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High Court of Australia |
Re: TRACEY; Ex parte RYAN [1989] HCA 12; (1989) 166 CLR 518
F.C. 89/010
Constitutional Law (Cth)
High Court of Australia
Mason C.J.(1), Wilson(1), Brennan(2), Deane(3), Dawson(1), Toohey(2) and
Gaudron(4) JJ.
CATCHWORDS
Constitutional Law (Cth) - Defence - Service tribunal - Offences by defence members - Service offences - Created by reference to offences against laws of Australian Capital Territory - Validity - Judicial power of Commonwealth - Service offences triable by service tribunal - Where tribunal takes service offence into consideration defence member not triable by civil court - Defence member not triable by civil court where acquitted or convicted of similar service offence - Validity - Offence against law of Commonwealth - Trial on indictment to be by jury - Whether service offences triable on indictment - The Constitution (63 & 64 Vict. c. 12), ss. 51(vi), 71, 72, 80 - Acts Interpretation Act 1901 (Cth), ss. 15A, 42 - Defence Force Discipline Act 1982 (Cth), ss. 3(1), 61, 129, 190.
HEARING
1988, October 6; November 15, 16;DECISION
MASON C.J., WILSON AND DAWSON JJ. The prosecutor, who is a Staff Sergeant in the Australian Regular Army, was charged with three offences under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The first charge was laid under s.55(1)(b) which makes it an offence to make an entry in a service document, with intent to deceive, that is false in a material particular. That charge related to a movement requisition signed by the prosecutor. The other two charges, which were laid under s.24(1), alleged that the prosecutor was absent without leave on two separate occasions.2. The three charges came before a Defence Force magistrate appointed pursuant to s.127 of the Act. He commenced to hear the charges but objection was taken to his jurisdiction to do so. The objection was taken upon the basis that the hearing and determination of the charges involved the exercise of the judicial power of the Commonwealth. It was said that the Defence Force magistrate was not qualified to exercise that power, not having been appointed pursuant to Ch.III of the Constitution. A further objection was taken that each of the offences charged was an indictable offence against a law of the Commonwealth and was, under s.80 of the Constitution, triable only by a jury.
3. The Defence Force magistrate ruled against each of the objections to his jurisdiction and announced his intention to continue with the proceedings. The prosecutor then obtained an order nisi for a writ of prohibition and it is the return of that order which is before us.
4. Chapter III of the Constitution is headed "The Judicature" and provides in s.71 that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other courts as the Parliament creates or invests with federal jurisdiction. Under s.72 a Justice of the High Court or of a court created by the Parliament shall be appointed for a term expiring upon his attaining the age of seventy years (or, in the case of courts created by the Parliament, such other age as is prescribed by law) and shall not be removed except upon an address from both Houses of Parliament.
5. It is common ground that under the Act a Defence Force magistrate is not appointed in accordance with s.72 of the Constitution and is, therefore, not qualified to exercise the judicial power of the Commonwealth under Ch.III. It was, however, submitted on behalf of the Commonwealth, which was joined as a party to the proceedings pursuant to Order 55 Rule 12, that the functions of a Defence Force magistrate do not involve the exercise of judicial power under Ch.III. Reliance was placed upon R. v. Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452 and R. v. Cox; Ex parte Smith [1945] HCA 18; [1945] HCA 18; (1945) 71 CLR 1. Those decisions are authority for the proposition that the power to establish military tribunals lies not in Ch.III but under s.51(vi) of the Constitution. That paragraph confers power upon the Commonwealth Parliament to make laws with respect to 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". It was contended by the Commonwealth, upon the authority of R. v. Bevan and R. v. Cox, that tribunals established under the defence power form no part of the judicature under Ch. III and do not exercise the judicial power of the Commonwealth. It will be necessary to consider these authorities in due course, but it is convenient to turn first to the functions of a Defence Force magistrate.
6. Under s.129(1) of the Act, a Defence Force magistrate has the same jurisdiction and powers as a restricted court martial. By s.114 a court martial is either a general court martial or a restricted court martial, and either has power under s.115, with certain qualifications which are not presently relevant, to try any charge against any person. "(C)harge" is defined in s.3(1) to mean a charge of a service offence. A general court martial consists of a President and not less than four other members, whereas a restricted court martial consists of a President and not less than two other members: s.114. Under s.67 a court martial or a Defence Force magistrate may not impose a punishment except in accordance with Sched.2 and under that schedule a restricted court martial and a Defence Force magistrate are denied the power given to a general court martial to impose imprisonment for life or imprisonment or detention for a period exceeding six months. The difference between a general court martial on the one hand and a restricted court martial on the other lies, therefore, in the composition of each body and the penalties which it may impose, a difference which is not significant for present purposes. It will be convenient, accordingly, to refer to a court martial rather than to differentiate between a general court martial, a restricted court martial and a Defence Force magistrate.
7. Under s.3(1) of the Act "service offence" means, so far as is relevant, an offence against the Act or the regulations made under it, or an offence that is an ancillary offence in relation to such an offence which was committed by a person at a time when he was a defence member or a defence civilian. Under s.3(13), an ancillary offence is committed by a person who is an accessory after the fact to an offence against a law of the Commonwealth, or who attempts or incites or urges another to commit an offence against a law of the Commonwealth or who conspires with another to commit an offence against a law of the Commonwealth. "(D)efence member" is defined by s.3(1) to include members of the regular forces and "defence civilian" is defined to mean a person (other than a defence member) who, with the authority of an authorized officer, accompanies a part of the Defence Force that is outside Australia or on operations against the enemy and has consented, in writing, to subject himself to Defence Force discipline while so accompanying that part of the Defence Force. No separate argument was put in relation to defence civilians and it is unnecessary to consider their position further.
8. Part III of the Act creates various offences peculiar to service with the
Defence Force. Section 24, which creates the offence
of being absent without
leave, is in Div.2 under the heading "Offences relating to mutiny, desertion
and
unauthorized absence" and
s.55, which creates the offence of falsification
of service documents, is in Div.7 under the heading "Miscellaneous offences".
In
Div.8,
under the heading "Other offences", the following provision
appears:
"61.(1) A person, being a defence member or
a defence civilian, is guilty of an offence if -
(a) he does or omits to do, in the Australian
Capital Territory, an act or thing the
doing or omission of which is a Territory
offence;
(b) he does or omits to do, in a public place
outside the Australian Capital Territory,
an act or thing the doing or omission of
which, if it took place in a public place
in the Australian Capital Territory,
would be a Territory offence; or
(c) he does or omits to do (whether in a
public place or not) outside the
Australian Capital Territory an act or
thing the doing or omission of which, if
it took place (whether in a public place
or not) in the Australian Capital
Territory, would be a Territory offence.
(2) The punishment for an offence against
sub-section (1) is -
(a) if the relevant Territory offence is
punishable by a fixed punishment - that
fixed punishment; or
(b) in any other case - a punishment not more
severe than the maximum punishment for
the relevant Territory offence."
"Territory offence" is defined in s.3(1) to mean:
"(a) an offence against a law of the
Commonwealth in force in the Australian
Capital Territory other than this Act or
the regulations;
(b) an offence punishable under the Crimes
Act, 1900 of the State of New South
Wales, in its application to the
Australian Capital Territory, as amended
or affected by Ordinances in force in
that Territory; or
(c) an offence against the Police Offences
Ordinance 1930 of the Australian Capital
Territory,
but does not include an offence that is an
ancillary offence in relation to an offence to
which paragraph (a), (b) or (c) applies".
"Except with the consent of the
Attorney-General, proceedings under this Act shall
not be instituted for
(a) an offence against sub-section 61(1) that is
alleged to have been committed in Australia
and in relation to which the relevant
Territory offence is
(i) treason, murder, manslaughter, rape
or bigamy;
(ii) an offence in respect of which
proceedings could not be brought in
the Australian Capital Territory
without the consent of a Minister;
or
(iii) an offence prescribed for the
purposes of this section; or
(b) a service offence that is an ancillary
offence in relation to an offence referred
to in paragraph (a)."
9. Under s.10 of the Act the principles of the common law with respect to criminal liability apply in relation to service offences. The onus and standard of proof in proceedings before a service tribunal are generally the same as in a criminal court: s.12. The term "service tribunal" includes a summary authority as well as a court martial and a Defence Force magistrate: s.3(1). A defence member or a defence civilian may be guilty of contempt of a service tribunal in essentially the same manner as a person may be guilty of contempt of court: s.53. A member of a service tribunal has in the performance of his duties the same protection and immunity as a Justice of the High Court: s.193(1).
10. The procedure to be adopted by a service tribunal in the discharge of its functions is modelled closely upon that of a civil court. The term "civil court" is defined under s.3(1) to mean a federal court or a court of a State or Territory and is therefore used to refer to a civilian as opposed to a military court. Taking the example of proceedings before a Defence Force magistrate, an accused must be asked whether he pleads guilty or not guilty and the prosecution must, if he pleads not guilty, establish a case to answer: s.135(1). An accused may be represented by a member of the Defence Force or a legal practitioner: s.136. Evidence may be given on oath or affirmation: s.138(1)(a). A hearing is to be in the presence of the accused: s.139(1). Subject to some qualifications, a hearing is to be in public: s.140. Subject to any regulations, the rules of evidence in force in the Australian Capital Territory apply in relation to proceedings before a service tribunal as if the tribunal were a court of that Territory and as if those proceedings were criminal proceedings in a court of that Territory: s.146. A record of proceedings is to be kept: s.148. The royal prerogative of mercy is preserved: s.189.
11. It will be evident from the foregoing that in trying offences under Pt III of the Act, a service tribunal has practically all the characteristics of a court exercising judicial power. True it is that, with the exception of the offence under s.57 of making a false statement in relation to appointment or enlistment, offences under the Act can only be committed by a defence member or a defence civilian. But in relation to those offences, a service tribunal, more particularly a court martial, has the power to determine authoritatively the liability of those charged before it, albeit subject to review or appeal. It makes those determinations in accordance with the law prescribed.
12. No purpose is to be served in this case by attempting yet another
description of judicial power. No description can, in any
event, be truly
definitive: Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, at pp 366-370. It is
sufficient to say that no relevant
distinction
can, in our view, be drawn
between the power
exercised by a service tribunal and the judicial power
exercised by a court.
Nor do
we think it possible to admit the appearance
of
judicial power and yet deny its existence by regarding the function of a court
martial
as merely administrative or disciplinary.
Such an approach was
adopted in relation to certain tribunals under the Public
Service
Act 1922
(Cth) in Reg. v. White; Ex parte
Byrnes [1963] HCA 58; (1963) 109 CLR 665. At p 670 the
Court said:
"We think that the so-called fine is nothing but aThe nature and scope of the offences with which a court martial may deal and the range of penalties which it may impose would deny the possibility of any similar conclusion in relation to it.
mulct to be deducted from salary or pay and we
think that the provisions of s.55, in spite of the
heading of Div.6, 'Offences', should be interpreted
as wholly concerned with breaches of discipline and
disciplinary measures concerned only with the
Service."
13. Of course, the end to be achieved by martial law, consistently with
s.51(vi) of the Constitution, is the promotion of the efficiency, good order
and discipline of the defence forces and no more. This object was made clear
by
this Court in Groves v. The Commonwealth [1982] HCA 21; (1982) 150 CLR 113. Stephen,
Mason, Aickin and Wilson JJ., in a joint judgment,
said, at
pp 125-126:
"it is useful to recall that it is a feature of ourTheir Honours went on, at p 126, to cite the statement of Lord Mansfield C.J. in Burdett v. Abbot [1812] EngR 191; [1812] EngR 191; (1812) 4 Taunt 401, at pp 449-450 [1812] EngR 191; (128 ER 384, at p 403), that:
system that military law has a quite restricted
range of operation and is seen as an additional,
rather than a replacement, set of rights and
duties - Halsbury's Laws of England, 3rd ed.,
vol.33, par.1386. As Lord Loughborough said in
Grant v. Sir Charles Gould [1792] EngR 3085; (1792) 2 HBL 69, at
pp 98-100 [1792] EngR 3085; (126 ER 434, at pp 449-450), martial
law in the all-encompassing form in which it
existed in some Continental countries was unknown
in England; the crimes of soldiers in England have
always been amenable to the civil law and our
concept of martial law is confined to the area of
military discipline, the purpose of the creation of
courts-martial being to have a system of courts:
'invested with authority to try those who are a
part of the army, in all their different
descriptions of officers and soldiers; and the
object of the trial is limited to breaches of
military duty. Even ... articles of war ... are
to be for the better government of "(the King's)"
forces, and can extend no further than they are
thought necessary to the regularity and due
discipline of the army' (1792) 2 HBL, at p 100
(126 ER, at p 450)."
"a soldier is gifted with all the rights of other
citizens ... the mistake should be corrected which
supposes that an Englishman, by taking upon him the
additonal character of a soldier, puts off any of
the rights and duties of an Englishman."
14. It is necessary to refer also to s.190 of the Act. Sub-sections (3) and
(5) of that section seek to avoid the double jeopardy
of prosecution before a
service tribunal and before a court. Whilst it will be necessary later to
examine the validity of those
sub-sections, it may be observed that the
presence of s.190 in the Act emphasizes the fact that in the performance of
its disciplinary
function, a court martial may proceed to the trial, inter
alia, of offences which are also triable as civil offences by a civil court.
Section 190, so far as is relevant, is as follows:
"(1) Subject to the Constitution, a civil
court does not have jurisdiction to try a charge of
a service offence.
(2) Subject to sub-sections (3), (4) and (5),
the jurisdiction of a civil court to try a charge
of a civil court offence is not affected by this
Act.
(3) Where a court martial or a Defence Force
magistrate has, under section 77, taken a service
offence into consideration in relation to a
convicted person, the person is not liable to be
tried by a civil court for a civil court offence
that is substantially the same offence.
(4) A civil court does not have jurisdiction
to try a charge of a civil court offence that
(a) is an ancillary offence in relation to an
offence against this Act (other than
sub-section 61(1)) or the regulations;
and
(b) was committed by a person at a time when
he was a defence member or a defence
civilian.
(5) Where a person has been acquitted or
convicted of a service offence, the person is not
liable to be tried by a civil court for a civil
court offence that is substantially the same
offence.
..."
15. It is, however, unnecessary to prolong any discussion concerning the
nature of the power exercised by a court martial. As Lord
Scarman observed in
Attorney-General v. British Broadcasting Corporation (1981) AC 303, at p 360:
"Courts-martial ... are as truly
entrusted with the exercise of the judicial
power of the state as are civil courts". That proposition is sufficiently
established
in a constitutional context in R. v. Bevan and R. v. Cox. In the
first of those two cases it was expressly decided by Starke J.
and assumed by
McTiernan and Williams JJ. that the power exercised by a court martial was
judicial in character. In the latter case,
Dixon J., after referring to the
fact that Ch.III of the Constitution confides the judicial power of the
Commonwealth exclusively in courts of justice, observed at p 23:
"In the case of the armed forces, an apparent
exception is admitted and the administration of
military justice by courts-martial is considered
constitutional (R. v. Bevan, at pp 467, 468, 481).
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. To include them with members of
the armed forces as liable to court-martial would
involve no infringement upon the judicial power of
the Commonwealth."
16. Thus the real question in this case is not whether a court martial in performing its functions under the Act is exercising judicial power. There has never been any real dispute about that. The question is whether it is exercising the judicial power of the Commonwealth under Ch.III of the Constitution.
17. The corresponding powers to s.51(vi) of the Constitution which the
Constitution of the United States conferred on the Congress are spelt out in
greater detail in pars 14, 15 and 16 of s.8 of Article I. So far as is
material, these paragraphs read:
"To make Rules for the Government and Regulation ofAlthough the Australian Constitution does not expressly provide for disciplining the defence forces, so much is necessarily comprehended by the first part of s.51(vi) for the reason that the naval and military defence of the Commonwealth demands the provision of a disciplined force or forces. Notwithstanding that it might be thought that the second clause of s.51(vi) is relevant to the question of military discipline by reason of the phrase "the control of the forces" we doubt whether that is so. It seems to us that the content of that phrase relates to the work of law enforcement. It is not the ordinary function of the armed services to "execute and maintain the laws of the Commonwealth". Of course, the powers bestowed by s.51 are subject to the Constitution and thus subject to Ch.III. The presence of Ch.III means that, unless, as with the defence power, a contrary intention may be discerned, jurisdiction of a judicial nature must be created under Ch.III and that it must be given to one or other of the courts mentioned in s.71, namely, the High Court, such other courts as the Parliament creates or such other courts as it invests with federal jurisdiction: see Reg. v. Davison, at pp 364-365. That is because any body exercising such jurisdiction would be exercising judicial power of the kind contemplated by Ch.III and must, therefore, form part of the judicature for which that Chapter provides. However, the defence power is different because the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch.III, but as part of the organization of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch.III and to impose upon those administering that code the duty to act judicially.
the land and naval Forces;
To provide for calling forth the Militia to execute
the Laws of the Union, suppress Insurrections and
repel Invasions;
To provide for organizing, arming, and
disciplining, the Militia, and for governing such
Part of them as may be employed in the Service of
the United States ..."
18. This construction of the legislative power conferred on the Parliament by s.51(vi) finds support in the law which was already established in the United States in the 19th century and was therefore available as a guide when the Australian Constitution was being framed. In 1857, the Supreme Court of the United States determined that courts martial established by law form no part of the judicial system and that their proceedings within the limits of their jurisdiction cannot be controlled or revised by civil courts. That was decided in Dynes v. Hoover [1857] USSC 24; (1857) 61 US 65. In that case Wayne J., in delivering the opinion of the court, said that the relevant provisions of the United States Constitution "show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other" (at p 79). To the citation of Dynes v. Hoover may now be added the cases of Ex parte Quirin [1942] USSC 135; (1942) 317 US 1 and Parker v. Levy [1974] USSC 137; (1974) 417 US 733.
