HIGH COURT OF AUSTRALIA
GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJRE COLONEL STEVEN AIRD & ORS RESPONDENTS
EX PARTE STEWART WAYNE ALPERT APPLICANT/PROSECUTOR
Re Colonel Aird; Ex parte Alpert [2004] HCA 44
9 September 2004
B60/2003ORDER
1. The question asked in the case stated:
"Insofar as s 9 of the Defence Force Discipline Act 1982 (Cth) ('DFDA') purports to apply the provisions of that Act, including s 61 DFDA, so as to permit the trial by general court martial under that Act of the Prosecutor in respect of the alleged offence … is it beyond the legislative power of the Commonwealth and, to that extent, invalid?"
is answered "No".
2. Costs in the case are to be costs in the action in this Court.
Representation:
J A Logan SC with P E Nolan for the applicant/prosecutor (instructed by Beven Bowe & Associates)
No appearance for the first and second respondents
D M J Bennett QC, Solicitor-General of the Commonwealth with G B Hevey, S B Lloyd and B D O'Donnell for the third respondent (instructed by Australian Government Solicitor)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Re Colonel Aird; Ex parte Alpert
Constitutional law (Cth) – Defence – Offences by service members – Service offences – Offence of sexual intercourse without consent – Offence allegedly committed overseas – Service member on leave – Whether beyond legislative power to make conduct of a service member allegedly committed while overseas on leave a service offence triable before an Australian service tribunal.
Defence – Military forces – Discipline – Service member on leave – Offence of sexual intercourse without consent – Offence alleged to have occurred in Thailand – Whether offence may be prosecuted before Australian service tribunal in Australia – Whether beyond constitutional power so to provide – Whether service connection sufficient within Constitution to found valid conferral of power upon tribunal.
Constitution, s 51(vi), Ch III.
Defence Force Discipline Act 1982 (Cth), ss 9, 61.
GLEESON CJ. Private Alpert, the prosecutor, is a member of The Royal Australian Regiment. In 2001, he was deployed to Malaysia, where his unit was serving at the Royal Malaysian Air Force Base at Butterworth. It is alleged that, while on recreation leave in Thailand, he raped a young woman. The complainant, a citizen of the United Kingdom, resides in England. She complained to the military authorities, who intend to try the prosecutor by general court martial in Australia under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The issue before the Court concerns the validity of provisions of the Act which make the alleged conduct of the prosecutor an offence against Australian law, and, specifically, a "service offence". The specific problem is whether it is beyond the power of the Australian Parliament to make it an offence, punishable by a military tribunal, for a member of the Regular Army, who is on overseas service, but who is on recreation leave at the time, to engage in an act of rape.
The power relied upon by the Commonwealth is the defence power, conferred by s 51(vi) of the Constitution. That is, relevantly, a power to make laws for the peace, order, and good government of the Commonwealth with respect to the naval and military defence of the Commonwealth and of the several States[1]. The argument concerns the limits of the defence power insofar as it supports the creation of a code of military discipline applicable to members of the Defence Force ("defence members") serving outside Australia.
[1]cf Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 540.
Sections 9 and 61 of the Act are set out in the reasons of McHugh J. The prosecutor is a defence member within the meaning of s 9. Under that section, the provisions of the Act apply to the prosecutor outside Australia. One such provision is s 61, which provides that a defence member is guilty of an offence if he or she does, outside the Jervis Bay Territory, an act which, if done in the Jervis Bay Territory, would be a Territory offence. A "Territory offence" is defined (by s 3) to mean an offence punishable under the Crimes Act of the Australian Capital Territory in its application to the Jervis Bay Territory. Rape is such an offence. As was pointed out in Re Tracey; Ex parte Ryan[2], this is simply a drafting technique by which the Act, in creating service offences by reference to the content of Australian law, selects one out of the multiplicity of laws potentially available in a federation. It is a form of convenient legislative shorthand which removes the necessity to repeat, in the Act, all the provisions of an Australian criminal statute. The outcome of the present case would be no different if the Act had provided in terms that a defence member is guilty of an offence if the defence member has sexual intercourse with another person without that other person's consent. Of course, the Act would then have had to specify, in a similar manner, all the other offences as well. The drafting technique employed shortens the legislation, but it makes no difference to the legal consequences.
[2](1989) 166 CLR 518 at 545.
It was also pointed out in Re Tracey[3] that, in the United States, Canada and New Zealand, there is comparable legislation which treats civil offences committed by members of the defence forces as service offences, and that "both as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law". We are here concerned with a law which makes it a service offence for a defence member to do, outside Australia, an act (rape) which, if done in Australia, would constitute a civil offence. There is no question of any potential conflict between the jurisdiction of a military tribunal and an Australian civil court, or of any denial to the prosecutor of substantive rights or procedural safeguards that would apply if he were prosecuted in an Australian civil court. Apart from the operation of ss 9 and 61 of the Act, the alleged conduct of the prosecutor would not be an offence against Australian law because it occurred in Thailand, and he is not liable to prosecution in an Australian civil court. The question is whether the Parliament has the power to make the conduct a service offence triable before an Australian military tribunal. No doubt the alleged conduct would be a civil offence in Thailand, but no action has been taken against the prosecutor by the Thai authorities, perhaps because the complaint was made, not to them, but to the prosecutor's military superiors.
[3](1989) 166 CLR 518 at 543.
Historically, it was not unusual for acts of rape by members of armed forces on overseas service to be treated as service offences covered by military codes[4]. That the Australian Parliament should legislate with regard to such conduct by a soldier on overseas deployment is hardly novel or surprising. The conduct involves serious violence and disregard for the dignity of the victim, and clearly has the capacity to affect discipline, morale, and the capability of the Defence Force to carry out its assignments. To adopt the language of Lamer CJ in R v Généreux[5], it is a matter that pertains directly to the discipline, efficiency and morale of the military.
[4]eg Ex Ruffo Leges Militares discussed in Brand, Roman Military Law (1968) at 130ff. Rape appears as a military crime in the Articles of War of Richard II (1385), reproduced in the Appendix to Winthrop, Military Law and Precedents, 2nd ed (1920) at [1412], in Henry V's Articles of War for soldiers in France, and in Henry VIII's Articles of 1544: see Prichard, "The Army Act and Murder Abroad", (1954) Cambridge Law Journal 232. Rape also appears in James II's General Articles of War of 1688, reproduced in the Appendix to Winthrop, above at [1439].
[5][1992] 1 SCR 259 at 293.
As was argued by the Commonwealth, while defence members serving overseas must obey local laws, the imposition of minimum standards of behaviour by reference to Australian law is a legitimate means of preserving discipline, bearing in mind that Australian forces might be located in places where there is no government, or where there is a hostile government, or where peacekeeping is necessary. The relevant provisions of the Act apply generally, even in countries whose laws are similar to those of Australia, but Parliament's power under s 51(vi) is not circumscribed in a way that requires it to differentiate between localities. If it is accepted to be a proper concern of Parliament to require defence members, when serving overseas, to behave according to standards of conduct prescribed by Australian law, then there is power to impose such a requirement generally; it does not vary according to local circumstances and conditions in different places. The reasons in Re Tracey all acknowledge that the potential ambit of military discipline in the case of conduct of defence members on overseas service is wide[6].
[6](1989) 166 CLR 518 at 544 per Mason CJ, Wilson and Dawson JJ, 570 per Brennan and Toohey JJ, 585 per Deane J, 601 per Gaudron J.
Even apart from military discipline, it is not necessarily inconsistent with proper limits on constitutional power for the Parliament to legislate with respect to conduct of Australians overseas. The Crimes (Child Sex Tourism) Amendment Act 1994 (Cth) makes certain kinds of sexual misconduct committed outside Australia an offence against Australian law. That legislation was presumably enacted under the external affairs power, and is enforced in the civil courts. Even so, it is difficult to reconcile with the proposition that the application of ss 9 and 61 of the Act to the alleged conduct of the prosecutor is unconstitutional simply because the conduct occurred in a foreign country.
The argument for the prosecutor turned mainly upon the circumstance that he was on recreational leave in Thailand at the time of the alleged conduct. It was said that different considerations would apply if the events in question had occurred in Malaysia. The issue concerns the power of Parliament to legislate with respect to the conduct of a defence member while deployed overseas by making it a service offence for the defence member to commit rape. If the power to make laws with respect to the naval and military defence of the Commonwealth comprehends a power to make it a service offence to rape somebody while on overseas deployment, I am unable to accept that it does not extend to a power to make such conduct a service offence while the defence member is on leave. The power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code[7]. So much is agreed. It is for Parliament to decide whether such a code, in its application to soldiers on overseas service, should extend to conduct while on leave. The Act, in its application to the conduct in question in this case, is sufficiently connected with the requirements of military discipline for the legislative power to sustain it. It is for Parliament, within the limits of the power, to decide the manner of its exercise.
[7]Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 541.
For the above reasons, the reasons given by McHugh J, and the additional reasons given by Gummow J, I agree that the question in the case stated should be answered "No" and the costs of the case should be costs in the action in this Court.
McHUGH J. A Justice of the Court has stated a special case for the Full Court of this Court that asks:
"Insofar as s 9 of the Defence Force Discipline Act 1982 ('DFDA') purports to apply the provisions of that Act, including s 61 DFDA, so as to permit the trial by general court martial under that Act of the Prosecutor in respect of the alleged offence, described in par 28(a) below, is it beyond the legislative power of the Commonwealth and, to that extent, invalid?"
The offence with which the prosecutor is charged is sexual intercourse without consent. The offence is alleged to have occurred in Thailand while the prosecutor, a soldier, was on recreation leave. In my opinion, the question should be answered, No.
The facts stated
The prosecutor is a soldier in the Regular Army and a member of D Company, 6th Battalion of The Royal Australian Regiment. In August 2001, along with other members of D Company, he was deployed to the Royal Malaysian Air Force base at Butterworth in Malaysia. The deployment ended on 10 November 2001. The deployment enabled members of D Company to have infantry training in Malaysia and to train with the Malaysian Armed Forces and other regional military forces. The deployed soldiers also had responsibility for securing Australian Defence Force assets including Royal Australian Air Force aircraft at the Butterworth base. A staff instruction known as Land Command Staff Instruction 1/00 governed the deployment.
Upon arrival in Malaysia in August 2001, the prosecutor and other members of D Company were briefed in respect of the Land Command Staff Instruction. Paragraph 59 of that document stated that:
"Personnel serving in or with RCB[[8]] are subject to the DFDA."
