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Australia government announces new military court

Australian Defense Minister John Faulkner and Attorney General Robert McClelland [official websites] announced Monday that the government will establish a new military court [press release] as part of a restructuring of the federal court system. The Military Court of Australia will be administered by the Federal Court of Australia and will have jurisdiction over Australian Defense Force (ADF) [official websites] personnel operating overseas who are accused of committing serious service offenses or elect to have their cases heard by the court. Judges on the court will be required to have military experience or familiarity with the armed forces but cannot be ADF members or within the military chain of command. In the joint statement, McClelland outlined the benefits of the new courts, stating:

Judicial officers appointed to the new Military Court of Australia will have the same independence and constitutional protections that apply in other federal courts. ... This new structure will achieve a more integrated and efficient system in order to effectively deliver legal and justice services to both the civilian and defence community.
Additionally, the proposed court restructuring would give jurisdiction over family law cases solely to the Family Court and would retain the Federal Magistrates Court [official websites] to exercise general federal law jurisdiction. Legislation to establish the new military court is to be introduced to the Parliament [official website] later this year, and the Military Court is expected to be operational by the end of 2011.

The new military courts would replace the interim arrangements that had been in use after the Australian Military Court (AMC) [Department of Defense backgrounder] was found unconstitutional [judgment text; JURIST report] by the High Court of Australia [official website] in August. The High Court held that the AMC employed the judicial power of the Commonwealth while AMC judges functioned within the hierarchy of the military, violating chapter three of the Australian Constitution [text]. The ruling cast doubt on approximately 170 cases that the AMC had ruled on since its inception in 2007. The case that prompted the ruling was brought as an appeal by sailor Brian Lane over a 2005 charge of indecent assault on a superior officer. Lane had argued [The Australian report] that the AMC did not have jurisdiction over the case and that the legislation creating the court was invalid. In response to the ruling, Faulker said that the previous military justice system would be reinstated [press release], which consisted mainly of trials by court martial and ADF magistrates. The AMC was established by the government of former prime minister John Howard [BBC profile] after a series of Senate Committee reports were critical of the system of military justice and recommended extensive changes.

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