Australia's highest court ruled Wednesday that the country's military justice system is unconstitutional because its judges are not independent of the military command - throwing into doubt 171 cases judged in the past two years. The previous government created the Australian Military Court in October 2007 as a modern means of enforcing military discipline, replacing the systems of courts-martial and military magistrates.
But the High Court upheld a challenge by former sailor Brian Lane that the military court was unconstitutional, saying the judges were not independent of the military chain of command.
Lane has been charged with assault of a superior officer. The charge has not been resolved. Defence Minister John Faulkner said 171 military discipline cases had been dealt with by the court since 2007, some ending in jail sentences. "As a result of the decision of the High Court of Australia today, the validity of the decisions made by the AMC during its existence will be reviewed," Faulkner told reporters.
He said the government might be able to pass legislation "to ensure that the effect of the sentences passed is validated." The government also plans to rush legislation through Parliament to restore the old military justice system of trials by court martial and military magistrates.
"In the interim, it is critical that the Australian Defence Force has a functioning military discipline system, particularly when it is currently engaged in operations overseas," Faulkner said, referring to deployments including 1,500 troops in Afghanistan.
He said the government will have to examine the High Court ruling and seek legal advice before deciding on a new court model for the future that will comply with the constitution. The military court deals with disciplinary charges - such as disobeying orders and going absent without leave - as well as other charges covered by civil law such as theft and assault.