Silver Fox - not so quick

While merging the family law work of the federal courts edges ahead, the new Australian Military Court is missing in action ... The generals don't want federal madges dealing with their brave lads ... Defence Minister Stephen Smith still in cogitation mode ... Polly Peck reports 

Defence Minister Stephen Smith might be being pushed by the bruvvas of the NSW right as a safe pair of hands to take over from Julia, but he has one big problem. He spends most of his time sitting on them.

The man known as the Silver Fox to his lady admirers has got a reputation within government as the Great Procrastinator.

It's something of an irony that the fellow being tagged to block the return to The Lodge of Kevin Rudd is also notorious for sitting on matters for months before making a decision.

Smithy's need to "better understand" his briefs seems  to be part of the reason why legislation to create a new military division of the Federal Court and merge the Family Court and the Federal Magistrates Court has been missing in action.

Why the future of the Family Court and the FMC should be so linked may not be apparent to many. But your Canberra spy has some insight into the intricacies surrounding this issue.

In 2009, with the court merger proposal rapidly sinking as the Magistrates Liberation Front and George (Soapy) Brandis continued to shell it, the decision by the High Court to declare the Australian Military Court unconstitutional provided a timely life raft.

With the Liberal Party is in no position to block fix-up legislation after it created the mess over the AMC in 2007, it seemed like a smart strategy to bundle the court merger with legislation creating a new military division of the Federal Court.

Nonetheless, defence brass still had issues. They were not keen on outsiders sticking their beaks into military discipline, particularly when it related to actions arising on overseas deployment.

It was eventually agreed that all judicial officers appointed to the new division either have past military experience or a familiarity with the services to "ensure that the new court has the necessary understanding of the requirements and critical nature of military discipline".

The generals were concerned that some loose-cannon of a federal madge would let fly on our brave diggers. (Personally, I believe a bit of robust military discipline wouldn't go amiss at the FMC itself.) 

Smith: keen to understand At least, that arrangement seemed to be fine while Labor senator John Faulkner was defence minister. The legislation was introduced last year before the election.

But with Faulkner now on the back-bench and Smithy taking over the portfolio there appears to have been a change of heart and the legislation has not yet been re-introduced after lapsing at the election. 

When introducing legislation to reinstate the pre-2007 military justice court martial arrangements in May, pending new legislation to establish the military court, Smithy noted more time was needed, "for the consideration and development of options for a new military justice system which meets the requirements of Chapter III of the Constitution".

But head of the Defence Legal team, Mark Cunliffe, gave a bit more insight into what has been holding things up at Senate Estimates the other week. 

"There are a range of issues which have been raised by matters which have occurred or been identified in recent times.

Certainly the issue of the courts martial proceedings in relation to the civilian casualties issue in Afghanistan was one where the minister was keen to understand better some of those matters. I think it is still the case that there are issues which he and the Attorney are discussing in relation to how the model might work." 

In other words, Smithy needs to make sure our troops get a fair shake of the sauce bottle if they accidentally shoot an Afghanistan tribesman in the head while celebrating a local wedding. 

Attorney General Robert McClelland was quoted the other day as saying he intends to introduce legislation for the family courts restructure and judicial complaints handling, "in the current sittings, subject to general legislative programming". 

It may not be safe to assume that the new AMC component of the Federal Court will be ready to roll at the same time.