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Re Nolan; Ex Parte Young [1991] HCA 29; (1991) 172 CLR 460 (27 June 1991)

CATCHWORDS

HEARING

DECISION

2. When the hearing of the charges came on before Lieutenant Colonel Nolan, the Defence Force Magistrate ("the Magistrate"), the defending officers argued on behalf of the prosecutor that all the offences charged were offences under the general law or were equivalent to such offences and that there was no reason relevant to the maintenance of military discipline why the charges should not be laid, heard and determined under civilian law. For this reason, the defending officers contended that the Magistrate lacked jurisdiction to hear and determine the charges and that, in the alternative, if jurisdiction existed, he should nevertheless decline to exercise it on the ground that a more appropriate forum existed. The Magistrate held that he had jurisdiction to hear and determine the charges and refused to exercise his discretion to decline jurisdiction.

3. On 7 June 1990, on the application of the prosecutor, Toohey J. granted an order nisi requiring the Commonwealth and the Magistrate to show cause why a writ of prohibition should not issue against the Magistrate prohibiting him from taking any further step or making any further order in relation to the trial. The grounds upon which his Honour granted the order nisi were:
"1. The offences with which the prosecutor has been charged
are all offences for which a civilian equivalent
exists.
2. There is no reason, pertinent to the maintenance of
military discipline, why the charges should not be
laid, heard and determined under the civilian law.
3. That being so-
(a) the Defence Force Magistrate lacks jurisdiction to
hear and determine the charges;
or
(b) in the alternative, if the Defence Force
Magistrate does have jurisdiction to hear and
determine the charges, he should nevertheless
decline to exercise that jurisdiction on the
ground that there exists a forum (namely, the
civilian court) by which jurisdiction might more
appropriately be exercised."
4. It is convenient to refer at this stage to the offences under the Crimes Act 1914 (Cth) which are said to comprehend the class of conduct which is made punishable by ss.55(1)(a) and 61 of the Act. Section 29A(1) of the Commonwealth Crimes Act makes it an offence for any person to obtain any money from the Commonwealth by any false pretence with intent to defraud. Section 63(1)(c) deems a person to forge a document when that person makes a document which is false, knowing it to be false, with intent that the false document be used, acted upon or accepted as genuine to the prejudice of the Commonwealth. Section 64 deems a person to utter a forged document if he tenders or puts it off, or attempts to tender or put it off, or uses it or deals with it, or attempts to use or deal with it, or attempts to induce any person to use, deal with, act upon or accept it. Section 67 makes any person who forges a document or utters it knowing it to be forged guilty of an offence. By s.72(c), fraudulent falsification of a document by a Commonwealth officer is an offence. And s.74 makes the furnishing of a false return or statement relating to remuneration by a Commonwealth officer an offence. It is apparent that the offences created by ss.55(1)(a) and 61 of the Act punish conduct on the part of service and civilian members which is also made punishable by the provisions of the Commonwealth Crimes Act which we have just mentioned.

5. The contest before the Magistrate centred upon the effect of the decision of this Court in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, in which the Court held that sub-ss.(3) and (5) of s.190 of the Act were invalid because they went beyond the defence power or because they attempted to withdraw jurisdiction from the ordinary courts in respect of offences under the general law, but were nevertheless severable. Three different opinions were expressed as to the extent to which the Commonwealth Parliament, in the exercise of the legislative power conferred by s.51(vi) of the Constitution, could enact a disciplinary code, binding upon members of the defence forces, standing outside Ch III of the Constitution. Mason C.J., Wilson and Dawson JJ. held, in conformity with the view taken by the Supreme Court of the United States in Solorio v. United States [1987] USSC 159; (1987) 483 US 435, that it is within the power of Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence if committed by a defence member and shall be triable by a service tribunal: at p 545. On the other hand, Deane J. held that, in so far as offences committed in Australia in time of peace are concerned, jurisdiction can be conferred validly on a service tribunal only to the extent that it relates to exclusively disciplinary offences, that is, offences which do not involve conduct of a type which is commonly an offence under the ordinary criminal law: at p 591. Likewise, Gaudron J. considered that jurisdiction can be validly conferred on a service tribunal only to the extent that it relates to charges in respect of conduct outside Australia and to charges of service offences that are not substantially the same as civil court offences: at p 603.

6. Brennan and Toohey JJ. took a rather wider view of the jurisdiction that can be conferred validly on a service tribunal than that expressed by Deane and Gaudron JJ. Brennan and Toohey JJ. stated (at p 570):

"(P)roceedings 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."

7. It is important to note that both Deane J. and Gaudron J. indicated that, had they not been of the opinion that the jurisdiction of a service tribunal could not extend to offences which involve conduct of a kind which is an offence under the ordinary law, they would have considered that the jurisdiction of such a tribunal must be confined to dealing with the disciplinary aspect of conduct of defence members: see at pp 592, 605.

8. Re Tracey presented the Magistrate with a very considerable problem. There was no majority for any one of the three opinions expressed in the judgments; indeed, there was a majority rejection, at least by way of preferred view, for each of the three opinions. However, the Magistrate seems to have thought, mistakenly as we understand their Honours' judgment, that Brennan and Toohey JJ. considered that, "upon a service authority or a tribunal finding that a sufficient service connection exists, then prosecution of (a service) offence automatically serves a substantial disciplinary purpose". The Magistrate therefore treated the "serving of a substantial disciplinary purpose" as synonymous with a "sufficient service connection" and, on this footing, thought that there was some identity of approach between their Honours and Mason C.J., Wilson and Dawson JJ. However, we do not find anything in the judgment of Brennan and Toohey JJ. which suggests that the presence of a sufficient service connection means automatically that the prosecution will serve a substantial disciplinary purpose. The Magistrate's reasoning was mistaken in this regard.

9. In the light of the divergence of opinion in Re Tracey, it was desirable, indeed necessary, to have the benefit of further argument on the scope of the power conferred by s.51(vi) and its interrelationship with Ch III of the Constitution. The foundation stone of the prosecutor's argument was that the Act was a legislative scheme which set out to confer upon service tribunals, not being Ch.III courts, jurisdiction to administer a comprehensive system of criminal law and that the jurisdiction so conferred, to the extent that it was exercised, supplanted the jurisdiction of the ordinary courts to deal with criminal offences under the general law in cases where the conduct constituting the criminal offence was made a service offence as well. The offences created by the Act, other than those created by s.61(1), are mainly related to the discipline of the defence forces. But s.61(1) picks up the principal provisions of the criminal law in the Australian Capital Territory and, subject to some qualification, makes it an offence (a "service offence") for a defence member to engage in conduct which, if engaged in in that Territory, would be an offence there.