19. During the course of argument, it was submitted that s.61(1) of the Act exceeds the power conferred on the Parliament by s.51(vi). It was argued that the possible operation of the section could encompass situations which had no sufficient connection with the defence of the Commonwealth. Two preliminary points should be noted. First, the scope of s.61(1) is severely limited by s.63, which provides that, except with the consent of the Attorney-General, proceedings under the Act shall not be instituted for, inter alia, treason, murder, manslaughter, rape or bigamy, alleged to have been committed in Australia. Secondly, the pre-1900 legislative history of the power of courts martial to try members of the forces for civil offences is relevant to a consideration of the scope of s.51(vi). Already in 1900, when the Constitution was enacted, legislation both in the United Kingdom and in the Australian colonies contained provisions which conferred such power on courts martial. In the United Kingdom, the gradual establishment, at the expense of the prerogative, of parliamentary control over the enforcement of military law saw a lessening of resistance to the intrusion of courts martial or their predecessors into areas which had been the exclusive preserve of the civil courts. The Naval Discipline Act 1866 (U.K.) (29 & 30 Vict. c.109) conferred jurisdiction on courts martial to punish persons subject to the Act for offences against the law of England whether or not the offence was committed in England and authority was given for the offender to be punished either as for an act to the prejudice of good order and naval discipline not otherwise specified, or as he might be punished by the ordinary civil courts for the offence had it been committed in England: s.45. Section 101 of that Act provided that nothing in the Act was to affect the authority of the ordinary courts. A provision similar to s.45 of the Naval Discipline Act appeared as s.41 of the Army Discipline and Regulation Act 1879 (U.K.) (42 & 43 Vict. c.33) and s.155 of the same Act provided that a person might be convicted in a civil court having been sentenced by a court martial for the same offence, but that any military punishment that he had already undergone should be taken into account. The 1879 Act was repealed and re-enacted with some amendment in the Army Act 1881 (U.K.) (44 & 45 Vict. c.58), but ss.41 and 155 of the former Act appeared unchanged in the latter Act as ss.41 and 162.
20. By the time of federation, each of the Australian colonies had enacted legislation dealing with defence. That legislation reveals a pattern whereby United Kingdom statutes were invoked, in varying circumstances, to provide for the discipline of the forces: Military and Naval Forces Regulation Act 1871 (N.S.W.); Defences and Discipline Act 1890 (Vict.); The Defence Act 1884 (Qld); The Defences Act 1895 (S.A.); The Defence Forces Act 1894 (W.A.); The Defence Act 1885 (Tas.). It is significant, therefore, that s.45 of the Naval Discipline Act and s.41 of the Army Act - these sections being the forerunners of s.61(1) of the Act - were already operative in this country when s.51(vi) of the Constitution was drafted. After federation, the colonial legislation continued in force in each of the States until it ceased to apply on the enactment of the Defence Act 1903 (Cth): see s.6. The Defence Act, in ss.55 and 56, applied the provisions of the Army Act and the Naval Discipline Act respectively to the military and naval forces of the Commonwealth while on active service. This was followed by the Naval Defence Act 1910 (Cth), which, by s.36 and reg.6(a)(v) of the Naval Forces Regulations 1921, applied s.45 of the Naval Discipline Act as if "Australia" were inserted in lieu of "England".
21. This legislative history, and in particular the consideration that, at the time when s.51(vi) of the Constitution was formulated, there was in existence (and at least partially in force in the federating colonies themselves) the very legislation which after federation was applied to the military and naval forces of the nation is highly significant. Furthermore, analogues of the United Kingdom legislation, to which we have referred, are still to be found in modern United Kingdom legislation. The Army Act 1955 (U.K.) provides in s.70 that, with certain specified exceptions, a person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section. Section 133 of that Act in its original form preserved the jurisdiction of a civil court to try a person subject to the Act for any offence. Sections 70 and 133 of the Air Force Act 1955 (U.K.) made similar provision for the Air Force. The Armed Forces Act 1966 (U.K.), by s.25, amended both s.133 of the 1955 Army Act and s.133 of the Air Force Act so as to debar a civil court from trying a person who has already been tried by a court martial for substantially the same offence. The Naval Discipline Act 1957 (U.K.), by s.48, confers jurisdiction on courts martial, with certain exceptions, over civil offences and by s.129 provides that a civil court is debarred from trying a person acquitted or convicted before a court martial for the same or substantially the same offence. A similar bar is imposed upon the trial by court martial of a person for an offence which is the same or substantially the same as an offence of which he has been convicted or acquitted by a civil court.
22. During the course of argument we were referred to legislation in the United States, Canada and New Zealand which, in one way or another, treats civil offences committed by members of the defence forces as service offences. There is no need to examine this legislation in detail. Suffice it to say 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 even where the only connection between the offences and the defence force is the service membership of the offender. Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals. To act in contravention of those standards is not only to break the law, but also to act to the prejudice of good order and military discipline. It is appropriate that such conduct should be punished in the interests not only of the community but of the defence force as well. There can be little doubt that in war-time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace-time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time.
23. It is for these reasons that it is not possible to draw a clear and
satisfactory line between offences committed by defence
members which are of a
military character and those which are not. The impossibility of doing so was
recently accepted in the United
States in Solorio v. United States [1987] USSC 159; (1987) 97 L
Ed 2d 364. Earlier, in O'Callahan v. Parker (1969) 395 US 258, the Supreme
Court
of the United States had held that
the jurisdiction of a court martial
to try a member of the armed forces depended upon the "service
connection" of
the offence charged.
Following upon that decision, an effort was made in
Relford v. Commandant, US Disciplinary Barracks,
Ft. Leavenworth [1971] USSC 35; (1971) 401 US
355 to identify those factors which determine whether an offence is service
connected. Subsequent cases
proved that
effort to be unsuccessful. In Solorio
v. United States the Supreme Court, in a judgment delivered for the majority
by
Rehnquist
C.J., observed at p 377:
"Since O'Callahan and Relford, military courts haveThe Supreme Court concluded that it was a sufficient foundation for the jurisdiction of a court martial that the person charged was a member of the armed forces at the time of the offence charged.
identified numerous categories of offenses
requiring specialized analysis of the service
connection requirement. For example, the courts
have highlighted subtle distinctions among offenses
committed on a military base, offenses committed
off-base, offenses arising from events occurring
both on and off a base, and offenses committed on
or near the boundaries of a base. Much time and
energy has also been expended in litigation over
other jurisdictional factors, such as the status of
the victim of the crime, and the results are
difficult to reconcile. The confusion created by
the complexity of the service connection
requirement, however, is perhaps best illustrated
in the area of off-base drug offenses. Soon after
O'Callahan, the Court of Military Appeals held that
drug offenses were of such 'special military
significance' that their trial by court-martial was
unaffected by the decision: United States v.
Beeker 18 USCMA 563, 56, 40 CMR 275, 277 (1969).
Nevertheless, the court has changed its position on
the issue no less than two times since Beeker, each
time basing its decision on O'Callahan and
Relford."
24. It follows that, if offences against military law can extend no further than is thought necessary for the regularity and discipline of the defence forces (see Groves v. The Commonwealth, at p 125), this limitation would not preclude Parliament from making it an offence against military law for a defence member to engage in conduct which amounts to a civil offence. It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member. As already explained, the proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces. The power to proscribe such conduct on the part of defence members is but an instance of Parliament's power to regulate the defence forces and the conduct of the members of those forces. In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And Parliament's decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members.
25. Section 61 of the Act adopts the law of the Australian Capital Territory in translating civil offences into service offences and it does so with the obvious intent of applying one law out of the multiplicity of laws potentially applicable in a federation. The application of the one law whether the offence is committed anywhere within Australia or overseas has clear advantages, notwithstanding that it is possible to imagine some curious results. But once it is concluded, as we think it must be, that it is for Parliament to determine what civil offences are to constitute service offences, then the selection of a law or laws defining such civil offences for that purpose must also be a matter for Parliament. It follows, in our view, that s.61 of the Act is validly enacted.
26. The validity of s.190(3) and (5) was also raised in argument. These
sub-sections involve different considerations from those
we have discussed in
relation to s.61(1). As we have observed, they seek to avoid the double
jeopardy of prosecution before a service
tribunal and before a civil court.
It will be seen from the legislative provisions to which we have already
referred that in earlier
times it has not been thought desirable to provide
relief against double jeopardy even when civil offences are treated as service
offences. On the contrary, Dicey, Law of the Constitution, 10th ed., (1959),
p 302, in examining the various Mutiny Acts - the predecessors of the Army
Acts -
reached the following conclusion:
"In all conflicts of jurisdiction between aEarlier (at pp 300-301) Dicey gave the explanation for this:
military and a civil court the authority of the
civil court prevails. Thus, if a soldier is
acquitted or convicted of an offence by a competent
civil court, he cannot be tried for the same
offence by a court-martial; but an acquittal or
conviction by a court-martial, say for manslaughter
or robbery, is no plea to an indictment for the
same offence at the Assizes."
"A soldier's position as a citizen. - The fixedWe have already cited the observation to similar effect of Lord Mansfield C.J. in Burdett v. Abbot.
doctrine of English law is that a soldier, though a
member of a standing army, is in England subject to
all the duties and liabilities of an ordinary
citizen. 'Nothing in this Act contained' (so runs
the first Mutiny Act) 'shall extend or be construed
to exempt any officer or soldier whatsoever from
the ordinary process of the law.' These words
contain the clue to all our legislation with regard
to the standing army whilst employed in the United
Kingdom. A soldier by his contract of enlistment
undertakes many obligations in addition to the
duties incumbent upon a civilian. But he does not
escape from any of the duties of an ordinary
British subject."
27. However, as we have seen, the position in the United Kingdom was changed as regards the Army and the Air Force by the amendment of ss.133 of the 1955 Army Act and the Air Force Act respectively by s.25 of the Armed Forces Act. The 1957 Naval Discipline Act had already made provision against double jeopardy: s.129. The report of the select committee of the House of Commons on the Bill for the Armed Forces Act remarked that the then existing respective ss.133 "appear to be the sole exceptions to the common-law principle that a person may not be put in jeopardy twice for the same offence."
28. Little attention appears to have been given to the question whether, in the absence of legislative provision, the ordinary principles of autrefois acquit and autrefois convict would apply in relation to trials by court martial. There are cogent arguments why those principles should apply given that a court martial exercises, as we think it does, judicial power: see Friedland, Double Jeopardy, (1969), pp 335 et seq; Grafton v. United States [1907] USSC 133; (1907) 206 US 333. However, it is unnecessary to consider the question in these reasons. It was not canvassed in argument and does not fall for decision in this case.
29. In any event, the desirability or undesirability of a person being exposed to double jeopardy sheds little light upon the question of the legislative power of the Commonwealth to enact s.190(3) and (5). The section seeks to protect against double jeopardy and proceeds upon the assumption that statutory provision is necessary to achieve that objective. The method chosen in the provisions under challenge is to exempt persons from the operation of laws, for the most part State laws, which apply to those persons, by denying jurisdiction to the civil courts, for the most part State courts, to try cases brought under those laws. For our part we doubt whether provisions of that kind, which strike at the judicial power of the States, could ever be regarded as within the legislative capacity of the Commonwealth having regard to s.106 of the Constitution, but it is sufficient to say that they clearly exceed the power to make laws with respect to the defence of the Commonwealth. No doubt if the imposition of criminal liability upon defence members or defence civilians in a particular instance or context were capable of interference with the defence of the Commonwealth, the Parliament would have power under s.51(vi) to provide for the specific situation by enacting a law which did not involve the ouster of jurisdiction from the courts of the States. Such a law would prevail under s.109 of the Constitution. See Pirrie v. McFarlane [1925] HCA 30; (1925) 36 CLR 170, at pp 184, 214 and 229. But sub-ss.(3) and (5) of s.190 extend across the whole range of criminal conduct and apply whenever a person prosecuted for an offence in a civil court has been tried by court martial for substantially the same offence or where a court martial has taken into account an offence that is substantially the same. In our opinion it is clearly beyond the defence power and the incidental power of the Parliament to interfere in this manner with the exercise by State courts of their general criminal jurisdiction. Nor can the provisions be read down so as to apply only to federal courts. They are, therefore, wholly invalid.
30. This leads us to consider the effect, if any, of that invalidity on the
remainder of the Act. That question must be viewed
in the light of s.15A of
the Acts Interpretation Act 1901 (Cth). Section 15A provides that where any
enactment would, but for the section, have been construed as being in excess
of the legislative power of
the Commonwealth, it is nevertheless to be a valid
enactment to the extent to which it is not in excess of that power. In Bank
of
N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 371, Dixon J. described
the effect of provisions such as s.15A as follows:
"The effect of such clauses is to reverse theIt is, in our view, not possible to regard the principle against double jeopardy contained in sub-ss.(3) and (5) of s.190 as being inseparably connected with the disciplinary code erected by the Act. Both as a matter of history and of practice the procedures for the enforcement of the criminal law have been regarded as separable from military law, even where military law comprehends the same or similar offences. The purpose of the Act is the discipline of the defence forces and it is not to be presumed, certainly in the light of s.15A, that the prosecution of offences created by the Act was intended by Parliament to be in any way dependent upon the elimination of the possibility of similar prosecutions in the civil courts. Nor is there any reason to conclude that the maximum punishments fixed for offences under the Act are so intimately related to the conferment of protection from double jeopardy sought to be achieved by s.190(3) and (5) as to require the invalidation of the whole Act. The sub-sections are severable.
presumption that a statute is to operate as a
whole, so that the intention of the legislature is
to be taken prima facie to be that the enactment
should be divisible and that any parts found
constitutionally unobjectionable should be carried
into effect independently of those which fail. To
displace the application of this new presumption to
any given situation arising under the statute by
reason of the invalidation of part, it must
sufficiently appear that the invalid provision
forms part of an inseparable context."
31. It remains to consider the submission that the provisions of the Act are in breach of s.80 of the Constitution, which provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Service offences are, it was submitted, offences against a law of the Commonwealth. In order to overcome the difficulty that trials by court martial are not under the Act trials upon indictment, reliance was placed upon s.42 of the Acts Interpretation Act. That section provides that "Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences." Clearly a contrary intention does appear from the Act, but it was said that s.42, in speaking of a contrary intention, is concerned only with offences triable by courts exercising the judicial power of the Commonwealth under Ch.III of the Constitution. That qualification of s.42 has, so the submission went, no application to offences triable before a court martial if it is not exercising power under Ch.III. Thus it was said that the contrary intention expressed by the Act, upon the assumption that a court martial is not exercising Ch.III judicial power, is not comprehended by s.42. Upon this basis it was submitted that the section applies without qualification. The Act makes certain offences, including the offences in question in this case, punishable by imprisonment for a period exceeding six months, and it was said that they must, therefore, be treated by virtue of s.42 of the Acts Interpretation Act as indictable offences.
32. The argument is untenable. There is no basis upon which the qualification by reference to a contrary intention contained in s.42 may be regarded as inapplicable whilst the remainder of the section remains applicable. Either the section applies as a whole or it does not apply at all. That being so, it fails upon any view to require service offences to be treated as indictable offences. Section 80 of the Constitution has, therefore, no application.
33. The jurisdiction of the Defence Force magistrate in this case is not, for the reasons given, dependent upon the validity of sub-ss.(3) and (5) of s.190 and the attack upon it must therefore fail. We would discharge the order nisi.
BRENNAN AND TOOHEY JJ. Staff Sergeant Ryan ("the soldier") is a member of the Australian Regular Army. In March 1988 he was charged before his commanding officer with three offences against the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"). The soldier made no plea to any of those charges and his commanding officer ordered that the matter be referred to the Commander of the Third Military District who is a convening authority appointed under s.102 of the Discipline Act. Those charges appear to have been superseded because, on 22 April 1988, the soldier was again charged with three offences, one against s.55(1)(b) and the others against s.24(1) of the Discipline Act. The first charge was making an entry in a service document relating to leave which was false in a material particular; the other two charges were being absent without leave in December 1986 and January 1987.
2. The convening authority referred the charges to a Defence Force magistrate
for trial: see s.103(1)(c). Major Tracey, an officer
in the Australian Army
Reserve and one of the respondents in these proceedings, is a Defence Force
magistrate
appointed pursuant
to s.127 of the Discipline Act. When the
proceedings began counsel for the soldier objected to the jurisdiction of
Major Tracey
to hear and determine the charges.
He did so on the ground that
Major Tracey was exercising the judicial power of the Commonwealth
though he
was not a person duly
appointed to exercise that power in accordance with
Ch.III of the Constitution. The objection was overruled. An order nisi for a
writ of prohibition was granted by a Justice of this Court. During the
hearing
on the return of the writ, broader questions of constitutional
validity were raised. The Commonwealth of Australia was made a party
to defend
the validity of the Discipline Act and the States have subsequently
intervened. The grounds on which the soldier seeks
a writ of prohibition were
amended and now read
as follows:
"1. The Respondent Major Tracey in hearing and
determining the charges laid against the
Applicant is exercising the judicial power of
the Commonwealth and if and in so far as
Section 127 of the Defence Force Discipline
Act 1982 purports to confer jurisdiction upon
the Respondent Major Tracey the said Section
is contrary to Chapter III of the Constitution
of the Commonwealth of Australia, in
particular Sections 71 and 72, and invalid.
2. Each of the charges laid against the Applicant
is an indictable offence against a law of the
Commonwealth and as such is required to be
heard before a jury by reason of the
Constitution of the Commonwealth of Australia,
Chapter III, in particular, Section 80.
3. Section 190 of the Defence Force Discipline
Act 1982 is invalid as being beyond the power
of the Commonwealth with the consequence that
upon the proper construction of the Defence
Force Discipline Act 1982 the secondnamed
Respondent is exercising the judicial power of
the Commonwealth and has not been appointed
pursuant to Chapter III of the Constitution of
the Commonwealth of Australia."
