Who would have thought that a new Military Court would be declared constitutionally invalid because of a teabagging case. Teabagging, for those of you who do not know the term, is an act performed by a man that involves putting his testicles onto the face of another person. However, this is just what happened to the new Australian Military Court. Well, that and a government not prepared to listen to any advice that the court would not survive a constitutional challenge.
The High Court of Australia has handed-down a unanimous decision that the Military Court as it is currently constituted does not comply with the requisite judicial power outlined in the Constitution of the Commonwealth.
The Court made this decision because the court was designed to exercise the judicial power of the Commonwealth and as such the court had to be established in a particular manner in order to be valid. This was even after reading and considering the legislation that established the court. The relevant legislation goes to some length to state that the Military Court is to act more like a tribunal and therefore did not need to comply with the constitution's judicial power clauses.
How this came to be a High Court matter is an interesting tale of events. Brian Lane joined the Navy back in 1998. In 2005 he was photographed teabagging an army sergeant while the sergeant was asleep. Lane was then charged with committing an act of indecency and assaulting a superior officer. He was charged in August 2007 and discharged from the Navy in November 2007.
When the case came to court, Lane objected to the jurisdiction of the court and lodged an appeal to the High Court to determine whether there was valid jurisdiction. The High Court said that the provisions creating the Military Court were invalid because it was created as a court of record and because it was to have the power to issue binding and authoritative decisions of guilt or innocence. Simply, if it was to have the power to do these things then it must be a court that is properly constituted.
The High Court has ordered a writ of prohibition be issued. In essence, this writ stops the proceedings against Lane from going forward in the constitutionally invalid Military Court.
Perhaps this post lends itself to a picture of teabagging?
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