10. From that starting point the prosecutor submitted that the legislative power does not extend to the establishment of such a system of military justice, separate and distinct from the ordinary system of justice, except to the extent that the establishment of a system of military justice is pertinent to the maintenance of discipline of the defence forces or is otherwise relevant to the defence of the Commonwealth. The next step in the argument was to say that the Act, in so far as it merely creates service offences in time of peace in respect of conduct which constitutes an offence under the ordinary law and makes those service offences triable by service tribunals, cannot be regarded as maintaining the discipline of the defence forces or as enhancing the defence of the Commonwealth. Alternatively, the prosecutor contended that, if the Act could be regarded as having some connection with the defence of the Commonwealth, that connection was so slight as to offend the principle of proportionality. In this respect, the prosecutor submitted that any value to the defence of the Commonwealth was outweighed by the prejudice which the law occasioned to the individual's civil rights, that is, the right to a trial in the ordinary courts for an offence against the general law of the land. In substance the prosecutor's case was that s.61(1) is not a law which is appropriate and adapted to the discipline of the defence forces. Further, it is wholly invalid because it is not capable of being read down, as Brennan and Toohey JJ. appear to have thought it could be: see at pp 570-571.

11. By way of answer, the Commonwealth submitted that the Magistrate has jurisdiction to hear and determine the charges provided that the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. The Commonwealth further submitted that the offence created by s.55(1)(a) is ex facie sufficiently related to service discipline to found jurisdiction and that it is indistinguishable from the offence created by s.55(1)(b), the validity of which was upheld in Re Tracey. The Commonwealth likewise argued that the hearing and determination of the charges under s.61(1) against the prosecutor can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline for a variety of reasons, including the circumstances that they relate to the misuse of service documents by a defence member in the course of his duties as such and that the charges concern conduct which is intrinsically prejudicial to good order and discipline.

12. For our part, having considered afresh the arguments advanced by the prosecutor and the intervening States who supported the prosecutor's argument, we see no reason to resile from the view which we expressed in Re Tracey as to the scope of the legislative power. We consider now, as we concluded then, that 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: see at p 545. The proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces; so long as the rule prescribed is sufficiently connected with the regulation of the defence forces and the good order and discipline of members, it will be valid. Indeed, we do not understand how it can be suggested that the prescription of a rule of conduct to be observed by defence members, when that rule of conduct is required to be observed by the general community for the good of society, is not sufficiently connected with the regulation of the defence forces and the good order and discipline of those forces. Plainly Parliament can take the view that what is good for society is good for the regulation of the defence forces and can give effect to that view by creating service offences which are cumulative upon, rather than in substitution for, civil offences: McWaters v. Day [1989] HCA 59; (1989) 168 CLR 289, at p 297. And, as we pointed out in Re Tracey (at p 543):

"(B)oth 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 connexion
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."

13. It follows from what we have said that the offences with which the prosecutor was charged were validly created and that the Magistrate had jurisdiction to hear and determine them. The offence created by s.55(1)(a) is indistinguishable from the offence created by s.55(1)(b) which was held to fall within the jurisdiction of the Magistrate in Re Tracey. The offences created by s.61(1) with which the prosecutor was charged are plainly connected with service discipline concerning, as they do, the misuse by a defence member of service documents in the course of the performance of his or her duties as such a member.

14. The order nisi should be discharged.

BRENNAN AND TOOHEY JJ. The prosecutor, Staff Sergeant Young, is charged with seven service offences against s.55(1)(a) and seven service offences against s.61(1) of the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"). Section 55(1) creates the service offence of falsification of service documents. Section 61(1) makes it a service offence to do or to omit to do an act or thing the doing or omission of which is a "Territory offence" or would be a "Territory offence" if done or omitted in the Australian Capital Territory. Offences against the Crimes Act 1900 (N.S.W.) in its application to the Australian Capital Territory are Territory offences (s.3(1)) and s.61(1) of the Discipline Act translates those offences into service offences. The offences with which Sergeant Young has been charged under s.61(1) of the Discipline Act correspond with offences created by s.135C(2) of the Crimes Act.

2. The hearing of these charges commenced before the first respondent, Lieutenant Colonel J.A. Nolan, a Defence Force Magistrate appointed under s.127 of the Discipline Act. On behalf of Sergeant Young, an objection was taken to the jurisdiction of Lieutenant Colonel Nolan to hear and determine the charges. The objection was overruled, but an adjournment was granted in order that an application for prohibition might be made to this Court. Toohey J. granted an order nisi on the following grounds:

"1. The offences with which the prosecutor has been charged
are all offences for which a civilian equivalent exists.
2. There is no reason, pertinent to the maintenance of
military discipline, why the charges should not be laid,
heard and determined under the civilian law."

3. After the hearing before the Defence Force Magistrate was adjourned, amendments were made to the charges to assert or emphasize a service connection. This was done by specifying the locus of each offence as Keswick Barracks, identifying the defendant (the present prosecutor) as a defence member posted as "Sergeant Clerk Administration Employment Category Number 074 performing the duties of unit pay representative for 4 Field Survey Squadron" and then specifying the offence. The fourteen charges, in the form to which they have been amended, allege that Sergeant Young, performing the duties of unit pay representative for 4 Field Survey Squadron, falsified a number of service documents (contrary to s.55(1)(a) of the Discipline Act), each of which he used by presenting it at the Cash Office at Keswick Barracks with the intention of inducing an employee of the Commonwealth to accept it as genuine and pay him a sum of money to the prejudice of the Commonwealth (contrary to s.135C(2) of the Crimes Act (N.S.W.) in its application to the Australian Capital Territory).

4. In Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, varying views were expressed by members of the Court as to the support which s.51(vi) of the Constitution gives to the Discipline Act. Mason C.J., Wilson and Dawson JJ. were of the view that it is for the Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in the Defence Force and that any conduct which constitutes an offence under the general law may be created a service offence if it is committed by a defence member (at p 545). Their Honours held that conduct amounting to a service offence may be punished by service tribunals in peace as in war, within Australia as well as on overseas service. On this view, Sergeant Young is amenable to the jurisdiction of the service tribunal: he has been charged in his capacity as a defence member with service offences and that is sufficient to attract jurisdiction. The view we then expressed was concerned with the limits of the jurisdiction to try, rather than with the content of, service offences. We concluded, at p 570, that -

"proceedings may be brought against a defence member
or a defence civilian for a service offence if, but only
if, those proceedings can reasonably be regarded
as substantially serving the purpose of maintaining or
enforcing service discipline."

