The day teabagging dipped its way into legal history

Liz says:

08:38am | 27/08/09

Haven’t these people got better things to do?

iansand says:

08:44am | 27/08/09

I suppose it was too much to hope that we would get some sort of sensible discussion about the principles of the case whan a journalist is presented with the chance for a bit of immature sniggering at the back of the class.

Old Clive says:

09:47am | 27/08/09

Teabagging would be too good for some of the officers that I encountered in my 7 years in the Navy. Get one your journos with nothing to do , to do some checking on the brew boats that used to run before the introduction of cafe bars. I wouldn’t be surprised if some army officers suffered a worse fate.

iansand says:

09:50am | 27/08/09

Liz@8:38 - It is actually quite an important case, reinforcing the Constitutional separation of judicial and executive powers.  That separation has been an important bulwark for our protection against government since the abolition of the Star Chamber, quite a few centuries ago.  Not that you would expect an Australian journalist to report that sort of thing given their intellectual contempt for their readers.  A bit of sniggering is so much easier for them than actually trying to understand and explain something.

pete says:

10:00am | 27/08/09

I have to say I’m surprised, I would have thought that this would have received the fine tooth comb treatment when framed into legislation, what an absolute waste of money all that process no doubt costing thousands of dollars for nothing. Now we have military forces without military law. where does that place personnel deployed in combative situations as I am sure that military law would be there to protect them as well

marley says:

02:32pm | 27/08/09

I agree with Ian Sand.  I’d love a clear (and mature) explanation of why this court is unconstitutional, but the old court martial system was okay.  Surely they both blur the separation of judicial and executive powers…. Neither this article nor the one in The Australian to which it links, provide any explanation at all.

iansand says:

03:04pm | 27/08/09

marley@2:32 Ask and thou shalt receive.  This quote is taken from the judgment and explains it pretty clearly (I think):

“If the impugned provisions of the DFDA are valid the “adjustment of military and civil law” is very different. If the provisions are valid, the decision of the AMC would preclude subsequent prosecution in the civil courts for an offence substantially the same as the offence tried by the AMC. So much would follow from the status of the AMC as a court of record. As was said in Island Maritime Ltd v Filipowski[140]:

“Just as judgment of a court of record in a civil action changes the cause of action to a matter of record[141], conviction in a court of record in respect of a criminal offence brings about ‘the substitution of a new liability’[142].”
If the impugned provisions are valid, the AMC is given power to make a binding and authoritative determination of the issues of fact and law which are tendered on the trial of an offence the elements of which are identified by the generally applicable criminal law. If the impugned provisions are valid, the AMC is given power to punish a person found guilty of that offence. And, if the impugned provisions are valid, it follows from its being a court of record that the decision of the AMC would preclude further prosecution for the same offence under the generally applicable criminal law.

For the AMC to make a binding and authoritative determination of such issues pursuant to the DFDA is to exercise the judicial power of the Commonwealth. There is no dispute that the AMC is not constituted in accordance with Ch III.”

Earlier on in the judgment they discuss courts martial, which are constituted under the Defence power:

“That constitutional question was resolved in respect of courts-martial, as it was in R v Bevan, R v Cox and later Re Tracey, at a time when courts-martial were not independent of the chain of command of the forces. Courts-martial were convened only by order from within the chain of command; conclusions of guilt and determinations of punishment were subject to review or confirmation within that chain of command. A court-martial did not make a binding and authoritative decision of guilt or determination of punishment[125]. A court-martial did not enforce its decisions[126]. Enforcement of any decision, other than acquittal of the accused, depended upon the outcome of review of the decision within the chain of command. But a central purpose of the creation of the AMC was to have the new body make binding and authoritative decisions of guilt and determinations about punishment which, without further intervention from within the chain of command, would be enforced.”

http://www.austlii.edu.au/au/cases/cth/HCA/2009/29.html

M says:

04:33pm | 27/08/09

I think it’s really inappropriate for you to make fun of the term ‘teabagging’. It’s serious sexual misconduct, and is quite frankly offensive.

Jack Tar says:

10:05am | 28/08/09

I’ve been on the wrong end of the old Kangaroo Court a few times myself and know firsthand that a lot of what goes on is hardly justice in any sense of the word.
4 seperate charges where all evidence showed innocent. And yet still charged at the end of the day, punished, and then when an appeal against the decision is marked, it is only looked at after the punishment and fines have been served and paid. Pointless.

Peter from Sydney says:

08:41am | 30/08/09

The thing was a close call. French CJ almost did not give it a run. Now they have to wake up to the hangover they have created for themselves, and move ever so slightly, to the position that any Court constituted by one Officer, appointed no matter how by a government is unconstitutional.

Kirby and Callinan almost got there in 2002, but were overruled by two others who failed to follow their own precedent, set six years earlier, in Kable, so its about time. That decision was Gerlach. At least this time it was unanimous, more or less.