[8]An abbreviation for "Rifle Company Butterworth", the name given to the deployment.
On 22 September 2001, the prosecutor was granted stand down leave for the period 22 September 2001 to 30 September 2001 inclusive. Stand down leave was governed by par 53 of the Land Command Staff Instruction. That paragraph declared that, in the absence of express prior approval of the Officer Commanding, leave was required to be taken in the peninsula area of Malaysia or Thailand or Singapore. The prosecutor took his leave in Thailand. To do so, he was required to lodge a leave application with the unit's orderly room of D Company at the Butterworth air base. The application contained his leave destination, accommodation address and telephone number. These details were given so as to facilitate the immediate recall to duty from leave of the prosecutor if circumstances so required. If those details were to change while he was on leave, he was required to notify the unit's orderly room by telephone of the change.
After the prosecutor was granted leave, he went to Phuket in Thailand in the company of fellow soldiers. They were driven to the Thai border by RAAF bus. From the border, they proceeded by private transport to Phuket. The prosecutor entered Thailand from Malaysia on his personal, civilian Australian passport without using any form of military identification and without acting under any arrangement between the Australian and Thai governments. At no relevant time has the Commonwealth of Australia had a Status of Forces Agreement with the Kingdom of Thailand maintaining Australian jurisdiction over visiting Australian service personnel in September 2001 or thereafter. The prosecutor's visit was purely recreational. It had no military content of any nature. He paid for his own accommodation, meals and incidental expenses. He wore civilian clothes when he entered and while he remained in Thailand.
During the evening of 28 September 2001, the prosecutor, while in the company of about 20 fellow soldiers, met a woman at the Shark Bar at Patong Beach, Phuket. His fellow soldiers were also on leave. None of them were in uniform. The soldiers included officers and other ranks.
The woman alleges that the prosecutor raped her in the early hours of 29 September 2001. On 2 October 2001, she asked an Army officer for the prosecutor's full name and contact details. She told the officer she was "going to try and have him charged with rape". Subsequently, by letter dated 26 November 2001, addressed to the Commanding Officer of 6th Royal Australian Regiment at that unit's headquarters in Brisbane, she alleged that the prosecutor had raped her. She sought details as to the steps that she would need to take to press a charge of rape against him.
In February 2003, an officer who was a convening authority for the purposes of the DFDA[9] approved and signed a charge laid under s 61 of the DFDA. The charge alleged that, on or about 29 September 2001 at Phuket, the prosecutor engaged in non‑consensual sexual intercourse with the woman and that the offence, if committed in the Jervis Bay Territory of Australia, would constitute an offence against s 54 of the Crimes Act 1900 (ACT) in its application to that Territory.
[9]Defence Force Discipline Act 1982 (Cth), s 102.
Section 9 of the DFDA provides:
"The provisions of this Act apply, according to their tenor, both in and outside Australia but do not apply in relation to any person outside Australia unless that person is a defence member or a defence civilian."
Section 61 of the DFDA provided:
"(1)A person, being a defence member or a defence civilian, is guilty of an offence if:
...
(c)the person does or omits to do (whether in a public place or not) outside the Jervis Bay Territory an act or thing the doing or omission of which, if it took place (whether in a public place or not) in the Jervis Bay Territory, would be a Territory offence."
Section 3 of the DFDA defines "Territory offence" to mean inter alia:
"...
(b)an offence punishable under the Crimes Act 1900 of the Australian Capital Territory, in its application to the Jervis Bay Territory, as amended or affected by Ordinances in force in that Territory; ..."
Section 54(1) of the Crimes Act 1900 (ACT) makes it an offence for a person to engage "in sexual intercourse with another person without the consent of that other person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the sexual intercourse". This offence applies in the Jervis Bay Territory[10].
[10]Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A.
Section 3 of the DFDA defines "service tribunal" to mean "a court martial, a Defence Force magistrate or a summary authority". It defines "service offence" to mean, inter alia, "an offence against this Act or the regulations". It defines "defence member" to include a member of the Regular Army.
Section 115 of the DFDA confers jurisdiction on a court martial to try any charge against a defence member, subject to conditions which are not relevant in the present case.
The validity of s 61 of the DFDA
Section 51 of the Constitution authorised the making of the DFDA. It empowers the Parliament of the Commonwealth to make laws for the peace, order and good government of the Commonwealth with respect to:
"...
(vi)the naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth;
...
(xxix) external affairs;
...
(xxxii)the control of railways with respect to transport for the naval and military purposes of the Commonwealth;
...
(xxxix)matters incidental to the execution of any power vested by this Constitution in the Parliament ... or in the Government of the Commonwealth ... or in any department or officer of the Commonwealth".
Three other sections of the Constitution are also relevant to any discussion of the power of the federal Parliament to make laws with respect to the armed forces. Section 68 declares that "[t]he command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative". Section 114 declares that a "State shall not, without the consent of the Parliament of the Commonwealth, raise or maintain any naval or military force". Section 119 declares that the "Commonwealth shall protect every State against invasion and, on the application of the Executive Government of the State, against domestic violence".
The external affairs power (s 51(xxix)) authorises a law of the federal Parliament that makes it an offence to do an act in a country outside Australia[11]. That power authorises the extra-territorial operation that s 9 of the DFDA gives to s 61 of that Act. However, the Solicitor-General of the Commonwealth did not rely on the external affairs power to support the legislation. Probably, he thought that reliance on that power would raise the question whether, consistently with Ch III of the Constitution, s 115 of the DFDA could validly vest a court martial with jurisdiction to hear a charge dependent for its validity on the external affairs power. The Solicitor-General was content to rely on the defence power (s 51(vi)) to support the validity of the DFDA in its extra-territorial operation.
[11]Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501.
Unlike most powers conferred on the Parliament, the extent of the defence power rests on facts concerning Australia's relations with other countries[12] and its internal security[13]. In time of war, or when external or internal forces threaten the security of Australia, the power may have a range that extends far beyond its reach in a time of peace[14]. In time of war, the Parliament of the Commonwealth may make laws in respect of any subject, the regulation or control of which would "conduce to the successful prosecution of the war"[15]. Moreover, this extended operation of the defence power does not end with "the collapse of enemy resistance"[16]. It may continue for "some reasonable interval of time"[17] while the community adjusts from being organised for a state of war to enjoying a state of peace[18]. But the operation of the defence power is more limited when no external or internal threat to the security of the country is present.
[12]Andrews v Howell (1941) 65 CLR 255 at 278.
[13]Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
[14]Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 195-196, 197-198, 206-207, 268.
[15]Farey v Burvett (1916) 21 CLR 433 at 441.
[16]R v Foster; Ex parte Rural Bank of New South Wales (1949) 79 CLR 43 at 84.
[17]Dawson v The Commonwealth (1946) 73 CLR 157 at 184.
[18]R v Foster; Ex parte Rural Bank of New South Wales (1949) 79 CLR 43 at 84.
Whatever the peace-time limits of the defence power may be, however, no one has ever doubted that it extends to recruiting and maintaining armed forces during peace-time. In Australian Communist Party v The Commonwealth[19], Fullagar J said:
"It is obvious that such matters as the enlistment (compulsory or voluntary) and training and equipment of men and women in navy, army and air force, the provision of ships and munitions, the manufacture of weapons and the erection of fortifications, fall within this primary aspect of the defence power. These things can be undertaken by the Commonwealth as well in peace as in war, because they are ex facie connected with 'naval and military defence'."
[19](1951) 83 CLR 1 at 254.
Moreover, the primary aspect of the defence power extends to the setting up of courts martial[20] to deal with offences against the discipline[21]. Because that is so, I would have thought that it was beyond argument that, independently of Ch III, the defence power extended to making it an offence for a serving member of the armed forces to commit the offence of rape while on leave in a foreign country.
[20]R v Cox; Ex parte Smith (1945) 71 CLR 1 at 13-14, 23-24, 27.
[21]Re Tracey; Ex parte Ryan (1989) 166 CLR 518.
A trilogy of cases in this Court has held that, although a court martial tribunal exercises judicial power, it does not exercise the judicial power of the Commonwealth. That is because the power to make laws with respect to the defence of the Commonwealth under s 51(vi) of the Constitution contains the power to enact a disciplinary code that stands outside Ch III of the Constitution[22]. In Re Tracey; Ex parte Ryan, a majority of the Court held that a Defence Force magistrate, not appointed in accordance with Ch III of the Constitution, had jurisdiction to hear a charge of making an entry in a service document with intent to deceive, as well as two charges of being absent without leave. Mason CJ, Wilson and Dawson JJ held that "it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not"[23]. Their Honours said[24]:
"It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member. As already explained, the proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces. The power to proscribe such conduct on the part of defence members is but an instance of Parliament's power to regulate the defence forces and the conduct of the members of those forces. In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces."
[22]Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18.
[23](1989) 166 CLR 518 at 544.
[24](1989) 166 CLR 518 at 545.
Two other Justices in the majority in Re Tracey (Brennan and Toohey JJ) took a different view of the power of Parliament to invest service tribunals with jurisdiction to hear offences. Brennan and Toohey JJ said that two constitutional objectives had to be reconciled[25]. The first was dictated by s 51(vi) which empowered the Parliament to give service authorities a broad authority to impose discipline on defence members and defence civilians. The second was dictated by Ch III and s 106 of the Constitution. It consisted in the recognition of the pre-ordinate jurisdiction of the civil courts and the protection of civil rights which those courts afforded civilians and defence members including defence civilians who are charged with criminal offences. Their Honours said[26]:
"To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline."
[25](1989) 166 CLR 518 at 569-570.
[26](1989) 166 CLR 518 at 570.
They went on to say that "proceedings may be brought against a defence member or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline"[27]. Brennan and Toohey JJ said that the power conferred on service tribunals was "sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline"[28]. Deane and Gaudron JJ, the other Justices who heard Re Tracey, dissented.
[27](1989) 166 CLR 518 at 570.
[28](1989) 166 CLR 518 at 574.
