HIGH COURT OF AUSTRALIA
GLEESON CJ,
GUMMOW, KIRBY, HAYNE, CALLINAN, HEYDON AND CRENNAN JJANNE MARGARET WHITE PLAINTIFF
AND
DIRECTOR OF MILITARY PROSECUTIONS & ANOR DEFENDANTS
White v Director of Military Prosecutions [2007] HCA 29
19 June 2007
S312/2006ORDER
Application dismissed with costs.
Representation
A W Street SC with D A McLure and J A Hogan-Doran for the plaintiff (instructed by North & Badgery)
D M J Bennett QC, Solicitor-General of the Commonwealth with T F J Berkley and S B Lloyd for the defendants (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
White v Director of Military Prosecutions
Constitutional law (Cth) – Defence – Offences by defence members – Service offences – The Defence Force Discipline Act 1982 (Cth) created a range of offences based on offences against the laws of the Australian Capital Territory, and provided for trial and punishment of these offences exclusively by service tribunals – Whether trials for these offences require an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution – Whether service tribunals can validly exercise jurisdiction over service offences.
Defence and war – Offences by defence members – Service offences – The Defence Force Discipline Act 1982 (Cth) created a range of offences based on offences against the laws of the Australian Capital Territory, and provided for trial and punishment of these offences exclusively by service tribunals – Whether trials for these offences require an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution – Whether service tribunals can validly exercise jurisdiction over service offences.
Words and phrases – "essentially disciplinary", "exclusively disciplinary", "service offence", "Territory offence", "the judicial power of the Commonwealth".
Constitution, Ch III, ss 51(vi), 71, 75(v), 76(ii), 77(i), 80.
Defence Force Discipline Act 1982 (Cth), ss 33(a), 61, 114(3), 115, 129, 190.
Crimes Act 1900 (ACT), s 60.
Defence Force Discipline Appeals Act 1955 (Cth), s 52.
GLEESON CJ. The plaintiff, a Chief Petty Officer in the Royal Australian Navy, has been charged with seven offences under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The alleged offences are said to have occurred in Victoria. They involve complaints of acts of indecency, or assault, upon five other female members of the Australian Defence Force, all of lower rank. The trial of the charges has not yet occurred, but it will be either by court martial or a Defence Force magistrate. The plaintiff challenges the validity of the provisions of the Act creating the offences with which she has been charged and providing for trial and punishment of such offences. In order to sustain that challenge, the plaintiff invites the Court to overrule its previous decisions in Re Tracey; Ex parte Ryan[1], Re Nolan; Ex parte Young[2], and Re Tyler; Ex parte Foley[3]. For the reasons that follow, the invitation should be declined.
[1](1989) 166 CLR 518.
[2](1991) 172 CLR 460.
[3](1994) 181 CLR 18.
Two arguments are advanced on behalf of the plaintiff. The first, which conflicts with the reasoning of all the Justices who participated in the trilogy of cases just mentioned, is that it is contrary to the Constitution, and beyond the power of the Parliament, to establish a system of military justice involving trial and punishment of service offences, being a form of Commonwealth-made criminal law, by tribunals operating outside Ch III of the Constitution. Under pressure of argument, senior counsel for the plaintiff developed a narrower submission, which was said to be supported by some of the dissenting reasoning in those cases. The alternative submission is that no such system of military justice can operate validly in the case of service offences constituted by conduct that would also be an offence against the civil law; that the Act purports to apply to such conduct; that it is impossible by any process of severance to confine its operation to exclusively disciplinary offences; and that the Act is therefore invalid. By an exclusively disciplinary offence, counsel said he meant an offence that has three characteristics: first, it is one for which there is no civilian equivalent; secondly, it pertains to service discipline; and thirdly, it involves no exposure to imprisonment.
It is necessary to be clear about an argument the plaintiff did not seek to make. The alleged conduct of the plaintiff occurred at a time when the people involved were not in uniform and not on duty. However, counsel expressly disclaimed any argument that, if the Act were otherwise valid, the alleged offences in this case did not have the necessary service connection which some members of this Court have said is required for the valid application of the Act to particular conduct[4]. The defendants made it clear that, if any such argument had been advanced, they would have wished to lead evidence as to facts and circumstances relevant to the point. Because no such point was taken, the case proceeded on the basis of the existing state of the evidence. This matter, therefore, does not raise for decision the difference between what McHugh J, in Re Aird; Ex parte Alpert[5], described as the "service status" and the "service connection" view of military jurisdiction. In the Supreme Court of the United States, the former view was adopted in O'Callahan v Parker[6], but the latter view prevailed in the later case of Solorio v United States[7]. On the plaintiff's argument, both views are wrong, and the difference is presently immaterial. Whether the proceedings against the plaintiff "can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline", to use the test adopted by Brennan and Toohey JJ in Tracey[8], is not an issue.
[4]See Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 570 per Brennan and Toohey JJ; cf Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 321-322 [36]-[37].
[5](2004) 220 CLR 308 at 321-322 [36]-[37].
[6]395 US 258 (1969).
[7]483 US 435 (1987).
[8](1989) 166 CLR 518 at 570.
Service offences under the Act include many offences constituted by conduct that would constitute an offence against the ordinary civil law. In Tracey[9], it was pointed out 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", and reference was made to comparable legislation in the United States, Canada and New Zealand. Cases of sexual assault by one defence member upon another, or of offences involving prohibited drugs, provide examples of circumstances in which the requirements of Defence Force discipline and of the obedience which every citizen owes to the law may overlap. In that respect, it may be necessary to bear in mind that the seriousness of a certain form of misconduct may take on a different aspect if it occurs in the context of military service. In R v Généreux[10], Lamer CJ said:
"Many offences which are punishable under civil law take on a much more serious connotation as a service offence and as such warrant more severe punishment. Examples of such are manifold such as theft from a comrade. In the service that is more reprehensible since it detracts from the essential esprit de corps, mutual respect and trust in comrades and the exigencies of the barrack room life style. Again for a citizen to strike another a blow is assault punishable as such but for a soldier to strike a superior officer is much more serious detracting from discipline and in some circumstances may amount to mutiny. The converse, that is for an officer to strike a soldier is also a serious service offence. In civilian life it is the right of the citizen to refuse to work but for a soldier to do so is mutiny, a most serious offence, in some instances punishable by death. Similarly a citizen may leave his employment at any time and the only liability he may incur is for breach of contract but for a soldier to do so is the serious offence of absence without leave and if he does not intend to return the offence is desertion."
[9](1989) 166 CLR 518 at 543.
[10][1992] 1 SCR 259 at 294.
This is a topic to which it will be necessary to return when dealing with the plaintiff's second argument. The difficulty of maintaining a clear distinction between breaches of service discipline and breaches of the civil law is exacerbated in circumstances of military conflict, but it is not limited to such circumstances. This may explain the plaintiff's preference for a challenge that turns upon no such distinction. The plaintiff's primary argument is that the trial and punishment of service offences necessarily involves an exercise of the judicial power of the Commonwealth, and may occur only within the limits imposed by Ch III of the Constitution. This, it is said, is because the power conferred by s 51(vi) of the Constitution, which is the power upon which Parliament relies to create service offences and establish a system of military justice, is given "subject to [the] Constitution", that is, subject to Ch III and to the separation of powers inherent in the structure of the Constitution. The scheme of the Act, it is said, is fundamentally inconsistent with the principles stated in the Boilermakers' Case[11].
[11]R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254.
In Tracey[12], Brennan and Toohey JJ said:
"[The Act] confers on service tribunals powers which are to be exercised judicially, which are subject to procedures spelt out in the statute appropriate to the exercise of judicial power, which provide for the imposition of penalties for conduct prohibited by law and which are subject to appeals that, on questions of law, may reach the Federal Court of Australia. The powers are conferred on officers of the Commonwealth by a law of the Commonwealth. These are indicia of the judicial power of the Commonwealth which can be exercised only by Ch III courts. They are not powers ... which [relate] merely to domestic discipline, not to the imposition of punishments as for the commission of criminal offences ... However, the imposition of punishments by service authorities as for the commission of criminal offences in order to maintain or enforce service discipline has never been regarded as an exercise of the judicial power of the Commonwealth. If that view be erroneous, no service tribunal has been validly constituted under a law of the Commonwealth since the Commonwealth assumed responsibility for the armed forces."
[12](1989) 166 CLR 518 at 572.
Their Honours went on to say that the Convention Debates are silent on this point, by which presumably they meant on the relationship between service tribunals and Ch III. The Debates are not silent on the topic of courts martial. During the debate on s 68, which vests the command in chief of the naval and military forces of the Commonwealth in the Governor-General as the Queen's representative, Mr Deakin moved an amendment to put beyond doubt that the Governor-General, as commander in chief, was to act on the advice of Cabinet or the Minister of Defence. Mr Barton opposed the amendment as being unnecessary, and in that context discussed courts martial. He said: "A court-martial is a judicial tribunal, and a Minister cannot affect its decision in any way. He could not dismiss an officer conducting a court-martial, because that man would be acting in a purely judicial capacity."[13] Mr O'Connor said[14]:
"You must have some one Commander-in-Chief, and, according to all notions of military discipline that we are aware of, the Commander-in-Chief must have control of questions of discipline, or remit them to properly constituted military courts. Dr Cockburn has referred to the trial of breaches of military discipline. Well, I should think that one of the most material parts of any Act constituting the forces of the Commonwealth would be to provide for the mode in which these courts-martial would be conducted, and the Parliament would have abundant power to decide how these matters were to be conducted, and what the particular form of the court was to be." (emphasis added)
[13]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 10 March 1898 at 2255.
[14]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 10 March 1898 at 2259.
Not only is there "testimony to the absence of any consciousness on the part of the delegates that they were leaving the naval and military forces of the Commonwealth without authority to maintain or enforce naval and military discipline in the traditional manner"[15], but, rather, it is clear that, as would be expected, the delegates were well aware of the role and functions of service tribunals, and Mr O'Connor told them that Parliament would have "abundant power" to decide how such tribunals were to be set up for the purposes of the new naval and military defences forces.
[15]Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 572.
