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Defence minister to attack judicial system -

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Defence minister to attack judicial system

Sabra Lane reported this story on Thursday, August 27, 2009 12:10:00

ELEANOR HALL: The Federal Opposition has pledged to support the Defence Minister in finding an
urgent solution to Australia's system of military justice.

The High Court ruled yesterday that the Military Court, which was set up in 2007, is
unconstitutional.

Its decision has thrown the system into turmoil and today the Defence Minister John Faulkner
proposed three options to fix the mess as Sabra Lane reports from Canberra.

SABRA LANE: The Australian Military Court was set up in 2007 after a two-year long Senate Inquiry
into the military justice system which found it was flawed and unfair.

The then Howard government ignored advice from the Senate Committee and Labor MP Robert McClelland
who's now the nation's Attorney General that the replacement judicial system should be established
under Chapter Three of the Constitution to avoid any legal challenges to its legitimacy.

But the Defence Minister at the time Robert Hill rejected that advice and deferred to Defence
Department chiefs instead.

The Shadow Attorney General George Brandis admits that was a mistake.

GEORGE BRANDIS: It is amiss and plainly a mistake was made when the earlier system of court
marshals was replaced by the Australian Military Court in 2006.

It's a mistake I might say that was made by both sides because the legislation went through the
Parliament with bipartisan support although against the advice of a Senate Committee which in fact
warned of this problem.

But the views of Defence that there wasn't a problem ultimately prevailed and we can now see that
the Senate was right and the Defence Department was wrong.

SABRA LANE: Do you wish that you had stood up to Defence at the time?

GEORGE BRANDIS: Well I think the Liberal senators who sat on that committee, Senator David
Johnston, now the shadow minister for defence and Senator Maurice Payne and Senator Russell Trood
in fact did have a number of arguments with Defence in relation to the matter. But you know the
Defence Department is the greatest leviathan in Canberra as everyone who is close to politics knows
and on this occasion it's a shame that the leviathan got its ways.

SABRA LANE: Some voters would say you should have stood up to them and done your job.

GEORGE BRANDIS: Well as I say the Senate Committee report did make the case for a court being
established under Chapter Three of the Constitution but a different view ultimately prevailed.

That was supported apparently by legal advice that the Defence Department put before the
Government. I haven't seen that legal advice.

SABRA LANE: The Military Court has already made 171 rulings with one detainee freed from custody
yesterday following the High Court ruling.

The Defence Minister Senator John Faulkner says he's urgently working on a solution but in the
interim he'll revive the discredited court martial system to handle disciplinary issues.

JOHN FAULKNER: That very much is a temporary measure and something that I would hope will be able
to be replaced in the near future by a system that sees service offences being tried by either the
existing Federal Court in its general jurisdiction or a new military division of the Federal Court
or perhaps even a new court established specifically to deal with such offences.

What I have got to do, what the Government has to do now is get this right and I am going to ensure
that the permanent military justice system for these serious cases actually passes muster - that
there will be no question about its constitutionality.

SABRA LANE: The Defence Minister told Radio National he's thinking of introducing legislation into
Parliament ASAP to retrospectively uphold the military court's previous rulings.

JOHN FAULKNER: I did announce yesterday that it was my intention on the basis of the available
advice I have to legislate to ensure that the effective sentences passed is validated.

SABRA LANE: But Senator George Brandis thinks that might invite further legal challenges.

GEORGE BRANDIS: We are looking at this very carefully as of course the Government is too. I think
it is not perfectly clear, the Commonwealth Parliament could simply pass an act validating
improperly and erroneously imposed judicial determinations or sentences and that is why the
Opposition says that the cleanest and simplest way to do this is the Senate Committee that got it
right back in 2005 originally recommended is to create a military division of the Federal Court and
more importantly the Federal Magistrates Court.

SABRA LANE: But a problem with that Federal Magistrates Court option is that the Government has
already announced it's abolishing that court.

Senator Brandis says in light of yesterday's High Court ruling the Government should reconsider
axing it.

GEORGE BRANDIS: But I am today calling for the Government, in view of the High Court's decision, to
revisit that decision because it's as clear as can be that the Commonwealth would be well served by
having a court of summary jurisdiction as the Federal Magistrates Court is, established under
Chapter Three of the Constitution.

SABRA LANE: The Opposition is promising bipartisan support to solve this mess but as yesterday's
High Court decision shows bipartisan decisions aren't always perfect.

GEORGE BRANDIS: Senator Johnston the shadow Defence Minister telephoned Senator Faulkner yesterday
and offered him bipartisan support to address the problem.

ELEANOR HALL: That is the shadow attorney general George Brandis ending that report by Sabra Lane
in Canberra.