5. Service offences created by the Discipline Act are essentially different from offences created or recognized by the ordinary law (hereafter "criminal offences"). Those tribunals which have jurisdiction to punish criminal offences do not impose punishment for contraventions of laws creating service offences and, even where the elements of a service offence correspond with the elements of a criminal offence, the offender is not necessarily exposed to the same punishment: compare ss.4D and 4J of the Crimes Act 1914 (Cth) with s.67 and Scheds 2, 3 and 3A of the Discipline Act. Conviction for a service offence does not necessarily entail the same consequences in terms of disqualifications, forfeitures and disabilities as a conviction for a corresponding criminal offence. It is an open question whether conduct amounting to a service offence only is thereby stamped with illegality for all purposes. The jurisdiction to punish for the commission of service offences and the jurisdiction to punish for the commission of criminal offences are created for different purposes: Re Tracey, at p 571. Importantly, service offences are created by a law which, in accordance with the traditional and constitutional view, is supplementary to the ordinary criminal law: McWaters v. Day [1989] HCA 59; (1989) 168 CLR 289, at p 298. And whereas service offences are created by a law of the Commonwealth, the majority of criminal offences are created by State or Territory laws or are recognized by the common law administered by State or Territory courts.

6. If service offences and criminal offences containing substantially the same elements were classified as offences of the same character, it would be impossible to maintain the co-existence of military law and the ordinary criminal law in force in the different parts of Australia as "parallel systems", although McWaters v. Day declares them to be such (at p 298). Two systems of law cannot co-exist governing the same persons in the same territorial area with respect to the same matters unless the law in each system is identical or the law of one system is subordinate to the other. It is only by recognizing the distinct character of service offences that it is possible to regard the law which creates them as supplementary to the ordinary criminal law.

7. Under a unitary government, as in the United Kingdom, there is but a single legislative power and consequently there is but a single body of municipal law operating within national boundaries. Under a unitary government, it is a question of statutory construction whether military law is intended by the legislature to prevail over the ordinary criminal law where both bodies of law apply to the same person in respect of the same conduct. Under a unitary government, to the extent that the ordinary criminal law is adopted to define service offences and to prescribe punishments, conflicts between the two bodies of law would be limited to conflicts between military and civil jurisdiction to try and to punish an offender for an offence common to both bodies of law. Service offences which have no ordinary criminal law equivalent, being super-added obligations binding service personnel, would be expected to fall within the exclusive jurisdiction of military courts. Under our federal Constitution, the problem is more complex. The possibility exists that, where service offences created by the Parliament in exercise of the defence power are defined by reference to the definition of offences under the ordinary criminal law of the Australian Capital Territory, service offences will not correspond with offences under the ordinary criminal law of one or more of the States, whether the State offences are created by legislation or by the common law administered by State courts. Conflicts may exist not only with respect to jurisdiction over defence members and defence civilians but possibly with respect to substantive rules of conduct affecting those persons while they are within State boundaries. There must be a rule for resolving the conflicts. Does s.109 of the Constitution provide the rule? If s.109 were to apply, it would be because the Discipline Act is a Commonwealth law and the ordinary criminal law is State law over which the Commonwealth law prevails to the extent of the inconsistency. Were there such an inconsistency, the system of military law would prevail over the system of the ordinary criminal law, not be supplementary to it. Defence members and defence civilians, being subject to the Discipline Act, would not be subject to the inconsistent State law.

8. Again, if service offences created by the Discipline Act were to be characterized as ordinary offences against a law of the Commonwealth, the purported vesting in service tribunals of jurisdiction to hear and determine charges of those offences would be invalid. The jurisdiction to hear and determine charges of offences against laws of the Commonwealth can be vested only as prescribed by Ch.III of the Constitution and the apparent exception which permits the vesting in military tribunals of jurisdiction to hear and determine charges of service offences (see R. v. Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1, at p 23) is explicable only on the footing that service offences are not of the same character as offences against laws of the Commonwealth. We have not overlooked s.3(15) of the Discipline Act. That provision distinguishes between service offences and offences against a law of the Commonwealth though it operates to attach to service offences at least some of the incidents of offences against a law of the Commonwealth. It reads:

" For the purposes of any law of the Commonwealth
other than this Act, an offence against this Act or the
regulations shall not be taken not to be an offence against
a 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."

9. To characterize service offences as a class of offences against a law of the Commonwealth is to deny the constitutional possibility of a parallel but subordinate system of military criminal law. This flows from the imperative of Ch.III of the Constitution that jurisdiction to hear and determine charges of offences against a law of the Commonwealth be vested only in Ch.III courts: see the Judiciary Act 1903 (Cth), s.68(2). To this imperative, there can be no real exception. If service offences were characterized as a class of offences against a law of the Commonwealth, the vesting of jurisdiction in military tribunals would be precluded, not only in respect of service offences which have a civil law equivalent and which are committed in Australia in peacetime but in respect of all service offences wherever and whenever committed and whether having a civil law equivalent or not.

10. Once it is accepted that service offences are sui generis and not simply a class of offence against a law of the Commonwealth, these difficulties are seen to be without substance. The Discipline Act and regulations which create service offences prescribe rules of conduct which appear to the legislature to be appropriate to the maintenance or enforcement of service discipline but they do not create criminal offences. The distinction might seem insubstantial and technical to a defence member convicted and punished by a service tribunal for a service offence but it is nonetheless valid for the purpose of ascertaining the extent of constitutional support for disciplinary legislation. For such a defence member, s.4C of the Crimes Act (Cth) may provide some protection against double jeopardy. If a service offence is, by force of s.3(15) of the Discipline Act, assimilated to the position of an offence against a law of the Commonwealth for the purposes of s.4C, that section would preclude prosecution and punishment of a defence member or defence civilian for both a criminal offence against a law of the Commonwealth and a corresponding service offence. Sub-section (1) would also preclude prosecution and punishment for both a criminal offence at common law and a corresponding service offence, but the validity of that provision with respect to offences under State jurisdiction may be open to doubt in the light of Re Tracey. It will be noted, however, that this section does not purport to preclude the prosecution and punishment of an offender as for any offence against a law of a State.

11. In Re Tracey, we recalled the constitutional controversies over the scope of martial law as an aid in determining the extent of the support which the defence power gives to a law conferring on service tribunals a jurisdiction to maintain or enforce the discipline of members of the Defence Force and defence civilians who commit service offences. We need not repeat the history to which we then referred. Suffice to say that that history reveals the foundations of the doctrine that military personnel are subject to the general law and that military law is supplementary, and subordinate, to the general law. It may be true that by the time of federation, "the gradual establishment, at the expense of the prerogative, of parliamentary control over the enforcement of military law (had seen) 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": Re Tracey, per Mason C.J., Wilson and Dawson JJ. at p 542. But to acknowledge that fact does not relieve one of the need to acknowledge and give effect to "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": Re Tracey, at p 570. The doctrine that military law is supplementary and subordinate to the general law is not expressed in the text of the Constitution any more than the doctrine of responsible government, yet both doctrines underpin the Constitution, inform its interpretation, and are calculated to secure the democratic freedom to which the Constitution and the nation it formed aspire. A power in the Parliament, acting in aid of the Executive, to enact a criminal law binding on defence members and defence civilians in times of peace which would prevail over the ordinary criminal law would be destructive of the discipline which the power to enact a supplementary criminal law is calculated to achieve. The creation of a military class immune from the general criminal law would be antithetical to the constitutional function of the Defence Force "to execute and maintain the laws of the Commonwealth" (s.51(vi)) and to be available to protect a State against domestic violence (s.119).