Five members of the Court in Tracey (Mason CJ, Wilson and Dawson JJ, and Brennan and Toohey JJ) examined the history of courts martial in Australia, the United Kingdom, and the United States, before Federation[16]. It is unnecessary to repeat what was there said, but it is necessary to recognise its importance. That history forms part of the context relevant to the construction of the Constitution and, in particular, to an understanding of the relationship between s 51(vi) and Ch III. In the Supreme Court of the United States, an examination of history was central to the reasoning in both of O'Callahan and Solorio. In the latter case, it was said that the earlier case understated the extent to which, in English and American history, there had been military trial of members of the armed forces committing civilian offences. The majority in Solorio said it was wrong to suggest that, at the time of the American Revolution, military tribunals in England were available only where ordinary civil courts were unavailable[17]. As to American practice, they referred to George Washington's statement that "[a]ll 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"[18]. It may be added that the separation of powers involved in the structure of the United States Constitution, which served as an important model for the framers of the Australian Constitution, was not regarded in the United States, either before or after 1900, and was not regarded in either O'Callahan or Solorio, as incompatible with a system of military tribunals operating outside Art III. It should also be noted that the constitutional foundation for the power to establish military tribunals was said in Solorio[19] to be Art I, §8, cl 14 which gives Congress power to make Rules for the "Government and Regulation of the land and naval Forces". This grant of power was said to be plenary, and cl 14 was to be given its plain meaning[20]. Reference was made to Alexander Hamilton's description of the power as "essential to the common defense", and to his statement: "These powers ought to exist without limitation, because it is impossible to foresee or define the extent and variety of national exigencies, or the correspondent extent and variety of the means which may be necessary to satisfy them."[21] The exemption in the Fifth Amendment of "cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger" from the requirement of prosecution by indictment and the right to trial by jury was not treated in Solorio as the source of the power of Congress to establish military tribunals. The source of the power was the original grant of power, which corresponds with s 51(vi) of the Australian Constitution.
[16](1989) 166 CLR 518 at 539-543, 554-563.
[17]483 US 435 at 444 (1987).
[18]483 US 435 at 445 fn 10 (1987).
[19]483 US 435 at 441 (1987).
[20]483 US 435 at 441 (1987).
[21]483 US 435 at 441 (1987).
Professor W Harrison Moore, writing in 1910[22], described courts martial as tribunals which exercise a judicial function but which stand outside Ch III. He cited an American author[23] who said of such tribunals in the United States that "although their legal sanction is no less than that of the Federal Courts, being equally with them authorized by the Constitution, they are, unlike these, not a portion of the judiciary of the United States. ... Not belonging to the judicial branch of the Government, it follows that Courts martial must appertain to the executive department, and they are in fact simply instrumentalities of the executive power provided by Congress for the President as Commander-in-Chief to aid him in properly commanding the army and navy, and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives."
[22]The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 316-317.
[23]Thayer's Leading Cases in Constitutional Law.
Professor Moore said that it would be dangerous to attempt an exhaustive statement of the cases in which judicial functions may be exercised under the Constitution by authorities other than the courts established or invested with jurisdiction under s 71[24]. He gave three examples: the power of Parliament to deal with disputes as to elections and qualifications of members; the granting and withholding of licences; and the jurisdiction of courts martial. As to the first of those examples, in Sue v Hill[25] the majority held that such a power was capable of being conferred, and had been conferred, on a Ch III court (just as it would be possible for Parliament to assign service offences to Ch III courts), but nothing in any of the reasons for judgment in that case casts doubt upon Parliament's power to deal with such matters itself. There was no suggestion by any member of the Court that the principle of the separation of powers obliged Parliament to confer jurisdiction on a Ch III court.
[24]Moore, The Constitution of the Commonwealth of Australia, 2nd ed (1910) at 321.
[25](1999) 199 CLR 462.
In R v Cox; Ex parte Smith[26], a prisoner objected to the jurisdiction of a court martial on the ground that, because he had become a civilian again, to allow a court martial to exercise jurisdiction over him would be contrary to the principles of Ch III which confides the judicial power of the Commonwealth exclusively to courts of justice. Citing the decision of the Court in R v Bevan; Ex parte Elias and Gordon[27], Dixon J rejected the argument, saying[28]:
"In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional ... The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force. But they do not form part of the judicial system administering the law of the land. It is not uniformly true that the authority of courts-martial is restricted to members of the Royal forces. It may extend to others who fall under the same general military authority, as for instance those who accompany the armed forces in a civilian capacity."
[26](1945) 71 CLR 1 at 23.
[27](1942) 66 CLR 452.
[28](1945) 71 CLR 1 at 23.
Dixon J's statement that military tribunals do not form part of the judicial system administering the law of the land echoes Starke J's observation in Bevan[29] that the Supreme Court of the United States had held that courts martial form no part of the judicial system of the United States. Starke J went on to say[30] that a similar construction of the Australian Constitution was necessary from a practical and administrative point of view.
[29](1942) 66 CLR 452 at 467.
[30](1942) 66 CLR 452 at 467-468.
To adopt the language of Brennan and Toohey JJ in Tracey[31], history and necessity combine to compel the conclusion, as a matter of construction of the Constitution, that the defence power authorises Parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces and, when that jurisdiction is exercised, "the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s 51(vi) for the purpose of maintaining or enforcing service discipline." The plaintiff's primary argument fails.
[31](1989) 166 CLR 518 at 573-574.
The plaintiff's second argument depends upon the proposition that, even if it is accepted (as established by an unbroken line of authority in this Court) that, as a matter of construction of the Constitution, military service tribunals do not exercise the judicial power of the Commonwealth within the meaning of s 71, that construction only holds good when such tribunals are dealing with exclusively disciplinary offences, as earlier defined. A somewhat similar, although by no means identical, approach appealed to Deane J and Gaudron J who were in dissent in Tracey, and for a time appealed to McHugh J, who later accepted that the weight of authority was against it[32].
[32]See Re Nolan; Ex parte Young (1991) 172 CLR 460; Re Tyler; Ex parte Foley (1994) 181 CLR 18.
It is an over-simplification, and an erroneous summary, of the opinion of Deane J in Tracey to say that, at least in time of peace and general civil order, and in respect of conduct in Australia, he considered that jurisdiction could be conferred on a service tribunal operating outside Ch III only in respect of exclusively disciplinary offences. To demonstrate that, it is necessary to refer in some detail to his reasoning[33].
[33]Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 581-592.
Having begun his reasons by explaining the importance of the principle of the separation of powers, and of Ch III as a guarantee of due process, Deane J, rejecting by implication the primary argument for the plaintiff in this case, went on to consider the theoretical justification for accepting that in some circumstances service tribunals may be given jurisdiction outside Ch III. He said that a claim to exercise judicial power by any Commonwealth officer or instrumentality other than a court designated by Ch III can be allowed only if justified as a qualification of the provisions of Ch III, and, in the past, the Court had accepted at least two such qualifications: the powers of Parliament to deal with contempt or breach of privilege; and the powers of military tribunals to enforce military discipline. He cited the passage from the judgment of Dixon J in R v Cox quoted above, and said that the legal rationalisation for the acceptance of service tribunals outside Ch III "can only lie in an essentially pragmatic construction of the reference to 'the judicial power of the Commonwealth' in Ch III to exclude those judicial powers of military tribunals which [had] traditionally been seen as lying outside ... 'the judicial system administering the law of the land'". Accordingly, he said, it became necessary to identify the critical features of the powers that had traditionally been so regarded. Thus, Deane J saw the question as one of construction of the reference to the judicial power of the Commonwealth in Ch III, and accepted that some judicial powers of military tribunals did not involve the exercise of the judicial power of the Commonwealth. Which powers? The answer he gave was those that have traditionally been seen as lying outside the ordinary civilian judicial system.
Deane J did not make the mistake of thinking that traditionally it was only exclusively disciplinary offences, in the sense of offences based on conduct that would not also constitute an offence against civil law, that were dealt with, and seen as properly dealt with, by service tribunals outside the ordinary civilian judicial system. He referred also to another category of offence, which he called service-related offences: offences involving conduct of a type which is commonly an offence under the ordinary criminal law but which takes on a "special character" by reason of the fact that it bears a particular relationship to military discipline. He gave, as an example, an assault on a superior officer[34]. He did not exclude such service-related offences from the matters that were traditionally accepted as falling within the proper jurisdiction of service tribunals. He said that if the legislation in question to deal with such service-related offences could properly be restricted, by a process of reading down or severance, "to a disciplinary jurisdiction, which did not supplant the jurisdiction of the ordinary criminal courts to deal with the general community aspects of such conduct, it would fall within the traditional judicial powers of military tribunals and escape the reach of Ch III of the Constitution"[35]. He returned to this point in Nolan[36], where he summarised the view he expressed in Tracey as being that Parliament can, consistently with Ch III, confer judicial powers upon service tribunals to deal with offences that were "essentially disciplinary" in their nature, in the sense of being concerned either with "exclusively disciplinary" offences or with the disciplinary aspects of other "service-related" offences. In Deane J's view, offences that were "essentially disciplinary" included, but were not limited to, offences that were exclusively disciplinary. To ignore his acceptance of what he called service-related offences, as well as exclusively disciplinary offences, as falling within the category of essentially disciplinary offences that could be dealt with by service tribunals operating outside Ch III would be to mis-state his reasoning.
[34](1989) 166 CLR 518 at 587.
[35](1989) 166 CLR 518 at 589.
[36](1991) 172 CLR 460 at 489.
However, it is this part of the reasoning of Deane J that presents a difficulty. An illustration of the problem of separating essentially disciplinary offences from civil offences may be seen in the archetypal disciplinary offence: mutiny. The essence of mutiny lies in the combination to defy authority. The offence strikes at the heart of a disciplined, hierarchical service. The overt acts that accompany, and may evidence, mutiny will commonly involve conduct that is an offence at civil law. Injury to persons or property, or even the taking of life, may be involved. Trial and punishment for mutiny, which may well occur in exigent circumstances, is unlikely to permit a neat distinction between the disciplinary aspects and what Deane J called "the general community aspects"[37] of such conduct. The problem may also be illustrated by considering the example Deane J gave of a "service-related offence" – an assault upon a superior officer. How does a body dealing with such an offence distinguish between the disciplinary aspects and the general community aspects of such conduct? George Washington has a place in tradition, and his views, quoted earlier, about military abuse of civilians are impossible to reconcile with such a distinction. If, as appears to be accepted generally, a given offence, such as theft from a comrade, may have, in a military context, an aspect more serious than the same conduct would have in a civilian context, there appears to be no foundation for the proposition that tradition attempted to distinguish, in terms of procedures or punishment, between the service-related aspects and the general community aspects of such conduct.
[37](1989) 166 CLR 518 at 589.
A similar problem emerges from the more general qualification made by Deane J in introducing his statements of principle by limiting their application to times of peace and general civil order[38], and to offences committed within Australia[39]. Those limitations allow for military tribunals to deal with offences committed during combat, but not with offences committed during training (in Australia) for combat. Military exercises, during peacetime, may require the same kind of discipline as combat in wartime.
[38]Re Nolan; Ex parte Young (1991) 172 CLR 460 at 489.
[39]Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 592.