3. The Discipline Act is the first occasion in this country when provisions
for common application to the naval, military and air
forces of the
Commonwealth
have been enacted to define service offences, criminal liability,
punishments, apprehension and investigation
and to confer jurisdiction
on
service tribunals organized in a common system. The Discipline Act swept
aside a complex of Commonwealth
Acts and regulations and Imperial Acts and
regulations which had theretofore applied naval,
military and air force law to
the Navy,
the Army and the Air Force. The Discipline Act creates a number of
offences which are embraced by the definition in s.3(1) of a "service
offence". With one exception (s.57), a service offence can be committed only
by a "defence member" or, in some instances, a "defence
civilian". The term
"defence member"
is defined by s.3(1) to mean -
" (a) a member of the Permanent Naval Forces,A "defence civilian" is one who accompanies a part of the Defence Force outside Australia or on operations against the enemy and who has subjected himself to Defence Force discipline. A "service offence" is defined by s.3(1) to mean -
the Australian Regular Army, the Regular
Army Supplement or the Permanent Air
Force; or
(b) a member of the Emergency Forces or the
Reserve Forces who
(i) is rendering continuous full-time
service; or
(ii) is on duty or in uniform".
" (a) an offence against this Act or theAn ancillary offence is defined by s.3(13). Broadly speaking, an ancillary offence is an incitement or conspiracy to commit, an aid to committing or an attempt to commit a substantive service offence or being an accessory after the fact of the commission of such an offence. The "old system" mentioned in par.(c) refers to the systems of naval, military and air force law superseded by the Discipline Act. Among the offences "against this Act" are those created by s.61(1) which provides -
regulations;
(b) an offence that
(i) is an ancillary offence in relation
to an offence against this Act or
the regulations; and
(ii) was committed by a person at a time
when he was a defence member or a
defence civilian; or
(c) an old system offence".
" 61. (1) A person, being a defence member or aThe second of these categories is clearly subsumed in the third. A "Territory offence" is defined by s.3(1) to be an offence against certain specified laws in force in the Australian Capital Territory. "Territory offence" means
defence civilian, is guilty of an offence if -
(a) he does or omits to do, in the Australian
Capital Territory, an act or thing the doing
or omission of which is a Territory offence;
(b) he does or omits to do, in a public place
outside the Australian Capital Territory, an
act or thing the doing or omission of which,
if it took place in a public place in the
Australian Capital Territory, would be a
Territory offence; or
(c) he does or omits to do (whether in a public
place or not) outside the Australian Capital
Territory an act or thing the doing or
omission of which, if it took place (whether
in a public place or not) in the Australian
Capital Territory, would be a Territory
offence."
" (a) an offence against a law of the Commonwealth
in force in the Australian Capital Territory
other than this Act or the regulations;
(b) an offence punishable under the Crimes Act,
1900 of the State of New South Wales, in its
application to the Australian Capital
Territory, as amended or affected by
Ordinances in force in that Territory; or
(c) an offence against the Police Offences
Ordinance 1930 of the Australian Capital
Territory,
but does not include an offence that is an ancillary
offence in relation to an offence to which paragraph
(a), (b) or (c) applies".
4. The offences "against this Act" created by sections other than s.61(1)
are, for the most part, clearly related to the discipline
of the defence
force. Thus there are offences relating to operations against the enemy,
mutiny, desertion and unauthorized absence,
insubordination and violence,
offences relating to performance of duty and offences relating to service
property. The offences with
which the soldier has been charged fall into this
general category. There are some offences where the relation is more tenuous:
see
ss.33,46,47 and 59. However, s.61(1) of the Discipline Act goes much
further. Section 61 picks up the principal provisions of the
general criminal
law applicable in the Territory, so that "service offence" includes offences
which may have no connection with the
defence force other than the offender's
status as a "defence member". (It is unnecessary to
consider the application
of the Discipline
Act to a "defence civilian"). However, s.63(1) qualifies
the bringing of proceedings against a defence member in respect of the
commission of the more serious service offences
against s.61(1):
" 63. (1) Except with the consent of theThe Discipline Act distinguishes between a "service offence" and a "civil court offence". A "civil court offence" is defined by s.3(1) to mean -
Attorney-General, proceedings under this Act shall
not be instituted for -
(a) an offence against sub-section 61 (1) that
is alleged to have been committed in
Australia and in relation to which the
relevant Territory offence is
(i) treason, murder, manslaughter, rape
or bigamy;
(ii) an offence in respect of which
proceedings could not be brought in
the Australian Capital Territory
without the consent of a Minister;
or
(iii) an offence prescribed for the
purposes of this section; or
(b) a service offence that is an ancillary
offence in relation to an offence referred
to in paragraph (a)."
" (a) an offence against a law of the CommonwealthThroughout the Discipline Act, the primary connotation of the term "offence" in the terms "service offence" and "civil court offence" is an offence created by law, not the acts done or omissions made by an offender; an offence which consists of its legal elements, not of the acts, omissions and circumstances which satisfy those elements. The distinction is significant because a defence member who, in particular circumstances, does an act or makes an omission which satisfies the elements of both a civil court offence and a service offence is prima facie exposed to a dual liability. This consideration gives rise, as we shall see, to a constitutional problem of some difficulty. Before addressing that problem, some further provisions of the Discipline Act should be noted.
(other than a service offence); or
(b) an offence against a law of a State or
Territory".
5. The Discipline Act contains a number of provisions relating to the making of charges against defence members. An alleged offender may be charged and ordered to appear before a "summary authority" or summonsed to appear before a commanding officer (s.87), he may be arrested under warrant (s.90) or (in some circumstances) without warrant (s.89). Summary authorities are of three kinds - superior summary authority, being an officer appointed by a chief of staff; commanding officer; and subordinate summary authority, being an officer appointed by a commanding officer: ss.3(1), 105. They have different powers: ss.106 to 111. Among the powers of a superior summary authority and a commanding officer is the power to refer a charge to a "convening authority" (ss.109(b), 110(1)(d)), an officer appointed by a chief of staff: s.102. A subordinate summary authority has no power to refer a charge to a convening authority but may refer a charge to the commanding officer: s.111(2)(c). Among the powers of a convening authority are the powers to convene a court martial to try a charge, to refer a charge to a Defence Force magistrate for trial or to refer a charge to a superior summary authority or to a commanding officer for trial: s.103(1).
6. There are two levels of courts martial - general courts martial and restricted courts martial. In broad terms, restricted courts martial consist of fewer members with a less senior president and they have restricted powers of punishment. A Defence Force magistrate must be a member of the judge advocates panel; this means that he must be a legal practitioner enrolled for not less than five years: s.196(3). He has the same jurisdiction and powers as a restricted court martial. Summary authorities have more limited jurisdictions. Courts martial, Defence Force magistrates and summary authorities are "service tribunals": s.3(1). No service tribunal is appointed in the manner prescribed by s.72 of the Constitution for the appointment of Justices of federal courts.
7. The jurisdiction conferred on service tribunals to try a charge of a
service offence is exclusive, for s.190(1) provides:
" 190. (1) Subject to the Constitution, a civilA "civil court" is any federal court or court of a State or Territory: s.3(1). However, where a civil court has convicted or acquitted a person of a "civil court offence", a service tribunal cannot try that person for a service offence that is substantially the same: s.144(3).
court does not have jurisdiction to try a charge of
a service offence."
8. The Discipline Act (s.190(2)) declares that it does not affect the
jurisdiction of a civil court to try a charge of a civil court
offence
"(s)ubject to sub-sections (3), (4) and (5)". Those provisions read as
follows:
" (3) Where a court martial or a Defence ForceMany service offences - in particular those created by s.61 - are substantially the same as civil court offences, being distinguished only by the requirement that the offender be a defence member. As jurisdiction to try service offences is vested exclusively in service tribunals and as jurisdiction to try civil court offences is vested in civil courts to the exclusion of service tribunals, the liability of a defence member to punishment for conduct amounting equally to a civil court offence and a service offence is made to depend on whether a civil court or a service tribunal first exercises its jurisdiction. A competition to be first to exercise jurisdiction would be unseemly, to say the least. There is nothing novel, however, in the existence of parallel systems of military and civil justice. A brief reference to history illustrates the problems and assists in the construction of the constitutional provisions bearing on the validity of the Discipline Act.
magistrate has, under section 77, taken a service
offence into consideration in relation to a
convicted person, the person is not liable to be
tried by a civil court for a civil court offence
that is substantially the same offence.
(4) A civil court does not have jurisdiction to
try a charge of a civil court offence that
(a) is an ancillary offence in relation to an
offence against this Act (other than sub-
section 61(1)) or the regulations; and
(b) was committed by a person at a time when he
was a defence member or a defence civilian.
(5) Where a person has been acquitted or
convicted of a service offence, the person is not
liable to be tried by a civil court for a civil
court offence that is substantially the same
offence."
9. The scope of military law and of special jurisdictions to enforce it has
been a subject of controversy since feudal times. At
first, armies were
raised by the King only as occasion required and they were controlled during
the war for which they were raised
by the King's instructions which came to be
known as Articles of War. When the Court of the Constable and Marshal was
established,
it tried offences committed by the military outside the country
and had jurisdiction in some other military matters. The Lord High
Constable
and the Earl Marshal, who were the King's first and second military officers,
were the ordinary judges of this Court.
The Court of the Constable and
Marshal was designed for a feudal army, called into existence for service in
foreign wars as occasion
required: Holdsworth, "Martial Law Historically
Considered", (1902) 18 Law Quarterly Review 117, at p 119. The Tudor monarchs
sought
to extend its jurisdiction to the prejudice of the peacetime
jurisdiction of the ordinary courts of the land but it has been doubted
whether this Court ever had jurisdiction to enforce military law within the
Realm: see Manual of Military Law (1887) pp 7-9; Clode,
The Administration of
Justice under Military and Martial Law, (1872), p 26 (hereafter "Military
Law"). In his charge to the Grand
Jury in Reg. v. Nelson and Brand (1867)
Special Report at pp 93-95, Cockburn L.C.J. showed that it did have that
jurisdiction, at
least for a time. However, the Court fell into desuetude and
lost one of its judges in 1521 with the beheading of the Duke of Buckingham,
the Lord High Constable, whose office was not filled again. See also R.A.
McDonald, "The Trail of Discipline: The Historical Roots
of Canadian Military
Law", (1985) 1 JAG Journal 1, at pp 10-11. During the reign of Charles I, the
King issued commissions for the
enforcement of military law in order to keep
his soldiers from committing outrages and misdemeanours, the Commissioners
being empowered
to impose and carry out the capital penalty: Clode, The
Military Forces of the Crown; Their Administration and Government (1869)
vol.I, pp 17-18 (hereafter "Military Forces"). These commissions were
condemned by the Petition of Right, 1628: Holdsworth, A History
of English
Law, vol.I, pp 575-576. Clause 7 of the Petition condemned both the assumption
by military authorities of jurisdiction
in capital cases arising within the
Realm in times of peace and claims for exemption from the jurisdiction of the
ordinary courts
by those who were said to be punishable only by martial law.
According to Holdsworth (18 Law Quarterly Review, at p 120) -
"the Petition of Right has generally been taken toBut Cockburn L.C.J. (Nelson and Brand, at p 66) attributes a broader effect to the Petition of Right:
deal simply with the recent extensions which
martial law had received, and to declare them
illegal, leaving martial law only applicable to
armies in time of war."
" Two views have been propounded of thisAfter the Restoration, the Orders and Articles of War of 1666 provided for the appointment of courts martial and conferred on them general criminal jurisdiction over officers and soldiers, the jurisdiction being exclusive of the jurisdiction of the civil magistrates except for high treason or killing or robbing any person not being a soldier: Military Forces, pp 54-55, 446-449. However, after Monmouth's rebellion, Colonel Kirke was directed in 1685 -
celebrated statute. The one that its effect is
limited to commissions such as those of which the
Commons had more immediate cause to complain, and
especially to commissions issued in time of peace;
the other that it was intended to prevent the
exercise of martial law against the subject, under
any circumstances, and even as against the soldier,
except in the case of 'armies in time of war.' The
latter would appear to have been the view of Lord
Hale, and the words of the statute are certainly
large enough to embrace the more general position;
nor is it at all probable that the Commons, many of
whom must have foreseen that, as things were then
going on, armed resistance to the encroachments of
the prerogative might become inevitable, intended
to leave the subject, in the event of popular
commotion, at the mercy of martial law."
"that in all cases whatsoever, where the punishment(Military Forces, p 478). Prior to the 17th century, standing armies were unknown. When the King was not engaged in foreign hostilities and when there was peace within the Realm, there was no necessity for military law. That position changed with the Restoration. The Manual of Military Law comments (p 12 par 16) -
is to be loss of life or limb, the Trial of any
offender in His Majesty's pay be left to the Common
Statute Law, the Articles of War being only to take
place during the Rebellion which has now ceased."
"when, after the Restoration in 1660, such a forceThus, when William and Mary were invited to the throne the Declaration of Rights stated, and the statement was repeated in the Bill of Rights 1688 (1 Will. & Mary 2 c.2), that "the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against law". Parliament gave consent for a standing army by the first Mutiny Act (1 Will. & Mary c.5), which expired in November 1689 and was renewed annually thereafter (except during an hiatus), and at the same time made limited provision for the control of the standing army. The need for such a provision was stated by Lord Loughborough in the Court of Common Pleas in 1792 in Grant v. Gould [1792] EngR 3085; (1792) 2 HBL 69 (126 ER 434), at pp 99-100 (p 450):
was established, the necessity of special powers
for the maintenance of decipline (sic) began to be
felt. The growth of the army was, however, always
regarded with jealousy, and Parliament was
therefore unwilling to confer such powers on the
Crown until it became absolutely necessary to do
so."
"The army being established by the authority of theThe object of establishing courts martial being limited to the punishment of breaches of military duty, the ordinary processes of the criminal law were applied to persons subject to military discipline who were charged with offences against the ordinary criminal law. And in this they were entitled to the protection of the due process of the ordinary criminal courts, as the Mutiny Acts acknowledged. The recital to the successive Mutiny Acts contained what Cockburn L.C.J. in Nelson and Brand (at p 68) called "the great constitutional dogma" that
Legislature, it is an indispensable requisite of
that establishment that there should be order and
discipline kept up in it, and that the persons who
compose the army, for all offences in their
military capacity, should be subject to a trial by
their officers. That has induced the absolute
necessity of a mutiny act accompanying the army ...
It is one object of that act to provide for the
army; but there is a much greater cause for the
existence of a mutiny act, and that is, the
preservation of the peace and safety of the
kingdom: for there is nothing so dangerous to the
civil establishment of a state, as a licentious and
undisciplined army; and every country which has a
standing army in it, is guarded and protected by a
mutiny act. An undisciplined soldiery are apt to
be too many for the civil power; but under the
command of officers, those officers are answerable
to the civil power, that they are kept in good
order and discipline ... The object of the mutiny
act, therefore, is to create a court invested with
authority to try those who are a part of the army,
in all their different descriptions of officers and
soldiers; and the object of the trial is limited to
breaches of military duty. Even by that extensive
power granted by the Legislature to his majesty to
make articles of war, those articles are to be for
the better government of his forces, and can extend
no further than they are thought necessary to the
regularity and due discipline of the army."
"whereas no man may be forejudged of life or limb,The words "in time of peace" were inserted in the time of Queen Anne and they are significant for they show that, when the ordinary courts were open, there was no occasion for the exercise of martial law (or military law as it is called in modern times). The editor's footnote to Nelson and Brand (at pp 69-70) explains the meaning of "in time of peace": " According to Lord Coke, 'the time of peace is when
or subjected in time of peace to any kind of
punishment by martial law, or in any other manner
than by the judgment of his peers and according to
the known and established laws of the realm".
the courts are open. For, when they are, you mayThus, Lord Loughborough in Grant v. Gould (at pp 99-100 (p 450)) declared that
have a commission of Oyer and Terminer, and where
the common law can determine a thing, the martial
law ought not.' And again he says - 'When the
courts are open martial law cannot be executed' (3
Rushworth Collect., App, p 81.) Lord Hale also
says - 'The exercise of martial law, whereby any
person shall lose his life, or members, or liberty,
may not be permitted in time of peace when the
King's courts are open.' Both these writers, it is
to be observed, are speaking of martial law, not
with reference to its exercise for the purpose of
suppressing a rebellion, but as a rude substitute
for the law of the land when, in time of war,
justice cannot be administered by the ordinary
tribunals."
"In this country, all the delinquencies of soldiersThe offences punishable by court martial under the first Mutiny Act were clearly military offences - mutiny, sedition and desertion. Other offences were added in later Acts. One of the effects of the Mutiny Act, according to Clode (Military Forces, p 206), was that "the trial of an offender by a civil court (was) conclusive of his guilt or innocence, and an answer to all further punishment, except that of dismissal from the service of the Crown".
are not triable, as in most countries in Europe, by
martial law; but where they are ordinary offences
against the civil peace, they are tried by the
common law courts. Therefore it is totally
inaccurate to state martial law as having any place
whatever within the realm of Great Britain."
10. However, the converse was not accepted. When an annual Mutiny Bill of
the reign of George I declared that trial by court martial
should be a bar to
proceedings in other courts and did not ensure the surrender of military
offenders to ordinary criminal process,
it met with strenuous objection. The
Lords protested because, inter alia:
"no provision whatsoever is made by this bill forand
securing the obedience of the military to the civil
power, on which the preservation of our
constitution depends"
"a much larger jurisdiction is given toThe objections were satisfied by legislation in 1721: Military Forces, pp 158-160. Clode (Military Law, pp 53-54) writes:
courts-martial by this bill, than to us seems
necessary for maintaining discipline in the Army".
" 23. ... the jurisdiction assumed by
Courts-martial to try offences (of immorality or
misbehaviour) committed by a Soldier against a
fellow-citizen was calculated to obstruct or
supersede the ordinary Tribunals, so that many
grievous offences might remain unpunished.
