George Brandis (Queensland, Liberal Party, Shadow Attorney-General) Share this | Hansard source

As my colleague Senator Johnston has indicated, the opposition supports both of these bills. They are of a bipartisan character, and I want to congratulate the Minister for Defence, Senator Faulkner, for addressing this urgent issue with appropriate dispatch. The origin of the bills, as Senator Johnston has indicated, lies in the decision of the High Court on 26 August in Lane v Morrison, when the High Court held that the Australian Military Court, which was not established under chapter III of the Commonwealth Constitution, could not validly exercise judicial power for that reason and, because it was purporting to do so, its determinations were invalid.

There is a package of two bills, both of them interim. The first bill, the Military Justice (Interim Measures) Bill (No. 1) 2009, proposes to reinstitute on a temporary basis the pre-existing system of courts martial. The second bill, the Military Justice (Interim Measures) Bill (No. 2) 2009, in effect deems determinations by the Australian Military Court in relation to sentence but not in relation to findings of guilt to always have been valid. As I said, the opposition supports both bills, but I just want to say a word or two about the second bill—that is, the retrospective deeming of the validity of the imposition of penalties by the Australian Military Court. I must say that it occurred to me, when I heard of the government’s intention, that there may be a constitutional problem here because the imposition of penalties is not a legislative act but a judicial act on ordinary concepts. Therefore, the imposition of penalties by the parliament would seem to be ultra vires section 1 of the Constitution, which, as you know, Mr Acting Deputy President, confers upon this parliament legislative power but not judicial power. Nevertheless, at my request, Senator Faulkner has been good enough to furnish to the opposition access to advice taken from the Commonwealth Solicitor-General, Mr Gageler SC, which addresses this matter.

The method of this legislation and the approach taken to overcome that potential constitutional problem are set out on page 5 of the explanatory memorandum, in the second paragraph. The key clause in the No. 2 bill—that is, the deeming order in relation to punishments—is clause 5. The explanatory memorandum says:

The clause is modelled on the legislative approach upheld in The Queen v Humby; Ex parte Rooney (1973) 129 CLR 131. The clause does not change the status of the punishments and orders invalidly imposed or made by the AMC, but rather effects a direct legislative alteration of rights and liabilities in the exercise of the legislative power conferred on the Commonwealth Parliament under s 51(vi) of the Constitution. The purported punishments and orders of the AMC are merely historical facts by reference to which to the clause’s alteration of rights and liabilities is made to occur.

So the approach has been by this statute—that is, the No. 2 bill—to declare that punishments that were imposed were valid not because they were the result of a judicial act which the High Court said in Lane v Morrison was invalid but rather as an exercise of the defence power under section 51(vi) of the Constitution.

I have had a look at the principal decision relied upon in support of that approach, the decision of the High Court in 1973 in Humby; Ex parte Rooney, which was a case arising under the old Matrimonial Causes Act. In that case it had been earlier held that decisions by masters of state supreme courts in relation to matrimonial causes orders were, for various reasons which I do not need to go into, invalid. So section 5(4) of the Matrimonial Causes Act was enacted, containing provisions somewhat resembling clause 5 of this bill, deeming such orders always to have been valid. The basis of it was that, under the matrimonial causes and divorce power in section 51(xxii) of the Constitution, it was competent for the Commonwealth parliament to make orders altering the status of parties and that that was not an exercise of judicial power but an exercise of legislative power under, as I said, section 51(xxii).

The opposition, let me emphasise again, supports the bill, but I do flag a concern that there is a significant difference between a legislative enactment altering or giving retrospective effect to declarations of alteration of status and a legislative enactment giving retrospective effect to penalties. The three categories of penalties which apparently have been imposed by the Australian Military Court are demotions, fines and periods of internment. I can readily accept that a demotion is an administrative act, notwithstanding that, in the historical circumstances in which these demotions occurred, they were imposed as a result of an invalid judicial determination. Plainly, the parliament, under the defence power, could give retrospective effect to a demotion without validating the purported judicial act upon which the decision had initially, but only historically, been based. Plainly as well, as it seems to me, the imposition of a fine, as long as it did not constitute the acquisition of property on other than just terms and thus violate section 51(xxxi) of the Constitution, would also be regarded, well arguably, as an administrative act or perhaps a disciplinary act, not a judicial act.

I have a little more of a problem with treating an order for the internment of a person as other than a penalty imposed in consequence of a judicial act. I would of course respect of the confidentiality of Mr Gageler’s opinion, which was the basis on which it was furnished to the opposition, but appropriately the opinion was guarded in relation to that matter, although on balance he concluded that that would also fall within the type of legislative scheme approved by the High Court in Humby; ex parte Rooney. The opposition will support this legislation and we hope that it is constitutionally valid.

In closing, let me make one other point. In May this year, the government announced that it would abolish the Federal Magistrates Court. The reason given by the Attorney-General when he announced the government’s decision to abolish the Federal Magistrates Court was entirely to do with the relationship between the family law jurisdiction exercised by that court and the Family Court of Australia. So the report upon which the government’s decision was based, the so-called Semple report, concluded that the Federal Magistrates Court should be abolished because that would promote efficiencies in the family law system. As I said at the time and I say again, the government, in making that decision, gave the wrong answer to the wrong question. The question that it should have addressed is whether it was useful or serviceable for the Commonwealth to have a chapter III court of general jurisdiction in summary matters, not merely family law matters but all summary matters.

I know my friend Senator Faulkner is now seized with considering what is to happen after the interim measures expire and how the military justice system can be re-established on a surer footing. It seems to me, with respect, Mr Acting Deputy President, that this, the Lane v Morrison decision, is as plain an example as anything could be of the unwisdom of doing away with the Federal Magistrates Court, of doing away with a federal court of general summary jurisdiction. When the interim measures expire and the government has to decide with what judicial apparatus to replace the Australian Military Court and take over from the interim measures embodied in these bills, the obvious solution would be to have a military division of the Federal Magistrates Court or certain dedicated federal magistrates to deal with military justice matters.

This is but one example of the tremendous utility to the Commonwealth of having a general federal court of summary jurisdiction that can be divisionalised and can deal with all matters, including military justice matters, arising under Commonwealth law. Because of the government’s decision to do away with that court, it would seem that that option—the obvious option—has now been foreclosed. I should say that no legislation has yet been introduced into the parliament to give effect to the government’s decision to terminate the existence of the Federal Magistrates Court. I invite the government, on the basis of the lessons we have all learned from the Lane v Morrison decision of the High Court and for the reasons I have explained, to revisit that decision.