There are two basic difficulties. The first comes back to what was said by Alexander Hamilton about the nature of the defence power: it is impossible to foresee or define the extent and variety of national exigencies or of the means which may be necessary to satisfy them. The second was identified by Brennan and Toohey JJ in Tracey[40]. It is that whether an offence is more properly to be regarded as an offence against military discipline or a breach of civil order will often depend, not upon the elements of the offence, but upon the circumstances in which it is committed. Assaulting an officer might be identified readily as "essentially disciplinary" in most circumstances, but not in some. The same may be said of a sexual offence against another defence member; or conduct in relation to prohibited drugs. This was the point being made by an American author[41] cited in Tracey[42], who said:
"As to whether an act which is a civil crime is also a military offence no rule can be laid down which will cover all cases, for the reason that what may be a military offence under certain circumstances may lose that character under others."
[40](1989) 166 CLR 518 at 568.
[41]Davis, A Treatise on the Military Law of the United States, 3rd rev ed (1915) at 437.
[42](1989) 166 CLR 518 at 568.
In the plaintiff's alternative argument, it is only exclusively disciplinary offences that may be tried by a service tribunal established outside Ch III, and, to decide whether an offence is of that character, one looks at the elements of the offence and asks whether those elements constitute an offence at civil law. The plaintiff's argument was not qualified by considerations of whether the offence occurred in a time of peace or war, or within or outside Australia.
Insofar as the justification for the plaintiff's argument is said to be that it limits the jurisdiction of military tribunals to what is necessary for defence purposes, so as to give the exception to Ch III the narrowest scope consistent with its purpose, and thereby to allow the principle of separation of powers, and the protections of Ch III, the fullest scope, then such justification rests upon a bare and unconvincing assertion as to the requirements of necessity. If one were to ignore history, and simply to ask what jurisdiction s 51(vi) requires, as a matter of necessity, for service tribunals, then, for the reason stated by the American author in the passage quoted above, the answer will not be found in a formula that depends solely upon the elements of offences, and ignores the circumstances in which they were committed.
There is a serious question of interpretation of the Constitution, involving the need to give due weight to the protections contained in Ch III, and to the separation of powers inherent in the structure of the Constitution, while at the same time acknowledging the considerations of history and necessity referred to by Brennan and Toohey JJ in Tracey. Their response to that question was to conclude that proceedings may be brought for a service offence in a tribunal established outside Ch III only if those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. That is a response that recognises the impossibility of classifying an offence as either military or civil simply by reference to the technical elements of the offence, ignoring the circumstances in which it is committed. If, contrary to the plaintiff's argument, one were to adopt a different test for conduct in wartime, or overseas, then one would be accepting that on some occasions the circumstances (of time and place) in which conduct occurred would be material, perhaps decisive, and on other occasions the circumstances would be irrelevant. This seems illogical.
The plaintiff's alternative argument also fails.
The application should be dismissed with costs.
GUMMOW, HAYNE AND CRENNAN JJ. The plaintiff is a defence member within the meaning of the Defence Force Discipline Act 1982 (Cth) ("the Act"). She is a member of the Royal Australian Navy and a Chief Petty Officer, stationed on HMAS Manoora. The long title to the Act is "[a]n Act relating to the discipline of the Defence Force and for related purposes". The Act provides for a range of offences and for trial and punishment by service tribunals. The plaintiff challenges the validity of that system of justice.
The alleged offences
Part III (ss 15-65) of the Act is headed "Offences". Reference should be made to those offences which are particularly relevant to this case. Division 3 (ss 25‑34) is headed "Insubordination and violence". So far as material, s 33 states:
"A person who is a defence member ... is guilty of an offence if the person is on service land, in a service ship, service aircraft or service vehicle or in a public place and the person:
(a)assaults another person; ...
Maximum punishment: Imprisonment for 6 months."
Division 8 (s 61) is headed "Offences based on Territory offences". Section 61(3) provides:
"A person who is a defence member ... is guilty of an offence if:
(a)the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and
(b)engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place)."
With respect to punishment, s 61(4) states:
"The maximum punishment for an offence against this section is:
(a)if the relevant Territory offence is punishable by a fixed punishment — that fixed punishment; or
(b)otherwise — a punishment that is not more severe than the maximum punishment for the relevant Territory offence."
The expression "Territory offence" is so defined in s 3(1) as to "pick up" offences punishable under the Crimes Act 1900 (ACT) ("the Crimes Act"), as a law in force in the Jervis Bay Territory.
On 30 June 2006, the plaintiff was charged by the Acting Director of Military Prosecutions with seven offences. All but one of them relied upon s 61(3) of the Act in conjunction with s 60 of the Crimes Act. Section 60(1) states:
"A person who commits an act of indecency on, or in the presence of, another person without the consent of that person and who knows that that other person does not consent, or who is reckless as to whether that other person consents, to the committing of the act of indecency is guilty of an offence punishable, on conviction, by imprisonment for 5 years."
The charges indicate that there are five female complainants, all of inferior rank to the plaintiff; three hold the rank of Able Seaman and two that of Leading Seaman. The one charge of assault under s 33(a) of the Act (Charge 4) is in the alternative to one of the charges (Charge 3) under s 61(3) of the Act in conjunction with s 60 of the Crimes Act.
The legislation makes some provision for the relationship between service tribunals and the civil courts and between service offences and civil court offences. Section 190(1) of the Act states:
"Subject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence."
The offences with which the plaintiff is charged are "service offences" within the definition of that term in s 3(1). The expression "civil court" is defined in the same section as meaning "a federal court or a court of a State or Territory".
Further, civil courts do not have jurisdiction to try charges of civil court offences committed by defence members or "defence civilians" which are "ancillary" to certain offences against the Act (s 190)[43]. A person acquitted or convicted by a civil court for an offence not being a service offence, but being "substantially the same" as a service offence, is not liable to trial by a service tribunal for that service offence (s 144(3)). Neither s 190 nor s 144(3) is directly invoked in the present case.
[43]Section 190 was cast in broader terms at the time when what were then sub‑ss (3) and (5) were held invalid in Re Tracey; Ex parte Ryan (1989) 166 CLR 518. These provisions were removed by the Defence Legislation Amendment Act 2003 (Cth), Sched 1, Items 42, 43.
The High Court litigation
By application made to this Court, the plaintiff seeks prohibition against the first defendant, the Director of Military Prosecutions ("the Director"), restraining the Director from requesting the Registrar of Military Justice to refer the charges to a Defence Force magistrate for trial or from requesting the Registrar to convene a general court martial or a restricted court martial to try the charges. Authority to pursue those alternative courses in the various service tribunals is conferred upon the Director by s 103(1) of the Act. Jurisdiction to try charges is conferred by s 115 upon a court martial and upon a Defence Force magistrate by s 129.
The plaintiff also seeks a declaration that a trial of the charges against her requires "an exercise of the judicial power of the Commonwealth within the meaning of Ch III of the Constitution". The plaintiff seeks a further declaration that the provisions of the Act purporting to confer jurisdiction on courts martial and Defence Force magistrates (ss 115 and 129 respectively) are invalid because courts martial and Defence Force magistrates are not courts invested with federal jurisdiction within the meaning of s 71 of the Constitution.
The Director has undertaken not to pursue prosecution of the charges pending determination of the plaintiff's application by this Court. By order of the Chief Justice, the application was referred to the Full Court.
The place of military law
Before turning to consider the submissions by the plaintiff, some general observations should be made. These provide the context in which the issues of validity fall for consideration.
First, the English constitutional system as it developed after the turmoil of the seventeenth century did not allow for a military caste with its own set of all‑encompassing legal norms, as was found in some other European nation states[44]. Secondly, the ascendency of parliamentary control denied any place for a general defence in the English criminal law of superior orders or of executive fiat, and this remains the case in Australia[45]. Thirdly, naval and military courts martial were liable to the supervisory jurisdiction of the superior courts[46]. Of the English system as it developed after the Revolution of 1688 the Supreme Court of the United States later said[47]:
"By the mutiny acts, courts martial have been created, with authority to try those who are a part of the army or navy for breaches of military or naval duty. It has been repeatedly determined that the sentences of those courts are conclusive in any action brought in the courts of common law. But the courts of common law will examine whether courts martial have exceeded the jurisdiction given them, though it is said, 'not, however, after the sentence has been ratified and carried into execution.'"
[44]Groves v The Commonwealth (1982) 150 CLR 113 at 125‑126.
[45]A v Hayden (1984) 156 CLR 532.
[46]Grant v Sir Charles Gould (1792) 2 H Bl 69 at 100 per Lord Loughborough [126 ER 434 at 450].
[47]Dynes v Hoover 61 US 65 at 83 (1857).
Fourthly, the civil law of obligations does not cease to run merely because the obligations in question bind or confer rights upon a defence member. Thus, Groves v The Commonwealth[48] established that at common law an action in negligence is maintainable against the Commonwealth by a defence member for damages caused by the negligence of a fellow defence member while on duty in peace time.
[48](1982) 150 CLR 113. In their joint judgment (at 134), Stephen, Mason, Aickin and Wilson JJ put to one side the position of defence members engaged in combatant duties in time of war or in training for such activities.
Finally, the system established by the Act cannot operate wholly beyond the ambit of Ch III of the Constitution. This is because those constituting the service tribunals under the Act are officers of the Commonwealth for the purposes of s 75(v) of the Constitution. Accordingly, the Constitution mandates one avenue for judicial review, in particular for jurisdictional error. Further, it has never been suggested that the laws made by the Parliament under s 51 of the Constitution, which give rise to matters in which the Parliament may make laws under s 76(ii) and s 77 conferring federal jurisdiction, do not include laws supported by s 51(vi) or that s 51(vi) is so walled‑off from Ch III as to deny the competency of such laws. Thus, the Parliament has enlarged the participation of Ch III courts in the procedures for the prosecution of offences under the Act. The Defence Force Discipline Appeals Act 1955 (Cth) ("the Appeals Act") establishes a review system which includes provision for an "appeal" to the Federal Court on a question of law involved in a decision of the Defence Force Discipline Appeal Tribunal given on an "appeal" to the Tribunal under that statute (s 52)[49]. The legislation for that system is founded upon s 51(vi), s 76(ii) and s 77(i) of the Constitution.
[49]See Hembury v Chief of the General Staff (1998) 193 CLR 641.
There is an important distinction which should be made before considering the submissions respecting the validity of the Act. No party to the present case contends that it would be beyond the competence of the Parliament, by further reliance upon s 51(vi), s 76(ii) and s 77(i) (and, if need be, upon s 71 to create an additional federal court), to achieve the result that offences under the Act were tried by the exercise of the judicial power of the Commonwealth in a Ch III court. The defendants did not assert that the functions of the service tribunals would have been insusceptible of discharge by a Ch III court if the Act had so provided.
