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Wednesday, 26 August 2009

High Court bags court trying teabagging

In April I posted Teabagging begs questions of constitutional validity for courts, based on an article on Skepticlawyer that caught my eye.



The High Court today delivered that decision, in Lane v Morrison [2009] HCA 29.



Mr Lane was a member of the Royal Australian Navy. He was accused of teabagging a superior officer, and charged with assault. His case was to be tried by the Australian Military Court.



In a 7-0 judgment, the High Court decided the Australia Military Court is invalid because it does not comply with the legislative limits Chapter III of the Constitution imposes on the Commonwealth Parliament when creating Courts.



I discussed the relevance of constitutional validity in my earlier post, so I won't re-hash it here.



The other useful information in this case is its discussion of the features (and functions) of a Court, and the various different legal meanings of a court — ranging from a place to play tennis, to a body dispensing justice.



The judgment also discusses what a court of record is, and what that means. (The two main features of a court of record are: power to punish for contempt of the court; and an archive, record or register of its proceedings.) I know it's often believed that the Magistrates' Court is not a court of record because some folks believe that to be synonymous with 'a court that records and publishes its judgments'.



On that reasoning neither the County nor Magistrates' or Children's Courts would be courts of record.



In fact they are courts of record. County Court Act 1958 s 35 states that the County Court is a court of record and has a contempt power in s 54, and s 21 provides for a register. Magistrates' Court Act 1989 s 18 provides for a register, and ss 133 and 134 provide for contempt powers. And the Children, Youth and Families Act 2005 has a register and the same powers to deal with contempt as the Magistrates' Court by virtue of s 528.

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