24. The Remedy for this infringement of the
Municipal Law was commenced in 1718 by Parliament
declaring in the Mutiny Act, 1st, that any Soldier
accused of a Criminal offence punishable by the
known Laws of the land should be given up to the
Civil Magistrate by the Commanding Officer, under
the penalty of his being cashiered for neglect or
refusal; and 2nd, that no person convicted by the
Civil Magistrate should be liable to Court-martial
punishment, save that of cashiering, for the same
offence. It was completed in 1721, when the clause
giving the accused criminal the full benefit of
Court-martial acquittal was withdrawn from the
Act."
11. By 1872, the Mutiny Act contained an express provision (35 Vict. c.3,
s.76) that -
"NOTHING in this Act contained shall be construedThe "misdemeanors and offences herein-before mentioned" were of a military character. The pre-ordinate jurisdiction of the civil courts was protected by imposing on commanding officers the duty to assist the civil authorities to apprehend officers and soldiers under their command who were accused of felony, misdemeanour or non-military crimes. If a civil court acquitted or convicted a person to whom the Mutiny Act applied, he could not be tried again before a court martial: s.39.
to extend to exempt any officer or soldier from
being proceeded against by the ordinary course of
law, when accused of felony, or of misdemeanor, or
of any crime or offence other than the misdemeanors
and offences herein-before mentioned;".
12. The Mutiny Acts had acknowledged the Crown's authority to make Articles of War though the Articles were constrained to conform to the statute (Military Forces, pp 517-518) and, ultimately, the prerogative authority to make Articles of War was superseded by a statutory power: Manual of Military Law, p 18, par 32. In 1803 the Mutiny Act and the statutory Articles of War were extended to the Army both within and without the dominions of the Crown: Manual of Military Law, p 17, par 31.
13. In 1879, the Army Discipline and Regulation Act (42 & 43 Vict. c.33)
consolidated many of the Articles of War and many of
the
provisions of the
Mutiny Act. It was re-enacted with amendments as the Army Act 1881 (44 & 45
Vict. c.58) which was thereafter
continued
in force by annual Acts of the
Imperial Parliament: s.2. The scheme of the Army Act was to define those
persons who were
subject
to military law, to prescribe the offences which
might be committed by persons subject to military law, and to prescribe
the
procedure
for charging, trying and punishing those offences. The power of the
Crown to make Articles of War was retained, though
no person
could be
subjected by such Articles to any punishment "extending to life or limb" or to
be kept in penal servitude: s.69.
The persons
subject to military law
included officers and soldiers of the regular forces and persons accompanying
Her Majesty's
troops employed
on active service overseas: ss.175,176. The
offences which might be committed by persons subject to military law
were of
two kinds:
those of a clearly military character and "civil offences". The
latter were defined by s.41:
" Subject to such regulations for the purpose of
preventing interference with the jurisdiction of
the civil courts as are in this Act after
mentioned, every person who, whilst he is subject
to military law, shall commit any of the offences
in this section mentioned shall be deemed to be
guilty of an offence against military law, and if
charged under this section with any such offence
(in this Act referred to as a civil offence) shall
be liable to be tried by court-martial, and on
conviction to be punished as follows; that is to
say,
(1.) If he is convicted of treason, be liable to
suffer death, or such less punishment as is in
this Act mentioned; and
(2.) If he is convicted of murder, be liable to
suffer death; and
(3.) If he is convicted of manslaughter or
treason-felony, be liable to suffer penal
servitude, or such less punishment as is in
this Act mentioned; and
(4.) If he is convicted of rape, be liable to
suffer penal servitude, or such less
punishment as is in this Act mentioned; and
(5.) If he is convicted of any offence not before
in this Act particularly specified which when
committed in England is punishable by the law
of England, be liable, whether the offence is
committed in England or elsewhere, either to
suffer such punishment as might be awarded to
him in pursuance of this Act in respect of an
act to the prejudice of good order and
military discipline, or to suffer any
punishment assigned for such offence by the
law of England.
14. Provided as follows:
(a.) A person subject to military law shall not beThis provision is clearly the precursor of ss.61 and 63 of the Discipline Act.
tried by court-martial for treason, murder,
manslaughter, treason-felony, or rape
committed in the United Kingdom, and shall not
be tried by court-martial for treason, murder,
manslaughter, treason-felony, or rape
committed in any place within Her Majesty's
dominions, other than the United Kingdom and
Gibraltar, unless such person at the time he
committed the offence was on active service,
or such place is more than one hundred miles
as measured in a straight line from any city
or town in which the offender can be tried for
such offence by a competent civil court.
(b.) A person subject to military law when in Her
Majesty's dominions may be tried by any
competent civil court for any offence for
which he would be triable if he were not
subject to military law."
15. There are some similarities between the history of naval courts martial
and the history of army courts martial. The development
of naval and military
law alike was necessitated by the creation of a permanent force and the
expediency of establishing a means
of controlling its members. No doubt the
differences between naval and military law were to be accounted for in part by
the differences
in organization and function of the two services, but McDonald
points to another cause (at p 10):
"The navy was considered the protector of the
nation. It was the 'wooden wall' that kept
invaders off England's shores and ensured the
success of maritime commerce. Land forces, on the
other hand, were frequently as much of a burden and
danger to the English citizenry as they were to any
foreign enemy. Therefore there was much greater
reluctance to grant extensive disciplinary powers
to those controlling the land forces than was the
case with the navy as such powers might reduce the
authority of the common law courts to deal with
soldiers within the country."
16. In 1661, Parliament passed An Act for the establishing Articles and Orders for the regulating and better Government of His Majesty's Navies, Ships of War, and Forces by Sea (13 Car.2, c.9). Criminal jurisdiction was conferred on courts martial in respect of certain offences committed on the high seas or adjacent rivers by those in actual service in pay of His Majesty's Fleet or ships of War: McDonald, p 7. Subsequent legislation enlarged the jurisdiction until it attained a relatively permanent form in 1866.
17. The Naval Discipline Act 1866 (Imp.) (29 & 30 Vict., c.109) preserved unimpaired the authority and jurisdiction of the civil courts: s.101. It applied only to those persons "in or belonging to Her Majesty's Navy" who were "borne on the Books of any One of Her Majesty's Ships in Commission": s.87. Naval jurisdiction extended to the punishment of any such persons who were guilty of offences punishable by ordinary law, namely, murder, manslaughter, sodomy, indecent assault, robbery, theft or any other criminal offence "which if committed in England would be punishable by the Law of England ... whether the Offence be or be not committed in England": s.45.
18. 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, that is, 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 (U.K.)) was applied generally to the members of the Air Force subject to prescribed modifications: Air Force Act 1939 (Cth), s.6.
19. The significance of the history of naval and military courts martial lies in its explanation of the scope and purposes of the jurisdiction they exercised and in the priority which naval and military authorities were required to accord to the jurisdiction of the civil courts. True it is that, by the time of federation, the scope of naval and military law and of the special jurisdictions to enforce that law were governed by statute but the provisions of those Acts, especially the Army Act, reflected the resolution of major constitutional controversies.
20. The discipline which naval and military law was intended to secure was no mere obedience by individual sailors and soldiers to lawful commands nor even their conformity with particular canons of naval or military behaviour. The most important aspect of the discipline which that law was intended to secure was the control of armed forces to ensure that their existence as a permanent armed body under hierarchical command should not threaten the peace and civil order of the Realm. This discipline was achieved primarily by subjecting members of the naval and military forces to the processes of the ordinary courts of law where that was practicable and convenient. It was not practicable and convenient to do so when the forces were deployed at sea or outside the Crown's dominions, nor would it have been practicable and convenient to do so within the Realm in times when the courts were closed because of hostilities. But the jurisdiction of the ordinary courts was not exclusive. Those who were subject to naval or military discipline were amenable not only to the exercise of the jurisdiction of the ordinary courts but also to the exercise of the power to punish reposed in commanding officers and courts martial, exercised within prescribed limits. 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. The exercise of a disciplinary power to punish did not derogate from the jurisdiction of the ordinary courts but, if the ordinary courts convicted and punished an offender who was subject to naval or military discipline, he was not liable under naval or military law to any further punishment save dismissal from the service. Naval and military law thus created not only a system for punishing breaches of the laws peculiarly applicable to those forces but also a secondary system for enforcing the ordinary criminal law against naval and military personnel where it was not practicable or convenient for the ordinary courts to exercise their jurisdiction to do so. The scope of disciplinary authority necessarily extended to breaches of the ordinary criminal law, but the exercise of that authority was governed by the nature of the offence, the circumstances in which the offence was committed and the place and circumstances in which the disciplinary powers were invoked. If it was not practicable and convenient for the ordinary courts to exercise their jurisdiction - a situation which existed usually in relation to offences of a specific naval or military character or in relation to civil offences committed outside the territorial jurisdiction of the ordinary courts or in relation to naval or military personnel serving outside the Crown's dominions - the disciplinary powers were exercised.
21. It is in this context that s.51(vi) of the Constitution empowers the
Parliament "subject to this Constitution" to make laws with respect to
"The naval and military defence of the CommonwealthThe armed forces of the Commonwealth are under the command of the Governor-General as the Queen's representative (Constitution, s.68). Section 119 contemplates the employment of the forces of the Commonwealth not only to protect every State against invasion but also to protect a State against domestic violence.
and of the several States, and the control of the
forces to execute and maintain the laws of the
Commonwealth".
22. The Parliament has legislated to provide for a permanent navy and a standing army and air force in times of peace as well as in times of war. As the creation of a military jurisdiction to discipline army personnel has been regarded since the first Mutiny Act to be the essential concomitant of the raising and keeping of a standing army, the power conferred by s.51(vi) to provide for a permanent defence force prima facie includes a power to create a military jurisdiction to discipline members of that defence force. The traditional jurisdiction to discipline military personnel has two aspects. The first is an authority to compel military personnel to conduct themselves in a manner which is conducive to efficiency and morale of the service; the second is an authority to punish military personnel who transgress the ordinary law of the land while acting or purporting to act as military personnel. These two aspects of the traditional jurisdiction are reflected in the two limbs of s.51(vi). If that sub-section supports a law creating a military jurisdiction, the jurisdiction has two aspects: first, to compel members of the armed forces to conduct themselves in a manner which is conducive to the efficiency and morale of the forces charged with the defence of the Commonwealth and of the several States; and secondly, to control persons who, being part of the armed forces and acting or purporting to act in that capacity, transgress the ordinary law of the land or fail to obey the lawful directions of the Executive government as to the activities of the armed forces and the conduct of persons who are part of the armed forces. This is the disciplinary jurisdiction which, subject to the requirements of Ch.III next to be mentioned, s.51(vi) will support. The legislative power to create a military jurisdiction to discipline persons who are part of the armed forces is conferred by s.51(vi) "subject to this Constitution" and the question arises whether a law conferring jurisdiction on service tribunals to hear and determine charges of committing service offences and to impose penalties on conviction is part of "(t)he judicial power of the Commonwealth" within the meaning of that phrase in s.71 of the Constitution. If it is, the jurisdiction can be validly vested only in a court mentioned in s.71 of the Constitution - a Chap.III court - but, if it is not, there can be no objection to the vesting of that jurisdiction in service tribunals.
23. 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. In R. v. Bevan; Ex parte Elias and
Gordon [1942] HCA 12; (1942) 66 CLR 452, Starke J.
said (at pp 467-468):
"though the power contained in sec. 51(vi.) isWilliams J. said (at p 481):
subject to the Constitution, still the words 'naval
and military defence of the Commonwealth and the
control of the forces to execute and maintain the
laws of the Commonwealth,' coupled with sec. 69 and
the incidental power (sec. 51(xxxix.)), indicate
legislative provisions special and peculiar to
those forces in the way of discipline and
otherwise, and indeed the Court should incline
towards a construction that is necessary, not only
from a practical, but also from an administrative
point of view."
"As the establishment of courts-martial is necessaryIn R. v. Cox; Ex parte Smith (1945) 71 CLR 1, Dixon J. said (at p 23):
to assist the Governor-General, as Commander-in-
Chief of the Naval and Military Forces of the
Commonwealth, to control the forces and thereby
maintain discipline, I think it must follow that
the Commonwealth Parliament, like Congress, can
legislate for such courts, although constitutional
questions could arise as to the extent of the
jurisdiction in the case of ordinary criminal as
opposed to offences against discipline and duty
which could be conferred upon them, but, as it
would usually be impossible to separate such
offences, a generous view would have to be taken on
such questions."
" In the case of the armed forces, an apparentThis construction of the Constitution was adopted by Gibbs J. in Administration of Papua and New Guinea v. Daera Guba [1973] HCA 59; (1973) 130 CLR 353, at p 453. However, this view was first expressed judicially in reference to the conditions of active naval service during the Second World War referred to in Elias and Gordon. It is appropriate now to consider whether the jurisdiction conferred on service tribunals by the Discipline Act for exercise in times of peace as well as in times of war and within Australia as well as outside Australia is sustained by the Constitution. The challenge to the validity of the Discipline Act is founded on three arguments: the range of service offences is so broad as to provide for the punishment of conduct unrelated to discipline of the defence force; the functions and powers of service tribunals are unmistakably judicial in character; and an exercise of the jurisdiction of service tribunals effectively ousts the jurisdiction of the ordinary civil courts. Questions of severability arise if the first or third argument is upheld. The challenge which invokes s.80 of the Constitution can be left aside for consideration if the primary arguments fail.
exception is admitted and the administration of
military justice by courts-martial is considered
constitutional (R. v. Bevan (at pp 467,468,481)).
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."
24. It is submitted that service offences are so broadly defined that defence
force discipline will not always be served by punishment
under the Act of any
offence which falls within the definition. To the extent of the excess, so
the argument runs, service tribunals
are authorized to trespass on
jurisdiction which ought to be exercised exclusively by the civil courts. In
consequence, defence
members are exposed to loss of the protection to which
they are entitled by the practice and procedure of the civil courts,
especially
the right to trial by jury in serious cases. The danger of
granting excessive jurisdiction to military tribunals was recognized
by the
Supreme Court of the United States in Burns v. Wilson [1953] USSC 86; (1953) 346 US 137 in an
opinion cited by Douglas J. speaking for the
majority of the Court in
O'Callahan v. Parker (1969) 395 US
258, at p 265:
" 'There are dangers lurking in military trialsDouglas J. noted (at p 268) that
which were sought to be avoided by the Bill of
Rights and Article III of our Constitution. Free
countries of the world have tried to restrict
military tribunals to the narrowest jurisdiction
deemed absolutely essential to maintaining
discipline among troops in active service. ...
Determining the scope of the constitutional
power of Congress to authorize trial by
court-martial presents another instance calling for
limitation to "the least possible power adequate to
the end proposed."' Toth v. Quarles, [1955] USSC 15; 350 US 11,
22-23."
"The 17th century conflict over the proper role ofThe Court concluded (at p 272) "that the crime to be under military jurisdiction must be service connected". This test was founded on the terms of the Fifth Amendment which has no counterpart in our Constitution. A dissenting opinion was written for the minority by Harlan J. who cited (at p 277) Alexander Hamilton as stating that Congress' power to prescribe rules for the government of the armed forces "ought to exist without limitation: Because it is impossible to foresee or define the extent and variety of national exigencies, or the corresponding extent & variety of the means which may be necessary to satisfy them". The minority opinion has now been endorsed by a majority of the Court in Solorio v. United States (1987) 97 Law Ed 2d 364. Rehnquist C.J., writing for the majority, found that the test of "service connection" had "proved confusing and difficult for military courts to apply", as Harlan J. had foretold. The majority held that the jurisdiction of the military courts existed in conformity with the terms of the enactment which required no more than that the defendant be "a member of the armed services at the time of the offense charged". In a passage which parallels the view expressed by Williams J. in Elias and Gordon, the majority reiterated an opinion (at p 376) that-
courts-martial in the enforcement of the domestic
criminal law was not, however, merely a dispute
over what organ of government had jurisdiction. It
also involved substantive disapproval of the
general use of military courts for trial of
ordinary crimes."
"'judicial deference ... is at its apogee whenThe overruling of O'Callahan evoked a vigorous dissent from Marshall J. who, adhering to the test of "service connection", accepted that that test "requires a careful, case-specific factual inquiry. But this is not beyond the capacity of the military courts": at p 387.
legislative action under the congressional
authority to raise and support armies and make
rules and regulations for their governance is
challenged.'"
25. In this Court the Commonwealth embraces the approach of the majority in Solorio, though the submission is founded on the principle, stated with reference to our own Constitution, that once a provision is seen to be appropriate and adapted to the carrying out of an object or purpose within a legislative power which involves the notion of object or purpose, the choice of legislative means is for the Parliament, not for the Court: Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, at pp 253-254; The Commonwealth v. Tasmania. The Tasmanian Dam Case. [1983] HCA 21; (1983) 158 CLR 1, at pp 130-131,232-233,259-261; Richardson v. Forestry Commission [1988] HCA 10; (1988) 164 CLR 261, at pp 292,295-296, 303,308,312,326,336,342-344. The submission was colourfully put on behalf of the Commonwealth that if the Parliament has power to cast the legislative net, the fact that the net catches more fish than the Parliament is entitled to take is irrelevant. The answer to this submission lies in the true scope of the principle on which it is founded. The principle is applicable when the Court is engaged in characterizing a law. Such an examination involves the operation of the law in the circumstances to which it applies. If the law is found to comprehend cases which have no connection with the subject matter, that is a factor which affects the character attributed to the law. To adopt the fishing metaphor, the power to cast the legislative net depends on the mesh of the net. And so it was that some of the regulations considered in The Tasmanian Dam Case were found by Brennan and Deane JJ. to be ultra vires: see pp 236-237, 266-267.
