without consent”, contrary to s 61(3)15 of the DFDA, as applied by s 60(2)16 of the Crimes Act 1900 (ACT) and a charge of assaulting a superior officer contrary to s 2517 of the DFDA. On 3 September 2007 his service with the Royal Australian Naval Reserve was concluded18. On 26 November 2007 the Chief Military Judge formally nominated Colonel Morrison to hear the charges. At the first hearing before the Australian Military Court on 25 March 2008, Mr Lane, by his Reserve Officer counsel, objected to the jurisdiction of the Court, without personal appearance. In May 2008 an application was filed in the High Court of Australia, seeking a prohibition preventing the Military Court from hearing the charges and a declaration that the legislation creating the Court was invalid.

The matter was initially listed before French CJ as an originating motion. Before French CJ, the Commonwealth submitted that the section 78B notice by the Plaintiff sought to reagitate the grounds dismissed as unarguable in White v Director of Military Prosecutions [2006] HCATrans 566 at 770-88519. French CJ dismissed three of the proposed grounds in the further amended application, but referred grounds 1, 2, 3 and 6 to the Full Court for further hearing. The parties were able to agree a Statement of Facts for the substantive hearing.

High Court judgment. Significantly, it was held that20:

“[T]he jurisdiction conferred upon the AMC by s 115 of the Act, to try charges of service offences, involves the exercise of the judicial power of the Commonwealth otherwise than in accordance with Ch III of the Constitution. Legislation conferring that jurisdiction is consistent with the Constitution only if … the establishment of the AMC [is] supported by s 51(vi) of the Constitution.”

Therefore, in Lane, the High Court by its judgment confirmed that the Military Court was exercising the judicial power of the Commonwealth in circumstances where it was not a constitutionally-valid Court under Chapter III. The Court was “established to make binding and authoritative decisions of guilt or innocence independently of the chain of command of the defence forces”21.

Analysis of the decision

At the foundation of the decision was the concept that Chapter III of the Constitution is a judicial power, distinct from the judicial power of the (Australian) States and the United Kingdom; with the power to create Courts existing only in sections 7122, 7223 and 12224. In breach of the Constitution , the purported Court was not created in accordance with those constitutional sections, with the Judges also not having tenure. However, the High Court accepted that military justice has a separate head of power under s 51(vi)25 of the Constitution , but that the Australian Military Court exceeded that head of power, due to its existence outside of the command structure26.

The predicament for the Australian Military Court was that it purported to exist outside of the ‘command structure’, when in fact s 51(vi) ‘relied’ upon that structure. In this regard, reference was had to the decision of Dixon J in R v Cox; Ex parte Smith where His Honour emphasised that, while an element of justice was crucial to military proceedings, military tribunals “do not form part of the judicial system administering the law of the land”27.

Understandably, the High Court in Lane was cognisant of the existing jurisprudence, both in Australia and overseas, as to military justice and the constitutionality of the processes relating to the same. Critically, the High Court decision in Lane was affected by the decisions in White , Findlay, Grieves and Généreux .

White’s Case. The High Court had previously given validity to DFM’s and Courts Martial in White v Director of Military Prosecutions28. That case concerned a Chief Petty Officer in the Royal Australian Navy who was charged under the DFDA in relation to several offences which occurred while she was off duty. The High Court held that the judicial powers of military tribunals were independent of s 71 of the Constitution , and in fact arose under s 68 of the Constitution , due to the Governor-General’s role as Commander-in-Chief of the armed forces29. Significantly, the High Court held in Lane that White “should not be re-opened”30.

United Kingdom. Two cases concerning the validity of courts martial in the United Kingdom are referred to in Lane : Findlay v United Kingdom31 in relation to court-martial procedures under the Army Act 1955 (UK) and Grieves v United Kingdom32 as to procedures under the Naval Discipline Act 1957 (UK). Those decisions involved specific challenges under Article 6(1) of the European Convention on Human Rights, which provides that criminal charges must be heard by “an independent and impartial tribunal established by law”. In both instances, it was held that the legislation governing courts martial in the United Kingdom contravened Article 6(1), due to an insufficient demarcation from the military chain of command33.

Canada. The 1992 Canadian Supreme Court decision in R v Généreux34 similarly concerned the independence and impartiality of military tribunals in the Canadian context. In that case the military member was charged with a drug trafficking offence and with desertion. It was held that courts martial in Canada contravened the right to an impartial, independent tribunal as provided for in s 11(d) of the Canadian Charter of Rights and Freedoms 1982, in particular, as tribunal members did not have secure tenure in their positions as judicial officers.