12. The legislative power relating to discipline conferred by s.51(vi) must be exercised for the purpose for which it was conferred, for s.51(vi), "unlike most other powers conferred by s.51 of the Constitution, ... involves the notion of purpose or object": Dixon J. in Stenhouse v. Coleman [1944] HCA 36; (1944) 69 CLR 457, at p 471. Having regard to the history of military discipline and the terms of s.51(vi), the purpose for which the power to make a law relating to discipline of the Defence Force of the Commonwealth is conferred is to maintain the operational efficiency of the Force and to ensure that the standing Force, as an organized entity, is a buttress of, rather than a threat to, internal security: see Re Tracey, at p 562. As the power cannot be exercised to override the ordinary criminal law in its application to defence members and defence civilians, a law creating service offences and conferring jurisdiction on service tribunals to try must be subject to the ordinary criminal law. If it were otherwise, the ordinary criminal law would be supplementary to military law and that would invert their proper priority.

13. The application of this doctrine avoids the possibility, albeit a faint possibility, of unresolved conflict between a substantive provision of the ordinary criminal law (whether Commonwealth law, State law or common law) and a substantive provision of a law creating (whether by the Discipline Act or by regulation) a service offence: the substantive provision of the ordinary criminal law would prevail where simultaneous obedience to both would not be practicable. Thus, if simultaneous obedience to a law prescribing a service offence and a State criminal law were not practicable, the State criminal law would prevail provided that law were itself consistent with Commonwealth laws governing the creation, organization and functions of the Defence Force. To say that a State criminal law of that kind - characteristically, a State criminal law prescribing a general norm of personal conduct - would prevail over a law creating a service offence is not to destroy the operation of s.109 of the Constitution, though it may appear at first sight to do so. Once it is appreciated that the legislative power conferred by s.51(vi) is limited in the relevant respect to the creation of laws which are supplementary to the ordinary criminal law, it can be seen that no law of the Commonwealth can validly create a service offence which is inconsistent with, as distinct from supplementary to, the ordinary criminal law. A law creating a service offence is denied an operation inconsistent with the operation of an ordinary criminal law of a State, not because the will of the State legislature prevails over the will of the Commonwealth legislature but because the support of s.51(vi) of the Constitution for the creation of service offences vanishes when it is impracticable to obey simultaneously the law creating the service offence and the ordinary criminal law enforceable by the courts of this country.

14. It was argued that, because the provisions of the Discipline Act which create service offences and confer jurisdiction to try them (Pt III - Offences, and Pt VII - Service Tribunals) are enacted in general terms applicable to every piece of conduct amounting to a "service offence" committed by a defence member or defence civilian, whether or not there is constitutional power available to support the application of the Discipline Act in a particular case, these provisions, especially s.61, are ultra vires the Parliament. Against this argument, it is said that it is for the Parliament and not for the Court to select an appropriate set of norms for the conduct of defence members and defence civilians and to determine the occasions when an exercise of jurisdiction by service tribunals to enforce those norms is appropriate to secure service discipline. As we pointed out in Re Tracey, "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": at p 568. That is to say, the validity of Pts III and VII depends on restrictions on the occasions of exercise of jurisdiction rather than on the scope of the jurisdiction to be exercised and the nature of the conduct defined to be service offences.

15. The test of validity of the Discipline Act is whether its provisions are appropriate and adapted to the achievement of the constitutional purposes earlier mentioned, namely, maintaining the operational efficiency of the Defence Force and ensuring that the Defence Force is a buttress of, rather than a threat to, internal security. Those purposes being the relevant object of the power, the ultimate criterion of validity is as stated in Castlemaine Tooheys Ltd. v. South Australia [1990] HCA 1; (1990) 169 CLR 436, at p 473:

"if the means which the law adopts are disproportionate to
the object to be achieved, the law has not been considered
to be appropriate to the achievement of the object: the
Tasmanian Dam Case ((1983) [1983] HCA 21; 158 CLR 1, at p 278); South
Australia v. Tanner ((1989) [1989] HCA 3; [1989] HCA 3; 166 CLR 161, at pp 165,178)."

"though its meaning does not change, yet unlike some other
powers its application depends upon facts, and as those
facts change so may its actual operation as a power enabling
the legislature to make a particular law."

16. Though it may be impossible to prescribe a priori the times and circumstances in which proceedings before a service tribunal will be regarded as substantially serving the purpose of maintaining or enforcing service discipline, it does not follow that a failure by the Discipline Act expressly to restrict the application of these general provisions destroys its validity. Though the Discipline Act appears to authorize an exercise of jurisdiction in every case literally falling within its terms, and thus to authorize an invalid as well as a valid exercise of the jurisdiction to hear and determine charges of committing service offences, the distributive operation of the Discipline Act is confined by s.15A of the Acts Interpretation Act so that the jurisdiction conferred on service tribunals is available for exercise only on occasions when there is constitutional support for its exercise.

17. That section provides as follows:

" Every Act shall be read and construed subject to the
Constitution, and so as not to exceed the legislative power
of the Commonwealth, to the intent that where any enactment
thereof would, but for this section, have been construed as
being in excess of that power, it shall nevertheless be a
valid enactment to the extent to which it is not in excess
of that power."

"where there are general words or expressions which apply
both to cases within power and to cases beyond power, then
if an intention of Parliament that there should be a partial
operation of the law based upon some particular standard
criterion or test can be discovered from the terms of the
law itself or from the nature of the subject matter with
which the law deals, it can be read down so as to give valid
operation of a partial character. In such a case also it
would be necessary to consider whether such reading down
would alter the policy or operation of the statute with
respect to the cases which, after the reading down, would
still remain within its terms. But if a law can be reduced
to validity by adopting any one or more of a number of
several possible limitations, and no reason based upon the
law itself can be stated for selecting one limitation rather
than another, the law should be held to be invalid. In such
a case the law cannot be saved by the Acts Interpretation
Act."