26. The problem which arises in this case is that the characterization of the
offence-creating provisions of the Discipline Act,
especially s.61, depends
not so much upon the statutory definition of the offences as upon the varied
circumstances to which they
apply. It must be remembered that the provisions
of the Discipline Act, like the provisions of the English Army Act, are to be
applied
"in diverse circumstances wherever the armed forces of the Crown
happen to be, in developed or undeveloped countries, as conquerors
or guests,
and their purpose is ... disciplinary": per Viscount Simonds in Cox v. Army
Council (1963) AC 48, at p 67. It can readily
be seen that, in some
circumstances, the discipline of the defence forces would require the
enforcement of a code of conduct appropriate
to a defence member in the
Australian Capital Territory so that, in those circumstances, s.61 can be seen
to be appropriate and adapted
to the securing of discipline in the sense which
s.51(vi) of the Constitution dictates. On the other hand, in different
circumstances, s.61 would embrace cases which have no relevant connection with
service discipline. The position is well put by G. Davis (A Treatise
on the
Military Law of the United States 437 (3rd rev. ed. 1915)) in a passage cited
by the minority in Solorio, at p 384:
" 'As to whether an act which is a civil crime is
also a military offense no rule can be laid down
which will cover all cases, for the reason that
what may be a military offense under certain
circumstances may lose that character under
others.'"
27. If no rule can be stated, it may be thought that there are but two possible views about the validity of provisions of the Discipline Act which create offences not ex facie related to service discipline and vest jurisdiction in service tribunals to deal with them: one view is that such provisions must be held invalid because they are too wide; the other is that the possibility that any of those provisions might need to be invoked in circumstances where their application would be appropriate and adapted to the maintenance or enforcement of service discipline is sufficient to establish their validity. If the former view is adopted, the discipline of the defence force is imperilled, for the jurisdiction of service tribunals would be curtailed and they would be powerless in circumstances where their authority to maintain or enforce discipline would be most urgently required - for example, in the course of a war fought in enemy territory. If the latter view were adopted without qualification, service tribunals would be authorized to trespass upon the proper jurisdiction of the civil courts over defence members and defence civilians and their civil rights would be impaired. The protection of Magna Charta and the victory of Parliament over the Royal Forces which resulted in the Bill of Rights would become the unintended casualties of the Australian Constitution. But the dichotomy is not necessarily complete.
28. In the United States prior to Solorio, the Supreme Court was concerned to deny that the power conferred on the Congress by Art.1 s.8(14) to regulate the armed forces would support laws generally denying members and ex-members of the armed forces who are or were subject to the jurisdiction of military tribunals the safeguard of presentment or indictment of a Grand Jury and trial by jury guaranteed respectively by the Fifth and Sixth Amendments: Toth v. Quarles [1955] USSC 15; (1955) 350 US 11; O'Callahan v. Parker; Relford v. US Disciplinary Commandant [1971] USSC 35; (1971) 401 US 355. As we have noted, in O'Callahan military jurisdiction was held to be restricted to offences committed by members of the armed forces which were "service connected". In Relford, the Court spelt out a number of factors which it held to be relevant to "service connection" in times of peace. Of course, that approach was intended to resolve a conflict between the constitutional power to regulate the armed forces and the individual safeguards contained in the American Bill of Rights, but similar competing objectives appear in our own constitutional history and demand a similar solution.
29. There are two sets of constitutional objectives to be reconciled. The first set of objectives, dictated by s.51(vi), consist of the defence of the Commonwealth and of the several States and the control of the armed forces. To achieve these objectives, it is appropriate to repose in service authorities a broad authority, to be exercised according to the exigencies of time, place and circumstance, to impose discipline on defence members and defence civilians. The second set of objectives, dictated both by Ch.III and s.106 of the Constitution and by the constitutional history we have traced, consist of recognition of the pre-ordinate jurisdiction of the civil courts and the protection of civil rights which those courts assure alike to civilians and to defence members and defence civilians who are charged with criminal offences. To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline. These two sets of constitutional imperatives point to the limits of the valid operation of the Discipline Act. It may not impair civil jurisdiction but it may empower service tribunals to maintain or enforce discipline. Therefore proceedings may be brought against a defence member or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.
30. In the application of this test, much depends on the facts of the case and the outcome may depend upon matters of impression and degree, especially on the needs of service discipline. In determining whether it is reasonable to regard the maintenance or enforcement of service discipline as a substantial purpose of bringing proceedings, it is important to consider whether the jurisdiction of a competent civil court can conveniently and appropriately be invoked to hear and determine a corresponding civil court offence. Thus, in a remote part of Australia where no civil court can conveniently be approached to entertain a prosecution for a civil offence, it may be necessary to proceed against a defence member for a corresponding service offence in order to maintain discipline in the relevant unit of the armed forces although there would be no authority to do so if the unit were stationed closer to a town. By the same token, the jurisdiction of service tribunals would expand greatly in time of war or when the relevant unit is serving outside Australia. However, the test is an objective one. It must be applied by those in whom the Discipline Act vests certain procedural powers. The repositories include the Attorney-General (s.63(1)), a convening authority (ss.103(1), 129A(1)), a commanding officer (s.110(1)) and a summary authority (ss.109, 110(1), 111(2)) who may have a discretion to decide whether or not a step in proceedings for the prosecution of a service offence should be taken. Decisions that proceedings be taken on a charge of a service offence seem to be excluded by Schedule 1 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) from review under that Act but the exclusion does not affect the factors which are relevant to the making of a valid decision. By whomsoever a decision to proceed or not to proceed is to be taken, the decision cannot empower service tribunals to exceed the jurisdiction which s.51(vi) supports: Wilcox Mofflin Ltd. v. State of N.S.W. [1952] HCA 17; (1952) 85 CLR 488, at p 522; Inglis v. Moore (No.2) (1979) 46 FLR 470, at p 476; Hughes and Vale Pty.Ltd. v. The State of New South Wales (No.2) [1955] HCA 28; [1955] HCA 28; (1955) 93 CLR 127, at p 166. Any such decision is examinable under s.75(v) of the Constitution. Section 51(vi) does not support a jurisdiction standing outside Ch.III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline. That being the purpose which is essential to the jurisdiction, it is the purpose to which its exercise must be directed. The purpose of criminal proceedings in the civil courts is far wider and the exercise of jurisdiction by civil courts may properly embrace considerations which have no relevance to service discipline. It is the difference between the purpose of proceedings before service tribunals and the purpose of proceedings before civil courts that justifies the subjection of service personnel to the jurisdiction of both.
31. No doubt it can be said that a decision whether a substantial
disciplinary purpose will or will not be served will give rise
to
difficulties. Indeed that was the view of Harlan J. in dissent in O'Callahan
and of the majority in Solorio when dealing with
the "service connection"
approach. But in his dissenting judgment in Solorio Marshall J. (at pp
387-388) thought this not to be beyond
the capacity of the military courts.
Tribunals established by the Discipline Act are equally capable of determining
whether proceedings
for the prosecution of a service offence will serve a
substantial disciplinary purpose. In Relford, at p 365, the Supreme Court
listed
factors relevant to the existence of a "service connection". No doubt
similar factors would emerge in relation to jurisdiction under
the Discipline
Act. In any event practical difficulties in assessing facts cannot affect
what is essentially a question of jurisdiction.
The judicial functions of service tribunals
32. That the functions performed by courts martial in England are judicial in character is not open to doubt (R. v. Army Council. Ex parte Sandford (1940) 1 KB 719, at p 725) though a court martial is a court sui generis: Linzee and O'Driscoll (1956) 40 Cr App R 177, at p 185. Indeed, courts martial have been said to be "entrusted with the exercise of the judicial power of the state as are civil courts": per Lord Scarman in Attorney-General v. B.B.C. (1981) AC 303 at p 360; and see per Lord Salmon at p 342. The Discipline 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 of the kind considered in Reg. v. White; Ex parte Byrnes [1963] HCA 58; [1963] HCA 58; (1963) 109 CLR 665 which related merely to domestic discipline, not to the imposition of punishments as for the commission of criminal offences: see Kariapper v. Wijesinha (1968) AC 717, at p 737. 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.
33. 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
- for
example, 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 (The 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 theThis approach is consistent with what Mason J. said in Reg. v. Hegarty; Ex parte City of Salisbury (1981) 147 CLR 617, at p 627 -
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."
"the historical or traditional classification of aAlthough it is right to characterize the power which courts martial have exercised as judicial, history and established practice have placed the administration of military justice by military authorities outside the judicial system administering the law of the land, as Dixon J. pointed out in R. v. Cox; Ex parte Smith. Courts martial were constituted not by judges and juries but by naval and military personnel. A power, especially necessary in times of civil unrest or during overseas service in times of war to maintain or enforce discipline within the armed services, can be exercised effectively only by commanding officers and other service tribunals. A grant of power to a Ch.III court constituted by judges appointed in conformity with s.72 of the Constitution to administer justice in the armed services would not be conducive to the efficient execution of the defence power. History and necessity combine to show that courts martial and other service tribunals, though judicial in nature and though erected in modern times by statute, stand outside the requirements of Ch III of the Constitution.
function is a significant factor to be taken into
account in deciding whether there is an exercise of
judicial power involved".
34. Of course, neither history nor necessity can overturn the provisions of
the Constitution and it would be wrong to whittle down the provisions of Ch
III, which guarantee freedom under the law, by exceptions founded on mere
inconvenience. In Reg. v. Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92
CLR 157, at p 166, this Court said:
"It is correct that the Constitution is based inNevertheless, the Court upheld the validity of a resolution of the House of Representatives for the imprisonment of two men for contempt of the Parliament and the validity of the Speaker's warrant to carry the resolution into effect. In that case, the Court founded its decision on a construction of s.49 of the Constitution which has no present relevance, but the case is an illustration of a broader principle. It shows that the validity of an exercise of power of a judicial nature by a federal instrumentality other than a Ch.III court depends upon the existence of a constitutional provision outside Ch.III which itself confers or authorizes the Parliament to confer that power on the instrumentality. In the present case, s.51(vi) is the relevant provision. As the defence power authorizes the Parliament to establish the permanent armed forces of the Commonwealth and to employ them in different times and places and in a variety of circumstances, a grant of disciplinary powers to be exercised judicially by officers of the armed forces is - as it has historically been regarded - an essential concomitant. Just as the scope of s.51(vi) changes according to time, place and circumstance, so does the jurisdiction of service tribunals. But, when that jurisdiction falls to be 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.
its structure upon the separation of powers. It
is true that the judicial power of the
Commonwealth is reposed exclusively in the courts
contemplated by Chap.III. It is further correct
that it is a general principle of construction
that the legislative powers should not be
interpreted as allowing of the creation of
judicial powers or authorities in any body except
the courts which are described by Chap III of the
Constitution."
35. Sub-sections (3) and (5) of s.190 purport to withdraw from the civil courts the jurisdiction otherwise vested in them to try a civil court offence. By these sub-sections, defence members and defence civilians are preserved from what was submitted by the Commonwealth to be double jeopardy. However that may be, provisions which purport to prohibit the exercise of the ordinary criminal jurisdiction vested in State courts by State law can find no support in the Constitution. State courts are an essential branch of the government of a State and the continuance of State Constitutions by s.106 of the Constitution precludes a law of the Commonwealth from prohibiting State courts from exercising their functions. It is a function of State courts to exercise jurisdiction in matters arising under State law. Although, by force of s.109, a law of the Commonwealth prevails over an inconsistent State law, sub-ss.190(3) and (5) do not operate in that way. These sub-sections do not affect the substantive law; they purport to prohibit its enforcement. As these sub-sections cannot be read down so as to restrict their application to federal courts, they are invalid.
36. Their invalidity flows also from broader considerations. To give effect
to these provisions is to assume for service tribunals
the authority to
pre-empt the jurisdiction of the ordinary courts. That was the subject of the
Lords' protest which was satisfied
in 1721 by withdrawing from the Mutiny Act
the full benefit of a court martial acquittal: see Clode, Military Law, pp
53,54. From
1721 to 1901 the history of naval and military law does not
reveal any impairment of the criminal jurisdiction of the ordinary courts.
It has always been understood that military personnel, subject to military
discipline, are no less subject to the criminal law and
amenable to the
jurisdiction of the ordinary courts. In Pitchers v. Surrey County Council
(1923) 2 KB 57, a case of soldiers rioting
in a military camp, Swift J. stated
the position clearly (at p 62):
"It may be that the soldiers who participated in itOn appeal Atkin L.J. (at p 75) said:
were guilty of mutiny and that they were properly
dealt with by the military authorities for a
mutiny, but it does not follow because an act or a
series of acts may amount to a mutiny that they may
not also amount to a riot. If that which is done
by an ordinary civilian in common with two or more
other civilians is a riot, it seems to me to be
equally a riot when it is done by three or more
soldiers. If a thing done by an ordinary citizen
is an offence against the law it is equally an
offence against the law if it is done by a soldier.
The position of a soldier carries with it duties
and gives some rights and privileges which
civilians do not possess, but there is nothing in
the status of a soldier which relieves him from the
ordinary law relating to an ordinary citizen. The
law has been laid down to that effect as I
understand it over and over again. Lord
Mansfield C.J. in Burdett v. Abbot ((1812) [1812] EngR 191; 4 Taunt
401,449; [1812] EngR 191; (128 ER 384, at p 403)) said that 'a
soldier is gifted with all the rights of other
citizens, and is bound to all the duties of other
citizens, and he is as much bound to prevent a
breach of the peace, or a felony, as any other
citizen.' If he is bound to all the duties of
other citizens, and he disregards those duties, he
commits a crime just as any other citizen."
"It is to be remembered that every person subject toThe same view was expressed by Starke J. in Pirrie v. McFarlane [1925] HCA 30; (1925) 36 CLR 170, at p 227:
military law in this realm is still subject to the
criminal law, and a criminal offence committed by a
soldier would be just as much an offence against
the criminal law as if it were committed by a
civilian".
" A soldier or a member of the Air Force doesAnd the majority of this Court pointed out in Groves v. The Commonwealth [1982] HCA 21; (1982) 150 CLR 113, at p 125:
not cease to be a citizen: if he commits an offence
against the ordinary criminal law, he can be tried
and punished as if he were a civilian."
"it is useful to recall that it is a feature of ourA defence member is and must remain liable to the ordinary criminal law; he does not acquire immunity merely because he has been dealt with by a tribunal other than the ordinary courts. An object of the defence power is the preservation of the civil government of the Commonwealth and the several States a characteristic of which is the administration of the criminal law by the ordinary courts. To the extent that the civil courts are prohibited from exercising their jurisdiction, that object is defeated. Sub-sections 190(3) and (5) cannot be supported as provisions incidental to a valid grant of jurisdiction to service tribunals. What is incidental to the exercise of a legislative power is dependent on the nature of the power and, for reasons earlier given, the defence power must stop short of any interference with the exercise by the civil courts of their jurisdiction to administer the law of the land. It follows that sub-ss.190(3) and (5) are invalid. It is unnecessary to consider the validity of sub-s.(4) which may be affected by different principles.
system that military law has a quite restricted
range of operation and is seen as an additional,
rather than a replacement, set of rights and duties
- Halsbury's Laws of England, 3rd ed., vol.33,
par 1386."
37. If sub-ss.190(3) and (5) were valid, a defence member who is acquitted or
convicted of a service offence or whose service offence
is taken into account
by a service tribunal (other than a summary authority) in imposing a penalty
would be immune from the jurisdiction
of a civil court in respect of a
corresponding civil offence. But as sub-ss.190(3) and (5) are invalid, a
defence member whose conduct
renders him liable to punishment for a service
offence and a corresponding civil offence is amenable to the jurisdiction of a
civil
court as well as the jurisdiction of a service tribunal and (subject to
any common law protection from double jeopardy) punishment
as for a civil
offence as well as for a service offence. Does the invalidation of sub-ss.
190(3) and (5) and the consequent loss
of the immunity they confer bring down
the Discipline Act? Section 15A of the Acts Interpretation Act 1901 (Cth)
provides that where an enactment "would, but for this section, have been
construed as being in excess of (the legislative power
of the Commonwealth),
it shall nevertheless be a valid enactment to the extent to which it is not in
excess of that power". That
provision has been understood to apply to Acts
containing particular clauses, provisos and qualifications, separately
expressed,
which are beyond legislative power. In such a case, Dixon J. said
in R. v. Poole; Ex parte Henry (No.2) [1939] HCA 19; (1939) 61
CLR 634, at p 652:
"the question usually is whether the operation orSee also Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 371. The amenability of a defence member to the jurisdiction of a service tribunal and his liability to punishment as for a service offence are, of course, the same whether or not he is also amenable to the jurisdiction of a civil court and liable to punishment as for a corresponding civil offence. To the question whether, if the immunity from punishment by a civil court fails, the operation of the remainder of the Discipline Act would impose liabilities of a different tenor, measure or nature, the answer must be: no. The immunity prescribed by sub-s.190(3) depends upon the imposition upon a defence member of punishment in respect of a service offence and the immunity prescribed by sub-s.190(5) depends upon the exercise by a service tribunal of its jurisdiction over a defence member. It is not possible to impute to the Parliament an intention that, if the immunity provisions be ineffective, the disciplinary regime created by the Discipline Act should fail. It might be an arguable question whether the Parliament would have intended the disciplinary regime to fail if it were not exclusive. The answer may have depended, as Dixon J. pointed out in Australian National Airways Pty.Ltd. v. The Commonwealth [1945] HCA 41; (1945) 71 CLR 29, at p 93, "on an intuitive understanding of the underlying purpose of the plan of the framer of the instrument". But, his Honour said, "it is precisely that uncertain and undesirable mode of solution that s.15A supersedes". In any event, except where the penalty prescribed for a civil court offence is fixed by law, a judge sentencing the offender in a civil court would be bound to take into account any disciplinary penalty undergone or to be undergone by the offender in respect of the disciplinary offence.
effect of the remainder of the Act upon the persons
or things to which it would apply would be changed
if the clauses, provisos and qualifications held
bad were excised. In other words, in such a case
the right question to ask may be whether
liabilities or rights of a different tenor, measure
or nature would result."