The conundrum for the High Court was therefore that a number of challenges had been made to the previous court martial and DFM system in Australia35 and constitutional courts in the United Kingdom and Canada had ruled invalid a system akin to the Australian military justice system prior to the Australian Military Court.

Legal doctrinal implications of the decision

The decision in Lane will have an enduring impact upon the creation of new determination bodies, not just within the military context, but within all the Australian jurisdictions. At paragraph 26 of the joint judgment of French CJ and Gummow J, their Honours refer to the Courts of Marine Inquiry that existed under the repealed Navigation Act 1912 (Cth). Those ‘Courts’ were an example of the Commonwealth creating a body and calling it a ‘court’, without giving it Chapter III Constitutional status. Further, their Honours recognise that under other s 51 limbs, the legislature has been able to create bodies without seeking to endow that body with Chapter III powers36. Their Honours discuss the concept of a ‘Court’ in paragraphs 21-27 of their reasons. It is noted that their Honours do not refer, as one of their examples, to the Judicial Committee of the Privy Council which retains its existence in the Commonwealth Constitution in s 7437.

Policy implications of the decision

The Minister for Defence has already indicated that the intention will be to create a Chapter III Court as the institution that determines military justice. In a policy sense, how this is to occur is yet to be determined. It is noted that recommendations 18 and 19 of the 2005 Senate Report were as to the creation of a Chapter III Constitutional Court38 – it is not clear why the creation of the Australian Military Court did not follow these recommendations. The amendments to the DFDA created a court of record and as stated above allowed for proceedings to be in public39.

Conclusion

The Australian Military Court only went ‘half-way’ towards achieving Constitutional status in that it did not exist in a statutory sense as a Chapter III Court. If the decision is again to be taken to create a military justice system that is completely independent of ‘command’, then that system could potentially exist as part of the Federal Court of Australia. There are a number of Federal Magistrates and Federal Court Judges with strong military backgrounds, who have served in their previous lives as Judge Advocates. These existing Commonwealth Judicial Officers could be panelled to serve, as required, on military justice matters.

“If we don’t change direction soon, we’ll end up where we’re going.40“

Dominic Katter

Footnotes

1 I am indebted to Mark Heiser, student-at-law, for his assistance as to the preparation of this article.

2 Ayn Rand (1905 – 1982), US (Russian-born) novelist: at http://www.quotationspage.com/quotes/Ayn_Rand/ (accessed on 28 September 2009 at 3:41pm)

3  The purpose of a half-way house is generally to allow those previously incarcerated people to begin the process of re-integration with society, while still providing monitoring and support: see http://www.encyclopedia.com/doc/1O999-halfwayhouse.html (accessed on 28 September 2009 at 4:56pm).

4  Lane v Morrison [2009] HCA 29 at [29] per French CJ and Gummow J.

5  See the recent Military Justice Review by Sir Laurence Street and Air Marshal Les Fisher (Retired) at: http://www.defence.gov.au/header/publications.htm#I, which itself was the result of the 2005 Senate Committee report ‘The Effectiveness of Australia’s Military Justice System’: http://www.defence.gov.au/media/DepartmentalTpl.cfm?CurrentId=8867 (accessed on 23 October 2009, 2:38pm).

6  See the June 2005, Foreign Affairs, Defence and Trade References Committee of the Senate, report titled: The Effectiveness of Australia’s Military Justice System .

7  Human Rights Act 1998 (UK).

8  Human Rights Act 1978 (Can).

9  [2009] HCA 29, [1]-[64].

10 Ibid [65]-[118].

11  The transitional provisions of the 2006 amendments to the DFDA meant that the 21 September 2007 referral of the Director of Military Prosecutions to a Court Martial, created a referral to the Military Court for trial: see Lane v Morrison [2009] HCA 29 at [3] and fn 3 per French CJ and Gummow J.

12 The Judicature.

13 Section 114 of the Act then relevantly stated:

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

Note 1: The Australian Military Court is not a court for the purposes of Chapter III of the Constitution.

Note 2: The Australian Military Court is a service tribunal for the purposes of this Act: see the definition of service tribunal in subsection 3(1).

(1A) The Australian Military Court is a court of record.

(2) The Australian Military Court consists of:

(a) the Chief Military Judge; and

(b) such other Military Judges as from time to time hold office in accordance with this Act.”

14  “Original jurisdiction of High Court

In all matters: … (v) in which a writ of Mandamus or prohibition or an injunction is sought against an officer of the Commonwealth;

the High Court shall have original jurisdiction.”

15 “Offences Based on Territory Offences …

(3) A person who is a defence member or a defence civilian is guilty of an offence if:

(a) the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and

(b) engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place).”

