Lane v Morrison

The plaintiff, a member of the Australian Defence Force, challenged the validity of proceedings against him in the Australian Military Court (AMC), established under the *Defence Force Discipline Act 1982* (Cth). The dispute concerned whether the AMC, as constituted, was empowered to exercise the judicial power of the Commonwealth, and whether its creation was consistent with Chapter III of the Australian Constitution. The matter was heard by the High Court of Australia.

The central legal issue before the High Court was whether the AMC, a court not established in accordance with the requirements of Chapter III of the Constitution (specifically regarding judicial appointments and tenure), could validly exercise the judicial power of the Commonwealth. This question was linked to whether the AMC’s creation fell within the scope of the defence power granted by s 51(vi) of the Constitution, and whether it was inconsistent with the Governor-General's powers under s 68.

The Court reasoned that the *Defence Force Discipline Act 1982* (Cth), as amended, had created the AMC with the intention of making a significant break from previous systems of military justice. The AMC was not a court whose judges possessed the tenure and remuneration protections mandated by s 72 of the Constitution. The Court found that the defence power under s 51(vi) did not extend to the creation of such a "legislative court" operating outside the historical stream of military justice systems that had previously been subject to constitutional challenge. Consequently, the provisions establishing the AMC were found to be invalid.

The High Court declared that Division 3 of Part VII of the *Defence Force Discipline Act 1982* (Cth) was invalid and ordered that a writ of prohibition issue to prevent the AMC from proceeding with the charges against the plaintiff. The second defendant was ordered to pay the plaintiff's costs.