Skepticlawyer mentioned this interesting case where the High Court is considering the constitutional validity of the Australian Military Court. (The transcripts for 22 Apr and 23 Apr 2009 are available on Austlii.)

Why do we care?

Well, constitutional validity of courts occasionally crops up even in our jurisdiction!

In Kable v DPP (NSW) [1996] HCA 24; (1996) 189 CLR 51 the High Court considered the validity of State courts. Though State courts are subject to State Constitutions, because they can exercise federal power under s 39 of the Judiciary Act 1903, they must conform with prescribed requirements for judicial institutions in Chapter III of the Constitution of Australia.

Kable considered the Community Protection Act 1994 (NSW). That Act obliged the Supreme Court to imprison Gregory Wayne Kable to protect the community. The High Court held that valid courts could only impose jail as punishment for past acts, following a finding of guilt beyond reasonable doubt. They couldn’t impose jail for possible future acts proved on the balance of probabilities. For that reason, the Act was invalid. (Those of you with long memories might remember similar legislation in Victoria: the Community Protection Act 1990 (Vic) was aimed solely at Garry David Webb, and used for his preventative detention. That legislation wasn’t challenged in the High Court.)

(The Kable-doctrine was applied in Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 223 CLR 575, dealing with the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) (similar to the Serious Sex Offenders Monitoring Act 2005 (Vic)). In that case, the legislation was considered valid because it was protective rather than punitive, and required adjudication after considering evidence.)

All of that can be mere background when seccessionists come before the courts and argue the courts aren’t valid. Notable examples we sometimes see are the Principality of Camside, the Principality of Caledonia and UPMART. There was also a bloke a few years ago who ran similar arguments as a solo effort until he was jailed. After that he tried copyrighting his name to prohibit its use in enforcement actions (can’t be done), and then turned to registering himself as a ship under international maritime law!