"where the enacted words are capable of division or
distribution, the reduced form of the enactment which
results must operate upon the persons and things affected by
it in the same manner as the enacted words would have
operated upon those persons and things had Parliament had
the legislative power to have validly passed the enactment.
In such a case, it cannot be accepted that the Parliament
intended an Act with a different operation upon or with
respect to such persons and things. Again, the reduced
form or operation of the Act must result in a 'consistent
workable and effective body of provisions'. But within such
limits, the parliamentary expression that it intends to
enact any law within any of its powers which emerges by
construction from the enacted words, notwithstanding any
invalidity in parts of the enactment, is imperative".

18. The cases in which s.15A has been applied have generally related to laws which have defined their subject matter in terms of persons or activities, some of whom or some of which lie outside the reach of the relevant constitutional power. Section 15A can apply when the impugned law generally prohibits activities engaged in by a class of persons, some of whom are beyond the reach of the supportive constitutional power in respect of some only of their activities: Bourke v. State Bank of New South Wales [1990] HCA 29; (1990) 170 CLR 276, at p 291. The Discipline Act purports to relate to defence members and defence civilians, all of whom are within the reach of the disciplinary aspect of the defence power. But the limit on the reach of the disciplinary aspect of the defence power with which we are here concerned is not a limit on the classes of persons who have been brought within the net of military discipline, nor a limit on the scope of the conduct which might be forbidden to defence members and defence civilians as a service offence, nor a limit on the jurisdiction or power of service tribunals when they are validly hearing and determining charges of service offences and imposing penalties for their commission. The relevant limit is on the occasions for the exercise of disciplinary jurisdiction: "if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline": Re Tracey, at p 570. In a sense, the hearing and determination of a charge of a service offence can be described as an activity but an exercise of jurisdiction is not accurately so described. Characteristically an exercise of jurisdiction is attended by an exercise of power (see per Toohey J. in Harris v. Caladine [1991] HCA 9; (1991) 65 ALJR 280, at p 301; [1991] HCA 9; 99 ALR 193, at p 229) and it is the occasions when the disciplinary jurisdiction with its associated powers may be exercised which are at issue. The question is whether s.15A operates to limit the occasions on which the power to charge a defence member or defence civilian with the commission of a service offence, the jurisdiction to hear and determine such a charge and the power to impose punishment for commission of such an offence can be exercised with the result that the relevant provisions of the Discipline Act themselves operate only when they are constitutionally supported. If s.15A is to apply to limit those occasions, there must be discovered in the Discipline Act or in its subject matter a standard, criterion or test on which the limit can be based. The standard, criterion or test is not hard to find.

19. It is to be found in the nature of military discipline which, traditionally and constitutionally, is supplementary to the ordinary criminal law. It is implied in the title of the Discipline Act and in its preamble which declares it to be "An Act relating to the discipline of the Defence Force and for related purposes". The gradations of service tribunals, the punishments which they may respectively impose and the variation in punishments available according to the rank of the offender all go to show that the purpose of conferring jurisdiction on service tribunals is simply to maintain and enforce military discipline, not to create criminal offences which might be committed by defence members and defence civilians. The general provisions conferring jurisdiction can and must be read down so that the powers conferred by the Discipline Act are exercised only for the purpose of maintaining and enforcing military discipline. To read down the general provisions of the Discipline Act so that proceedings can be validly brought only when they can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline is simply to confine the exercise of powers conferred in general terms so as to serve the purpose which the Parliament manifestly intended to achieve and which s.51(vi) of the Constitution will support. Section 15A could not be invoked to read down a law conferring in general terms a power which might be exercised sometimes without constitutional support unless any decision to exercise the power can be judicially reviewed to ensure compliance with the purpose for which the power is conferred. A purported conferring of general powers to charge a person with a service offence and to hear and determine such charges would be invalid if "its exercise is not examinable and is not susceptible of testing by reference to the constitutional power above which it cannot validly rise": per Dixon J. in Australian Communist Party v. The Commonwealth [1951] HCA 5; [1951] HCA 5; (1951) 83 CLR 1, at p 186. But the conferring of a general power in terms that are prima facie too wide is no obstacle to its validity when its true scope is defined by s.15A of the Acts Interpretation Act and it can effectively be confined by judicial review to operate in a constitutionally supportable field: see per Brennan J. in Miller v. TCN Channel Nine Pty.Ltd. [1986] HCA 60; (1986) 161 CLR 556, at pp 611-614. In the present case, as we explained in Re Tracey (at p 571), the occasions when a defence member or defence civilian is charged with a service offence and the occasions when a service tribunal purports to exercise jurisdiction to hear and determine those charges can be effectively supervised. And, the Discipline Act being confined within constitutional bounds, there is no disconformity between its operation in particular cases and the operation which the Parliament intended it to have in those cases.

20. The present application for prohibition against the first respondent attacks the exercise of jurisdiction by a service tribunal to hear and determine the 14 charges against Sergeant Young, a defence member. In the case of the seven charges alleging falsification of forms relating to the defence member's pay (charges 1, 3, 5, 7, 9, 11 and 13), the defence member is alleged to have been carrying out the duties of unit pay representative for his squadron at the time of the offences charged and the offences are said to have been committed on service premises. In the case of the other seven charges (charges 2, 4, 6, 8, 10, 12 and 14), again Keswick Barracks is identified as the place where the offence was committed; again the defence member is said to have been carrying out the duties of unit pay representative for his squadron; and he is alleged to have been seeking a personal benefit to which he was not entitled from his employer, the Commonwealth, by use of a document which he allegedly falsified in the course of carrying out his service duties. Each of the odd-numbered charges is linked to the even-numbered charge that follows it in that the same form is involved. The charges allege conduct that, if established, clearly constitute breaches of the service duties of Sergeant Young. Perhaps Sergeant Young's alleged service offences might have been charged as offences under the law of South Australia (see, for example, the Criminal Law Consolidation Act 1935 (S.A.), ss.195, 235) but, however that may be, it would usually be prejudicial to service discipline to exempt an offender from service punishment when the offence consists in the malperformance of his service duties. Service discipline is not merely punishment for wrongdoing. It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions. Here, the charges are obviously "service connected" but that is not the ultimate criterion though it is an important element in determining whether proceeding on those charges could reasonably be regarded as serving the purpose of maintaining and enforcing service discipline. In our view, it can reasonably be said that the maintenance and enforcement of service discipline would be served by proceeding on all charges against Sergeant Young before a service tribunal constituted, as the Discipline Act provides, by a Defence Force Magistrate.

21. In the event that jurisdiction was held to exist, the prosecutor sought to challenge the first respondent's refusal, in the exercise of a supposed discretion, to decline to hear and determine the charges. That challenge must fail, for there was no other tribunal with jurisdiction to hear and determine charges of service offences. It is the duty of the first respondent to hear and determine the charges.