The division of opinion that arose in Re Tracey continued in Re Nolan; Ex parte Young[29], a case decided after Wilson J had left the Court. In Re Nolan, a majority of the Court held that a Defence Force magistrate, not appointed in accordance with Ch III, had jurisdiction to hear charges concerning falsifying and using a service document – a pay list. Mason CJ and Dawson J said that they saw no reason to resile from the views that they had expressed in Re Tracey as to the scope of legislative power[30]. They considered that it was open to the Parliament to provide that any conduct which constitutes a civil offence should constitute a service offence if committed by a defence member. Brennan and Toohey JJ also maintained the views that they had expressed in Re Tracey. They said that "the relevant power conferred by s 51(vi) does not extend to the making of a law to punish defence members and defence civilians for their conduct unless the proceedings taken in order to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline"[31]. Later their Honours said[32]:
"Service discipline is not merely punishment for wrongdoing. It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions. Here, the charges are obviously 'service connected' but that is not the ultimate criterion though it is an important element in determining whether proceedings on those charges could reasonably be regarded as serving the purpose of maintaining and enforcing service discipline."
Deane and Gaudron JJ again dissented, holding to the views that they had expressed in Re Tracey. I agreed with the judgment of Deane J.
[29](1991) 172 CLR 460.
[30](1991) 172 CLR 460 at 474.
[31](1991) 172 CLR 460 at 484.
[32](1991) 172 CLR 460 at 489.
As I explained in the third of the trilogy – Re Tyler; Ex parte Foley – the "divergent reasoning of the majority judges in Re Tracey and Re Nolan means that neither of those cases has a ratio decidendi"[33]. In Re Tyler, a majority of the Court held that a general court martial had jurisdiction to hear a charge against an Army officer that he had dishonestly appropriated property of the Commonwealth. Re Tyler also failed to obtain a majority of Justices in favour of any particular construction of the defence power in relation to offences by service personnel.
[33](1994) 181 CLR 18 at 37.
The difference between the views of Mason CJ, Wilson and Dawson JJ and on the other hand Brennan and Toohey JJ in these cases is the difference between the "service status" view of the jurisdiction and the "service connection" view of that jurisdiction. The "service status" view – which is now applied in the United States[34] – gives a service tribunal jurisdiction over a person solely on the basis of the accused's status as a member of the armed forces. The "service connection" view of the jurisdiction requires a connection between the service and the offence. It was the view formerly accepted in the United States[35]. However, Solorio v United States rejected the "service connection" view. In Relford v U S Disciplinary Commandant[36], the Supreme Court had referred to twelve factors which the Court considered O'Callahan v Parker[37] had emphasised in requiring a service connection. They were:
[34]Solorio v United States 483 US 435 (1987).
[35]O'Callahan v Parker 395 US 258 (1969).
[36]401 US 355 at 365 (1971).
[37]395 US 258 at 273-274 (1969).
"1. The serviceman's proper absence from the base.
2. The crime's commission away from the base.
3. Its commission at a place not under military control.
4. Its commission within our territorial limits and not in an occupied zone of a foreign country.
5. Its commission in peacetime and its being unrelated to authority stemming from the war power.
6. The absence of any connection between the defendant's military duties and the crime.
7. The victim's not being engaged in the performance of any duty relating to the military.
8. The presence and availability of a civilian court in which the case can be prosecuted.
9. The absence of any flouting of military authority.
10. The absence of any threat to a military post.
11. The absence of any violation of military property.
One might add still another factor implicit in the others:
12. The offense's being among those traditionally prosecuted in civilian courts."
The argument of the parties in the present case accepted, sometimes expressly but more often by assumption, that the general words of s 51(vi) of the Constitution must be read down to comply with Ch III of the Constitution, as interpreted in the trilogy of Tracey, Nolan and Tyler. Since those cases, it seems to have been generally accepted[38] – indeed it was accepted by the Judge Advocate in the present case – that the proper test is the "service connection" test and not the "service status" test.
[38]Tracey, "The Constitution and Military Justice", paper delivered at the Annual Public Law Weekend: "The Australian Constitution in Troubled Times", Canberra, 8 November 2003 at 13.
The question then in this case is whether the discipline of the Australian Defence Force may be enhanced by requiring service personnel to conduct themselves in accordance with the prohibitions in the legislation of the Australian Capital Territory in its application to the Jervis Bay Territory. More particularly, it is whether that discipline is enhanced by a rule that requires a soldier while overseas on recreation leave not to engage in non-consensual sexual intercourse with another person.
The prosecutor contends that, while he was in Thailand, he had no connection with the Army. He points out that, when the offence allegedly occurred, he was on leave in Thailand from his posting as a member of an infantry company. He was wearing civilian attire at all material times. He did not enter Thailand under any military arrangement or for any military purposes and his visit to Thailand was for recreational purposes only. He also points out that he paid for his own accommodation, meals and incidental expenses. The prosecutor concedes, however, that, if he had committed the alleged offence while he was in Malaysia, his offence would be within the jurisdiction of the service tribunal because his presence would be connected to his military service. But he contends his presence in Thailand was unconnected with his Army service. His argument was concerned with the scope of the defence power. He did not seek to re-open the question whether Ch III of the Constitution precluded a court martial from hearing an offence that would be a civil offence under the general law. In contrast, the Commonwealth contends that ss 9 and 61 of the DFDA impose minimum standards of conduct on defence members and that those standards are reasonably appropriate for maintaining discipline in the service.
In determining whether the standards of conduct imposed on Defence Force personnel by reference to the legislation of the Australian Capital Territory have the potential to maintain and enhance the discipline of the Defence Force, an important factor is that, when overseas, they are likely to be perceived by the government of the foreign country and members of the local population as representatives of the Australian government. In this respect, they are different from ordinary Australians who visit a foreign country as tourists. It is not to the point that, so far as dress and other matters are concerned, they cannot be distinguished from an ordinary Australian tourist. If a soldier on recreation leave is involved in conduct that is prohibited by the Crimes Act of the Australian Capital Territory, it is likely that that conduct will also be unlawful under the laws of the foreign country or at all events regarded as undesirable conduct. And it is not unlikely that the local citizenry will soon become aware that the person involved in that conduct was a member of the Australian Defence Force. It is a likely consequence of such conduct, therefore, that the local citizenry will be critical of its occurrence and may even become hostile to Australian Defence Force members.
Moreover, even if the local citizens do not become aware of the soldier's connection with the Australian Defence Force, it is likely that the government of the country will be aware of the identity of the soldier. If such conduct occurred regularly, it might have the consequence that the government of the foreign country would deny entry to Australian Defence Force members in so far as they seek to visit areas for rest and recreation. If that happened, it would have a direct impact on the morale and discipline of the Defence Force. It is possible that in extreme cases the unruly behaviour of personnel would cause a foreign country to refuse entry to Australian Defence Force members for Defence Force purposes such as training exercises. It may be that some conduct that is an offence under the law of the Australian Capital Territory in its relation to the Jervis Bay Territory has no relation to the defence power. If so, the operation of s 61 of the DFDA would have to be read down to exclude such conduct.
However, even if some of the standards of conduct required by the Crimes Act of the Australian Capital Territory go beyond the defence power – go beyond what is required for maintaining the discipline and morale of the Defence Force – the prohibition against rape goes to the heart of maintaining discipline and morale in the Defence Force. Rape and other kinds of sexual assault are acts of violence. It is central to a disciplined defence force that its members are not persons who engage in uncontrolled violence. And it need hardly be said that other members of the Defence Force will be reluctant to serve with personnel who are guilty of conduct that in the Australian Capital Territory amounts to rape or sexual assault. This may be out of fear for personal safety or rejection of such conduct or both. Such reluctance can only have a detrimental effect on the discipline and morale of the armed services.
Accordingly, the standard of conduct imposed by the legislation of the Australian Capital Territory in respect of the offence of sexual intercourse without consent "can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline". In so far as ss 9 and 61 of the DFDA make it an offence for a soldier, while on stand down leave in a foreign country, to commit non-consensual sexual intercourse, they are valid enactments of the federal Parliament.
The prosecutor made much of the fact that objectively his position could not be distinguished from that of an ordinary tourist. But this submission concentrates on the events of the recreation leave itself and leaves out the many factors that show that his presence at Phuket on the night in question was connected with his Army service. First, he was in Malaysia and thereafter Thailand as a result of his deployment by and service with the Australian Defence Force. Indeed, his presence in Thailand resulted from his military service because his recreation leave arose out of his military service and was no doubt designed to ensure that the prosecutor would be better able to carry out his military duties. Furthermore, he was not a free agent who could visit any country that he wished. There were only three countries in which he could spend his leave without the permission of his Commanding Officer. Thailand was one of them. Moreover, he was liable to immediate recall to his duties. It was for that reason that on his leave form he had to show his destination, his address and his telephone number.
It is true that the twelve factors referred to in Relford[39] point strongly against there being a service connection. If that list was regarded as exhaustive, it would be impossible to say that there was a service connection. But the twelve factors listed in Relford cannot be regarded as an exhaustive indicia of what constitutes a "service connection". In any event, as Brennan and Toohey JJ pointed out in Re Tracey, a service connection is evidence of but not definitive of what is necessary to maintain discipline and morale in the armed forces. A soldier who rapes another person undermines the discipline and morale of his army. He does so whether he is on active service or recreation leave.
[39]401 US 355 at 365 (1971).
Accordingly, the prosecutor has failed to show that it is beyond the legislative power of the Commonwealth to enact s 9 of the DFDA in so far as it applies s 61 of that Act so as to permit the trial by general court martial of the prosecutor in respect of the offence of rape occurring while he was in Thailand.
Order
The question of law for the opinion of the Court should be answered, No.
GUMMOW J. The question in the special case stated for the Full Court should be answered "No" and the costs of the case should be the costs in the action in this Court.
I agree generally with the reasons for this conclusion given by McHugh J and would add the following.
The prosecutor is a member of the Australian Army which, as provided in Pt III, Div 1 (ss 30‑32B) of the Defence Act 1903 (Cth), is a component of the Defence Force. The Australian Army consists of two parts, the Regular Army and the Army Reserve ("the Reserve") (s 31). The prosecutor was at all relevant times a member of the Regular Army and the issues that arise in this litigation do not concern the law respecting members of the Reserve.
The offence charged is said to have been committed in Thailand, but the complainant is not a Thai national; she was aged 18 at the time of the alleged offence and was visiting Thailand from the United Kingdom during her "gap year". The Extradition (Thailand) Regulations[40], made under the Extradition Act 1988 (Cth) ("the Extradition Act"), declare Thailand to be an extradition country for the purposes of that legislation (reg 3). Once a person is found to be eligible for extradition from Australia, it is for the Attorney-General to determine whether or not the person is to be surrendered. Section 22 of the Extradition Act regulates and limits in various respects the power of the Attorney-General to authorise such surrender. It is common ground in the present case that no application for the surrender of the prosecutor has been made by Thailand. The complainant now is in the United Kingdom.