Where the parties differ is with respect to a particular submission by the plaintiff. This is to the effect that it is only by the exercise of the judicial power of the Commonwealth that the functions of the service tribunals under the Act may be exercised conformably with the Constitution and that the system established by the Act therefore is invalid.
The plaintiff's first submission
As the hearing developed, it became apparent that the plaintiff put her case essentially upon two grounds. The first had been developed in the written submissions. The second emerged in the course of oral argument. It is convenient to deal with these submissions in order.
The first submission by the plaintiff is in the broad terms indicated above. It is that the offences which the Act creates, including those with which the plaintiff is charged, may not be tried in the manner for which the Act stipulates. This is for the following reasons:
(i)the proceedings are matters in which the Commonwealth is a party (s 75(iii)) and matters arising under a law of the Commonwealth within the meaning of s 76(ii) of the Constitution;
(ii)they involve the adjudication of guilt and infliction of punishment and this requires the exercise of the judicial power of the Commonwealth;
(iii)none of the service tribunals for which the Act provides is a Ch III court and none may exercise the judicial power of the Commonwealth; and
(iv)the Act invalidly purports to authorise the service tribunals to exercise the judicial power of the Commonwealth.
The relationship between Ch III of the Constitution and service tribunals established in exercise of the legislative power conferred by s 51(vi) of the Constitution is not a straightforward one. At bottom, the relationship turns upon identification of the content of the expression "the judicial power of the Commonwealth" in s 71.
In that regard, three observations by Kitto J in R v Davison[50] provide an appropriate starting point. His Honour first observed[51]:
"It is well to remember that the framers of the Constitution, in distributing the functions of government amongst separate organs, were giving effect to a doctrine which was not a product of abstract reasoning alone, and was not based upon precise definitions of the terms employed."
Secondly, he said[52]:
"[W]hen the Constitution of the Commonwealth prescribes as a safeguard of individual liberty a distribution of the functions of government amongst separate bodies, and does so by requiring a distinction to be maintained between powers described as legislative, executive and judicial, it is using terms which refer, not to fundamental functional differences between powers, but to distinctions generally accepted at the time when the Constitution was framed between classes of powers requiring different 'skills and professional habits' in the authorities entrusted with their exercise."
[50](1954) 90 CLR 353.
[51](1954) 90 CLR 353 at 380‑381.
[52](1954) 90 CLR 353 at 381‑382.
Kitto J reached a conclusion which would seek an answer to the issues in the present case in the consideration of how similar or comparable powers to those exercised under the Act were treated in Australia at the time when the Constitution was prepared. His Honour said in that regard[53]:
"Where the action to be taken is of a kind which had come by 1900 to be so consistently regarded as peculiarly appropriate for judicial performance that it then occupied an acknowledged place in the structure of the judicial system, the conclusion, it seems to me, is inevitable that the power to take that action is within the concept of judicial power as the framers of the Constitution must be taken to have understood it."
[53](1954) 90 CLR 353 at 382.
The plaintiff seeks to turn to account the following statement by Jacobs J in R v Quinn; Ex parte Consolidated Food Corporation[54]:
"The historical approach to the question whether a power is exclusively a judicial power is based upon the recognition that we have inherited and were intended by our Constitution to live under a system of law and government which has traditionally protected the rights of persons by ensuring that those rights are determined by a judiciary independent of the parliament and the executive. But the rights referred to in such an enunciation are the basic rights which traditionally, and therefore historically, are judged by that independent judiciary which is the bulwark of freedom. The governance of a trial for the determination of criminal guilt is the classic example."
[54](1977) 138 CLR 1 at 11.
There are several difficulties in the path of unconditional acceptance of what Jacobs J called "the historical approach" and Kitto J expounded in the above passages. The modern regulatory state arrived after 1900 and did so with several pertinent consequences. First, modern federal legislation creates rights and imposes liabilities of a nature and with a scope for which there is no readily apparent analogue in the pre‑federation legal systems of the colonies. Secondly, any treatment today of Ch III must allow for what has become a significant category of legislation where a power or function takes its character as judicial or administrative from the nature of the body in which the Parliament has located it.
Thirdly, one upshot of this state of affairs has been the development of various theories or descriptions of judicial power which are expressed in general and ahistorical terms. Thus, consideration of the nature of the federal conciliation and arbitration system stimulated the development of a discrimen of judicial power as "concerned with the ascertainment, declaration and enforcement of the rights and liabilities of the parties as they exist, or are deemed to exist, at the moment the proceedings are instituted" and of arbitral power as the ascertainment and declaration (but without enforcement) of "what in the opinion of the arbitrator ought to be the respective rights and liabilities of the parties in relation to each other"[55].
[55]Waterside Workers' Federation of Australia v J W Alexander Ltd (1918) 25 CLR 434 at 463.
In R v Bevan; Ex parte Elias and Gordon[56], Starke J referred to a general description of judicial power found in some of the earlier decisions of the Court. This was the identification[57] of judicial power with the exercise of sovereignty in giving binding authority to decisions upon controversies respecting life, liberty or property. The death sentences for murder imposed upon Elias and Gordon at the court martial conducted upon HMAS Australia answered that description. But, as Starke J then asked, whilst the court martial had exercised "judicial power", had it exercised "the judicial power of the Commonwealth" identified in s 71 of the Constitution[58]? The answer in the negative given by his Honour was based upon historical considerations. In particular, Starke J[59] referred to the decision of the Supreme Court of the United States in 1857 in Dynes v Hoover[60]. Dynes was a seaman serving on the USS Independence who had been convicted of attempted desertion by a naval court martial, and sentenced to six months imprisonment. He sued in a civil court, among other things, for false imprisonment. In upholding the dismissal of the civil action, the Supreme Court said[61] that, quite independently of Art III of the United States Constitution:
"Congress has the power to provide for the trial and punishment of military and naval offences in the manner then [ie in 1789] and now practiced by civilized nations".
[56](1942) 66 CLR 452 at 466.
[57]In Huddart, Parker & Co Pty Ltd v Moorehead (1909) 8 CLR 330 at 357.
[58](1942) 66 CLR 452 at 466.
[59](1942) 66 CLR 452 at 467.
[60]61 US 65 (1857).
[61]61 US 65 at 79 (1857).
In this way, generally expressed theories respecting the content of "judicial power" are accommodated to the constitutional term "the judicial power of the Commonwealth". The result of doing so allows for continued significance of the historical considerations to which Kitto J referred in Davison and Jacobs J in Quinn. This brings us to the present case.
Here, the decisive consideration is as follows. To the judicial system for the determination of criminal guilt to which Jacobs J referred in Quinn, there was the well‑recognised exception for legislatively based military and naval justice systems of the kind which the Supreme Court of the United States had recognised in 1857 and which applied in the Australian colonies at federation. Those military and naval justice systems were directed to the maintenance of the defining characteristic of armed forces as disciplined forces organised hierarchically. By the applicable statutes, the legislature controlled and regulated the administration by and within the forces of disciplinary measures intended to maintain discipline and morale within the forces. That regulation proceeded not only by general reference to acts "to the prejudice of good order and military discipline"[62] but also by reference to particular acts which would constitute offences under generally applicable laws.
[62]Army Act 1881 (Imp), s 41.
In Re Tracey; Ex parte Ryan[63], Mason CJ, Wilson and Dawson JJ gave detailed consideration to the Imperial and Australian colonial legislation in the period leading up to the adoption of the Constitution. This included systems of courts martial based upon those provided by the Naval Discipline Act 1866 (Imp) ("the Naval Discipline Act")[64] and the Army Act 1881 (Imp) ("the Army Act")[65]. Reference also may be made to the arrival in Sydney in 1891 of an auxiliary fleet to be equipped and maintained at the joint expense of the United Kingdom and the colonies under comprehensive legislative arrangements headed by the Imperial Defence Act 1888 (Imp)[66] and to the movement, under the influence particularly of Sir Henry Parkes, for the federation of all the military forces in the Australian colonies[67].
[63](1989) 166 CLR 518 at 541‑543.
[64]29 & 30 Vict c 109.
[65]44 & 45 Vict c 58.
[66]51 & 52 Vict c 32. See Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 116‑117; Todd, Parliamentary Government in the British Colonies, 2nd ed (1894) at 401‑403.
[67]Quick and Garran, The Annotated Constitution of the Australian Commonwealth, (1901) at 117‑119; Todd, Parliamentary Government in the British Colonies, 2nd ed (1894) at 396‑401.
With respect to the continued significance of the Imperial legislation, in their joint judgment in Tracey, Brennan and Toohey JJ remarked[68]:
"The Naval Discipline Act and the Army Act were in force when federation of the Australian colonies was under consideration and when the Constitution came into force on 1 January 1901. After federation, the Naval Discipline Act and the Army Act as in force from time to time were adopted as the legal foundations for the discipline of the naval and military forces of the Commonwealth: see the Defence Act 1903 (Cth), ss 55 and 56. The Defence Act made the military forces of the Commonwealth subject to the Imperial Army Act as in force from time to time while those forces were on active service, ie, engaged in operations against the enemy including any naval or military service in time of war: ss 4, 55. A similar provision (s 56) was made subjecting naval forces on active service to the Naval Discipline Act. In 1910, the naval forces were made subject to the Naval Discipline Act generally (Naval Defence Act 1910 (Cth), s 36) and in 1964 the application of the Army Act to the military forces was extended to service outside Australia: Defence Act 1964 (Cth), s 26. When the Air Force Act 1923 (Cth) was enacted, its members were not subject to the Army Act but in 1939 the Imperial Air Force Act (semble, The Air Force (Constitution) Act 1917 (UK)) was applied generally to the members of the air force subject to prescribed modifications: Air Force Act 1939 (Cth), s 6."
[68](1989) 166 CLR 518 at 561‑562.
That significant elements of Imperial law continued to apply in the system of courts martial, is demonstrated by the procedures followed in the World War II cases, Bevan and R v Cox; Ex parte Smith[69].
[69](1945) 71 CLR 1.
We now return to the primary submission for the plaintiff. This is to the effect that the adjudication of the charges presented against her and the infliction of any punishment by the service tribunals provided by the Act necessarily would require the exercise of the judicial power of the Commonwealth.
To accept that submission would involve departing from the long-standing decisions in Bevan and Cox. Upon the correctness of those decisions the Parliament was entitled to rely in enacting the Act and the Appeals Act. In any event, and as indicated above, those decisions were correctly based upon a consideration of the operation of military justice systems in the Australian colonies and the deep importance attached to the continuation of the Imperial defence connection were the colonies to federate.
It is not a matter of whether the service tribunal system was "taken outside Ch III simply by reason of the events of history"[70], but whether that system was ever within the exclusive operation of Ch III. To attribute to the presence in the Constitution of Ch III a rejection of service tribunals of the nature provided by the Naval Discipline Act and the Army Act would be to prefer the "abstract reasoning alone" to which Kitto J referred in Davison[71] to an appreciation of the content of "the judicial power of the Commonwealth" which must have been universally understood in 1900.
