A Proposed New Military Justice Regime for the Australian Defence Force During Peacetime and in Time of War

Abstract

The High Court of Australia has consistently held courts martial do not exercise 'the judicial power of the Commonwealth' but constitute an 'exception' to Chapter III of the Constitution through the 'defence power'. Australia's current military justice is governed by the Defence Force Discipline Act 1982 (Cth). In 2005, the Senate recommended considerable changes to that Act which were never implemented.

Consequently, this thesis proposes establishing:

- a Chapter III military court, in Australia, where more serious service offences are heard on indictment; and,

- a new service tribunal for wartime, overseas: the Australian Court Martial Tribunal, which will have military juries.

Keywords: Australia, Constitutional Law, Military Law, Judicial System, Courts Martial