Lane v Morrison [2009] HCA 5

Lane v Morrison [2009] HCA 5

Grounds 4, 5 and 7 in the further amended application for an order to show cause do not raise arguable issues for final relief, being contrary to binding High Court precedent; the matter should be dismissed on those grounds and otherwise referred to a Full Court for further consideration of grounds 1, 2, 3, and 6.

Parties
Plaintiff: Brian George Lane; First Defendant: Colonel Peter John Morrison, a Military Judge of the Australian Military Court; Second Defendant: Commonwealth of Australia
Jurisdiction
Australia
Judgment Date
16 January 2009
Procedural Posture
Application for Order to Show Cause (constitutional Law/original Jurisdiction) / Interlocutory/directions—leave to Amend, Partial Dismissal, Referral to Full Court on Limited Grounds
Outcome
Application to amend granted; Grounds 4, 5, 7 dismissed; Remaining grounds referred to Full Court; costs in the cause; summons dated 16 July 2008 otherwise dismissed.
Legal Topics
Defence Power, Judicial Power—ch III, Service Tribunals, Jurisdiction of Australian Military Court, Section 80 of the Constitution (trial by Jury), Constitutional Validity of Military Courts, Requirement of S 78 B Notice, Integration of State and Commonwealth Judicial Systems
Constitutional Law Military Justice Criminal Law/procedure Defence Power Judicial Power—ch III Service Tribunals Jurisdiction of Australian Military Court Section 80 of the Constitution (trial by Jury) +3 more

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Parties

Brian George Lane

Plaintiff

Colonel Peter John Morrison, a Military Judge of the Australian Military Court

First Defendant

Commonwealth of Australia

Second Defendant

Procedural Posture

Application for Order to Show Cause (constitutional Law/original Jurisdiction) / Interlocutory/directions—leave to Amend, Partial Dismissal, Referral to Full Court on Limited Grounds

Legal Issues

  1. 1 Whether provisions establishing the Australian Military Court (AMC) under the Defence Force Discipline Act 1982 (Cth) are constitutionally valid
  2. 2 Whether AMC's jurisdiction is inconsistent with judicial power under Ch III of the Constitution
  3. 3 Whether defendant's trial for offences under s 61 of the Act must be by jury pursuant to s 80 of the Constitution

Ratio Decidendi

Grounds 4, 5 and 7 in the further amended application for an order to show cause do not raise arguable issues for final relief, being contrary to binding High Court precedent; the matter should be dismissed on those grounds and otherwise referred to a Full Court for further consideration of grounds 1, 2, 3, and 6.

Court Disposition

Application to amend granted; Grounds 4, 5, 7 dismissed; Remaining grounds referred to Full Court; costs in the cause; summons dated 16 July 2008 otherwise dismissed.

Orders

  • The name of the first defendant be amended to 'Colonel Peter John Morrison, a Military Judge of the Australian Military Court'.
  • Plaintiff granted leave to file a Further Amended Application for an Order to Show Cause.