Military justice and Chapter III: the constitutional basis of courts martial

Crowe, Jonathan and Ratnapala, Suri (2012) Military justice and Chapter III: the constitutional basis of courts martial. Federal Law Review, 40 2: 161-180.

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Author Crowe, Jonathan
Ratnapala, Suri
Title Military justice and Chapter III: the constitutional basis of courts martial
Journal name Federal Law Review
ISSN 0067-205X
Publication date 2012
Sub-type Article (original research)
Open Access Status
Volume 40
Issue 2
Start page 161
End page 180
Total pages 20
Place of publication Acton, ACT, Australia
Publisher Australian National University Faculty of Law
Collection year 2013
Language eng
Subject C1
180108 Constitutional Law
Abstract The High Court has long struggled with the constitutional status of military tribunals established to hear disciplinary charges against service personnel. The Court's judgments reveal three distinct theories on this issue. The first view holds that military tribunals exercise judicial power, but not 'the judicial power of the Commonwealth' within the meaning of s 71 of the Constitution. The second view holds that the power in question is not judicial power at all for constitutional purposes. The third view holds that the power is 'the judicial power of the Commonwealth', but can be exercised by courts martial under a limited exception to the rules set out in Chapter III of the Constitution. The first view dominated the High Court's reasoning until Lane v Morrison(2009) 239 CLR 230, where the judges endorsed the second view. This article contends that the first and second views pose insuperable difficulties when placed in their broader constitutional context. The authors therefore argue for the third interpretation. They further argue that the constitutional basis for the third view strongly implies that military tribunals may only exercise jurisdiction over offences by military personnel that relate to service discipline.
Q-Index Code C1
Q-Index Status Confirmed Code
Institutional Status UQ

Document type: Journal Article
Sub-type: Article (original research)
Collections: Official 2013 Collection
TC Beirne School of Law Publications
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Created: Tue, 22 Jan 2013, 11:45:01 EST by Carmen Buttery on behalf of T.C. Beirne School of Law