[70]cf Re Nolan; Ex parte Young (1991) 172 CLR 460 at 497.
[71](1954) 90 CLR 353 at 380‑381.
The plaintiff sought to strengthen her primary submission by reference to ss 75 and 76 of the Constitution, particularly s 76(ii). This empowers the Parliament to make laws conferring original jurisdiction on this Court in any matter arising under any laws made by the Parliament. Plainly, with respect to the trial of the offences with which the plaintiff is charged, the Act does not confer the original jurisdiction spoken of in s 76(ii). Nevertheless, the plaintiff sought to draw an implication from s 76(ii) to support her first submission. The alleged implication appears to be that where a matter arises under a law of the Parliament and is "fit for determination" by the exercise of judicial power, it necessarily follows that any resolution of that matter can only be had by the exercise of the judicial power of the Commonwealth. However, the conclusion does not follow from the premise. The circumstance that the Parliament is empowered to confer jurisdiction on this Court in matters arising under laws it makes does not carry any implication that any controversy to which such a law gives rise is susceptible of resolution only by the exercise of the judicial power of the Commonwealth.
The plaintiff's second submission
There are in the case law secondary issues. These respect the limits upon the exercise of the legislative power conferred by s 51(vi) of the Constitution to proscribe and provide for the punishment of conduct other than through the engagement of the judicial power of the Commonwealth. Granted the capacity of the Parliament to legislate under s 51(vi) and outside Ch III for the provision of service tribunals, what are the limits of that power? Some of the limiting criteria have been considered in Tracey, Re Nolan; Ex parte Young[72] and Re Tyler; Ex parte Foley[73], in particular the so‑called "service related" and "service status" tests.
[72](1991) 172 CLR 460.
[73](1994) 181 CLR 18.
It is unnecessary here to recapitulate what was said on these topics. However, what is presently significant is that these secondary issues reflect the importance of what earlier in these reasons is identified as the defining characteristic of armed forces as disciplined forces organised hierarchically.
In her second submission, the plaintiff fixes upon another suggested criterion of sufficient connection. This looks to the presence of substantial identity between service and civilian offences or the absence of an "exclusively disciplinary" nature in the service offences as indicative of the invalidity of the service tribunal system in the particular case in question.
The offences with which the plaintiff is charged are said to have occurred in the State of Victoria. In her written submissions, the plaintiff emphasised that in Victoria the conduct alleged to found the charge of assault under s 33(a) of the Act would amount to an indictable common law assault[74] and would attract a maximum penalty of five years imprisonment[75]. Further, the "Territory offences" providing for the basis of the charges under s 61(3) of the Act would, if committed in Victoria, be indictable offences under the law of that State[76], with a maximum penalty of 10 years imprisonment.
[74]R v Patton, Caldwell and Robinson [1998] 1 VR 7 at 21‑22.
[75]Crimes Act 1958 (Vic), s 31; Sentencing and Other Acts (Amendment) Act 1997 (Vic), s 60 and Sched 1, Item 16.
[76]Crimes Act 1958 (Vic), ss 2B, 39.
As the oral argument developed, it became apparent that the plaintiff emphasised that the charges based upon the Act involved conduct which could be charged and tried in the ordinary civil courts of the State of Victoria and the punishment of imprisonment was available in respect of both categories of offence. That conjunction of law and circumstance was said to have placed the relevant provisions of the Act outside that area within which the Parliament might legislate with respect to the prosecution of offences created by reliance upon the defence power and without necessarily engaging Ch III.
Some footing for the distinction sought to be drawn in this way is provided by statements by Deane J and by Gaudron J in Tracey, Nolan and Tyler, and by McHugh J in Nolan. In Tracey, Deane J concluded[77]:
"[T]he comprehensive jurisdiction purportedly conferred by the Act upon service tribunals which are not Ch III courts is valid, in so far as offences committed within an Australian State or Territory in time of peace are concerned, only to the extent that it extends to dealing with exclusively disciplinary offences. That being so, the learned defence force magistrate in the present case lacks jurisdiction to deal with the charge under s 55(1)(b) (falsification of service document) but possesses jurisdiction to deal with the two charges under s 24(1) (absent without leave)." (emphasis added)
Then, in Nolan, McHugh J said[78]:
"In my opinion, 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." (original emphasis)
Thereafter, in Tyler, Deane J said that he continued[79]:
"to reject what [he saw] as an unjustifiable denial of the applicability of the Constitution's fundamental and overriding guarantee of judicial independence and due process to laws of the Parliament providing for the trial and punishment of members of the armed forces for ordinary (in the sense of not exclusively disciplinary) offences committed within the jurisdiction of the ordinary courts in times of peace and general civil order". (emphasis added)
[77](1989) 166 CLR 518 at 591.
[78](1991) 172 CLR 460 at 499.
[79](1994) 181 CLR 18 at 34.
In Tracey, Gaudron J declared[80]:
"In my view the Act, to the extent that it purports to vest in service tribunals jurisdiction in relation to conduct engaged in by defence members in Australia constituting service offences which are substantially the same as civil court offences, is, in the present circumstances, beyond legislative power and invalid. ...
[T]he charges of absence without leave have no counterpart under the general law. The order nisi must be discharged so far as it has effect with respect to these charges.
The service offence created by s 55(1)(b) of the Act (falsification of service document) is in a different category." (emphasis added)
In Tyler[81], Gaudron J spoke of "charges under the Act in relation to acts or omissions which, although called 'service offences', are, in essence, the same or substantially the same as criminal offences under the general law".
[80](1989) 166 CLR 518 at 603‑604.
[81](1994) 181 CLR 18 at 35 (emphasis added).
In Tyler[82], McHugh J accepted, with respect correctly, that his views and those of Deane J had been rejected by a majority of Justices in Tracey and Nolan. Nevertheless, given the significance that the point assumed in oral argument in the present case, it is appropriate to look further to the notions of identity or substantial similarity of "service offences" and criminal offences under the general law.
[82](1994) 181 CLR 18 at 38‑39.
There are several implicit assumptions made here. One is that the service tribunal system established by the Act attempts to displace or overreach obligations imposed upon the population generally by the ordinary civil law. Another is that no more is involved than a comparison between the constituent elements of a service offence and a general law offence.
These assumptions do not provide an adequate starting point for an analysis of what is permitted to service tribunals which are not Ch III courts, and the relationship between service and civilian offences.
In many instances, service as a defence member involves additional responsibilities whose enforcement calls for more than the application of the general law by civilian courts. The location in particular instances of this intersection and accumulation of responsibilities does not call for determination in the present case. This is because the submissions for the plaintiff were so cast as to deny any inquiry beyond the application of a false distinction based upon identity of constituent elements of two categories of offences.
A more adequate starting point for analysis is apparent in the following passage in the title "Royal Forces" in the first edition of Halsbury's Laws of England[83]. The passage is as follows:
"It is one of the cardinal features of the law of England that a soldier does not by enlisting in the regular forces thereby cease to be a citizen, so as to deprive him of any of his rights or to exempt him from any of his liabilities under the ordinary law of the land. He does, however, in his capacity as a soldier, incur additional responsibilities, for he becomes subject at all times and in all circumstances to a code of military law contained in the Army Act, the King's Regulations and Orders for the Army, and Army Orders." (footnotes omitted)
[83]vol 25, par 79.
The matter was taken up by Windeyer J in the following passage in Marks v The Commonwealth[84]:
"The relationship of members of the armed Services to the Crown differs essentially from that of civil servants whose service is governed by the regulations of the Public Service. The members of the Forces are under a discipline that the others are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim."
[84](1964) 111 CLR 549 at 573. In similar vein, the article contributed by Judge Babington to The Oxford Companion to Military History, Holmes (ed), (2001) at 233, defines "courts martial" as:
"[t]ribunals that enforce the special laws and standards of conduct expected of soldiers, once more lax but now in general more strict than the civil courts governing non‑military personnel."
The identification of that which is reasonably necessary to the regularity and due discipline of the defence force cannot depend simply upon the absence of any counterpart for a particular norm of conduct in the general law[85]. Additional responsibilities of defence members may give to general norms of conduct a distinct and emphatic operation. This may be apt for enforcement in a system of military justice such as that established by the Act.
[85]cf Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 591, 603‑604.
Examples, with respect to crimes of personal violence, may be found in the discussion by McHugh J in Re Aird; Ex parte Alpert[86]. His Honour discussed, in the factual context of that case, the perception by foreign governments and members of the local population of defence members as representatives of Australia in a way tourist visitors are not. McHugh J also mentioned the reluctance of defence members to serve with personnel who engage in violent conduct, whether that reluctance is from fear of personal safety or rejection of such conduct or both.
[86](2004) 220 CLR 308 at 323‑324 [40]-[42].
Thus, it is unsatisfactory to apply as a criterion of constitutional validity in a case such as the present a discrimen which fixes upon offences which can be said to be "exclusively disciplinary in character" and to dismiss from further analysis the significance to be attached to the overlap between service offences and offences under the general law.
Undoubtedly difficult questions may arise in considering the significance for a particular case of that overlap. However, these questions need not be pursued in this case. The plaintiff's second submission is cast in a form which denies an occasion here for consideration of the overlap.
Conclusion
The application should be dismissed with costs.
KIRBY J. These proceedings involve a challenge to the constitutional validity of the trial of charges brought under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The case obliges this Court to return to first principles.
In the past, there have been holdings, assumptions and dicta concerning the validity of the applicable provisions of the Act and its predecessors. However, the point now presented has not hitherto been decided. In a number of recent cases, it was reserved[87]. Where a challenge of such a kind is presented by a party with the requisite standing, this Court is engaged in the most important function for which it is established by the Constitution[88]. A laissez faire attitude to challenged federal legislation is not one that this Court has historically adopted[89]. It is not one that I would adopt now[90].
[87]Hembury v Chief of the General Staff (1998) 193 CLR 641 at 657 [44]-[45], and see also at 669-670 [72]; Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 326 [57].
[88]Constitution, s 71.
[89]cf Bank of NSW v The Commonwealth (1948) 76 CLR 1, affirmed (1949) 79 CLR 497; [1950] AC 235; Australian Communist Party v The Commonwealth (1951) 83 CLR 1 at 193.
[90]cf New South Wales v Commonwealth (2006) 81 ALJR 34 at 168 [615]; 231 ALR 1 at 165; Forge v Australian Securities and Investments Commission (2006) 80 ALJR 1606 at 1658 [218]; 229 ALR 223 at 286; Attorney-General (Vic) v Andrews (2007) 81 ALJR 729 at 758 [164]; 233 ALR 389 at 427.
