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High Court of Australia |
RE TYLER AND OTHERS;
EX PARTE FOLEY [1994] HCA 25; (1994) 181 CLR 18, (1994) 68 ALJR 499, (1994) 121 ALR 153
F.C. 94/024
Number of pages - 14
Constitutional Law (Cth)
HIGH COURT OF AUSTRALIA
MASON CJ(1), BRENNAN(2), DEANE(3), DAWSON(1), TOOHEY(2), GAUDRON(4) AND
McHUGH(5) JJ
CATCHWORDS
Constitutional Law (Cth) - Defence - Service tribunal - Offences by defence members - Service offences - Judicial power of Commonwealth - Service offences triable by service tribunal - Offence of dishonestly appropriating property of Commonwealth - Jurisdiction of service tribunal - Whether defence member entitled to trial by jury The Constitution 63 and 64 Viet. c. 12), ss. 55(vi), 71, 72, 80 - Defence Force Discipline Act 1982 (Cth), s. 47(1).
HEARING
1993, November 10, 11; 1994, June 1ORDER
Application refused.
No order as to costs.
DECISION
MASON CJ AND DAWSON J The prosecutor, Wing Commander Foley, seeks
2. The general court martial is constituted in accordance with the
Act, but not in accordance with Ch.III of the Constitution, and the
form of trial is not trial by jury. The prosecutor contends that it
is not necessary or appropriate for the maintenance or enforcement of
military discipline that he be tried by a service tribunal under the
Act rather than by a civil court, nor that he be deprived of a trial
by jury which, if he were tried in a civil court, would be required by
s.80 of the Constitution or under New South Wales law. He maintains
that s.47 of the Act and those provisions of the Act which provide for
the trial and punishment of an offence under that section by general
court martial purport to vest jurisdiction in a service tribunal to
deal with the non-disciplinary aspects of that offence in peace time
and are invalid. Accordingly, he submits that the general court
martial has no jurisdiction to try him upon the charge under s.47.
3. The prosecutor has been a member of the Royal Australian Air
Force ("RAAF") for some 30 years and was posted to 33 Squadron RAAF
Base, Richmond, on 20 December 1988. Shortly thereafter he became the
commanding officer of that squadron. He brought his wife and family
to Richmond and moved into rented accommodation. He applied for a
temporary rental allowance ("TRA") and his application was approved.
4. TRA was payable under a scheme laid down by a Determination
(Determination 0503) made under s.58B of the Defence Act 1903 (Cth)
and implemented by a Defence Instruction (General) ((1) See Defence
Act, s.9A(2).) known as INDMAN 0503. Defence Instructions (General)
are general orders under s.3(1) of the Act. It was part of the scheme
that, if a defence member was in receipt of TRA and purchased a house
which was suitable to house that member's family, the entitlement to
TRA ceased ((2) Determination 0503, cl.29.). The Defence Instruction
required a member to advise the appropriate authority of any change or
impending change that would or could affect that member's eligibility
for TRA ((3) INDMAN 0503, par.52 as on 17 July 1990. It was replaced
by INDMAN 0503, par.51 issued on 14 August 1991. The alleged offence
occurred between 17 July 1990 and 25 June 1992. Since 23 February 1993
the relevant paragraph has been INDMAN 0503, par.66.).
5. Whilst he was in receipt of TRA, the prosecutor purchased a house
which is alleged to have been suitable to house his family. He did
not move into that house, but rented it out. He did not notify the
appropriate authority of the purchase. Subsequently he sold the
house, but whilst he was the owner of it he continued to receive TRA
payments. It is alleged that the receipt of these payments, amounting
in all to $24,761.40, constituted a dishonest appropriation.
6. In Re Tracey; Ex parte Ryan ((4) [1989] HCA 12; (1989) 166 CLR 518.) we, together
with Wilson J, expressed the view that the power under s.51(vi) of the
Constitution to make laws with respect to the naval and military
defence of the Commonwealth and the several States necessarily includes
a power to provide for the discipline of the defence forces because
naval and military defence demands the provision of a disciplined force
or forces ((5) ibid. at 540.). The system of discipline required for
the proper organization of a defence force may, we said, be
administered judicially, not as part of the judicature enacted under
Ch.III, but as part of the organization of the force itself ((6) ibid.
at 541.). We concluded that the power to make laws with respect to
defence 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 ((7) ibid.). It was implicit in the
view which we expressed that the trial of service offences might be by
way of court martial and not by way of trial by jury since the former
is not a trial on indictment and s.80 of the Constitution has no
application.
