A PETTY OFFICER in the navy has brought a constitutional challenge in the High Court which if successful, could bring undone fundamental aspects of the military justice system and have major repercussions for all Defence Force personnel.

Chief Petty Officer Anne-Margaret White, who is based at HMAS Manoora, has challenged the right of the Director of Military Prosecutions to refer several charges against her to a Defence Force magistrate for trial or to convene a court martial, arguing that it is unconstitutional.

White was charged on June 30, 2006 with six counts of indecency and one of assault - all of which she denies.

Two charges of indecency related to an alleged incident which occurred at a house in Williamstown in Victoria on June 3, 2005, when the chief petty officer is alleged to have touched the breasts of two women who were junior navy personnel.

The other charges relate to an incident which allegedly occurred at a pub the next day, when she is accused of touching the breasts of three different women. She is also alleged to have licked the face of one of those three women, and then put the woman in a headlock in order to lick her face again.

White was not on Commonwealth property at the time of the alleged offences, nor was she in uniform or on duty. Nor were any of the other people involved.

Her lawyers argue the charges, which carry punishments of imprisonment, should not be dealt with by the Defence Force's military justice system because it would be an unconstitutional exercise of judicial power.

The thrust of the chief petty officer's challenge is that the Australian Military Court - created last year by the Federal Government after a damning Senate committee report into military justice - was not done under chapter three of the constitution, as the committee recommended.

Chapter three provides guarantees of independence of the judiciary from the other arms of government, including the tenure of judges until retirement age instead of specified periods determined by government.

Three members of that foreign affairs, defence and trade committee, Liberal senators Russell Trood, Marise Payne and David Johnston, were in court yesterday watching the full court hearing. White's solicitor, John North, who is acting pro bono for her, said the case was one of "fundamental constitutional importance".

"The real strength of a democracy is the reliance upon the separation of powers, and you do not want to give executive government the ability to set up courts or tribunals that are outside what was contemplated by the constitution," he said.

The chief petty officer's legal team however faced tough questioning from the bench.

Justice Michael Kirby described the principle of her legal team's argument as "Calvin-like" in its purity. He said it overlooked the fact that you could not have juries of citizens sent into war zones to hear trials involving the discipline of personnel, which was why the military had been given the power to deal with such matters itself.

Source: The Sydney Morning Herald