[40]SR No 372/1995.
The deployment of the prosecutor and other members of Delta Company of the Sixth Battalion, The Royal Australian Regiment, to the Royal Malaysian Air Force Base at Butterworth attracted the operation of a status of forces agreement between Australia and Malaysia. The relevant provisions are found in Annexure III to a Note dated 1 December 1971 from the Australian High Commissioner in Malaysia to the Malaysian Deputy Minister of Defence, forming part of what is known as the Five Power Defence Arrangements[41]. In the case of certain offences by a member of an Australian force punishable under the laws of both countries, the Malaysian authorities had the primary right to exercise jurisdiction[42]. The prosecutor did not enter Thailand under any arrangement of this nature between the Governments of Australia and Thailand.
[41][1971] Australian Treaty Series No 21.
[42]Annexure III, Section 1, cl 3(b).
The primary submission for the prosecutor, as finally formulated in oral submissions, is that the outer limit of the power of the Parliament to legislate pursuant to s 51(vi) of the Constitution had been passed at the time of the alleged offence. This was because at that stage none of his activities could be said to be in the course of military duty; he had been released from that duty and from the control of his officers.
Section 9 of the Defence Force Discipline Act 1982 (Cth) ("the DFDA") states:
"The provisions of this Act apply, according to their tenor, both in and outside Australia but do not apply in relation to any person outside Australia unless that person is a defence member or a defence civilian."
The other relevant provisions of the DFDA fall into two categories. The first (Pt III, Div 8) (s 61) created the offence with which the prosecutor was charged and drew in to the alleged circumstances in Thailand the provisions of the general criminal law as applied in the Jervis Bay Territory. The second, contained in Pt VII, Div 3 (ss 114‑126), conferred jurisdiction to try the charge upon a court martial (s 115).
It is unnecessary here further to consider the authorities[43] bearing upon the relationship between Ch III of the Constitution and the legislative power conferred by s 51(vi). This is because the prosecutor's case is that, even if the jurisdiction in respect of the charge under s 61 of the DFDA were conferred not upon a court martial but upon a court exercising federal jurisdiction under a law based in s 76(ii) and s 77 of the Constitution, the charge could not lie. That result, it is said, follows because s 61 itself in its application to the present facts is beyond the limit of the power conferred in s 51(vi) of the Constitution.
[43]Re Tracey; Ex parte Ryan (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18.
Thus, on the prosecutor's case, no occasion arises here to determine the criterion, given the subjection in the text of the Constitution of legislative powers conferred by provisions such as s 51(vi) to the judicial power found in Ch III, by which there is to be adjudged the validity of the court martial jurisdiction conferred by s 115 of the DFDA. The several views in the authorities respecting the criterion by which the validity of a provision such as s 115 may be decided are detailed in the reasons of McHugh J. But in accordance with the practice of this Court in such matters[44], this is no occasion to choose between "the service connection" or any other "test" found in the Ch III cases. The only question before the Court is the question reserved for its consideration in the special case. No broader question of the "validity of the proceedings against the prosecutor" is raised. This case turns upon the validity of the offence provisions constituted by ss 9 and 61 of the DFDA, not the validity of s 115, and no Ch III question was raised by the parties or now arises.
[44]See Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 473‑474 [248]-[252] and the authorities there mentioned, in particular Attorney-General for NSW v Brewery Employés Union of NSW (1908) 6 CLR 469 at 590; Universal Film Manufacturing Co (Australasia) Ltd v New South Wales (1927) 40 CLR 333 at 347, 356; Lambert v Weichelt (1954) 28 ALJ 282 at 283; Re East; Ex parte Nguyen (1998) 196 CLR 354 at 361‑362 [16]-[18]; Cheng v The Queen (2000) 203 CLR 248 at 270 [58]; Re Macks; Ex parte Saint (2000) 204 CLR 158 at 230 [202].
Section 51(vi) has two clauses, the first reading "the naval and military defence of the Commonwealth and of the several States". In the course of argument, reference was made to the second clause:
"and the control of the forces to execute and maintain the laws of the Commonwealth".
In Re Tracey; Ex parte Ryan[45], Brennan and Toohey JJ said:
"The traditional jurisdiction to discipline military personnel has two aspects. The first is an authority to compel military personnel to conduct themselves in a manner which is conducive to efficiency and morale of the service; the second is an authority to punish military personnel who transgress the ordinary law of the land while acting or purporting to act as military personnel. These two aspects of the traditional jurisdiction are reflected in the two limbs of s 51(vi)."
Their Honours went on to describe the second limb of s 51(vi) as being concerned with power[46]:
"to control persons who, being part of the armed forces and acting or purporting to act in that capacity, transgress the ordinary law of the land or fail to obey the lawful directions of the Executive Government as to the activities of the armed forces and the conduct of persons who are part of the armed forces".
[45](1989) 166 CLR 518 at 564.
[46](1989) 166 CLR 518 at 564.
In the same case, Mason CJ, Wilson and Dawson JJ expressed a different view. Their Honours observed[47]:
"Notwithstanding that it might be thought that the second clause of s 51(vi) is relevant to the question of military discipline by reason of the phrase 'the control of the forces' we doubt whether that is so. It seems to us that the content of that phrase relates to the work of law enforcement. It is not the ordinary function of the armed services to 'execute and maintain the laws of the Commonwealth'."
The construction indicated in this passage is to be preferred.
[47](1989) 166 CLR 518 at 540.
The term "defence" in s 51(vi) may be thought primarily to be concerned with response to hostile activity, actual or potential, from external sources. However, there is an internal aspect with which the Constitution also has dealt. Section 69 provided for the transfer of the State departments of naval and military defence to the Commonwealth. Thereafter, s 114 required the consent of the Commonwealth Parliament to the raising or maintaining by a State of any naval or military force. The States were to be protected not only against invasion but also, on the application of their Executive Governments, against "domestic violence" (s 119). Domestic violence may threaten the Commonwealth itself. Section 68 of the Constitution vests in the Governor-General as the representative of the Queen the command in chief of the naval and military forces of the Commonwealth. Section 61 emphasises that the executive power of the Commonwealth extends to "the execution and maintenance" of the Constitution and of the laws of the Commonwealth, and the cognate phrase "to execute and maintain" is found in s 51(vi). The second limb in s 51(vi) thus supports laws in aid of that executive power. It is unnecessary here to consider further the scope of those executive and legislative powers.
It is sufficient, as was emphasised in argument, that the term "defence" in the first limb of s 51(vi) authorises laws of the nature in question here. Windeyer J once observed[48]:
"[T]he power to make laws for naval and military defence must be considered against a background of established principles of British law concerning the position of the armed forces in the community – against the rule, that is, that in time of peace members of the services should enjoy, as far as their duties permit, the ordinary rights of citizens". (emphasis added)
[48]The Illawarra District County Council v Wickham (1959) 101 CLR 467 at 503.
The reference by Windeyer J in this passage to "time of peace" reflects a contrast drawn in the judgments in a number of cases between the reach of the defence power in time of war and that in time of peace. However, more recent experience indicates that service personnel are engaged in a range of operations in troubled times in which this country has not declared war in the formal sense.
The range of activities beyond Australia with which members of the Defence Force may be involved is indicated by s 3(7) of the DFDA. This states:
"For the purposes of this Act, a person's membership of the Defence Force is not affected by reason only of the person's attachment to, or allotment for duty with:
(a)the armed forces of another country;
(b)a force raised or organized by the United Nations or another international body; or
(c)a Peacekeeping Force within the meaning of Part IV of the Veterans' Entitlements Act 1986 [(Cth)]."
Part IV of that statute defines (in s 68) the term "Peacekeeping Force" in terms which include a force raised or organised for the purpose of peacekeeping in an area outside Australia or observing or monitoring any activities of persons in an area outside Australia that may lead to an outbreak of hostilities.
Two passages from the joint judgment of Mason CJ, Wilson and Dawson JJ in Tracey make what for the present case is the essential point. The first passage followed acceptance by their Honours of the premise that[49]:
"as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals".
Their Honours continued[50]:
"There can be little doubt that in war‑time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace‑time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace‑time than upon overseas service or in war‑time."
[49](1989) 166 CLR 518 at 543.
[50](1989) 166 CLR 518 at 544.
The second passage in the joint judgment of Mason CJ, Wilson and Dawson JJ in Tracey is as follows[51]:
"In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And Parliament's decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members." (emphasis added)
[51](1989) 166 CLR 518 at 545.
Article 1, s 8, cl 14 of the Constitution of the United States empowers the Congress "to make Rules for the Government and Regulation of the land and naval Forces". In his judgment in O'Callahan v Parker[52], Harlan J, in the course of construing that provision, made observations of present significance. This is nonetheless so given that, whilst Harlan J was in dissent, his views later achieved acceptance by the Supreme Court[53]. Harlan J said[54]:
"The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well‑disciplined persons, and in preserving the reputation, morale, and integrity of the military services. Furthermore, because its personnel must, perforce, live and work in close proximity to one another, the military has an obligation to protect each of its members from the misconduct of fellow servicemen. The commission of offenses against the civil order manifests qualities of attitude and character equally destructive of military order and safety. The soldier who acts the part of Mr Hyde while on leave is, at best, a precarious Dr Jekyll when back on duty. Thus, as General George Washington recognized:
'All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other.'[55]"
[52]395 US 258 (1969).
[53]Solorio v United States 483 US 435 at 441, 444, 446 (1987).
[54]395 US 258 at 281‑282 (1969) (footnote omitted).
[55]14 Writings of George Washington 140‑141 (Bicent ed).
Harlan J went on to stress a consideration of particular importance where defence personnel are stationed in other countries, namely, that[56]:
"[a] soldier's misconduct directed against civilians, moreover, brings discredit upon the service of which he is a member".
[56]395 US 258 at 282 (1969).
With these further reasons, I support the conclusion that the provisions of the DFDA which permit the trial by general court martial of the prosecutor in respect of the alleged offence are not invalid. The offence provisions of the DFDA are sufficiently connected with the regulation of the Regular Army of which the prosecutor is a member, and with the maintenance of good order and discipline among its members.