The challenge to the constitutional validity of the provisions in question succeeds on the second argument advanced in the proceedings[91]. Appropriate relief should issue. This would have the beneficial consequence of requiring a restructuring of the Act to confine the exercise of "military justice", outside the courts, to disciplinary offences properly defined, remitting all other contested offences to the independent courts of the Judicature, established in accordance with Ch III of the Constitution. Defence personnel are citizens. They are entitled, as much as any others, to one of the most precious guarantees that the Constitution offers – the resolution of disputed charges of serious criminal conduct before independent courts operating wholly within the Judicature and outside the Executive.
[91]Reasons of Gummow, Hayne and Crennan JJ ("joint reasons") at [60].
The facts
The alleged offences: Ms Anne White ("the plaintiff") is a defence member[92], being a member of the Permanent Navy of the Commonwealth ("the Royal Australian Navy"). The expression "defence member" includes, in certain circumstances, members of the Reserves[93]. The plaintiff has been charged with seven "service offences"[94].
[92]As defined in the Act, s 3(1).
[93]The Act, s 3(1). See also s 3(4).
[94]As defined in the Act, s 3(1).
Six of the alleged offences charge that the plaintiff engaged "in conduct outside the Jervis Bay Territory" which is a "Territory offence"[95], being an offence of an act of indecency without consent. The remaining charge, alleged in the alternative to such an offence, asserts that the plaintiff assaulted a named person in a public place. The indecency offences are based on the Crimes Act 1900 (ACT), s 60 as applied to a defence member by s 61(3) of the Act. That section extends defined Territory offences to "a defence member or a defence civilian"[96].
[95]As defined in the Act, s 3(1).
[96]As defined in the Act, s 3(1).
The plaintiff denies all of the offences. A contest between the first defendant, the Director of Military Prosecutions ("the Director"), and the plaintiff is thus presented as to whether the Director can prove the charges against the plaintiff according to law in a constitutionally valid court or tribunal. Unless restrained by this Court, the Director intends to request the Registrar of Military Justice to refer the charges for trial before a Defence Force magistrate or to convene a court martial for such trial[97]. The determination of the charges at trial has been interrupted by these proceedings.
[97]Under s 103(1)(c) and (d). The jurisdiction of the Defence Force magistrate is provided by the Act, s 129. See also s 135. Trial by courts martial is provided for by the Act, s 132.
The surrounding circumstances: Although this Court has not been asked to determine any contested facts, the record contains an affidavit of the plaintiff, included without stated objection by the Director or the Commonwealth (the latter added as second defendant). The affidavit contains unchallenged assertions which, although not determinative of any constitutional question, illustrate the kind of circumstance to which the language of the Act lends itself to application, if the Act is valid.
Thus, the plaintiff states that she was not in uniform at the time of the alleged offences; nor on duty; nor on the property of the Commonwealth. Moreover, she states that the complainants were not in uniform, not on duty and not on the property of the Commonwealth at such times. As well, she states that no other person who was present at the time of the alleged offences was in uniform or on duty. These facts (and the extension of the Act to defence members in the Reserves as well as to defence civilians) give a clue as to the very wide ambit of the asserted operation of the Act.
The loss of jury trial: The offences with which the plaintiff has been charged are all alleged to have occurred at a hotel at Williamstown in the State of Victoria. If the offences were prosecuted under the applicable criminal law of the State of Victoria (the Crimes Act 1958 (Vic), s 39), the offences of indecent assault would carry a punishment described as "Penalty: Level 5 imprisonment (10 years maximum)". Under s 2B of that Victorian statute, all offences against that Act are, unless a contrary intention appears, "deemed to be indictable offences". It follows that, if the plaintiff had been charged under Victorian law, in respect of the alleged offences, she would have been entitled to trial by jury.
Likewise, under the criminal law of the Australian Capital Territory, as applicable in the Jervis Bay Territory, purportedly applied to the plaintiff as a defence member, the charges of indecent assault would involve offences punishable, on conviction, by imprisonment for five years[98]. That fact would similarly entitle the plaintiff to trial by jury, if disputing the charges, or any of them, in either of such Territories.
[98]Crimes Act 1900 (ACT), s 60(1).
In her affidavit, the plaintiff states that she wishes "to exercise my constitutional right to have the alleged indictable offences the subject of trial by jury". Under the Act, as it stood at the relevant time, the plaintiff purportedly has no entitlement to jury trial by federal law, whether before a jury of fellow citizens, of the kind envisaged by s 80 of the Constitution, or even before a "military jury", subsequently created by amendments to the Act which the parties agreed had not come into operation so as to apply to the plaintiff's case[99].
[99]Defence Legislation Amendment Act 2006 (Cth), Sched 1, items 9 and 11, inserting in the Act Pt VII, Div 4 ("Military jury") (ss 122-124) to provide for trial by the proposed Australian Military Court.
The present proceedings do not call for a decision as to whether the future provisions of the Act for a "military jury" (or for the proposed Australian Military Court outside Ch III of the Constitution) are valid. However, the existence of such provisions, called to the Court's notice during the argument, alerts the Court to the implications of the present case for the future operation of Ch III in the context of military justice. The amendments provide a warning about the importance of this decision for whether criminal laws might be applied, outside the ordinary courts of the land, to citizens who happen to be members of the Defence Force. The Court cannot later complain that it was not warned of the next intended step in military exceptionalism.
The legislation
Service tribunals and offences: The Act contains many provisions governing the conviction and punishment of defence members. Through the vehicle of s 61 of the Act, such provisions extend to the whole gamut of criminal offences provided by the "Territory offences"[100].
[100]The Act, s 61 and the definition of "Territory offence" in s 3(1) of the Act.
In drafting the Act, no attempt was made to confine the "offences" to those that could be characterised as exclusively or essentially related to the discipline of defence members (or other related personnel); to discipline in a time of war, in places of combat or on overseas or remote assignments; or to offences appropriate and adapted (or proportionate) to the disciplinary control of defence members, as such. On the contrary, the Act casts the widest possible net of "offences" to which a defence member is subject. Moreover, it sets up a system of prosecutions by the Director, an office-holder distinct from the Director of Public Prosecutions of the Commonwealth[101]. It provides for "service tribunals", including courts martial and Defence Force magistrates, outside the ordinary courts that exercise federal jurisdiction[102]. Neither of these specified kinds of "service tribunals" is a court within the Judicature for which Ch III of the Constitution provides. Each envisages significant departures from the time-honoured features of such courts. Those features are essential to the independence and impartiality of the courts.
[101]The Act, s 103. The Director of Public Prosecutions of the Commonwealth is established by the Director of Public Prosecutions Act 1983 (Cth), ss 5 and 18.
[102]As to the categories of courts martial and service tribunals established by the Act, see the reasons of Callinan J at [225]-[231].
Under the Act, courts martial may be either "general" or "restricted"[103]. To be eligible to be a member of a court martial, a person is not chosen by reference to legal training, skill, experience or competence but by reference to a defined association with the Defence Force and the holding of a specified rank in that Force[104]. Provision is made for a "judge advocate"[105]. However, the President, members, reserve members and the judge advocate are not appointed as part of a permanent court. Instead, they are appointed on an ad hoc basis by the Registrar of Military Justice[106] as required for each particular court martial[107]. The lack of the necessity (or actuality) of universal legal training; the ad hoc constitution of the tribunal; the lack of tenure of members; and the requirement to select persons who must be associated with the Force (and therefore necessarily interested in the conduct of the accused), all represent very serious departures from the normal features of Ch III courts.
[103]The Act, s 114.
[104]The Act, s 116(1).
[105]The Act, s 117.
[106]Appointed under the Act, s 188FB.
[107]The Act, s 119 ("Convening order"). All members of courts martial must be chosen by the Registrar from persons nominated by the Judge Advocate General who is appointed under the Act, s 179 and who must be a judge: s 180(1). See also s 129B.
Nor is the position of a Defence Force magistrate under the Act designed to remove the defects just mentioned. Despite the use of the word "magistrate", which in Australia (including in the new Federal Magistrates Court) now connotes judicial officers with characteristics of tenure and independence substantially the same as the judiciary of Ch III courts[108], the Defence Force magistrates are quite different. They are not appointed by the Governor-General in Council[109]. Instead, they are appointed by the Judge Advocate General by instrument in writing[110].
[108]Mack and Anleu, "The Security of Tenure of Australian Magistrates", (2006) 30 Melbourne University Law Review 370.
[109]As are the judiciary of Ch III courts, including Federal Magistrates. See Federal Magistrates Act 1999 (Cth), s 9 and Sched 1, Item 1(1).
[110]The Act, s 127(1).
Conclusion: constitutional invalidity: The result is that none of the arguments that have found favour in the joint reasons persuades me to withhold the remedies to which, by the application of the Constitution's text and structure, the plaintiff is entitled. The time has come for this Court to limit the "exception" for military justice to "offences" that are exclusively or essentially disciplinary in character and which carry a punishment of less than one year's imprisonment. All other "offences" presently included in the Act must, by the Constitution, be tried in the ordinary courts as envisaged by Ch III. Measured by these criteria, the sections of the Act providing for the trial of the plaintiff in service tribunals are invalid. It is impossible to sever the provisions that are incompatible with Ch III from those that are not. The plaintiff has established her constitutional right to relief, based on these conclusions.
Orders
The following orders should be made:
(1)Declare that a trial of the charges identified in the summons against the plaintiff, under the Defence Force Discipline Act 1982 (Cth), is invalid in accordance with the Constitution of the Commonwealth;
(2)Order that prohibition issue to the Director of Military Prosecutions restraining the Director from requesting the Registrar of Military Justice to refer the charges against the plaintiff to a Defence Force magistrate for trial or to request the Registrar of Military Justice to convene a general court martial or a restricted court martial to try the charges; and
(3)Order that the Commonwealth pay the plaintiff's costs of the application.
CALLINAN J. The issues in this case are whether there is a federal military judicial power exercisable otherwise than by courts constituted under Ch III of the Constitution and, if there is, the nature and extent of that power.
The facts
The plaintiff is a Chief Petty Officer in the Royal Australian Navy. She was charged on 30 June 2006 by the Acting Director of Military Prosecutions under the Defence Force Discipline Act 1982 (Cth) ("the Act") with seven offences: the commission of acts of indecency without consent and, in the alternative, assault, against five women, all of whom were sailors. The offences were alleged to have been committed in Victoria when neither the plaintiff nor the servicewomen were on duty or in uniform. The plaintiff expressly disavowed reliance upon any insufficiency of connexion between the acts alleged and the service as a member of the Navy[296].
[296]See Re Aird; Ex parte Alpert (2004) 220 CLR 308 at 359 [163] per Callinan and Heydon JJ.