38. The steps in an argument which is intended to bring the Discipline Act
into conflict with s.80 of the Constitution start with s.3(15) of the
Discipline Act which provides that an offence against that Act -
"shall not be taken not to be an offence against aIt is then said that provisions creating service offences may be taken to be laws of the Commonwealth to which s.42 of the Acts Interpretation Act applies. By s.42 offences against an Act punishable by imprisonment for more than 6 months "shall, unless the contrary intention appears, be indictable offences". Although it is conceded that the Discipline Act clearly does not intend trial on indictment of service offences punishable by imprisonment for more than 6 months, it is submitted that what appears from that Act is not "a contrary intention" within the meaning of that term in s.42. Section 42, it is submitted, is concerned with the procedure to be adopted when the judicial power of the Commonwealth is invoked and, if service tribunals do not exercise that power, any "contrary intention" with respect to their procedure is not the kind of contrary intention of which s.42 speaks. The argument proves too much. If s.42 relates only to the procedure in Ch III courts, it has no relevance to the exercise of the power of service tribunals: if the qualifying phrase in s.42 does not apply to service offences, neither does the substantive provision. None of the service offences created by the Discipline Act is an indictable offence, and s.80 of the Constitution has no application.
law of the Commonwealth by reason that it forms
part of the law regulating the relationship between
the Commonwealth and members of the Defence Force
and other persons."
39. The consequence of this review of the Discipline Act for the purposes of the present application is that Major Tracey's jurisdiction is not affected by Ch.III of the Constitution. The jurisdiction invoked is to try three charges which are closely, if not solely, related to service discipline: the first relates to a movement requisition allegedly false in that it showed that leave had been approved when it had not; the second and third relate to periods of absence without leave. There is nothing to throw the slightest doubt on the proposition that the substantial purpose of these proceedings is to enforce service discipline. The order nisi should therefore be discharged.
40. The challenge to the validity of sub-ss.190(3) and (5) arose in the course of argument before the Court and the soldier sought merely to found a challenge to Major Tracey's jurisdiction upon those provisions. There is no action in which a declaration of invalidity has been sought. It is therefore unnecessary to make a declaration that sub-ss. 190(3) and (5) are invalid.
DEANE J. To study the provisions of Ch.III of the Constitution "is to see at once that it is an exhaustive statement of the manner in which the judicial power of the Commonwealth is or may be vested. ... No part of the judicial power can be conferred in virtue of any other authority or otherwise than in accordance with the provisions of Chap.III" (per Dixon C.J., McTiernan, Fullagar and Kitto JJ., Reg v. Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254, at p 270). Ours is a Constitution "which deals with the demarcation of powers, leaves to the courts of law the question of whether there has been any excess of power, and requires them to pronounce as void any act which is ultra vires", and which reposes the judicial power of the Commonwealth "exclusively in the courts contemplated by Chap.III" (per Dixon C.J., McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ., Reg. v. Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157, at pp 165, 166). "In this distinct and separate existence of the judicial power ... consists one main preservative of the public liberty; which cannot subsist long in any state, unless the administration of common justice be in some degree separated both from the legislative and also from the executive power. Were (judicial power) joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe. Were it joined with the executive, this union might soon be an overbalance for the legislative. For which reason, by the statute of 16 C.I. c.10. which abolished the court of star-chamber, effectual care is taken to remove all judicial power out of the hands of the king's privy council; who, as then was evident from recent instances, might soon be inclined to pronounce that for law, which was most agreeable to the prince or his officers. Nothing therefore is more to be avoided, in a free constitution, than uniting the provinces of a judge and a minister of state" (Blackstone, Commentaries, (1830) vol.1, p 269).
2. Therein lie the main point and justification of the doctrine of the separation of judicial from executive and legislative powers upon which the Constitution is structured. To ignore the significance of the doctrine or to discount the importance of safeguarding the true independence of the Judicature upon which the doctrine is predicated is to run the risk of undermining, or even subverting, the Constitution's only general guarantee of due process. The implications of the doctrine are far-reaching. The power to adjudge guilt of, or determine punishment for, breach of the law, the power to determine questions of excess of legislative or executive power and the power to decide controversies about existing rights and liabilities all fall within the concept of judicial power. The Executive Government cannot absorb or be amalgamated with the Judicature by the conferral of non-ancillary executive functions upon the courts. Nor can the Executive itself exercise judicial power and act as prosecutor and judge to punish breach of law by executive fiat or decree. The guilt of the citizen of a criminal offence and the liability of the citizen under the law, either to a fellow citizen or to the State, can be conclusively determined only by a Ch.III court acting as such, that is to say, acting judicially. For its part, the Parliament cannot legislate either to destroy the entrenched safeguards of Ch.III or to itself assume the exercise of judicial power. The specific grants of legislative power contained in s.51 of the Constitution are made subject to the Constitution (including Ch.III) and it is "a general principle of construction that the legislative powers (of the Parliament) should not be interpreted as allowing of the creation of judicial powers or authorities in any body except the courts which are described by Chap.III of the Constitution" (Reg. v. Richards, at p 166).
3. The guarantee involved in the vesting of judicial power exclusively in Ch.III courts is at its most important in relation to criminal matters. It obviously requires that this Court carefully scrutinize any claim by a Commonwealth officer or instrumentality, other than a court designated by Ch.III, to exercise the judicial power of trial and punishment of a person charged with an offence. Such a claim to exercise judicial power can be allowed only to the extent that it is justified as a qualification of the provisions of Ch.III. In past cases, the Court has accepted that there are at least two such qualifications. The first arises from the conferral by s.49 of the Constitution upon the Houses of the Parliament of the powers enjoyed by the United Kingdom House of Commons at the establishment of the Commonwealth. Those powers were held by the Court in Reg. v. Richards to include the power to punish for contempt or breach of privilege of the particular House. In that case, it was pointed out (at p 167) that "throughout the course of English history there has been a tendency to regard" the powers of the House of Commons to punish for contempt or breach of privilege "as not strictly judicial but as belonging to the legislature, rather as something essential or, at any rate, proper for its protection". The Court went on, however, to recognize (ibid) that those powers "considered more theoretically - perhaps one might even say, scientifically - ... belong to the judicial sphere." The only legal foundation, as distinct from historical explanation, of those judicial powers of the Houses of our Parliament is that which the Court identified (at pp 166-167) as the basis of the actual decision, namely, that the special provisions of s.49 of the Constitution, which were not expressly made subject to Ch.III, prevail over the general provisions of that Chapter.
4. The second qualification relates to the powers of military tribunals to
enforce military discipline by dealing, at least in some
circumstances, with
offences against military law committed by those who fall under military
authority (see Rex v. Bevan; Ex parte
Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452).
In Rex v. Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, Dixon J. expressed
the view
that the administration
of military justice by courts martial did not involve
a "real"
exception to Ch.III. His Honour
said (at p 23):
"The exception is not real. To ensure thatDixon J's approach in that regard accords with that which had, by 1900, been adopted in the United States with respect to the scope of the reference to the "judicial Power of the United States" in Article III of that country's Constitution (see, in particular, Dynes v. Hoover [1857] USSC 24; (1857) 61 US 65, at pp 78-79). It must, however, be noted that the relevant powers of the United States Congress (see, in particular, Article I, s.8, cll.12,13,14 and 16) are not, in terms, made subject to the conferral of the judicial power of the United States upon Article III courts and were described in Dynes v. Hoover (at p 79) as "entirely independent". That being so, the perception of a relevant analogy with the United States Constitution is liable to be misleading. Certainly, it would be to ignore the plain and express provision of s.51 of our Constitution to assert, in reliance upon Dynes v. Hoover, that the conferral of legislative power contained in s.51(vi) (the defence power) was not "subject to" the other provisions of the Constitution, including Ch. III.
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. To include them with members of
the armed forces as liable to court-martial would
involve no infringement upon the judicial power of
the Commonwealth."
5. I do not think that Dixon J. was, in the above passage from his judgment in Rex v. Cox, expressing the view that Commonwealth military tribunals do not exercise both judicial power and Commonwealth power. A Commonwealth military tribunal is a Commonwealth instrumentality acting under the authority of Commonwealth law. When such an instrumentality so acting exercises powers of trial and punishment of a person charged with an offence against a law (albeit a military law) of the Commonwealth, it is exercising powers which are judicial in character (see, e.g., Rex v. "Daily Mail"; Ex parte Farnsworth (1921) 2 KB 733; Attorney-General v. British Broadcasting Corporation (1981) AC 303, at p 360) and which appertain to the Commonwealth. That being so, the legal rationalization of any immunity of those powers from the net cast by Ch.III of the Constitution does not lie in a denial of their intrinsic identity either as judicial power or as part of the judicial power of the Commonwealth. Nor does it lie in reversing the express words of the Constitution and making Ch.III "subject to" s.51(vi) with the consequence that the Parliament has legislative authority to confer upon military tribunals any judicial powers whose conferral might reasonably be seen as appropriate and adapted for the purposes of defence. The legal rationalization of such immunity 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 have traditionally been seen as lying outside what Dixon J. described as "the judicial system administering the law of the land" (Reg. v. Cox, at p 23). Accordingly, it becomes necessary to identify the critical features of the powers which have traditionally been so seen.
6. There are two such critical features. They are related. The first is the
disciplinary (in the sense of military discipline)
nature of the traditional
judicial power of military tribunals and of the law which those tribunals
apply. The second is the essentially
supplementary character of those powers
and that law. The traditional function and justification of military
tribunals is that identified
by Dixon J. in the above extract from his
judgment in Reg. v. Cox, namely, to ensure that the maintenance and
enforcement of military
discipline is just. Their traditional judicial powers
are confined to dealing either with conduct, such as mutiny, military
insubordination
or absence without leave, which involves a breach of military
discipline alone or with the disciplinary aspects of other service-related
offences. They are not concerned with the vindication of the ordinary law or
with its application to the citizen, be he civilian
or soldier. In particular,
those traditional powers are not concerned with punishment for the
non-disciplinary or general community
aspects of conduct which constitutes an
offence against both military law and the ordinary law. Putting to one side
special circumstances,
such as active service in areas beyond the reach of the
ordinary criminal law or, arguably, time of war or civil crisis, they neither
compete with nor restrict the jurisdiction of the ordinary courts. As Stephen,
Mason, Aickin and Wilson JJ. pointed out in Groves
v. The Commonwealth [1982] HCA 21; (1982)
150 CLR 113, at pp 125-126:
"... military law has a quite restricted range of
operation and is seen as an additional, rather than
a replacement, set of rights and duties -
Halsbury's Laws of England, 3rd ed., vol.33,
par 1386. As Lord Loughborough said in Grant v.
Sir Charles Gould ((1792) [1792] EngR 3085; 2 HBL 69, at pp 98-100
[1792] EngR 3085; (126 ER 434, at pp 449-450)), martial law in the
all-encompassing form in which it existed in some
Continental countries was unknown in England; the
crimes of soldiers in England have always been
amenable to the civil law and our concept of
martial law is confined to the area of military
discipline, the purpose of the creation of
courts-martial being to have a system of courts:
'invested with authority to try those who are a
part of the army, in all their different
descriptions of officers and soldiers; and the
object of the trial is limited to breaches of
military duty. Even ... articles of war ... are to
be for the better government of '(the King's)'
forces, and can extend no further than they are
thought necessary to the regularity and due
discipline of the army' (ibid, at p 100 (ER, at
p 450))".
7. This traditional confinement of the nature and range of the disciplinary powers of military tribunals has long been rightly recognized as fundamental to our system of government (see, e.g., O'Callahan v. Parker (1968) 395 US 258, at p 268). It avoids the creation of a military class removed from the reach of the ordinary law and courts of the land (see, e.g., Burdett v. Abbot [1812] EngR 191; (1812) 4 Taunt 401, at p 449; [1811] EngR 557; (128 ER 284, at p 403); Pitchers v. Surrey County Council (1923) 2 KB 57, at p 75; Pirrie v. McFarlane [1925] HCA 30; (1925) 36 CLR 170, at p 227; The Illawarra District County Council v. Wickham [1959] HCA 18; (1959) 101 CLR 467, at p 503). It protects the civilian from being subjected to military law and deprived of the benefits and safeguards of the administration of justice by independent courts. It limits the extent to which those subject to military authority are deprived of those benefits and safeguards to what is "thought necessary" for the maintenance and enforcement of military discipline and duty (Groves (supra) and see also, e.g., MacKay v. The Queen (1980) 2 SCR 370, at p 408). It is that confinement of the nature and range of the traditional disciplinary powers of such tribunals which has alone enabled them to be rationally seen as not encroaching upon the ordinary administration of criminal justice by courts of law and as beyond the intended reach of Ch.III of the Constitution. In that regard, it should be borne in mind that, in 1900, the unanimous judgment of a very strong Court of Exchequer Chamber (Kelly, C.B., Martin, Bramwell, Channell, Pigott, and Cleasby, BB.; Byles, Keating, Brett and Grove, JJ.) in Dawkins v. Lord Rokeby (1873) LR 8 QB 255 stood as authority for the proposition that, when the whole question involved in a cause related to a matter of military discipline ("a military question"), the cause was "not cognizable in a court of law" (at p 270) for the reason that cases "involving questions of military discipline and military duty alone are cognisable only by a military tribunal" (at p 271). As a matter of legal principle, that perception of a dichotomy between the disciplinary functions of military tribunals and the jurisdiction of ordinary courts of law is open to serious question (see Gibbons v. Duffell [1932] HCA 26; (1932) 47 CLR 520, at pp 527 and 531; Groves, at pp 127-128). As a matter of historical fact, however, the perception itself remains of undiminished importance both in understanding why it has been held by the Court that the framers of the Constitution could not have intended to include military disciplinary powers in the judicial power which Ch.III exclusively vested in courts which are independent of the Commonwealth Executive and in determining the nature and scope of the military disciplinary powers so excluded.
8. The actual powers which may properly be seen as encompassed by the
traditional disciplinary powers of military tribunals may
vary according to
circumstances. For example, what lies within their legitimate ambit in
relation to members of an armed force on
active duty in a place beyond the
reach of the ordinary criminal law and courts has long been seen as being more
extensive than what
lies within their legitimate ambit in relation to a member
of a standing army within the jurisdiction of the ordinary domestic courts
in
time of peace. It is, however, unnecessary for the purposes of the present
case to consider the extent to which special circumstances
may expand the
legitimate scope of traditional powers of military discipline or to seek to
identify the precise content of those
traditional powers. It suffices for
present purposes to say that the disciplinary powers of military tribunals
excluded from the
reach of Ch.III of the Constitution are, in their
application to members of armed forces within the jurisdiction of the ordinary
courts in time of peace and general
civil order, confined in the two
fundamental respects already mentioned, namely, (i) they are 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 ("confined to the area of military discipline";
"limited to breaches of military duty": see Groves (at p 126), citing Lord
Loughborough in Grant v. Sir Charles Gould) and (ii) they are supplementary
in their character in that they do not supplant the
jurisdiction or function
of the ordinary courts in relation to the general community aspects of conduct
which also constitutes an
offence under the ordinary criminal law. So to say
is to do no more than recognize what was, in 1900, accepted as "the fixed
doctrine"
of the common law (see, e.g., Dicey, Introduction to the Law of the
Constitution, 5th ed. (1897), p 281). In the following pages (pp 282-283)
Professor Dicey was at pains to stress that a consequence of the restricted
disciplinary nature of the legitimate powers of military tribunals under our
system of government is that those powers do not displace
the jurisdiction of
the civil courts to deal with the general community aspects of criminal
conduct:
"In all conflicts of jurisdiction between a
military and a civil Court the authority of the
civil Court prevails. Thus, if a soldier is
acquitted or convicted of an offence by a competent
civil Court, he cannot be tried for the same
offence by a Court-martial; but an acquittal or
conviction by a Court-martial, say for manslaughter
or robbery, is no plea to an indictment for the
same offence at the Assizes."
9. It follows from what has been said above that a Commonwealth legislative scheme which purports to confer upon military tribunals, which are not Ch.III courts, jurisdiction to administer a comprehensive system of criminal law and which, in cases where that jurisdiction is exercised, supplants the jurisdiction of the ordinary courts to deal with the general community aspects of conduct which also constitutes an offence under ordinary law necessarily trespasses upon the judicial power which Ch.III vests exclusively in the courts which it designates and is, at least to the extent of the trespass, invalid.
10. The Defence Force Discipline Act 1982 (Cth) ("the Act") was assented to
some eight months after the decision of the Court in Groves. It reflects
either ignorance of or
indifference to
what was said in the majority judgment
in that case about the confined function and scope of the legimitate powers
of
military tribunals
under our system of government. It purports to establish a
comprehensive system of criminal law for "defence
members" and "defence
civilians" which, when it is applied, displaces the ordinary system of
criminal law which would otherwise be
applicable. Some of
the offences created
by the Act ("service offences") are exclusively disciplinary in their nature.
The offences
specified in Pt III, Divs.1 ("Offences relating to operations
against the enemy") and 2 ("Offences relating to mutiny, desertion
and
unauthorized absence")
and some of the offences specified in Pt III, Div.3
("Offences relating to insubordination ...") provide
obvious prima facie
examples of this first category of offence. Other
service offences ("the
second category") are not exclusively
disciplinary but are service-related in
the sense that they involve
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
(e.g. assault on superior officer: s.25(1)), to military property
(e.g. drunken driving of a service vehicle or on service land:
s.40(1) and
(2)) or to military duty (e.g. falsification of service documents: s.55). To
repeat some remarks of Cattanach J. which
were quoted by Ritchie J. in the
course of his judgment in MacKay, at pp 399-400:
"Many offences which are punishable underYet other service offences have no necessary relationship with the services or military discipline beyond the requirement that the offender be a defence member or a defence civilian. For example, s.46 of the Act provides that any defence member or defence civilian "who is in possession of property that may be reasonably suspected of having been unlawfully obtained" is guilty of an offence punishable by a maximum term of imprisonment for six months. Section 47 provides that any defence member or defence civilian who dishonestly appropriates property belonging to another person with the intention of permanently depriving the other person of it or who receives property that has to his knowledge been so appropriated or that has otherwise been unlawfully obtained is guilty of an offence punishable by a maximum term of imprisonment for five years. Any room for doubting the comprehensive nature of the special system of criminal law which the Act establishes for defence members and civilians is removed by s.61(1). That sub-section provides that any defence member or defence civilian is guilty of an offence if he does or omits to do anything which would be an offence if it took place in the Australian Capital Territory. Section 61(2) provides that the punishment for an offence against s.61(1) is "if the relevant Territory offence is punishable by a fixed punishment - that fixed punishment" or "in any other case -
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."