16 “Act of indecency without consent …

(2) A person who, acting in company with any other person, commits an act of indecency on, or in the presence of, another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 7 years.”

17 “Assaulting a superior officer

(1) A defence member is guilty of an offence if:

(a) the member assaults a person; and

(b) that person is a superior officer.

Maximum punishment: Imprisonment for 2 years.

(2) Strict liability applies to paragraph (1)(b).

Note: For strict liability, see section 6.1 of the Criminal Code .

(3) It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, that the person against whom the offence is alleged to have been committed was a superior officer.

Note: The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.”

18 As to the methods by which service can be concluded, see the Defence (Personnel) Regulations 2002 (Cth).

19 Lane v Morrison [2009] HCA 5 (16 January 2009) C3/2008 at [19]-[20] per French CJ.

20 [2009] HCA 29, [10] per French CJ, Gummow J.

21 Lane at [115] per Hayne, Heydon, Crennan, Kiefel and Bell JJ.

22 “71 Judicial power and Courts

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other federal courts as the Parliament creates, and in such other courts as it invests with federal jurisdiction. The High Court shall consist of a Chief Justice, and so many other Justices, not less than two, as the Parliament prescribes.”

23 “72 Judges’ appointment, tenure, and remuneration

The Justices of the High Court and of the other courts created by the Parliament:

(i) shall be appointed by the Governor ‑ General in Council;

(ii) shall not be removed except by the Governor ‑ General in Council, on an address from both Houses of the Parliament in the same session, praying for such removal on the ground of proved misbehaviour or incapacity;

(iii) shall receive such remuneration as the Parliament may fix; but the remuneration shall not be diminished during their continuance in office. …”

24 “122 Government of Territories

The Parliament may make laws for the government of any territory surrendered by any State to and accepted by the Commonwealth, or of any territory placed by the Queen under the authority of and accepted by the Commonwealth, or otherwise acquired by the Commonwealth, and may allow the representation of such territory in either House of the Parliament to the extent and on the terms which it thinks fit.”

25 “51 Legislative powers of the Parliament

The Parliament shall, subject to this Constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to: …

(vi) the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth; …”

26 Lane at [13] per French CJ and Gummow J.

27 (1945) 71 CLR 1, 23.

28 (2007) 231 CLR 570.

29 See (2007) 231 CLR 570, [239] per Callinan J.

30 [2009] HCA 29, [63] per French CJ and Gummow J.

31 (1997) 24 EHRR 221.

32 (2004) 39 EHRR 2.

33 See Lyon, After Findlay: A Consideration of Some Aspects of the Military Justice System in Eugene R. Fidell & Dwight H. Sullivan (eds.), Evolving Military Justice (2002).

34 [1992] 1 SCR 259.

35 See White; Re Aird; Ex parte Alpert (2004) 220 CLR 308; Re Tyler; Ex parte Foley (1994) 181 CLR 18; Re Nolan; Ex parte Young (1991) 172 CLR 460; and Re Tracey; Ex parte Ryan (1989) 166 CLR 518.

36 See R v Turner; Ex parte Marine Board of Hobart (1927) 39 CLR 411, 424, 454 per Knox CJ, Gavan Duffy, Rich, Starke and Powers JJ; Lane v Morrison [2009] HCA 29 at [26] per French CJ and Gummow J.

37 Appeal to Queen in Council [see Note 12]

No appeal shall be permitted to the Queen in Council from a decision of the High Court upon any question, howsoever arising, as to the limits inter se of the Constitutional powers of the Commonwealth and those of any State or States, or as to the limits inter se of the Constitutional powers of any two or more States, unless the High Court shall certify that the question is one which ought to be determined by Her Majesty in Council.

The High Court may so certify if satisfied that for any special reason the certificate should be granted, and thereupon an appeal shall lie to Her Majesty in Council on the question without further leave.

Except as provided in this section, this Constitution shall not impair any right which the Queen may be pleased to exercise by virtue of Her Royal prerogative to grant special leave of appeal from the High Court to Her Majesty in Council. The Parliament may make laws limiting the matters in which such leave may be asked, but proposed laws containing any such limitation shall be reserved by the Governor ‑ General for Her Majesty’s pleasure.

38 Lane v Morrison [2009] HCA 29 at [17] per French CJ and Gummow J.

39 Lane v Morrison [2009] HCA 29 at [20] per French CJ and Gummow J.

40 Professor Irwin Corey (1914 – ) American vaudeville comic and actor at: http://www.quotationspage.com/quotes/Professor_Irwin_Corey/ (accessed on 28 September 2009 at 3:51pm)