KIRBY J. In Re Tracey; Ex parte Ryan[57], Mason CJ, Wilson and Dawson JJ acknowledged that s 61 of the Defence Force Discipline Act 1982 (Cth) ("the Act"), by applying to defence personnel "the one law whether [an] offence is committed anywhere within Australia or overseas", could produce "some curious results". So it has proved in this case, stated for the opinion of the Full Court.
[57](1989) 166 CLR 518 at 545.
If the provision permitting the result defended in this case is constitutionally valid, an Australian soldier, serving in Malaysia, is rendered liable before a military tribunal in Queensland (not a jury) for an alleged rape, which he denies, said to have happened not in Australia but on a beach in the Kingdom of Thailand during an interval of recreation leave. Moreover, he is liable not for the crime as provided by the law of Thailand, or even Queensland, but for an offence against the law of the Jervis Bay Territory of Australia, applying there the provisions of the Crimes Act 1900 of the Australian Capital Territory[58]. By this triple fiction, a law made by the Federal Parliament purports to put the soldier on trial outside the judicature of Thailand and even outside any of the courts of the judicature of Australia, for acts allegedly done whilst a tourist. A curious result indeed.
[58]Crimes Act 1900 (ACT), s 54 dealing with the crime of sexual intercourse without consent.
The validity of s 61 of the Act, in its application to such a crime, has not been considered in earlier decisions of this Court addressed to the constitutional validity of the Act[59]. Those decisions have not been concerned with the statutory fictions in their application to members of the Australian Defence Force ("ADF") for their conduct overseas.
[59]Re Tracey (1989) 166 CLR 518; Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18.
In its earlier decisions, this Court was sharply divided. So it is in this case. Only one member of the Court, McHugh J, who participated in two of the earlier decisions, remains. In one of those cases[60], he expressed the opinion that "unless a service tribunal is established under Ch III of the Constitution, it has jurisdiction to deal with an 'offence' by a member of the armed services only if such an 'offence' is exclusively disciplinary in character or is concerned with the disciplinary aspect of conduct which constitutes an offence against the general law". In a later case, his Honour said that he "remain[ed] convinced that the reasoning of the majority Justices in Re Nolan and Re Tracey is erroneous"[61]. Now, this "erroneous" view of the Constitution is not only applied but even extended by a divided decision of this Court. This result follows, although the opportunity is presented to prevent a misapplication of the Constitution, effecting a denial of constitutional rights and causing individual injustice.
[60]Re Nolan (1991) 172 CLR 460 at 499 (original emphasis).
[61]Re Tyler (1994) 181 CLR 18 at 39.
This case illustrates the way in which, when wrong turnings are made in constitutional interpretation, they are often pushed further by their beneficiaries[62]. Because I would not permit this to happen, I would answer the question in the stated case: "Yes".
[62]See Silbert v Director of Public Prosecutions (WA) (2004) 78 ALJR 464 at 467 [20]; 205 ALR 43 at 48.
The facts, legislation and issues
The facts and legislation:The facts are set out in the reasons of other members of the Court, as derived from the stated case[63] or from inferences properly available from the case[64]. Also contained there are the relevant provisions of the Act[65], of the laws of the two Australian territories purportedly enlivened[66] and of the Constitution which are said to support the validity of s 61 of the Act in its application to the charge of rape brought against Private Stewart Alpert ("the prosecutor")[67].
[63]Reasons of McHugh J at [12]‑[18]; reasons of Gummow J at [50]‑[53].
[64]Reasons of Callinan and Heydon JJ at [167].
[65]Reasons of McHugh J at [19]-[24]; reasons of Gummow J at [54], [64].
[66]Reasons of McHugh J at [22]. The laws of the Australian Capital Territory are in force in the Jervis Bay Territory of the Commonwealth by virtue of the Jervis Bay Territory Acceptance Act 1915 (Cth), s 4A(1).
[67]Reasons of McHugh J at [25]‑[26].
The other reasons also explain the history of the three decisions that have addressed earlier questions about the Act and the factual circumstances of the charges faced by service personnel in those cases[68]. Those facts involved respectively making a false entry in a service document and being absent without leave from service duty[69]; falsification of service pay lists[70]; and dishonestly claiming a service rental allowance[71]. I agree with Callinan and Heydon JJ that, in every past case before this Court, the offences, of their intrinsic nature, were immediately connected with aspects of the accused's service in the ADF[72].
[68]Reasons of Callinan and Heydon JJ at [162].
[69]Re Tracey (1989) 166 CLR 518.
[70]Re Nolan (1991) 172 CLR 460.
[71]Re Tyler (1994) 181 CLR 18.
[72]Reasons of Callinan and Heydon JJ at [162].
Divisions in past authority:As McHugh J explains in his reasons, the earlier decisions of this Court failed to yield a majority for a settled principle to govern the constitutional connection necessary to render an offence cognisable in the service tribunal established for discipline under the Act, outside the ordinary courts of law[73].
[73]Reasons of McHugh J at [31]-[36].
The broadest view[74] in the earlier decisions was close to the "service status" test now prevailing in the Supreme Court of the United States, as expressed in Solorio v United States[75]. According to that view, it was enough to render the offence cognisable before a service tribunal if the Parliament decided that this was "necessary and appropriate for the maintenance of good order and discipline" in the service[76]. The intermediate view[77] adopted a test that required that the offence "reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline"[78]. That view was close to the "service connection" criterion followed by the Supreme Court of the United States in its earlier decision in O'Callahan v Parker[79].
[74]Favoured by Mason CJ, Wilson and Dawson JJ in Re Tracey (1989) 166 CLR 518.
[75]483 US 435 (1987).
[76]Re Tracey (1989) 166 CLR 518 at 545. See reasons of McHugh J at [31].
[77]Favoured by Brennan and Toohey JJ.
[78]Re Tracey (1989) 166 CLR 518 at 570.
[79]395 US 258 (1969). See also Relford v U S Disciplinary Commandant 401 US 355 (1971). See reasons of McHugh J at [36].
The third and narrowest view, which McHugh J twice pronounced convincing[80], imposed a still stricter test. To survive as an offence of "service discipline", prosecuted outside Ch III of the Constitution, the offence had to be "exclusively disciplinary in character". It followed that, if its "character" were essentially that of a civilian crime of general application, it would, at least normally, fall outside the ambit of service discipline. As a consequence, if it were to be prosecuted at all, that would normally have to occur in a civil court.
[80]Re Nolan (1991) 172 CLR 460 at 499; Re Tyler (1994) 181 CLR 18 at 39.
Common ground:I say "normally" because, in the present case, as in the trilogy that preceded it, this Court has not been concerned with four potentially important circumstances. The constitutional position might be different were those circumstances different:
(1)The prosecutor is a serving member of the ADF, so that the validity of the purported extension of the Act to civilian or "prescribed" employees of the ADF need not be considered[81];
(2)The issue of constitutional validity is also to be assessed upon the basis that Australia is presently at peace. The special needs of the ADF in respect of discipline in times of war (or other times when the services "stand in most urgent need" of disciplinary powers) were inapplicable at the time of the prosecutor's alleged offence[82];
(3)The offence did not occur in an actual theatre of combat or during military, policing or peacekeeping operations in which, whether at home or abroad, special needs for military discipline might be inherent in the functions of "defence"; and
(4)The case is not one where the accused was in a place outside Australia "beyond the reach of the ordinary criminal law"[83] or where there is no effective law at all. It was accepted that Thailand is a place with a functioning legal system, applicable to visitors and with a law of rape which, whilst different in limited respects from that of the Australian territories named[84], is still recognisably similar in its essentials. It was legally applicable to the prosecutor's alleged offence.
[81]See the Act, ss 3, (definition of "defence civilian"), 6 and offence provisions such as s 28; see R v Cox; Ex parte Smith (1945) 71 CLR 1 at 23 per Dixon J; Re Tracey (1989) 166 CLR 518 at 552, 565-566.
[82]Re Tracey (1989) 166 CLR 518 at 572-573. See also Australian Communist Party v The Commonwealth ("the Communist Party Case") (1951) 83 CLR 1 at 195.
[83]Re Tracey (1989) 166 CLR 518 at 585 per Deane J.
[84]The provisions of the Penal Code of Thailand, s 276. See reasons of Callinan and Heydon JJ at [161], fn 204. The points of difference relate to the exemption from liability for rape of a wife and restriction of the offence to one against a woman; see R v L (1991) 174 CLR 379.
The parties' confined submissions:The respective cases of the parties presented curious features. Doubtless discouraged by the three earlier challenges to the Act, the prosecutor did not mount an outright attack on the validity of the Act based on Ch III of the Constitution. However, he did invoke the requirements of that Chapter (and the exception to the normal rule that service tribunals constitute) as a reason for confining the reach of military discipline under the powers in the Constitution propounded to support the validity of the impugned section, especially s 51(vi). I disagree with Gummow J's statement that "no Ch III question was raised by the parties or now arises"[85]. True, it does not arise as a basis for an all‑out attack on the separate system of military tribunals outside Ch III of the Constitution. The prosecutor disclaimed such an argument[86] and in the present state of this Court's authority that was a correct position to adopt. But he did not – nor could he – ignore the implications of Ch III for the scope of the constitutional foundation of the contested law[87]. The transcript of argument in this Court in the present case, including many interventions from the Court itself, demonstrates that this is so[88]. In Al-Kateb v Godwin[89], Gummow J correctly pointed to the necessity, in that case, to consider the constitutional context in approaching and deciding the question of construction. The same is true in this case.
[85]Reasons of Gummow J at [57].
[86][2004] HCATrans 042 at 96, 893 and 3876.
[87][2004] HCATrans 042 at 878.
[88][2004] HCATrans 042 at 920, 1000, 1475, 1555, 3207, 3246 and 3935.
[89][2004] HCA 37 at [111].
For their part, the respondents did not seek to sustain the validity of the contested provision on the basis of the external affairs power. Presumably this was for the reason explained by McHugh J[90]. Whatever the scope of military discipline included in the grant of legislative power with respect to the defence of the Commonwealth, no immunity from Ch III of the Constitution could operate with respect to a law sustained only by the legislative power with respect to "external affairs"[91]. Although s 61 of the Act in its application to the prosecutor is clearly a law with respect to matters external to Australia, that head of power would not avail the respondents given the mode of trial in a service tribunal which the respondents invoked and for which the Act provides[92]. It is this consideration that makes it irrelevant to call in aid the Australian law rendering overseas sexual offences against children amenable to the jurisdiction of Australian courts[93]. Indeed they are. However, such procedures occur not before military tribunals but in the ordinary (civilian) courts of the land with all of the protections that this entails.