Section 61(3) of the Act, under which six of the charges were laid, applies s 60 of the Crimes Act 1900 (ACT)[297]:
"A person who is a defence member or a defence civilian is guilty of an offence if:
(a) the person engages in conduct outside the Jervis Bay Territory (whether or not in a public place); and
(b) engaging in that conduct would be a Territory offence, if it took place in the Jervis Bay Territory (whether or not in a public place)."
[297]The Jervis Bay Territory is a part of the Australian Capital Territory ("the ACT"), having been annexed in 1915 to provide the ACT with access to the sea. The agreement for the land to be ceded by New South Wales to the Commonwealth to incorporate it into the ACT was ratified by the Seat of Government Surrender Act 1915 (NSW) and the Jervis Bay Territory Acceptance Act 1915 (Cth). Section 4A of the latter provides that the laws of the Australian Capital Territory apply in the Jervis Bay Territory.
Section 60 of the Crimes Act 1900 (ACT) prohibits an act of indecency without consent. It carries a maximum penalty of five years imprisonment.
The other charge, an alternative to one of the charges under s 60, was laid under s 33(a) of the Act. It provides that a member of the defence forces, or a defence civilian (a defined term), who assaults another person on service land, in a service ship, aircraft or vehicle, or in a public place is guilty of an offence carrying a maximum penalty of six months imprisonment.
The action in this Court has interrupted the prosecution of the charges which otherwise would be proceeding in accordance with ss 87 and 103 of the Act. Because the charges under s 61(3) are "prescribed offences", they may only be tried by court martial or a Defence Force magistrate.
The plaintiff seeks an order prohibiting the first defendant from requesting the Registrar of Military Justice to refer the charges to a Defence Force magistrate, restricted court martial or general court martial for trial. She seeks, further, declarations that she may only be tried by a federal court exercising the federal judicial power under Ch III of the Constitution and that s 103 of the Act, and those provisions purporting to vest jurisdiction in a Defence Force magistrate or a court martial, are invalid.
The plaintiff's arguments
It is relevant to note that there was no issue raised as to the amenability of military tribunals to prerogative or other judicial supervision under Ch III of the Constitution, or the possibility of the establishment of special courts under Ch III of the Constitution to try members of the Australian Defence Force ("the ADF").
The plaintiff's argument has these as its components. There are some limited types of military discipline that can be imposed without invoking or trespassing upon the judicial power of the Commonwealth: military discipline is divisible. If the discipline goes beyond what she would describe as the "purely disciplinary" or an administrative check, which the plaintiff was reluctant to describe as punishments, for example reduction in rank, docking of pay, confinement to barracks for minor instances of misbehaviour, or other lesser infractions, then only federal courts may deal with them. An exclusively disciplinary offence is one, the plaintiff submits, that has no equivalent in the non-military law, does not involve exposure to imprisonment and is ancillary to, or serves some, disciplinary end. The alleged crimes are creatures of Commonwealth law. As such they may only be dealt with by federal courts. The defence power under s 51(vi) of the Constitution, as with all other powers exercisable under s 51, is subject to all of the other relevant provisions of the Constitution.
The Act purports to vest service tribunals with the jurisdiction to make binding decisions as to the plaintiff's guilt and to resolve controversies between parties with respect to their rights and obligations arising under a law of the Commonwealth: it purports therefore to vest service tribunals with the judicial power of the Commonwealth.
The tribunals constituted under the Act undoubtedly exercise a form of judicial power. That judicial power, the plaintiff submits, can only be a form of federal judicial power and one that accordingly cannot be exercised by a court martial or any other tribunal that the Act seeks to establish.
The text of s 51 and Ch III cannot be circumvented by characterizing the exercise of judicial power by service tribunals as a "recognized exception". Either the Constitution permits departure from Ch III or it does not.
Save possibly for Parliament's power to punish for contempt (depending upon its correct characterization), there are no true exceptions to the vesting of the judicial power of the Commonwealth exclusively in Ch III courts. In Chu Kheng Lim v Minister for Immigration[298] some "exceptions" were said to have been identified, namely: arrest and custody pursuant to warrant pending trial, detention because of mental illness or infectious disease and detention of aliens for the purposes of deportation and extradition. On examination, however, these do not constitute exceptions at all. Properly understood, none of them involve the exercise of the actual judicial power of the Commonwealth as is the case here: judicial power that involves the making of binding decisions to resolve controversies arising under the Constitution or a law of the Commonwealth.
[298](1992) 176 CLR 1 at 28.
The plaintiff, in support of this last submission, sought to rely on some passages in the judgment of Gummow and Hayne JJ in Vasiljkovic v Commonwealth[299] in which their Honours said that detention for extradition purposes was valid even though there had not been prior adjudication of guilt by a domestic court, and the detention was not with a view to the conduct of such a trial by a domestic court[300]: detention of that kind pending determination or surrender, and its judicial processes, stands outside Ch III, rather than as an exception to its application.
[299](2006) 80 ALJR 1399; 228 ALR 447.
[300](2006) 80 ALJR 1399 at 1422-1423 [116]; 228 ALR 447 at 476.
The position is different in the case of service tribunals. Their purpose is to adjudicate upon guilt and impose punishment.
The plaintiff accepts that the cases in this Court upon which the defendants rely, beginning with Re Tracey; Ex parte Ryan[301], do hold that there is a military judicial power standing outside Ch III but, she argues, these have no common ratio. Alternatively, and if necessary, she submits, they were wrongly decided and are irreconcilable with this Court's more recent jurisprudence concerning Ch III of the Constitution, particularly the apparent recognition in Vasiljkovic that there are not, in fact, any true exceptions to the vesting of federal judicial power in Ch III courts exclusively, except for Parliament which may punish for contempt.
[301](1989) 166 CLR 518.
The arbitrary and harsh excesses of the English military discipline contemplated by the Naval Deserters Act 1847 (UK), the Naval Discipline Act 1866 (UK) and the Army Discipline and Regulation Act 1879 (UK) are not only currently unacceptable but are also inconsistent with the Australian Constitution.
The plaintiff also refers to ss 75(iii) and 76(ii) of the Constitution. She submits that, because the Commonwealth is a party and the subject matter of the charges made against her falls within the Act, a law made under the Constitution, the charges must be tried by a Ch III court. The argument is that if the executive (here, the ADF) seeks to exercise power of a judicial kind, conferred by legislation made under the Constitution, that power can only be exercised by a federal court or, presumably, a State court vested with federal judicial power.
Before dealing with the plaintiff's submissions it is necessary to consider the scope of the Act, the provisions of which have been summarized by the second defendant substantially as I set them out.
The Act provides for a formal system for the maintenance of military discipline in the ADF. It applies to "defence members" (officers, soldiers, sailors and airmen, including Reservists on duty or in uniform) and "defence civilians" (persons accompanying the ADF outside Australia or on operations against an enemy anywhere, who have consented to be subject to the Act)[302]. It also applies to prisoners of war as if they were defence members[303]. Any of these can commit a "service offence", which is defined essentially as an offence against the Act or the Defence Force Discipline Regulations 1985 (Cth), or is an ancillary offence to such an offence[304]. Some service offences are peculiarly and historically of a military kind, such as absence without leave[305] and insubordinate conduct[306]. Some offences do have equivalents in non-military law, including assault[307], theft[308] and dealing in, or possessing, narcotic goods[309]. Section 61 incorporates in the definition of a service offence any conduct that would be an offence in the Jervis Bay Territory[310]. As a general rule, service offences punishable by more than two years of imprisonment are "prescribed offences" and cannot be tried by service tribunals exercising summary jurisdiction[311].
[302]s 3.
[303]s 7.
[304]s 3.
[305]s 24.
[306]s 26.
[307]s 33.
[308]s 47C.
[309]s 59.
[310]Primarily the Criminal Code 2002 (ACT) and the Crimes Act 1900 (ACT).
[311]Sections 104, 107 and 108 and reg 44 of the Defence Force Discipline Regulations 1985 (Cth).
Service tribunals may impose punishments ranging from imprisonment for life (general court martial) to a reprimand (all service tribunals)[312]. Sentences are imposed having regard to sentencing principles applied by civilian courts from time to time, as well, significantly, as to the need to maintain discipline in the ADF[313].
[312]s 68(1).
[313]s 70.
There are three categories of service tribunals: summary authorities, courts martial, and Defence Force magistrates (Pt VII).
There are three types of summary authority:
(1)subordinate summary authority: an officer appointed by a commanding officer under s 105(2), who has jurisdiction to deal with (including try) a charge against a class of defence members and specified classes of offences but cannot try a prescribed offence (s 108). The subordinate summary authority is usually a Major in the Army or of equivalent rank in the other branches[314] and deals with minor offences;
(2)commanding officer: an officer who has the jurisdiction to deal with any charge against any person and to try a charge of a service offence:
(i)against any member of the ADF who is two or more ranks junior to the commanding officer; or
(ii) against a person who is not a member of the ADF;
unless that offence is a prescribed offence (s 107). Commanding officers usually hold the rank of Lieutenant-Colonel (or equivalent) and command a unit, ship or detachment of the ADF;
(3)superior summary authority: an officer who has jurisdiction to try a charge of a service offence against an officer who is two or more ranks junior to him or her, a warrant officer and a person who is not a member of the ADF unless the offence is a prescribed offence[315].
[314]The Defence (Personnel) Regulations 2002 (Cth), reg 4, Sched 1 sets out the corresponding ranks in the ADF. For example, the equivalent of the rank of Major in the Army is the rank of Lieutenant Commander in the Navy or Squadron Leader in the Air Force.
[315]s 106.
A summary service tribunal sits ad hoc as required, upon the alleged detection of the commission of a service offence by a person subject to the Act, and in the exercise of a commander's discretion to proceed against the accused person.
There are two types of courts martial:
(1)restricted court martial ("RCM"): a legally qualified officer nominated by the Judge Advocate General ("JAG") from the judge advocates' panel sits as a judge advocate with at least three other officers, one of whom is the President, nominated by the Registrar of Military Justice ("RMJ")[316]. An RCM has jurisdiction to try charges for service offences against any person, but the maximum punishment that can be awarded for a service offence is restricted to six months imprisonment or detention[317]. The judge advocate gives binding directions on law and the President and members of the RCM determine the questions of fact[318];
(2)general court martial ("GCM"): a GCM is constituted in the same way as an RCM except that the judge advocate sits with a panel of at least five other officers[319]. A GCM has jurisdiction to try charges for service offences against any person[320].
[316]ss 114, 117, 119.
[317]Sched 2.
[318]s 134.
[319]ss 114(2), 119.
[320]s 115.
A court martial sits ad hoc. It is constituted by the RMJ[321] upon a request from the Director of Military Prosecutions ("DMP")[322]. Both the RMJ and the DMP are statutory appointments by the Minister for Defence and operate independently from the military chain of command[323].