22. We would therefore discharge the order nisi.

DEANE J. In Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, I explained in considerable detail my reasons for thinking that the judicial powers which the Parliament can, consistently with ChIII of the Constitution, confer upon service tribunals to deal with offences by members of the armed forces within the jurisdiction of the ordinary courts in time of peace and general civil order are necessarily confined in two fundamental respects:

(i) they must be essentially disciplinary in their
nature in the sense of being concerned either with
"exclusively disciplinary" offences (see Re Tracey, at
pp 586-587) or with the disciplinary aspects of other
"service-related" offences (at p 587); and
(ii) they must be "supplementary" in their character in the
sense 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
(at p 589).

2. First, I am unable to identify in the judgments in Re Tracey any general line of reasoning in relation to service-related offences which enjoyed the support of a majority of the seven Justices who constituted the Court. Secondly, the acceptance of Re Tracey as authority for the highest common factor which enjoyed majority support is attended by conceptual difficulties. That highest common factor is to be found in the conclusion of Brennan and Toohey JJ. that a service tribunal could validly be invested with jurisdiction to deal with both the disciplinary and community aspects of a service-related offence in a case where ("if, but only if") the proceedings can "reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline" (at p 570). As their Honours recognized (at p 571), in the context of provisions purportedly conferring a wider jurisdiction, the effect of that conclusion would be that a service tribunal was required to determine, presumably as a preliminary question of jurisdiction, whether the proceedings in a particular case would "serve a substantial disciplinary purpose". Examination of the other judgments in Re Tracey discloses, however, that such a test is, on the differing views expressed by the other members of the Court, either unnecessary or unavailing in the context of the particular statutory provisions. Thirdly, even if I were to accept that conclusion of Brennan and Toohey JJ. about the limits of Commonwealth legislative power, there would remain, for me, serious unbridged - and unbridgeable - gaps between that conclusion and the ultimate decision in Re Tracey about validity and invalidity. For one thing, it does not seem to me that there is to be found in the judgments in Re Tracey any real explanation of how, consistently with settled principles governing severance and reading down in the context of s.15A of the Acts Interpretation Act 1901 (Cth), the Court could convert what was intended by the Parliament to be an exclusionary jurisdiction to deal finally with the disciplinary and community aspects of criminal conduct into a non-exclusionary jurisdiction with the result that, depending upon the lottery of which jurisdiction is first exercised, an accused can be subjected to proceedings in both service tribunal and civil court and exposed to twice the maximum or fixed penalty which the Parliament intended. For another, I have great difficulty with the conclusion of the majority in Re Tracey that, if the provisions of the Act validly confer jurisdiction upon service tribunals to deal comprehensively with the disciplinary and community aspects of at least some service-related offences, the provisions of s.190(3) and (5) are not valid to the extent that they deprive State courts of jurisdiction to deal with substantially the same offence after the service tribunal has exercised that comprehensive jurisdiction. If the Parliament possesses the legislative power to validly confer such comprehensive jurisdiction upon service tribunals, it seems to me to be at least incidental to the exercise of that legislative power to provide that persons tried or punished by service tribunals for the community aspects of an offence should not be again tried or punished for that aspect of the same or substantially the same offence by a State civil court. Since Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. ; [1920] HCA 54; (1920) 28 CLR 129, it is simply not to the point that an immunity from State jurisdiction conferred by a Commonwealth law as involved in, or incidental to, the establishment of comprehensive Commonwealth jurisdiction would involve a pro tanto interference with the exercise by State courts of their general criminal jurisdiction. Indeed, if s.190(3) and (5) had not been in the Act, it seems to me that the Constitution itself, by s.109, would necessarily have deprived a State court of jurisdiction to retry and again punish the same or substantially the same offence as that which had been comprehensively dealt with by a service tribunal in the exercise of judicial power conferred by a valid law of the Commonwealth (see per Gaudron J., Re Tracey, at pp 599-600). Fourthly, and most importantly, the reasoning which led me to the conclusion to which I came in Re Tracey reflects my understanding of the content of the separation of judicial from executive or legislative power upon which our Constitution is structured (at pp 579-581).

3. The considerations favouring and militating against a departure by this Court from a recent decision dealing with the scope of Commonwealth legislative power under the Constitution were identified in the judgments of the five members of the Court (Barwick C.J., Gibbs, Stephen, Murphy and Aickin JJ.) who considered the matter in Queensland v. The Commonwealth [1977] HCA 60; (1977) 139 CLR 585, a case in which it was sought to challenge the correctness of a then recent decision of the Court (Western Australia v. The Commonwealth [1975] HCA 46; (1975) 134 CLR 201) upholding the validity of a Commonwealth law providing for representation of an internal Territory in the Senate. In the particular circumstances of that case, Barwick C.J. (at pp 592-594) and Aickin J. (at pp 620-631) thought that the previous decision should be overruled. Gibbs J. (at pp 598-601) and Stephen J. (at pp 603-605) considered that the previous decision was wrong but that, in the particular circumstances, it should be followed. However, Gibbs J. added (at p 601) the important qualification that, if the Parliament were to increase the number of Territory senators, "that would be a circumstance that might be regarded as sufficient to justify a reconsideration" of the earlier decision (but note per Stephen J., to the contrary, at pp 604-605). Murphy J. (at p 610) made clear that, if he had thought that the previous decision was mistaken, he would have favoured overruling it for the reason that the task of the Court "is to apply the Constitution, not the judicial decisions". As the division of judicial opinion in Queensland v. The Commonwealth makes plain and as the history of the decisions of this Court on ss.90 and 92 of the Constitution demonstrates, the arguments favouring and militating against the abandonment by a member of the Court of his or her own views about the effect of fundamental constitutional provisions in favour of what was decided by, or said by a majority of, the Court in an earlier case can, in some circumstances, be evenly balanced and appeal to different minds differently. That is not, however, so in the present case where it is impossible to identify in the earlier decision any general principle accepted by a majority of the Court as justifying the actual decision (cf. Hughes and Vale Pty. Ltd. v. New South Wales [1953] HCA 14; (1953) 87 CLR 49, at pp 104-105) and where the earlier decision has extended the immunity of military tribunals in time of peace from the requirement of the Constitution's fundamental guarantee of the manner of exercise of Commonwealth judicial power and is beset by quite extraordinary conceptual difficulties (see above). In such a case, it is, in my view, an "imperative judicial necessity" that I adhere to my own view of what the Constitution allows and forbids (cf. Hughes and Vale, at p 70).

4. As has been said, the alleged offences in the present case are not exclusively disciplinary offences. They are all substantially the same as offences under the ordinary law. For the reasons which I explained in Re Tracey, the jurisdiction of service tribunals to deal with such offences cannot be read down to a jurisdiction to deal only with their disciplinary aspects. That being so, the Constitution decrees that the first respondent lacks jurisdiction to hear and determine them.