[90]Reasons of McHugh J at [27].
[91]Constitution, s 51(xxix).
[92]See Polyukhovich v The Commonwealth (War Crimes Act Case) (1991) 172 CLR 501 at 528, 549, 599, 652, 696, 712.
[93]See reasons of Gleeson CJ at [7] referring to the Crimes Act 1914 (Cth), ss 50AA‑50GA, inserted by the Crimes (Child Sex Tourism) Amendment Act 1994 (Cth).
This Court, including in constitutional matters, resolves the controversies brought to it by the parties. Where, by narrowing the focus of the matters in contest, or by addressing the interpretation of impugned legislation[94], the Court can properly avoid issues of constitutional invalidity, it does so. However, it is not competent for parties, by concession, argument or oversight, to oblige a court to give meaning and operation to a law in a way that conflicts with the Constitution[95]. In Australia, courts are not merely arbitrators of the competing arguments of litigants. Ultimately, they owe a higher duty to the law. Most particularly is this so where the matter in contest is before this Court, which is created by the Constitution with the primary responsibility to uphold the federal compact in the exercise of the judicial power of the Commonwealth[96]. Especially is this the case where a party comes before the Court (as the prosecutor does) specifically to challenge proceedings brought against him, presenting a contention that the federal law propounded to support those proceedings is invalid under the Constitution. Chapter III is not, and cannot be, disjoined from the Constitution. Donning judicial blinkers, for whatever reason, will not make Ch III go away.
[94]Bank of NSW v The Commonwealth (1948) 76 CLR 1 at 186‑187 per Latham CJ; R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254 at 267‑268; R v Hughes (2000) 202 CLR 535 at 565-566 [66]; Residual Assco Group Ltd v Spalvins (2000) 202 CLR 629 at 662 [81]; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at 513‑514 [104].
[95]See Roberts v Bass (2002) 212 CLR 1 at 54 [143]. See also Coleman v Power [2004] HCA 39 at [231].
[96]Constitution, s 71.
No rule of practice[97], no judicial observations and no agreement of the parties may therefore deflect the Court's attention from the legal context, viewed as a whole. The constitutional validity of the offence charged against the prosecutor cannot be considered without postulating a test for the suggested link between the offence and the Constitution. This Court cannot ignore the fact, significant for validity, that the Parliament has purported to provide for the trial of the subject offence before a service tribunal[98], constituted by a convening order under s 119 of the Act[99]. The contested offence is only triable before such a military tribunal. It is not triable in any Australian court, least of all before a jury.
[97]See reasons of Gummow J at [57] and reasons of Hayne J at [156] referring to Re Patterson; Ex parte Taylor (2001) 207 CLR 391 at 473-474 [248]-[252] per Gummow and Hayne JJ.
[98]Of a kind provided by the Act, s 114 with jurisdiction afforded by s 115.
[99]The court martial is convened with the appointment by a "convening authority" of a President and other members and with "an adequate number of reserve members" (the Act, s 119).
Absence of a legally binding rule:The absence of a simple rule, established by decision of a majority of this Court in any of the three earlier decisions, has two immediate consequences. The first is factual; the second legal.
Since the earlier decisions, service prosecuting authorities have sensibly adopted a "conservative" approach in the charges that they have laid against ADF members before service tribunals. This approach is described in the following terms[100]:
"[F]or over a decade now, service tribunals in Australia have applied Brennan and Toohey JJ's test [in Re Tracey] in determining whether or not they have jurisdiction to try charges. This has not given rise to the type of problem which beset military law in the United States before Solorio. The main reason is that convening authorities have adopted a conservative approach when determining whether to refer charges to service tribunals. Where doubt exists, cases are referred to the appropriate Director of Public Prosecutions. Protocols have been developed under which consultation regularly occurs between military lawyers and DPP solicitors before any decisions are made about whether charges, which have civilian counterparts, should be dealt with in service tribunals or civil courts."
[100]Tracey, "The Constitution in Troubled Times: The Constitution and Military Justice", paper delivered at the Annual Public Law Weekend, Australian National University (Canberra), 8 November 2003 at 13.
Such sensible arrangements within Australia will generally have little or no application where the competing law involved is that of a foreign country[101]. Yet, if the present prosecutor's trial is held valid, the precedent set for the trial in a service tribunal of a charge of rape happening abroad will necessarily apply within Australia, as well as overseas. Accordingly, the question in the stated case must be answered with due attention to that consequence.
[101]By the Act, s 144(3), where a person has been acquitted or convicted by an overseas court of an "overseas offence", the person "is not liable to be tried by a service tribunal for a service offence that is substantially the same offence". There is no attempted restriction upon subsequent trial in an overseas court of a person acquitted or convicted by a service tribunal in Australia.
The second result of the division of opinion in the earlier decisions is one of law. There is no legal principle that binds this Court to the application of a given rule in the present case. In this respect, the position is identical to that held to exist in Shaw v Minister for Immigration and Multicultural Affairs[102]. The highest common denominator of agreement established by the earlier authority is that which the prosecuting military authorities accepted. It is found in the reluctant alternative application by Mason CJ and Dawson J in Re Tyler; Ex parte Foley[103] of the principle expounded in the earlier cases by Brennan and Toohey JJ and the even more reluctant application of that principle by McHugh J in the same case[104], although his Honour remained "convinced that the reasoning of the majority … is erroneous". A flimsier foundation for a constitutional rule could scarcely be imagined.
[102](2003) 78 ALJR 203 at 210 [36], 212 [50]; 203 ALR 143 at 152, 155.
[103](1994) 181 CLR 18 at 27.
[104](1994) 181 CLR 18 at 39.
Not for the first time, I find myself in agreement with the approach of Deane J to a fundamental constitutional question[105]. Alike with his Honour (and with McHugh J in Re Nolan; Ex parte Young[106]) it is my view that unless a service tribunal is established under Ch III of the Constitution, it has jurisdiction to deal with an "offence" by a member of the armed forces only if such an "offence" is exclusively disciplinary in character or is concerned with a distinct disciplinary aspect of conduct constituting an offence against the general law. The absence of a different binding rule, and the apparent departure of the service prosecutors in this case from the "conservative" approach hitherto adopted, suggests the need for this Court to reinstate this simple rule of principle derived from the constitutional language and structure. One day that will happen, unless the present decision puts the law on a mistaken track that proves irreversible.
[105]See, for example, as in the meaning of the Constitution, s 80 expressed in Kingswell v The Queen (1985) 159 CLR 264. See also Evda Nominees Pty Ltd v Victoria (1984) 154 CLR 311 at 316; Cheng v The Queen (2000) 203 CLR 248 at 322-323 [221]-[224].
[106](1991) 172 CLR 460 at 499.
In the absence of a wider argument on the part of the prosecutor, challenging the validity of the provisions of the Act under Ch III, and in order to refine the point upon which this Court now divides, I will assume in these reasons that the rule applicable to constitutional validity is that stated by Brennan and Toohey JJ in Re Tracey. This adopts, in effect, the "service connection" test. It has the merit of rejecting the "service status" test, which is overbroad, however attractive it may be to some service personnel. As Brennan and Toohey JJ pointed out in Re Tracey[107] (and later repeated[108]), the greater enlargement of the powers of service tribunals is incompatible with many considerations that need to be taken into account in resolving the question now presented for decision.
[107](1989) 166 CLR 518 at 572.
[108]Re Nolan (1991) 172 CLR 460 at 482.
Where, as here, there is no earlier decision clearly applicable to the legal question before this Court, our duty is to answer the question in the special case by reference to the usual sources which judges call upon in such matters. These are the state of legal authority; any relevant legal principles; and any applicable considerations of legal policy[109]. I turn to those considerations.
[109]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252; Northern Territory v Mengel (1995) 185 CLR 307 at 347; see Fairchild v Glenhaven Funeral Service Ltd [2003] 1 AC 32 at 43-44 [8]-[9], 46-47 [14], 66-67 [33].
Considerations of legal authority
The scope of military discipline: The language of the Constitution, granting power to the Federal Parliament to make laws for the defence of the Commonwealth (and of the States)[110], should be given a broad meaning, capable of varying with changing circumstances and different dangers for the security of the nation.
[110]Constitution, s 51(vi). See also s 51(xxix) (external affairs), (xxxii) (railway transport of military personnel), (xxxix) (incidental powers), and see reasons of McHugh J at [25].
Thus, in times of war, federal law has been accorded a very large ambit to regulate activities that would "conduce to the more effectual prosecution of the War"[111]. In times of immediate danger, and preparation for possible combat, this Court has accepted the existence of substantial federal law-making authority[112]. The position is the same in times of demobilisation and thereafter in respect of appropriate post-war arrangements[113]. Nevertheless, this Court has never surrendered to the Parliament, or the Executive, the conclusive determination of the constitutional validity of a military regulation[114]. The defence power, and the other heads of power relied upon in this case, are not disjoined from the Constitution. They are part of the "one coherent instrument"[115] which is "intended to be construed and applied in the light of other provisions of the Constitution"[116].
[111]Farey v Burvett (1916) 21 CLR 433 at 442.
[112]Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 219-220, 245, 255-257.
[113]R v Foster; Ex parte Rural Bank of NSW (1949) 79 CLR 43 at 84.
[114]Communist Party Case (1951) 83 CLR 1 at 252.
[115]Lamshed v Lake (1958) 99 CLR 132 at 154.
[116]Bank of NSW (1948) 76 CLR 1 at 185.
It is for this reason that the defence power is subject to s 51(xxxi)[117] and s 116[118]. Likewise, both by the structure of the Constitution and by the express statement that the grants of legislative power in s 51 are "subject to this Constitution", the defence power is also subject to the requirements of Ch III.
[117]Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v The Commonwealth (1943) 67 CLR 314 at 317-318, 325, 331.
[118]Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 131, 149, 155, 159.