11. The Act purports to divide among the "service tribunals" which it designates (i.e. general court martial, restricted court martial, Defence Force magistrate and summary authority) the exclusive jurisdiction to try a charge of any of the service offences which it creates (see the Act, s.190(1)). It is common ground that these service tribunals are not Ch.III courts. The Act provides that, where a service tribunal exercises its jurisdiction to deal with an offence against the Act, the defence member or defence civilian is rendered immune from the criminal jurisdiction of the ordinary courts in respect of any offence under the ordinary law that is "substantially the same offence" as that which has been dealt with by a service tribunal (s.190(5)) or taken into consideration by a court martial or Defence Force magistrate (s.190(3)). If the alleged offender is dealt with first by an ordinary criminal court for breach of the ordinary criminal law, he is rendered immune from the jurisdiction of the service tribunal in respect of an offence against the Act which is "substantially the same offence" as the offence of which he has been acquitted or convicted by an ordinary court (s.144(3)). As those provisions make clear, the criminal jurisdiction which the Act purportedly confers is intended to be comprehensive both in its subject matter and its exercise in the sense that the service tribunals are entrusted with jurisdiction which (when exercised) encompasses exclusive judicial power to deal with all aspects of conduct covered by a general criminal code. That jurisdiction is not confined to those on overseas service or to time of war or civil crisis. In the circumstances which now exist, its essential operation is within the Commonwealth during a period of prolonged peace. To the extent that it overlaps and supplants the jurisdiction of the ordinary courts to deal with the non-disciplinary or general community aspects of criminal conduct, it plainly goes far beyond the traditional disciplinary powers of military tribunals. To that extent, it encroaches upon the judicial power of the Commonwealth which Ch.III of the Constitution reserves to the courts which it designates and is unconstitutional and invalid. Accordingly, it becomes necessary to consider whether, and if so to what extent, the legislation granting jurisdiction to the service tribunals under the Act can be saved from total invalidity by any process of severance or reading down.
12. It is convenient for the moment to put to one side what I have described as exclusively disciplinary offences and to consider the jurisdiction which the Act purports to confer on service tribunals to deal with the second category of service offences, namely, service-related offences involving conduct of a kind which will commonly constitute an offence under the ordinary criminal law if committed in an Australian State or Territory. As I followed the argument, it is not disputed that the alleged offence against s.55(1)(b) (falsification of a service document) involved in the present case is within this category of offence (cf. Queensland Criminal Code (1899), ss.486,488 and note Crimes Act 1914 (Cth), s.67(b)). If the jurisdiction to deal with such service-related offences could properly be restricted, by any process of severance or reading down, 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. There are, however, two insurmountable obstacles in the path of reading down the provisions of the Act in that way. First, the Act manifests a clear composite legislative intent to the effect that an offender (i) should not escape punishment for the non-disciplinary or general community aspects of criminal conduct but (ii) should be protected from being subjected to trial by both service tribunal and ordinary court for the same conduct. It would not be proper, in the context of that plain legislative intent, to transform a service tribunal's comprehensive jusdiction to deal with both the disciplinary and general community aspects of criminal conduct to the exclusion of the ordinary courts into a supplementary jurisdiction to deal only with the disciplinary aspects of such conduct with the consequence that the offender was (depending upon the validity of s.190(3),(4) and (5)) either immune from being punished for the general community aspects of that conduct or subjected to the jeopardy of a second trial (and, arguably, the possibility of a conflicting decision) in the ordinary courts. Second, it would be an unjustified and quite unjust exercise of judicial law-making to convert statutory provisions imposing maximum penalties as comprehensive and exclusive punishment for all aspects of specified conduct into statutory provisions imposing those same maximum penalties as supplementary military punishment for only the disciplinary aspects of such conduct. In that regard, it seems to me that to convert the penalty fixed by the Parliament as the appropriate comprehensive punishment for all aspects of criminal conduct into a supplementary military penalty for the disciplinary aspects (of that conduct) alone would be to make a new and different law which would be in actual contrariety to the law which the Parliament purported to enact and the legislative intent to be discerned in it.
13. The position is even a fortiori in relation to the jurisdiction which the Act purports to confer upon military tribunals to deal with offences committed within an Australian State or Territory which have no particular relationship with military discipline or duty beyond the fact that the alleged offender is a defence member or defence civilian. The general provision of s.61(1) to the effect that any defence member or defence civilian is guilty of an offence if he does or omits to do anything which would be an offence if it took place in the Australian Capital Territory provides the best example of such offences. It is difficult to accept that the vast range of offences against the law of the Australian Capital Territory which are caught up by that provision could all involve some connection with military discipline or military duty merely because they are committed by a defence member or defence civilian. However, even if it be accepted that any breach at all of the ordinary criminal law by a defence member or defence civilian gives rise to some question of military discipline or military duty, it is obvious that the disciplinary aspects of some classes of such offences will be, at most, of comparatively minor significance. Clearly, it could not have been the legislative intent that the fixed or maximum penalty (be it life imprisonment or some lesser punishment) which represented the Parliament's judgment of what constituted the appropriate comprehensive punishment for both the general community and the disciplinary aspects of such an offence should be, by some process of "reading down", applied as the appropriate supplementary military punishment for the comparatively insignificant disciplinary aspects alone. If, for example, the view be taken that the provisions of s.190(3) and (5) are beyond the legislative power conferred by s.51(vi), the effect of such a reading down in the case of a s.61 offence for which the penalty was a fixed one would be that the total of the penalties to which the offender was made liable (in a service tribunal and ordinary criminal court) would, in a case where the offence was committed in the Australian Capital Territory or in a State or Territory whose criminal law imposed a corresponding fixed penalty, be precisely twice that which the Parliament had intended. And that in a context where the Act manifests an unmistakable legislative intent that the judicial power of the service tribunals should be excluded in any case where a person is punished by the ordinary courts for the conduct in question.
14. There remains for consideration the jurisdiction which the Act confers upon service tribunals to deal with the first category of offence, namely, that which I have described as exclusively disciplinary. The other two charges against the prosecutor in the present case fall within this category, being two charges that the prosecutor was absent without leave (the Act, s.24(1)). The power to punish such exclusively disciplinary offences does not transcend the traditional powers of military tribunals which have been accepted as standing apart from the ordinary judicial system. In relation to those offences, the jurisdiction of the service tribunals under the Act does not involve any competition with the jurisdiction of the ordinary criminal courts or any encroachment upon the judicial powers of the Commonwealth which Ch.III exclusively vests in the courts which it designates. There may, in some cases, be difficulty in determining whether an offence created by a particular provision of the Act falls within this category. There is, however, no such difficulty in relation to the alleged offences of being absent without leave which are plainly of an exclusively disciplinary nature. Nor, in my view, is there any valid reason why the provisions of the Act conferring jurisdiction upon service tribunals should not be read down so as to confine the jurisdiction conferred in relation to offences committed within an Australian State or Territory in time of peace to jurisdiction to deal only with such essentially disciplinary offences.
15. In the result, I consider that the 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). Accordingly, the order nisi for prohibition should be made absolute to, but only to, the extent that it prohibits the learned Defence Force magistrate from taking any further step or making any further order in respect of the trial of the prosecutor in relation to the charge of an offence against s.55(1)(b).
16. It should be mentioned that the prosecutor relied upon a separate argument based on s.80 of the Constitution to attack the jurisdiction of the learned Defence Force magistrate to deal with any of the charges against him. That argument did not seek to challenge the prevailing view in judgments in this Court to the effect that the guarantee of s.80 is a largely illusory one. It was based on the provisions of s.42 of the Acts Interpretation Act 1901 (Cth). It suffices to say in relation to it that I agree with Brennan and Toohey JJ. that, for the reasons which they give, s.42 does not have the effect for which the prosecutor contends.
17. It should also be mentioned that I have not found it necessary to deal with the prosecutor's argument that some of the relevant sections of the Act were, quite apart from any contravention of the provisions of Ch.III, beyond the legislative powers conferred upon the Parliament by s.51 of the Constitution. In particular, it was argued that the provisions of s.61 and s.190(3), (4) and (5) of the Act could not properly be characterized as laws with respect to either the "naval and military defence of the Commonwealth and of the several States" or "the control of the forces to execute and maintain the laws of the Commonwealth" (Constitution, s.51(vi)). My conclusion that the only jurisdiction validly conferred by the Act (at least in time of peace and civil order) in respect of local offences is confined to offences which are exclusively disciplinary in character effectively renders the question of the validity of s.190(3),(4) and (5) immaterial for the purposes of the present case since such exclusively disciplinary offences are not of a kind to attract the competing jurisdiction of the ordinary criminal courts. Nor is it necessary that I express any view about the legislative competence of the Parliament under s.51(vi) to create a "service offence" of the type contained in s.61(1). Regardless of whether the provisions of that sub-section are within or beyond the ambit of the legislative power conferred by s.51(vi), the provisions of the Act creating essentially disciplinary offences are, in my view, severable and clearly within that legislative power. I would, however, add that, if I had not been of the view that Ch.III of the Constitution precluded the conferral upon military tribunals of judicial powers which went beyond the traditional disciplinary powers of such tribunals, I would nonetheless have been of the view that, in the context of the general structure of the Constitution including the provisions of Ch.III, the grant of legislative power contained in s.51(vi) did not authorize the conferral upon military tribunals of judicial powers which are supplantive rather than supplementary of the jurisdiction of the ordinary criminal courts or which are not confined to dealing with the disciplinary aspects of conduct.
GAUDRON J. The Defence Force Discipline Act 1982 (Cth) ("the Act") contains a substantially comprehensive code for the regulation of the conduct of members of the Australian armed forces (in the Act referred to as "defence member(s)") and other persons (in the Act referred to as "defence civilian(s)") who by the Act are subject to defence force discipline. The provisions constituting the code apply without distinction in time of peace and in time of war, although Part III Division 1, which is concerned with offences relating to operations against the enemy, would seem to have application only in time of war. The provisions of the Act apply, according to their tenor, to defence members and defence civilians both in and outside Australia: s.9.
2. The Act creates a number of service offences: see the definition of "service offence" in s.3(1) of the Act. Most services offences are specific in nature. For present purposes the specific service offences may be divided into two categories. In the first category are service offences for which there are no like offences under the general law. The offence created by s.24(1) of the Act (absence without leave) is an example of such an offence. In the second category are service offences which are substantially the same as offences under the general law. The offence created by s.46(1) of the Act (possession of property reasonably suspected of having been unlawfully obtained) is an example of a specific offence falling into the second category.
3. In addition to the specific service offences which are substantially the
same as offences under the general law, s.61(1) renders
it a service offence
for a defence member or defence civilian to do or omit to do anything which is
or would, if done or omitted
within the Australian Capital Territory ("the
Territory"), be an offence against certain laws, being, in the main, the
general body
of criminal law in operation in the Territory. Sub-section(1) of
s.61 is in these terms:
"A person, being a defence member or a defence"Territory offence" is defined in s.3(1) of the Act to mean:
civilian, is guilty of an offence if-
(a) he does or omits to do, in the Australian
Capital Territory, an act or thing the
doing or omission of which is a Territory
offence;
(b) he does or omits to do, in a public place
outside the Australian Capital Territory,
an act or thing the doing or omission of
which, if it took place in a public place
in the Australian Capital Territory,
would be a Territory offence; or
(c) he does or omits to do (whether in a
public place or not) outside the
Australian Capital Territory an act or
thing the doing or omission of which, if
it took place (whether in a public place
or not) in the Australian Capital
Territory, would be a Territory offence."
"(a) an offence against a law of the CommonwealthAncillary offence is defined in s.3(13) of the Act as follows:
in force in the Australian Capital Territory
other than this Act or the regulations;
(b) an offence punishable under the Crimes Act,
1900 of the State of New South Wales, in its
application to the Australian Capital
Territory, as amended or affected by
Ordinances in force in that Territory; or
(c) an offence against the Police Offences
Ordinance 1930 of the Australian Capital
Territory,
but does not include an offence that is an
ancillary offence in relation to an offence to
which paragraph (a), (b) or (c) applies".
"For the purposes of this Act, an offence is an
ancillary offence in relation to another offence if
the first-mentioned offence is an offence against -
(a) section 6, 7 or 7A of the Crimes Act
1914 (Cth); or
(b) sub-section 86(1) of that Act by virtue
of paragraph (a) of that sub-section,
that relates to that other offence."
4. The laws of the Territory imported by s.61(1) of the Act do not differ significantly in content from the criminal laws in operation throughout the rest of Australia. Accordingly, at least in its operation in respect of conduct in Australia, s.61(1) must be taken to create service offences which - if not in every case, in almost every case - are substantially the same as offences under the general criminal law applicable to the particular case.
5. A service offence is triable only by a service tribunal: see s.190(1) of the Act. The Act establishes various service tribunals, being summary authorities (see generally Part VII Division 2 of the Act), courts martial (see generally Part VII Division 3 of the Act) and Defence Force magistrates (see generally Part VII Division 4 of the Act). See also the definition of "service tribunal" in s.3(1) of the Act. The service tribunals established by the Act are not constituted as federal courts capable of exercising the judicial power of the Commonwealth in accordance with Chapter III of the Constitution. In particular, the persons constituting the service tribunals have not been appointed in accordance with s.72 of the Constitution.
6. The Act expressly recognizes that some service offences are substantially
the same as offences under the general criminal law.
The Act takes account of
this in two significant respects. First, by s.144(3)(a), it provides that a
person who has been acquitted
or convicted by a civil court of a civil court
offence is not liable to be tried
by a service tribunal for a service offence
that
is substantially the same offence. Secondly, by s.190(3) and (5) it
seeks to exclude the jurisdiction of civil courts over civil
court offences
that are substantially the same as service
offences which have been taken into
account by a court martial or Defence
Force magistrate or in respect of which
a person has been
acquitted or convicted: Section 190 is in these terms:
"(1) Subject to the Constitution, a civil court
does not have jurisdiction to try a charge of
a service offence.
(2) Subject to sub-sections (3), (4) and (5), the
jurisdiction of a civil court to try a charge
of a civil court offence is not affected by
this Act.
(3) Where a court martial or a Defence Force
magistrate has, under section 77, taken a
service offence into consideration in relation
to a convicted person, the person is not
liable to be tried by a civil court for a
civil court offence that is substantially the
same offence.
(4) A civil court does not have jurisdiction to
try a charge of a civil court offence that -
(a) is an ancillary offence in relation to
an offence against this Act (other than
sub-section 61(1)) or the regulations;
and
(b) was committed by a person at a time when
he was a defence member or a defence
civilian.
(5) Where a person has been acquitted or convicted
of a service offence, the person is not liable
to be tried by a civil court for a civil court
offence that is substantially the same
offence.
(6) For the purposes of this section
(a) the dismissal of a charge under section
130, 132 or 135 shall be deemed to be an
acquittal of the service offence the
subject of the charge;
(b) the dismissal of a charge under previous
service law shall be deemed to be an
acquittal of the service offence the
subject of the charge; and
(c) a direction under section 103, 110 or 111
that a charge be not proceeded with shall
be deemed not to be an acquittal of the
service offence the subject of the
charge."
7. By s.3(1) of the Act "civil court" is defined to mean "a federal court or
a court of a State or Territory" and "civil court offence"
is defined to
mean:
"(a) an offence against a law of the Commonwealth
(other than a service offence); or
(b) an offence against a law of a State or
Territory".
8. The authority of service tribunals to hear and determine service offences
which are substantially the same as offences under
the general law ("civil
court offences") is further limited by s.63(1) of the Act. Sub-section(1) of
s.63 requires that the consent
of the Attorney-General be obtained before
proceedings are instituted for:
"(a) an offence against sub-section 61(1) that is
alleged to have been committed in Australia
and in relation to which the relevant
Territory offence is -
(i) treason, murder, manslaughter, rape or
bigamy;
(ii) an offence in respect of which
proceedings could not be brought in the
Australian Capital Territory without the
consent of a Minister; or
(iii) an offence prescribed for the purposes
of this section; or
(b) a service offence that is an ancillary
offence in relation to an offence referred to
in paragraph (a)."
9. Within the legislative setting above outlined Staff Sergeant Ryan ("the
prosecutor") challenged the jurisdiction of Major Tracey
("the respondent"), a
Defence Force magistrate, to hear and determine three charges brought against
him. The first charge (making
false entry in a service document) was brought
under s.55(1)(b) of the Act. The other two charges (absence without leave)
were brought
under s.24(1) of the Act. The question of the respondent's
authority to hear and determine the charges falls for answer in this
Court on
the return of an
order nisi for prohibition. The prosecutor seeks to have the
order nisi made absolute on the grounds that:
"1. The Respondent Major Tracey in hearing and
determining the charges laid against the
(prosecutor) is exercising the judicial power
of the Commonwealth and if and in so far as
Section 127 of the Defence Force Discipline
Act 1982 purports to confer jurisdiction upon
the Respondent Major Tracey the said Section
is contrary to Chapter III of the Constitution
of the Commonwealth of Australia, in
particular Sections 71 and 72, and invalid.