[321]s 119.
[322]s 103(1)(d).
[323]ss 188FB and 188GF.
The third category of service tribunal is a Defence Force magistrate, who must be a legally qualified officer nominated by the JAG from the judge advocates' panel[324]. A Defence Force magistrate sits alone and has the same jurisdiction and powers of punishment as an RCM[325]. A Defence Force magistrate assumes jurisdiction in relation to a particular charge when the DMP has requested the RMJ to refer it to a Defence Force magistrate for trial[326].
[324]s 127.
[325]ss 67, 129 and Sched 2.
[326]s 103(1)(c).
All service tribunals apply the criminal standard and onus of proof[327]. A prosecutor and a defending officer are appointed for each service tribunal at each level. The rules of evidence in force in the Jervis Bay Territory apply to a service tribunal as if that service tribunal were a criminal court in the Territory[328].
[327]Section 10 of the Act and ss 13.1-13.6 of the Criminal Code (Cth).
[328]s 146.
The defence power is stated, as are most of the provisions of s 51, in general terms:
"The Parliament shall, subject to this Constitution, have power 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."
Disposition of the case
There can be no doubt, to use the introductory language of s 51, that the "order and good government" of the forces required to defend the Commonwealth depend upon the establishment and maintenance of a relatively strict system of discipline. At the heart of this is the crucial and indubitable understanding that personnel must operate in circumstances of grave danger in which reliance upon one another and instantaneous obedience of orders are essential. The implication of this is that inevitably some discipline may have a more summary complexion, may attract somewhat more harsh penalties than, and may encompass conduct of different kinds from those found in civil life.
The defendants do not shrink from the proposition that the tribunals established by the Act exercise a form of judicial power. This judicial power, however, the defendants argue, stands apart from conventional judicial power: this, they say, has been so from the beginning of organized military forces and was certainly so at the time of federation.
It is unnecessary to restate all of that history. It is fully surveyed in the reasons for judgment of Brennan and Toohey JJ in Re Tracey; Ex parte Ryan[329]. Their Honours conclude that survey with this statement, which must now be read subject to the reasoning of the Court in Aird[330] but which relevantly requires no different a result here[331]:
"The power to punish conferred by naval and military law extended to the most serious crimes in the criminal calendar, but those crimes were not to be tried by court-martial unless they were committed on active service outside the jurisdiction of the ordinary courts or in circumstances and places where the jurisdiction of the ordinary courts could not be conveniently exercised."
[329](1989) 166 CLR 518 at 554-563.
[330]Re Aird; Ex parte Alpert (2004) 220 CLR 308.
[331](1989) 166 CLR 518 at 563 per Brennan and Toohey JJ.
Nor is it necessary to repeat the review of the authorities in this Court as they stood in 1989, including Bevan[332] and Cox[333] undertaken by their Honours in Tracey. Their conclusion about them is unquestionable[334]:
"The view which has hitherto commanded assent in this Court is that Ch III of the Constitution does not preclude the making of a law which provides for the imposition of punishments by service tribunals to effect the discipline of the defence forces of the Commonwealth."
[332]R v Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452.
[333]R v Cox; Ex parte Smith (1945) 71 CLR 1.
[334](1989) 166 CLR 518 at 564 per Brennan and Toohey JJ.
In this matter the second defendant refers to the absence of express reference in the Convention Debates to the disciplining of the defence forces. It is almost always instructive to refer to the Debates and their historical setting. Certainly, the British Empire which flourished then was seen by the United Kingdom and its dependencies, not only as a trading network, but also as a mutual defence organization, the latter in part at least in order to protect the former. What was apt for the Imperial forces would have been regarded as apt for the Australian defence forces at the time, and they might expand and be required to meet different threats in the future. I respectfully agree with what Brennan and Toohey JJ said of the history in Tracey[335]:
"The Convention Debates are silent on this point and their silence is testimony to the absence of any consciousness on the part of the delegates that they were leaving the naval and military forces of the Commonwealth without authority to maintain or enforce naval and military discipline in the traditional manner. It could hardly have been intended by the framers of the Constitution that, in times, places or circumstances in which it would be impracticable for the ordinary courts to exercise their jurisdiction – eg, during service in a theatre of war outside Australia – the discipline of the armed forces should be imperilled by want of power to impose penalties for breaches of service law, even though those are the times, places and circumstances in which the armed forces stand in most urgent need of such powers. Contemporary writers did not understand that such a radical change had occurred. Professor W Harrison Moore, writing in 1902 (Constitution of the Commonwealth of Australia, 1st ed, pp 280, 281), regarded courts-martial as not being within the provisions of Ch III of the Constitution. In the second edition (1910), Professor Moore treated the subject more extensively, asserting that proceedings before courts-martial were strictly judicial but referring to courts-martial as an instance of judicial functions being exercised otherwise than by Ch III courts: see pp 308, 321. The rationale for this view appears at pp 315-316:
'Even in those Constitutions in which the separation of powers has been accepted as fundamental, by no means every function which is in its nature judicial is exclusively assigned, or permitted, to the judicial organ. Therefore, although neither history nor usage nor practical convenience can determine the nature of "judicial power", logical consistency may have to yield something to history and familiar and established practice in determining what is the judicial power of the Commonwealth committed to the Courts by sec 71.'"
[335](1989) 166 CLR 518 at 572-573 per Brennan and Toohey JJ.
It follows that the plaintiff's arguments are foreclosed by the earlier decisions of the Court.
There are however two further matters of importance favouring the defendants' stance. The presence of s 68 in the Constitution is the first of these[336]:
"Command of naval and military forces
The command in chief of the naval and military forces of the Commonwealth is vested in the Governor-General as the Queen's representative."
[336]The Constitution of the United States of America makes different provision. Although the President is, by virtue of Art II, §2, cl 1, Commander in Chief, power "[t]o declare War … and make Rules concerning Captures on Land and Water" (Art I, §8, cl 11), "[t]o raise and support Armies" (Art I, §8, cl 12), "[t]o define and punish … Offenses against the Law of Nations" (Art I, §8, cl 10), and "[t]o make Rules for the Government and Regulation of the land and naval Forces" (Art I, §8, cl 14) are vested in Congress. In Hamdan v Rumsfeld 165 L Ed 2d 723 at 781 (2006), Kennedy J (Souter, Ginsburg and Breyer JJ relevantly concurring) said:
"Trial by military commission raises separation-of-powers concerns of the highest order. Located within a single branch, these courts carry the risk that offenses will be defined, prosecuted, and adjudicated by executive officials without independent review. Cf Loving v United States, 517 US 748, 756-758, 760 (1996). Concentration of power puts personal liberty in peril of arbitrary action by officials, an incursion the Constitution's three-part system is designed to avoid. It is imperative, then, that when military tribunals are established, full and proper authority exists for the Presidential directive."
In R v Bevan; Ex parte Elias and Gordon[337] Starke J saw that section as an instance of the "special and peculiar" provision contemplated for the management and disciplining of the defence forces and so do I. Another way of putting this is to say that the command and that which goes with it, namely discipline and sanctions of a special kind, for the reasons that I earlier gave, are matters of executive power, albeit that the power should still be exercised, so far as is reasonably possible, in a proper and judicial way, adapted as necessary to the special circumstances of military service, as I take the second defendant to accept. The presence of s 68 in the Constitution alone provides an answer to the plaintiff's submission that by necessary implication military judicial power may only be exercised by a Ch III court.
[337](1942) 66 CLR 452 at 467-468. Note that his Honour's reference to s 69 in that passage is in all likelihood a typographical error and should be a reference to s 68.
The presence of s 68 in the Constitution may even, arguably, have further relevance to military justice, with the result that it may not be subject to judicial supervision under Ch III of the Constitution and is administrable only militarily and not by Ch III courts, whether specially constituted or not. The Convention Debates did not address this question. Their preoccupation was with the role of the Governor-General. Section 68 was left in the form that it has because the founders were content to read Governor-General as meaning Governor-General in Council[338]. If anything this is to emphasize rather than to detract from the unique and special nature of military power and control of it.
[338]Official Record of the Debates of the Australasian Federal Convention, (Melbourne), 10 March 1898 at 2249-2264.
A point about s 68 is that it vests a power of command which cannot be rejected or diminished, unlike powers exercisable under s 51 of the Constitution which Parliament may choose not to exercise. Section 71 vests the judicial power of the Commonwealth in Ch III courts and whether that vesting can include military judicial power may be a question. It is certainly true that s 75 begins with the words "In all matters" and in s 75(v) refers indiscriminately to "an officer of the Commonwealth" but, again, there may be a question whether any derogation from the absolute command, including discipline, vested in the Governor-General (in Council) is constitutionally open.
It may be that the means of checking any misuse of that command, or threat of oppression by it, lies with Parliament under ss 64 and 65, in particular in its control of the executive and the raising and appropriation of revenue for the maintenance of the military[339]. These are not matters which were argued and therefore are not ones on which it would be right to express even a tentative view.
[339]The raising and granting, or withholding, of funds for military purposes has been the means via which the Parliament has exercised control over the military since the Bill of Rights in 1689.
The other matter is one accepted by the plaintiff: that a sufficient service connexion is present in this case, a matter which might otherwise be controversial. Because it is not here, necessarily implicit in that acceptance is the proposition that the charges laid are for the proper disciplining of a member of the ADF for misconduct (alleged but not yet proved) in the course of, or in sufficient connexion with, the plaintiff's service in the ADF. The charges accordingly call for the exercise, in a judicial manner, of an aspect of the defence and executive powers outside Ch III of the Constitution.
I would dismiss the plaintiff's application with costs.
HEYDON J. Subject to the qualifications set out below, I agree with Callinan J's account of the background[340], and with his view[341] that the authorities, as analysed by Brennan and Toohey JJ in Re Tracey; Ex parte Ryan[342], foreclose acceptance of the plaintiff's arguments. Those authorities should not be reopened in this case. On those grounds I agree that the application should be dismissed with costs.
[340]At [205]-[210].
[341]At [233]-[238].
[342](1989) 166 CLR 518 at 554-563.
The qualifications referred to above are:
(a)When Brennan and Toohey JJ referred to the teachings of "history", "established practice" and "necessity", they are to be understood as referring to history up to the time of federation, established practice as at that time, and necessity as understood at that time[343]; for later history and practice, and later perceptions of what was or is necessary, cannot affect the construction of at least those parts of the constitutional language as enacted in 1900 which are relevant to the present problem.
[343]Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 573.
(b)When Brennan and Toohey JJ referred to what the framers of the Constitution did or did not intend[344] they are to be taken to have referred to what the language drafted by the framers meant.
[344]Re Tracey; Ex parte Ryan (1989) 166 CLR 518 at 572.