In the present case, application of the approach that I favour would mean that any trial of the prosecutor for rape would have to take place in a court of Thailand. It should not be for the complainant, in effect, to select the jurisdiction of an Australian service tribunal when the relevant civilian court, applicable to her complaint of the crime of rape, was the criminal court of Thailand having jurisdiction with respect to allegations of that crime occurring on Patong Beach. The proper response of the Australian service authorities to the complainant's accusation was not, therefore, to abandon their hitherto "conservative" application of the law, as defined by Brennan and Toohey JJ in this Court. It was not to try out what is effectively a "service status" criterion for military offences. It was to inform the complainant that she should take her complaint to the Thai authorities (and possibly to facilitate that complaint in practical ways).
In the case of an equivalent complaint in Australia, the proper response would have been to send the complainant to enliven the jurisdiction of "a competent civil court". Unless there is a specific service purpose for maintaining or enforcing service discipline, this Court should not authorise an expansion of the jurisdiction of service tribunals that necessarily diminishes the jurisdiction of the courts of law.
Restricting military exceptionalism: Still further reasons of policy reinforce the conclusion not to expand the reach of military law in the circumstances arising in the present case. As Douglas J, writing for the majority of the Supreme Court of the United States in O'Callahan v Parker[182], observed:
"Free countries of the world have tried to restrict military tribunals to the narrowest jurisdiction deemed absolutely essential to maintaining discipline among troops in active service …
Determining the scope of the constitutional power of Congress to authorize trial by court-martial presents another instance calling for limitation to 'the least possible power adequate to the end proposed.'"[183]
[182]395 US 258 at 265 (1969).
[183]Citing Toth v Quarles 350 US 11 at 22-23 (1955).
Later in the same decision, Douglas J noted[184]:
"The 17th century conflict over the proper role of courts-martial in the enforcement of the domestic criminal law was not … merely a dispute over what organ of government had jurisdiction. It also involved substantive disapproval of the general use of military courts for trial of ordinary crimes."
[184]395 US 258 at 268 (1969).
In their joint reasons in Re Tracey, Brennan and Toohey JJ cited these passages with approval[185]. They pointed to the existence of protections in the Bill of Rights in the United States which are absent from Australian law. This consideration increases the importance of maintaining the Australian resistance to the "general use of military courts for trial of ordinary crimes" compatibly with our constitutional text, judicial authority and historical tradition.
[185](1989) 166 CLR 518 at 566.
In the past, in other contexts, this Court has been attentive to the foregoing tradition and respectful of it[186]. The services have sometimes endeavoured to cut themselves off from ordinary law[187]. In special and limited circumstances, where it is proportional and appropriate for national defence, it must be so, at least for a short time, as during actual conflict. But under the Australian Constitution, the armed services are not divorced from civil law. Indeed, they exist to uphold it. It is the duty of this Court to maintain the strong civilian principle of the Constitution. It is one of the most important of Australia's legacies from British constitutional law.
[186]See, for example, Parker v The Commonwealth (1965) 112 CLR 295 at 301; Groves v The Commonwealth (1982) 150 CLR 113 at 125-126.
[187]See X v The Commonwealth (1999) 200 CLR 177 at 230-231 [166]-[168].
It is particularly important to adhere to this time-honoured approach at a time when increased demands are being made for greater executive and legislative power. At such a time, as in the past, we should maintain the function of the courts to ensure that military power is only deployed in accordance with the Constitution[188]. This is not an occasion to enhance the operation of military tribunals. The directions in which the expansion of military law can sometimes lead may be seen in other countries[189]. They afford a warning that this Court should heed.
[188]See Communist Party Case (1951) 83 CLR 1 at 195; cf Plaintiff S157/2002 (2003) 211 CLR 476 at 513-514 [103]‑[104].
[189]Steyn, "Guantanamo Bay: The Legal Black Hole", (2004) 53 International and Comparative Law Quarterly 1.
In support of their broader view concerning the ambit of the Act, Mason CJ, Wilson and Dawson JJ called in aid the unfortunate decision of the United States Supreme Court in Ex parte Quirin[190]. A reflection upon the failure of judicial supervision evident in that decision affords strong grounds of policy for this Court to avoid travelling in the same direction[191]. Faithful adherence to our own constitutional tradition, which has been different from that of the United States, is a reason for avoiding the unnecessary enlargement of the jurisdiction of Australian service tribunals. History teaches that such enlargement is rarely reversed. It usually comes at the cost of individual liberty, of the rights of citizens and of the essential functions of the independent courts in upholding the rule of law[192].
[190]317 US 1 (1942). See Re Tracey (1989) 166 CLR 518 at 541.
[191]White, "Felix Frankfurter's 'Soliloquy' in Ex parte Quirin", (2002) 5 Green Bag 2d 423.
[192]See McHugh, "The Strengths of the Weakest Arm", paper delivered at the Australian Bar Association Conference, Florence, 2 July 2004; Al-Kateb [2004] HCA 37 at [149].
Other considerations of policy:Different issues of policy were raised during argument. They included the ease of transport of service personnel today to distant parts of the world; the special needs of the ADF in peacekeeping, policing and United Nations service; and the necessity to have effective operational discipline in countries where there is little or no law.
As to transport, this renders it easier (as do modern means of telecommunications) to bring cases before civilian courts having jurisdiction outside the immediate needs for maintaining or enforcing separate service discipline in what are essentially ordinary criminal cases. As to peacekeeping and similar deployments, where these are operational, and especially in places of potential or actual combat, different rules will apply. In places beyond the reach of effective law, or where there is no law, the ambit of service discipline will expand, just as it does in times of war or equivalent necessity for national defence, compared with times of peace. None of these considerations applies to this case.
Rape is an abhorrent crime. It is possible that a belated complaint of rape to the Thai authorities would now produce no redress for the complainant. However, had she complained, or been directed or assisted to complain, to the Thai authorities when she first made contact with the ADF, it cannot be assumed that they would not have acted. A court must also consider the rights of the prosecutor, who denies the accusation and contests the validity of the charge.
Most especially, this Court must uphold the Constitution. It must do so where the consequence of failure is a serious departure from past authority and constitutional history; the enlargement of a limited exception to Ch III of the Constitution; and an expansion of military law that is undesirable and out of keeping with our constitutional tradition. No agreement of the parties or concessions or assumptions in the course of advancing their arguments can excuse this Court from its duty to maintain the Constitution and its own past decisional authority in such an important matter.
The citation with approval of the dissenting opinion of the second Justice Harlan[193], quoting in turn the military injunction of General George Washington, can only be explained by an adoption of the "service status" approach to the application of service discipline. This is an approach that, until now, has been rejected by the majority in this Court out of respect for the express subjection of s 51(vi) of the Australian Constitution to the requirements of Ch III[194]. There is no exact equivalent to this in the United States Constitution. Particularly in matters of constitutional interpretation, it is the text of the written law, not the opinions of previous judges, that should prevail. It is to that text that the Justices of this Court are bound in duty to the people of Australia[195].
[193]In O'Callahan v Parker 395 US 258 (1969). See reasons of Gummow J at [67]‑[68].
[194]See Al-Kateb [2004] HCA 37 at [110]-[111], [133] per Gummow J, [146]-[147] of my own reasons.
[195]Stevens v Head (1993) 176 CLR 433 at 461-462, 464-465 and cases cited.
Conclusion and orders
Applying the approach expressed in the successive reasons of Brennan and Toohey JJ in this Court, I would therefore reject the validity of the proceedings against the prosecutor. Civilian jurisdiction in Thailand could conveniently and appropriately have been invoked in this case. It is the jurisdiction that should have been exercised. The jurisdiction of the service tribunal was only available under the Constitution for the limited purpose of maintaining or enforcing service discipline, properly so called. In the context of the exceptional character of service tribunals, standing outside Ch III, the crime of rape allegedly committed by the prosecutor, whilst a tourist off duty, in the circumstances described in the special case, was not one to which service discipline applied.
The present is not a time to expand, beyond this Court's established authority, the jurisdiction and powers of military tribunals in Australia – any more than the power of indefinite punishment or detention at the will of the Parliament and Executive Government[196]. It is at times like the present that this Court – as it has done in the past[197] – must adhere steadfastly to the protection of basic civil rights in Australia's constitutional arrangements. Other final courts are doing so[198]. We should be no less vigilant.
[196]cf Al-Kateb [2004] HCA 37 at [144]-[150].
[197]cf Communist Party Case (1951) 83 CLR 1.
[198]cf Rasul v Bush 72 USLW 4596 (2004); Beit Sourik Village Council v The Government of Israel HCJ 2056/04 at [86].
These are the reasons why the question asked in the stated case should be answered: "Yes".
HAYNE J. For the reasons given by McHugh J, and the additional reasons given by Gummow J, the question in the special case stated for the Full Court should be answered "No" and the costs in the case should be costs in the action in this Court.
CALLINAN AND HEYDON JJ. The facts and the issue to which they give rise have been stated by McHugh J. His Honour has also considered the relevant legislation and has analyzed each of the authorities in which a similar, although not identical, problem has had to be solved. As McHugh J has demonstrated, there is no majority of High Court Justices in any case favouring any particular construction of the defence power as a basis of legislation relevant to offences by service personnel. The Court remains at liberty to choose from among available tests.
We should say at the outset that we respectfully agree with his Honour's adoption of the test of "service connexion" but that we are unable to agree that its application here results in a negative answer to the question stated in the special case. As there is a majority in favour of a negative answer to that question, we will give our reasons in short form, and we will do so on the same basis as McHugh J, that the Commonwealth relies upon the defence power only as supporting the challenged provisions, ss 9 and 61 of the Defence Force Discipline Act 1982 (Cth) ("the Act") and that the prosecutor places no reliance on Ch III of the Constitution.
In our opinion, the result of a comparison of the facts present here, with the factors that the Supreme Court of the United States emphasized as being relevant to a test of service connexion in Relford v U S Disciplinary Commandant[199], and repeated by McHugh J in his judgment, provides reason why ss 9 and 61 of the Act should be regarded as invalid in their application to the charge brought against the prosecutor, that he engaged in non-consensual sexual intercourse with a woman at Patong Beach, Phuket, Thailand on or about 29 September 2001.
[199]401 US 355 at 365 (1971).
In making the comparison we have kept in mind the observations of Dixon J in Australian Communist Party v The Commonwealth[200]:
"The meaning of the [defence] power is of course fixed but as, according to that meaning, the fulfilment of the object of the power must depend on the ever-changing course of events, the practical application of the power will vary accordingly."