5. The order nisi for prohibition should be made absolute.

GAUDRON J. This is the return of an order nisi for prohibition directed to a Defence Force Magistrate before whom the prosecutor, Staff Sergeant Young, stands charged with a number of service offences under the Defence Force Discipline Act 1982 (Cth) ("the Act"). It is common ground that the offences with which he is charged are capable of bearing a disciplinary aspect. It is also common ground that they have counterparts under the general criminal law in the sense that the prosecutor could be charged in the ordinary courts with criminal offences the elements of which are the same or substantially the same as the elements of the service offences with which he is charged. The conduct to which the charges relate occurred in Australia.

2. Although it would seem unlikely and although questions might arise as to the availability of pleas of autrefois convict and autrefois acquit, it may be that, even if the service offences are prosecuted to finality, the prosecutor will be required to stand trial in the ordinary courts on charges of criminal offences which are the same or substantially the same as the service offences. In this respect it is sufficient to note that the effect of the decision in Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518 was to hold s.190(3) and (5) of the Act invalid. Those sub-sections purported to prevent the ordinary criminal courts from exercising jurisdiction with respect to offences which are substantially the same as service offences of which a person has been convicted or acquitted.

3. The prosecutor contends that it is beyond the constitutional power of Parliament to vest in service tribunals, not being courts established in accordance with Ch.III of the Constitution, jurisdiction to determine a person's guilt or innocence of, and punishment for, a service offence which is the same or substantially the same as an offence with which that person could be charged under the general criminal law. A service offence of that kind is necessarily one that is not exclusively disciplinary in nature. The argument made on behalf of the prosecutor is contrary to the judgments of those who formed the majority in Re Tracey, but, if confined to service offences committed or alleged to have been committed in Australia in time of peace, it accords with the view expressed in that case by Deane J. and is not inconsistent with the view that I expressed. The position with respect to offences committed or alleged to have been committed outside Australia or in time of war may be put to one side, for, as earlier indicated, the present case arises out of conduct in Australia and, certainly, that conduct occurred in a time of peace.

4. I agree with Deane J., for the reasons that His Honour gives, that the result in Re Tracey cannot be reconciled with settled principles governing constitutional interpretation (see Amalgamated Society of Engineers v. Adelaide Steamship Co. Ltd. [1920] HCA 54; (1920) 28 CLR 129), the operation of s.109 of the Constitution (see, for example, Felton v. Mulligan [1971] HCA 39; (1971) 124 CLR 367 and University of Wollongong v. Metwally [1984] HCA 74; (1984) 158 CLR 447) and the reading down of invalid legislative provisions (see Bank of N.S.W. v. The Commonwealth [1948] HCA 7; (1948) 76 CLR 1, per Dixon J. at p 372). Given these considerations, the fact that the result in Re Tracey proceeds from two different lines of reasoning, neither of which commanded the support of a majority, and the fundamental nature and importance of the constitutional issue raised by Re Tracey and by the present case, it is necessary that I state my own view on the constitutional question raised.

5. The line of reasoning that I adopted in Re Tracey is no longer available. That reasoning proceeded from the view that, if it exists, a power to vest jurisdiction in service tribunals to hear and determine charges of service offences with respect to conduct which would ordinarily attract the operation of the general criminal law necessarily carries, as reasonably incidental to it, power to make that jurisdiction exclusive and, hence, power to exclude the operation of the general criminal law and the jurisdiction of the ordinary criminal courts. Although I remain of that view, the result in Re Tracey requires that the present case be determined on the basis that the Act does not in any way affect the operation of the general criminal law or the exercise by the ordinary courts of their criminal jurisdiction.

6. Chapter III of the Constitution makes provision with respect to the vesting and the exercise of the judicial power of the Commonwealth. The fundamental importance of Ch.III is to be discerned from the fact that, whereas s.51 confers legislative power "subject to this Constitution", no provision in Ch.III is expressed to be subject to any other provision of the Constitution. Thus, even if, contrary to the view I expressed in Re Tracey, the provisions of the Act creating service offences which are the same or substantially the same as offences under the general criminal law are properly characterised in terms of s.51(vi) of the Constitution as a law or laws with respect to the "defence of the Commonwealth (or) of the several States" or "the control of the forces to execute and maintain the laws of the Commonwealth", they are necessarily invalid to the extent, if any, that they come into collision with ChIII. See Re Tracey, per Mason C.J., Wilson and Dawson JJ. at p 540.

7. It is unnecessary in the present case to go past s.71 in Ch.III. That section provides that the judicial power of the Commonwealth "shall be vested" in this Court, in such other federal courts as the Parliament creates and in such other courts as it invests with federal jurisdiction. That provision has been described as one which deals completely and exhaustively with the judicial power of the Commonwealth. See, for example, Huddart, Parker and Co. Proprietary Ltd. v. Moorehead [1909] HCA 36; (1909) 8 CLR 330, at p 355; Victorian Stevedoring and General Contracting Co. Pty. Ltd and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at pp 96-98 and 116. Two prohibitions have been identified as resulting from the complete and exhaustive nature of s.71. The first is that no body, tribunal or organisation, which is not a court as named or indicated in s.71, may exercise that power of the Commonwealth which, of its nature, is exclusively judicial. See Waterside Workers' Federation of Australia v. J.W. Alexander Ltd. [1918] HCA 56; (1918) 25 CLR 434. The second is usually expressed in terms indicating that only judicial power and powers ancillary or incidental thereto may be conferred on a court as named or indicated in s.71. See Reg. v. Kirby; Ex parte Boilermakers' Society of Australia ("the Boilermakers' Case") (1956) 94 CLR 254, at pp 271-272, 289. That may not be a very informative statement, for some powers (not being powers which are exclusively judicial) may be vested either in a court or in another body and, if vested in a court, will accurately be described as judicial, although they will bear a different character if vested in a different body. It should also be noted that the principal conclusion of the Boilermakers' Case was called into doubt by Barwick C.J. and by Mason J. in Reg. v. Joske; Ex parte Australian Building Construction Employees and Builders' Labourers' Federation [1974] HCA 8; (1974) 130 CLR 87, at pp 90 and 102 respectively.

