Military justice system in tatters

CANBERRA - The Australian Government is working frantically to rebuild its military justice system after it was blasted into oblivion by the High Court.

The court has found that the Australian Military Court established by the former Coalition Government two years ago is unconstitutional.

The ruling leaves the defence force without its own legal authority, throws into doubt 171 convictions recorded so far and hurls cases at present before the court into limbo.

Defence Minister John Faulkner will seek the urgent passage of legislation to return to the former system of courts martial until a new court can be formed, and to retrospectively confirm the decisions already handed down.

"The challenge is pretty clear," he said yesterday. "I've got to get this right and I've got to do it as quickly as possible and that's why I think the interim solution makes sense in these circumstances."

Professor Donald Rothwell, deputy director of the Australian National University's Centre for Military Law and Justice, said Faulkner had little alternative.

"This will grant the Government and, most importantly, the Australian Defence Force, some breathing space until such time as a new military justice system is designed," he said. The military court was doomed by a case against former sailor Brian Lane, who was charged with assault after a day's golf and drinking during a recruitment drive in the rural Queensland town of Roma.

Lane was alleged to have been photographed "tea-bagging", a lewd prank in which he was claimed to have placed his genitals on the head of a sleeping superior.

Lane denied the charge and challenged the constitutional basis of the Military Court, which was set up after a Senate committee found the need for a new justice system to replace courts martial.

The previous system had come under increasing fire following a series of suicides and scandals involving bullying, sexual harassment and assault.

The Senate recommended a new court be set up as part of the Federal Court under chapter three of the constitution, but it was instead established under defence powers and lacking necessary provisions such as those governing the appointment and tenure of judges.

The High Court unanimously upheld Lane's challenge and found that the provisions of the Defence Force Discipline Act establishing the Military Court were invalid because it exercised the judicial power of the Commonwealth without meeting constitutional requirements.

Faulkner said the legislation had fallen short of the Senate recommendations, and the Government would now urgently investigate alternatives.

In the meantime, the Government needs to review the validity of decisions already made by the court.

Faulkner said 171 cases had been finalised, eight were at present listed for trial, and a further 33 were listed with the registrar.

About 40 per cent involved misuse of Defence travel cards, with others involving such matters as assault, theft and indecency.

Punishments ranged from reduction in rank and loss of seniority to fines, reprimands and detention.

It was not known if anyone at present in detention would be affected by the High Court ruling.