2. Each of the charges laid against the
(prosecutor) is an indictable offence against
a law of the Commonwealth and as such is
required to be heard before a jury by reason
of the Constitution of the Commonwealth of
Australia, Chapter III, in particular, Section
80.
3. Section 190 of the Defence Force Discipline
Act 1982 is invalid as being beyond the power
of the Commonwealth with the consequence that
upon the proper construction of the Defence
Force Discipline Act 1982 the secondnamed
Respondent is exercising the judicial power of
the Commonwealth and has not been appointed
pursuant to Chapter III of the Constitution of
the Commonwealth of Australia."
10. The argument based on s.80 of the Constitution was essentially an argument as to the construction of s.42 of the Acts Interpretation Act 1901 (Cth). For the reasons given in the joint judgment of Brennan and Toohey JJ. that argument must fail. The other grounds relied upon by the prosecutor necessitate a consideration of s.51(vi) of the Constitution.
11. By s.51(vi) of the Constitution the Commonwealth Parliament is, subject to the Constitution, empowered to legislate with respect to "(t)he 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". The power has been described as "purposive". See Stenhouse v. Coleman [1944] HCA 36; (1944) 69 CLR 457, per Dixon J. at p 471; Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1, per Fullagar J. at p 253, Kitto J. at p 273; The Commonwealth v. Tasmania (The Tasmanian Dam Case) [1983] HCA 21; [1983] HCA 21; (1983) 158 CLR 1, per Brennan J. at p 232, Deane J. at p 260; Richardson v. Forestry Commission [1988] HCA 10; (1988) 164 CLR 261, per Deane J. at p 308, Dawson J. at p 326. Section 51(vi) of the Constitution confers two distinct but related legislative powers. The notion of purpose has different focal points for the different powers conferred. The purpose attached to the power conferred by the first part of s.51(vi) is defence. The purpose attached to the power conferred by the second part of s.51(vi) is "control of the forces".
12. The criterion of validity of a law made in exercise of a purposive constitutional power is that it is reasonably capable of being regarded as appropriate and adapted to the object which gives the law in question its character as a law with respect to the relevant head of power: Airlines of N.S.W. Pty. Ltd. v. New South Wales (No.2) [1965] HCA 3; (1965) 113 CLR 54, per Barwick CJ. at p 86; The Tasmanian Dam Case, at pp 130-132, 172, 232, 259-261; Richardson, at pp 289, 300, 312, 336, 344-345. In Richardson, a case concerned with the external affairs power, I expressed the view (at pp.342 and 345) that, in the absence of a treaty obligation, the question of appropriateness and adaptation was to be answered by reference to the circumstance engaging that power.
13. It has long been recognized that the operation of the defence power varies according to the facts upon which its application depends: Andrews v. Howell [1941] HCA 20; (1941) 65 CLR 255, per Dixon J. at p 278; Australian Textiles Pty. Ltd. v. The Commonwealth [1945] HCA 35; (1945) 71 CLR 161, per Dixon J. at pp 180-181 (Rich and Williams JJ. agreeing); Richardson, per Dawson J. at p 326. That is because the question of appropriateness and adaptation falls for determination by reference to the circumstances which engage the power. So too, the question of appropriateness and adaptation in relation to the power to legislate with respect to the control of the forces falls for answer by reference to the circumstances engaging that power, those circumstances being the situations in which the forces are or are likely to be deployed.
14. The questions raised by grounds 1 and 3 in support of the grant of prohibition are put in terms of the judicial power of the Commonwealth. What is submitted on behalf of the prosecutor is that when regard is had to the range of conduct proscribed by the Act and the fact that it includes conduct which would be adjudged criminal under the general law and which (the provisions of ss.190(3), (4) and (5) aside) would ordinarily fall for trial in the civil courts, the power exercised by service tribunals must be characterized as the judicial power of the Commonwealth. The nature of the power, it is said, is clearly manifest if s.190 is invalid for the same conduct could fall for determination as to its legal consequences by the application of the general criminal law in the civil courts and by the application of the provisions of the Act by service tribunals. The vesting of this power in service tribunals, it is argued, infringes Chapter III of the Constitution and is invalid.
15. The power of courts martial or other military tribunals to impose and enforce sanctions for conduct by members of the armed forces constituting a breach of the code of conduct pertaining to the relevant force has traditionally been viewed as a power separate and distinct from the judicial power of the Commonwealth. See R. v. Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452, especially per Starke J. at pp 467-468; R. v. Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, especially per Dixon J. at pp 23-24. The function performed by courts martial was described by Dixon J. in Cox (at p 23) as "the administration of military justice" and was said by his Honour to be "essential to the organization of an army or navy or air force." Those statements suggest that, just as judicial power is necessarily possessed by a sovereign state, so too a like power is necessarily attached to the command of the armed forces, the command in chief being vested by s.68 of the Constitution in "the Governor-General as the Queen's representative."
16. The history of military law and the history of military tribunals, both comprehensively detailed in the judgment of Brennan and Toohey JJ., and the decisions in Bevan and Cox, point inexorably to the recognition within our legal system of a military judicial power in respect of persons subject to military law which is separate and distinct from the judicial power which a sovereign state has in respect of those persons subject to its general laws, the latter being descriptive of the nature of the judicial power comprehended in the expression "(t)he judicial power of the Commonwealth" as used in Chapter III of the Constitution. See Huddart, Parker & Co. Proprietary Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330, at p 357. However, neither history nor the course of judicial decision provides any authoritative basis for the demarcation of the limits of military judicial power, whether by reference to subject matter, time, place or circumstance. The arguments made in the present case do not necessitate a consideration of those limits. The reference point of the prosecutor's arguments is the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences. Had some other reference point been selected, for example, matters appropriate to be dealt with by the civil courts, different issues would arise. But the selected reference point and the fact that the case concerns the application of the Act to a defence member confine the issue in the present case to the constitutional relationship between, on the one hand, military judicial power and, on the other hand, the judicial power of the Commonwealth and the judicial power of the States over conduct by a defence member which, if proven, constitutes a service offence that is substantially the same as a civil court offence. It suffices here to note that Chapter III is premised on the continued existence of State courts (see Constitution ss.71, 73 and 77) and, by ss.106 and 108 of the Constitution, the Constitutions and the laws of the States respectively are preserved subject to the Constitution.
17. In so far as military judicial power is exercised pursuant to a law made by the Commonwealth, the constitutional relationship between that power and the judicial power of the Commonwealth and the States is ascertained by a consideration of the extent of the power conferred by s.51(vi) of the Constitution. By reason of the matters which confine the present issue in the manner already mentioned, that consideration is limited to the question whether, in so far as the Act vests jurisdiction to hear and determine service offences committed by defence members which are substantially the same as civil court offences, it is a law authorized by s.51(vi) of the Constitution.
18. In putting the question in the above way I leave out of specific account the exclusion of the jurisdiction of the civil courts by s.190(3), (4) and (5). It seems to me that, if the jurisdiction in issue may validly be vested in service tribunals, the exclusion of the jurisdiction of the civil courts, at least to the extent specified in s.190(5), must be viewed as reasonably incidental to the vesting of that jurisdiction in service tribunals. That is so because, without a provision such as that contained in s.190(5), (subject to ss.63(1) and 144(3), and subject to such operation as the Act permits of principles relating to the fairness and integrity of the trial process which may require that no or no further proceedings be taken in a service tribunal if proceedings are commenced for substantially the same offence in a civil court) the same conduct may fall for adjudication by a service tribunal and by a civil court with the possibility of different results. That possibility may raise an operational inconsistency between the Act and a law which vests jurisdiction in a civil court to hear and determine a civil court offence which is substantially the same as a service offence for which a person has been convicted or acquitted by a service tribunal. See Victoria v. The Commonwealth [1937] HCA 82; (1937) 58 CLR 618. Such an inconsistency would, by force of s.109 of the Constitution, result in the State law being rendered inoperative, and, it would seem, constitute an implied repeal of any earlier Commonwealth law vesting jurisdiction in a civil court to hear a civil court offence which was substantially the same as the service offence. If there be such an inconsistency, s.190(5) merely makes explicit the extent of the intended operational inconsistency. If there be no operational inconsistency, the exclusion of the possibility of different results by the exclusion of the jurisdiction of civil courts when a person has been convicted or acquitted by a service tribunal is reasonably incidental to the establishment of service tribunals with jurisdiction to hear and determine service offences which are substantially the same as civil court offences.
19. In Bevan, Starke J. (at p 468) stated, in relation to s.51(vi) of the Constitution coupled with s.69 and the incidental power (s.51(xxxix)), that "the Court should incline towards a construction that is necessary, not only from a practical, but also from an administrative point of view." For my part, I think that that observation applies with equal force to the several legislative powers conferred by s.51. Whether or not that be so, the present matter (confined, as has been previously noted, to the application of the Act to a defence member) falls for answer by a determination of the extent of the power to legislate with respect to the control of the forces, it not having been suggested that any circumstance presently engages the first part of the power conferred by s.51(vi) so as to authorize any provision of the Act as it applies to a defence member that is not authorized by the second part.
20. The question whether the Act, in so far as it vests jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences, is a law with respect to the control of the forces must be answered by a consideration whether it is reasonably capable of being viewed as appropriate and adapted to the control of the forces when regard is had to what is necessary from a practical and administrative point of view. That answer must be given by reference to the circumstances engaging the power. The present circumstance, and the circumstance immediately relevant to the respondent's jurisdiction to hear and determine the charges made against the prosecutor, is that, although some members are or may be deployed in various capacities outside Australia, the forces are not engaged in armed struggle with the forces of a hostile country and are, in the main, standing forces located in Australia.
21. The practical and administrative considerations cannot be viewed in isolation from the general pattern of constitutional and legal arrangements obtaining in Australia. Notably, that pattern includes the fact that ordinarily the determination of whether conduct constitutes an offence under the general law, and, if it does, the imposition of a penalty therefor, are matters which (subject to the proper exercise of any discretion reposed in a prosecuting authority) fall for decision in the properly constituted civil courts of the country and fall for decision only in those courts.
22. It is convenient to note at once that, so far as membership of the forces is not irrelevant to the nature or quality of the conduct proscribed, the Act, in proscribing conduct which constitutes a civil court offence, is prima facie a law for the control of the forces. The concept of control is not restricted to matters of internal discipline and the regulation of the conduct of the members of the forces in their relationships with each other. The expression "control of the forces" is apt to include the regulation of at least some conduct on the part of members of the forces in their relationships with persons and legal entities outside the forces, and the regulation of the relationship of the forces with civilians, civilian entities, and the organs of government.
23. So far as jurisdiction is vested in service tribunals to hear charges in relation to validly proscribed conduct by a defence member outside Australia, the vesting of such jurisdiction is readily seen as appropriate and adapted to the object of control. The only alternative to vesting such jurisdiction in service tribunals is to constitute the proscribed conduct an offence triable in the ordinary Australian courts. Even in peace time, and notwithstanding the great advances in transport and communication, that course must be considered inappropriate and ill-adapted when regard is had to practical and administrative considerations.
24. But the same practical and administrative considerations do not apply to conduct on the part of defence members in Australia. Given the availability of modern means of transport and communication, there is no practical or administrative difficulty in that conduct, which (if proved) is a civil court offence, being brought before the civil courts. True it is that one can envisage circumstances necessitating the immediate and continued military availability of the members of the defence forces. In those circumstances the first part of the power conferred by s.51(vi) of the Constitution would authorize a law putting members of the forces beyond the reach of the civil courts for so long as the circumstances required. So too, in my view, there would be no doubt as to the validity of a law to that effect if its operation were conditional upon the existence of such circumstances. A law to that effect and having operation in those circumstances would not be a law on the subject of control of the forces, but on the subject of defence. The operation of a law to that effect would then be a circumstance in the light of which the vesting of jurisdiction in service tribunals to hear and determine as service offences charges of conduct then put beyond the reach of the civil courts would be capable of being viewed as appropriate and adapted to the control of the forces having regard to practical and administrative necessities. But there is no suggestion that any such special or extraordinary circumstance is relevant to the present matter. Accordingly, the question of appropriateness and adaptation falls for answer solely by a consideration of the operation of the Act in the context of the ordinary legal arrangements. Within that context, the provisions of the Act themselves, in my view, dictate that the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences cannot reasonably be regarded as appropriate and adapted to the object of control of the forces. In the first place s.144(3)(a) posits the continued existence and exercise of jurisdiction by civil courts in respect of civil court offences save to the extent that it is displaced by s.190(3), (4) and (5). Whether it be the case that a service tribunal may proceed with the hearing of a charge of a service offence until a conviction or acquittal is sustained in a civil court or whether it be the case that general principles (if not displaced by the Act) require a service tribunal to refrain from proceeding further once proceedings for substantially the same offence have been instituted in a civil court, an inconclusive hearing is not in any way conducive to the control of the forces. The exercise of jurisdiction by service tribunals only relevantly bears upon control of the forces to the extent that it is a concluded exercise.
25. To the extent that a service tribunal engages in a concluded exercise of jurisdiction in respect of conduct by a defence member in Australia, s.190(5) would completely oust the jurisdiction of the civil courts for substantially the same civil court offence. Putting to one side the existence of special or extraordinary circumstances which would justify a law ousting the jurisdiction of the civil courts whilst those circumstances existed, the ousting of that jurisdiction must be seen as other than appropriate and adapted to the control of the forces. As previously noted, the concept of control is not restricted to matters internal to the forces but extends to the relationship of the armed forces with the civilian population and with the organs of government. Although internal discipline is undoubtedly a matter of great practical importance, the control of the forces in their relationships with the civilian population and the organs of government is a matter of the highest constitutional significance. A law which to any extent allows for conduct by a defence member in Australia constituting an offence against the general law to be put beyond the reach of the civil courts, save to the extent that circumstances render that course a necessity, must be seen as contrary and inimical to the control of the forces in that broader and more important setting. That problem is not solved by holding s.190(3), (4) and (5) invalid but as severable from the other provisions of the Act. The same ousting may be effected by reason of operational inconsistency. If it is not, there remains the possibility, previously noted, that the exercise of jurisdiction by a service tribunal and by a civil court in respect of the same conduct by a defence member in Australia will produce different results. To the extent that the operation of the Act permitted that possibility it would, in my view, have to be regarded as other than conducive to the control of the forces.
26. 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. It should be noted that the provisions of the general law do no more than provide the context by reference to which the operation of the Act is ascertained. The provisions of the general law cannot of themselves determine the validity of a law vesting jurisdiction in service tribunals to hear and determine charges of proscribed conduct on the part of defence members. The present case was conducted by reference to the provisions of the general law, but there is a broader constitutional issue as to the matters which may be decided in the exercise of military judicial power. So far as conduct, whether or not it offends against the general law, has an aspect which detrimentally affects command, military efficiency, the relationships of defence members with each other or the reputation of the forces, that aspect of conduct is readily seen as appropriately the subject matter of military judicial power. But it may be that some proscribed conduct on the part of defence members having no counterpart proscription in the general law, even if it has a readily identifiable military aspect, is not to be seen as appropriately the subject matter of exclusive military judicial power when regard is had to the constitutional purpose to be served by the grant of legislative power with respect to the control of the forces. As this broader issue was not argued, the present case must be disposed of on the basis of the invalidity indicated.
27. The invalidity of the Act to the extent indicated does not result in the invalidity of the Act as a whole, for it may be read down pursuant to s.15A of the Acts Interpretation Act, so that its operation is confined to charges in respect of conduct outside Australia and to charges of service offences which are not substantially the same as civil court offences. In respect of such matters the Act, when read down, does not "operate differently upon the persons, matters or things falling under it or in (any) other way ... produce a different result": Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, at p 371.
28. The conclusion that the Act may be read down necessitates a consideration of the charges against the prosecutor. As already mentioned the 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.
29. The service offence created by s.55(1)(b) of the Act (falsification of service document) is in a different category. To the extent that the act of falsification is done with a view to gain or with intent to cause loss or injury to another it constitutes clearly recognized offences under the general law. The service offence created by s.55(1)(b) is also committed if there is an act of falsification with intent to deceive. The charge against the prosecutor is that he "at Townsville on 1 November 1986 with intent to deceive, did make an entry in a Movement Requisition (PY9) dated 1 November 1986 in connection with the movement of he, the accused, that was false in a material particular in that it showed 'MBR On Approved Leave until Date of March In', he, the accused, not having been approved the leave in question." Prima facie, the conduct charged amounts to the offence of forgery under s.67(b) of the Crimes Act 1914 (Cth), which makes it an offence to forge "any document issuable by, or deliverable to, any Department of the Commonwealth or any public authority under the Commonwealth, or any Commonwealth officer". Forgery is defined in s.63 of the Crimes Act to include the making of a document, register or record which is false, knowing it to be false with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act whether in Australia or elsewhere. The allegation of intent to deceive in the charge brought against the prosecutor would seem to comprehend both knowledge of falsity and intent that a person might, in the belief of genuineness, be induced to do or refrain from doing an act as required by the definition of forgery in s.63 of the Crimes Act. However, the precise facts are not before the Court and the question whether the charge laid against the prosecutor is substantially the same as a civil court offence was only touched upon briefly. In these circumstances the appropriate course in respect of this charge is to discharge the order nisi, leaving the question whether the offence charged is substantially the same as a civil court offence to be determined by the respondent.
30. Finally, were I of the view that the Act could be construed and applied so as to allow the completed exercise of jurisdiction by service tribunals side by side and consistent with the exercise of jurisdiction by the civil courts, I would be of the view that s.51(vi) of the Constitution would, in the present circumstances, support a law conferring jurisdiction on service tribunals in respect of conduct engaged in by defence members in Australia only to the extent indicated in the joint judgment of Brennan and Toohey JJ. viz. to the extent that "the jurisdiction serves the purpose of maintaining or enforcing service discipline."
31. The order nisi should be discharged.
ORDER
Order nisi for prohibition discharged.No order as to costs.
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