The case stated does not reveal any fact supportive of the view that Australia was at war with any other nation in September 2001 and in particular with Thailand; or that it was a period of any waxing of the defence power; or that there existed any international emergencies which required any expansive view of the defence power to be taken at that time. The second clause of s 51(vi) of the Constitution, "and the control of the forces to execute and maintain the laws of the Commonwealth" adds nothing here. Those words on their face simply mean that the control of the forces may extend to the enforcement of the laws of the Commonwealth itself, even though that could involve military intrusion into civil affairs otherwise unacceptable internally.
[200](1951) 83 CLR 1 at 195.
We come then to the relevant factors.
1.The prosecutor was in all respects properly and lawfully away from his base. He was not even in the country in which it was situated and in which he had been deployed. Nothing turns on the fact that he was subject to recall. He had not in fact been recalled. Soldiers are entitled to leave and leisure to live as civilians until that leave expires, or they are recalled.
2.The alleged crime was committed far away from the prosecutor's base.
3.He was in no way subject, at Patong Beach, to military control or command, beyond being subject to recall.
4.Not only was the prosecutor outside Australian territorial limits but he was also beyond the limits of the country in which the unit of the Australian Defence Force in which he was serving, was a guest.
5, 6 & 7.Nothing that the prosecutor was alleged to have done was done under colour of any military authority, or was or could have been done because he was a member of the Defence Force, or was materially facilitated by reason of his membership of it. The alleged offence was totally unconnected with any military duty. In this respect the qualification clearly stated in the judgment of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan[201] is important: that the "authority to punish military personnel who transgress the ordinary law of the land" is for their transgressions "while acting or purporting to act as military personnel."[202]
8. All crime has been said to be local[203]. The act alleged against the prosecutor would appear likely to constitute a crime according to the law of Thailand and to be triable in the courts of that country[204]: certainly no party submitted to the contrary.
9.No military authority was flouted. It is true that military service in both peace-keeping and war requires the application of disciplined force. But military service requires discipline in all of its activities. Discipline is the nature of military service. Any form of criminal conduct involves a departure from self-discipline and is abhorrent. Whether the requisite degree of connexion exists cannot depend upon the presence or absence, or degree of force, involved in the commission of the crime, or whether, in greater or lesser degree other service people will regard it as abhorrent.
10 & 11. No military post or property was threatened.
12.The alleged crime is among those that have traditionally been prosecuted in civilian courts.
[201](1989) 166 CLR 518.
[202](1989) 166 CLR 518 at 564 (emphasis added).
[203]See Lipohar v The Queen (1999) 200 CLR 485 at 497 [15] per Gleeson CJ, 521 [91], 527 [106] per Gaudron, Gummow and Hayne JJ.
[204]Section 276 of the Penal Code of the Kingdom of Thailand provides: "Whosoever has sexual intercourse with a woman, who is not [his] wife, against her will, by threatening by any means whatever, by doing any acts of violence, by taking advantage of the woman being in the condition of inability to resist, or by causing the woman to mistake him for the other person, shall be punished with imprisonment of four to twenty years and [a] fine of eight thousand to forty thousand baht."
Something should be said of the trilogy of cases referred to by McHugh J. None are determinative of this case. This follows from an examination of the facts which led to the decisions in those cases. In Re Tracey; Ex parte Ryan[205] the prosecutor was charged with three offences, first, of making an entry in a service document relating to leave which was false in a material particular. The other two charges related to absence (from service) without leave. In Re Nolan; Ex parte Young[206] the prosecutor was charged with the falsification of military pay lists in order to receive an amount of pay greater than his entitlement. In Re Tyler; Ex parte Foley[207] the prosecutor was charged with dishonestly claiming a military temporary rental allowance ("TRA"). Under the TRA scheme, any entitlement a recipient otherwise had to an allowance ceased on the acquisition of a home suitable for his or her family. The prosecutor had purchased a suitable family home but elected to rent the purchased home, for his own gain, while still receiving TRA. In every case therefore, each of the offences had an intimate connexion with military service.
[205](1989) 166 CLR 518.
[206](1991) 172 CLR 460.
[207](1994) 181 CLR 18.
If the test of service connexion is to be applied on the basis that it will be satisfied if the acts alleged constitute an undisciplined application of force, or conduct that would be regarded as abhorrent by other soldiers, then it is difficult to see how any serious crime committed anywhere, including in Australia, under any circumstances would not be susceptible to the military jurisdiction exclusively. The further consequence would be the denial to the soldier and the prosecuting authority of trial by jury. It is sometimes overlooked that the prosecuting authority and the community which it represents have as great as and as real an interest in trial by jury as the person on trial.
We do not, with respect, therefore subscribe to the view that to ask the question whether the discipline of the military service will be enhanced by a certain measure or course, is to ask the same question as "Is there a service connexion?" Any measure for the proscription of any form of misconduct has as its end, discipline. If enhancement of discipline is to be effectively the only test, there will be very few offences of any kind, committed anywhere, in any countries, which will escape the all-enveloping net of "service connexion".
The respondent in argument sought to rely upon part of a paragraph stated by General Washington on 24 February 1779[208]. That part was quoted with approval by Harlan J in O'Callahan v Parker[209]. It is important to set out the whole of the relevant paragraph to indicate the context in which the General was speaking, and by which he emphasized the delicacy of the situation which prompted its promulgation:
"All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other. The General does not mean to decide in the present case nor to include Colo. Craige's conduct in that description; but he seriously recommends it to all officers to consider the delicacy of their situation with respect to the inhabitants and cautiously to refrain from every thing that may have even the appearance of an abuse of power. A real one so far as depends upon him will never escape the severest notice."
That statement cannot be given general application, and certainly has no application to this case. It was part of a general order given by the leader of an army in rebellion against the colonial power in circumstances in which the loyalties of the inhabitants were divided. It was given during the course of an insurrection taking place in the General's homeland in circumstances in which injury to the inhabitants had a great potential to affect the outcome of the rebellion. It was directed to conduct adverse to the inhabitants of the colonies in which the hostilities were taking place at the time, and not to the inhabitants of another country in which a soldier was present but not performing military duties of any kind.
[208]Writings of George Washington, vol 14 at 140-141.
[209]395 US 258 at 281-282 (1969).
The difference between a soldier on leave in a foreign country in which he is neither on active duty, serving nor based, and a civilian tourist is not to be overstated. Nor are we persuaded that criminal misconduct, unrelated to the performance of a soldier's military duties is likely to provoke greater protest or reluctance on the part of another country to admit and harbour Australians, including, relevantly Australian military units, than criminal misconduct by Australian tourists. Equally it might be asserted that misbehaviour by other Australian groups of visitors to foreign countries, whether organized formally or informally or not, such as sporting teams and their followers, would be likely to provoke protest and resistance to the reception of Australians generally, including members of its defence forces. Strictly these are factual matters and no fact material to them appears in the case stated or otherwise. But this is clear, misbehaviour, criminal and otherwise, whether committed by soldiers or civilians reflects badly on a nation and is capable of adversely affecting its interests. It would be a form of chauvinism to regard another nation and its people as being incapable of drawing a distinction between the behaviour of a soldier on leave from a base in a third country in an entirely civilian setting, and the behaviour of a soldier there actually under military orders or carrying out military duties. It would be equally chauvinistic to regard the country in which the criminal conduct has occurred as being incapable of detecting it and trying and punishing an offender for it. All foreigners or nationals present in a country must obey its local laws. Although both the prosecutor and the complainant here were foreigners, each was under that obligation. The complainant was entitled to invoke the protection of those laws, and the prosecutor liable to suffer their application to him.
The majority also stress the importance of discipline and morale in the defence forces and McHugh J makes factual assertions about the reluctance of both male and female military personnel to serve with rapists. Again, these are factual issues which neither the case stated nor any evidence touches on. But it may be assumed that the importance of morale in a defence force is no doubt very great. It is likely to be put at serious risk however if charges against soldiers in respect of criminal misconduct committed on leave in a foreign country in circumstances totally unrelated to their military activities and duties, are to be heard and determined by court martial in Australia without a jury. Indeed, the knowledge that the military authorities have the right to intrude into the private life of soldiers, and to discipline them in military proceedings for conduct far removed from their military service, and that in such proceedings there is no right to a committal and a jury, is likely to prove a disincentive to enlistment itself, let alone to morale.
The contrary view rests on a conception of military service to the Crown which, while it has strong historical roots, has tended to fade in modern conditions[210]. If the Commonwealth desires to try and punish soldiers in the position of the prosecutor, then it would probably be possible for it to make all crimes of any character committed abroad by Australian nationals, whether soldiers or not, triable and punishable in Australia. From the point of view of public international law, the "nationality" basis for jurisdiction over extraterritorial acts is well recognized, at least for serious offences[211]. It is likely that the external affairs power would support legislation of that kind, and there would then be no Ch III problems if the legislation provided for the trials to be conducted by Ch III courts.
[210]For example, the effective overruling of statements made by Windeyer J in Parker v The Commonwealth (1965) 112 CLR 295 by this Court in Groves v The Commonwealth (1982) 150 CLR 113.
[211]Brownlie, Principles of Public International Law, 6th ed (2003) at 301-302; Jennings and Watts (eds), Oppenheim's International Law, 9th ed (1992), vol 1 at 462-463.
The prosecutor made a concession at the hearing that had he been alleged to have committed the crime the subject of the charge in Malaysia he would have been unable to contend that it was not service related. There are some obvious differences between the actual circumstances, and the circumstances as they would have been had they occurred in Malaysia, in particular the existence of the arrangements between that country and Australia regarding the prosecutor's presence there, but whether they should give rise to a different consequence, and whether the concession was properly made it is unnecessary to say.
The submissions of the respondents failed to grapple with the practical and legal problems that would arise, if, for example the prosecutor had been taken into the custody of the Thai authorities and if he were tried in Thailand. The respondents' response, that there would then be a case for the exercise of a prosecutorial discretion not to prosecute, was not an entirely satisfactory or convincing one. In a sense the alleged victim has sought to choose a different, her own preferred forum, a military tribunal, for the trial of her alleged aggressor, from the "natural forum", the criminal courts of Thailand. In particular, no attempt was made to explore what would happen if Australia and Thailand were each to assert jurisdiction, and the consequential difficulties of extradition if that occurred[212]. None of these matters of themselves can be decisive of the answer to the question but they are matters of relevance which help to fortify us in the conclusion that we have reached.
[212]As Gummow J points out in his judgment Thailand is an extradition country for the purposes of the Extradition Act 1988 (Cth).
We would answer the question in the stated case: "Yes".