8. It is not necessary to consider the precise effect which s.71 has on the nature or extent of the powers that may be conferred upon a court for the question raised by this case is whether the power conferred on service tribunals to hear and determine charges of service offences which are the same or substantially the same as offences created by the general criminal law is a power which, by force of s.71, can be conferred only on courts as named or indicated in that section. In answering that question it is important to bear in mind that an essential feature of judicial power is that it must be exercised in accordance with the judicial process. In Harris v. Caladine [1991] HCA 9; (1991) 65 ALJR 280, at 307; [1991] HCA 9; 99 ALR 193, at 239, I described the general features of that process. Importantly for present purposes, those features include open and public enquiry (subject to limited exceptions), the application of the rules of natural justice, the ascertainment of the facts as they are and as they bear on the right or liability in issue and the identification of the applicable law, followed by an application of that law to those facts. See also Reg. v. Trade Practices Tribunal; Ex parte Tasmanian Breweries Pty. Ltd. [1970] HCA 8; (1970) 123 CLR 361, per Kitto J. at p 374. Because it is an essential feature of judicial power that it be exercised in accordance with the judicial process, Ch.III provides a guarantee, albeit only by implication, of a fair trial of those offences created by a law of the Commonwealth which must be tried in the courts named or indicated in s.71. Conversely, there is no such guarantee with respect to offences, if any, which may be tried in the exercise of non-judicial power by some other body or tribunal.

9. The determination in accordance with the judicial process of controversies as to legal rights and obligations and as to the legal consequences attaching to conduct is vital to the maintenance of an open, just and free society. Quite apart from the public's right to know what matters are being determined in the courts and with what consequences, open and public proceedings are necessary in the public interest because secrecy is conducive to the abuse of power and, thus, to injustice. Moreover and more directly, the judicial process protects the individual from arbitrary punishment and the arbitrary abrogation of rights by ensuring that punishment is not inflicted and rights are not interfered with other than in consequence of the fair and impartial application of the relevant law to facts which have been properly ascertained.

10. By reason of the interests which the judicial process protects, that process is properly to be seen as partaking of the same fundamental importance as the democratic process. For that reason, it is necessary that the power which is exclusively judicial and, thus, can be exercised in accordance with the judicial process only by courts as named or indicated in s.71 be jealously guarded against the possibility of usurpation.

11. It may not yet be possible to define "judicial power" in a way that is "at once exclusive and exhaustive" (Reg. v. Davison [1954] HCA 46; (1954) 90 CLR 353, per Dixon C.J. and McTiernan J. at p 366). But, it is beyond dispute that the power to determine whether a person has engaged in conduct which is forbidden by law and, if so, to make a binding and enforceable declaration as to the consequences which the law imposes by reason of that conduct lies at the heart of exclusive judicial power. The power which the Act confers on service tribunals to hear and determine service offences is a power of that kind. Indeed, I do not understand the judgments in Re Tracey or the arguments in this case to suggest otherwise. Rather, as I understand it, it is said that the power which the Act confers on service tribunals stands outside Ch.III because it is a power exercised over persons subject to military discipline, and, for historical and practical reasons, military authorities have long exercised a power, like judicial power, over those persons.

12. In my view, if the power or any part of the power which the Act confers on service tribunals is to be seen as outside Ch.III of the Constitution, it must be by reason of the character of the law in so far as it creates service offences. It cannot be taken outside Ch.III simply because it is a power over persons subject to military discipline. Persons in that situation do not, on that account, become immune from the operation of the general law. Nor are they, on that account, deprived of the protection of the law. Nor can the power of service tribunals to hear and determine service offences be taken outside Ch.III simply by reason of the events of history. Times change. Whatever may have been the situation in earlier times, there is now no insuperable difficulty in bringing members of the armed forces stationed in Australia before the ordinary courts when questions arise as to the consequence, if any, which the general criminal law imposes by reason of their conduct in Australia.

13. There is no doubt that there exists a power, similar to but distinct from the judicial power of the Commonwealth, which may be exercised by military authorities over persons who are subject to military discipline. See 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) 71 CLR 1. However, there is no reason why that power should extend beyond what is appropriate and adapted to the maintenance of the authority of persons in command and the discipline of the forces. And, as already stated, legislative capacity to vest power in such authorities is subject to the Constitution as a whole, including Ch.III.

14. The limits of the power which may validly be vested in military authorities may vary according to the circumstances in which the forces are placed. But, so far as the forces are standing forces in Australia, neither the authority of persons in command nor the discipline of those forces is, in any way, dependent upon the participation of military authorities in the administration of ordinary criminal justice. That is not to deny that there may be a disciplinary aspect to conduct which infringes the general criminal law and that that aspect, isolated from its accompanying criminality, might properly attract the exercise of that power which inheres in military authorities. But it is to deny that, so far as the relevant conduct occurred or occurs in Australia, those authorities have any power with respect to its purely criminal character.

15. To the extent that the Act confers power on service tribunals to hear and determine service offences which are constituted by or said to be constituted by conduct occurring in Australia and which are the same or substantially the same as offences under the general criminal law, it purports to vest criminal jurisdiction in those tribunals and purports to authorize their participation in the administration of ordinary criminal justice. So much is clear from the fact that, in such cases, the Act selects as the criteria for proscription and punishment the same or substantially the same criteria already selected for the same purpose by the general criminal law and fails to select the disciplinary aspect of conduct which infringes the ordinary criminal law as the subject matter of proscription or punishment. And s.144(3) of the Act, which provides that a service tribunal shall not hear charges of service offences which are substantially the same as offences of which the person has been acquitted or convicted in the ordinary courts, confirms that the Act, although concerned to see that conduct which offends the general criminal law is punished one way or another, is not at all concerned in that situation with those aspects of conduct which might bear upon the authority of those in command or upon the discipline of the forces.

16. The provisions of the Act which create service offences which are the same or substantially the same as offences under the general criminal law do not bear a different character because, as the law presently stands, the prosecution of a service offence to finality does not preclude subsequent criminal proceedings in the ordinary courts for the same or substantially similar offences. That possibility (which opens up the question of the availability of pleas of autrefois convict and autrefois acquit) merely serves to highlight that, in the event that a criminal offence were to be prosecuted to finality in an ordinary court, the court and the service tribunal would be engaged in the same exercise with respect to the same conduct and to the same end, namely, to determine innocence or guilt and, in the case of guilt, to impose punishment. Should pleas of autrefois convict and autrefois acquit be available in subsequent proceedings brought in the ordinary courts, that would merely emphasize that the Act purports to authorize service tribunals to participate in the administration of ordinary criminal justice.

17. The order nisi should be made absolute.

McHUGH J. In my opinion, unless a service tribunal is established under Ch.III of the Constitution, it has jurisdiction to deal with an "offence" by a member of the armed services only if such an "offence" is exclusively disciplinary in character or is concerned with the disciplinary aspect of conduct which constitutes an offence against the general law.

2. My reasons for this conclusion are the same as those expressed by Deane J. in Re Tracey; Ex parte Ryan [1989] HCA 12; (1988) 166 CLR 518 and by him in his judgment in this case. No useful purpose would be served by my reiterating those reasons in different words.

3. The order nisi should be made absolute.

ORDER

No order as to costs.