7. Moreover, in that case ((8) ibid. at 544-545.) we accepted the
experience of the United States ((9) See Solorio v. United States
[1987] USSC 159; (1987) 483 US 435.) that it is not possible to draw a clear and
satisfactory line between those offences committed by defence members
which are of a military character and those which are not. We
considered that, even if offences against military law can extend no
further than is thought necessary for the regularity and discipline of
the defence forces ((10) See Groves v. The Commonwealth [1982] HCA 21; (1982) 150 CLR
113 at 125.), it was 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.
8. In Re Nolan; Ex parte Young we reiterated the view which we had
expressed in Re Tracey and summarized our reasons as follows ((11)
[1991] HCA 29; (1991) 172 CLR 460 at 474-475.) :
"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".
9. Now, as in Re Nolan, we see no reason to resile from the view
which we expressed in Re Tracey. That is sufficient to dispose of the
prosecutor's main contentions. But even accepting the view of Brennan
and Toohey JJ in Re Tracey and Re Nolan the prosecutor cannot
succeed.
10. The view expressed by Brennan and Toohey JJ was that the purpose
of criminal proceedings in the civil courts is wider than the purpose
of maintaining or enforcing service discipline. It is the latter
purpose, in their view, which marks the relevant limits of the defence
power. If one were able to draw the distinction which they sought to
draw (and it will be apparent that, with respect, we do not think that
to be possible), nevertheless, for the reasons given by Brennan and
Toohey JJ, the proceedings against the prosecutor in this case serve
the purpose of maintaining or enforcing service discipline.
11. Finally, some mention should be made of the reliance placed upon
the Canadian decision in Reg. v. Genereux ((12) (1992) 88 DLR (4th)
110.) by the prosecutor and by the Attorney-General for New South
Wales intervening to support his contentions. In that case a majority
of the Supreme Court of Canada held that the statutory provisions
governing courts martial were insufficient to guarantee their
independence from the executive. The decision was based upon s.11(d)
of the Canadian Charter of Rights and Freedoms, which guarantees a
person charged with an offence the right "to be presumed innocent until
proven guilty according to law in a fair and public hearing by an
independent and impartial tribunal". Section 11(d) has no counterpart
in this country and it is sufficient to express our agreement with the
conclusion reached by Brennan and Toohey JJ, in whose judgment the
relevant provisions of the Act are identified, that if there is to be
found outside Ch.III a requirement of sufficient independence on the
part of service tribunals exercising disciplinary power, that
requirement is met by a general court martial constituted in accordance
with the Act.
12. For these reasons we would refuse the application.
BRENNAN AND TOOHEY JJ The prosecutor holds the rank of
Wing Commander in the Royal Australian Air Force. He was charged
before a general court martial, constituted by the respondents, on two
counts under the Defence Force Discipline Act 1982 (Cth) ("the Act").
The first count, pursuant to s.47(1) of the Act, is that:Section 47(1) provides that a defence member who dishonestly
"Being a Defence member, at RAAF Base Richmond between
17 July 1990 and 25 June 1992 did dishonestly appropriate
the sum of $24,761.40, being the property of the
Commonwealth of Australia, with the intention of
permanently depriving the Commonwealth of Australia
thereof."
The second count, pursuant to s.29(1) of the Act, is that:
"Being a Defence member, at RAAF Base Richmond between
17 July 1990 and 25 June 1992 did not comply with a
lawful general order that was applicable to him by
failing to advise the approving authority namely the
Commanding Officer of the Administrative Support Squadron
Richmond, in writing of a change in circumstances that
could have affected his eligibility to receive temporary
rental allowance, namely the purchase by him as a joint
tenant with his wife on or about 17 July 1990 of a home at
58 Yaringa Road, Castle Hill, contrary to the provisions of
paragraph 51 of INDMAN 0503."
2. The second charge is mentioned for completeness and for the
light it throws on the circumstances of the first charge. However,
only the first charge is the subject of an application for a writ of
prohibition directed to the respondents "prohibiting them from acting
upon, giving effect to, proceeding further upon the trial of the
prosecutor".
3. The prosecutor has already appeared before the general court
martial. He there took objection, in accordance with s.141 of the
Act, to the jurisdiction of that body to hear and determine the
charge against him. The judge advocate overruled the objection and
thereafter the prosecutor obtained an order from a Justice of this
Court directing him to apply by notice of motion to a Full Court for
a writ of prohibition prohibiting the respondents from proceeding
further upon his trial.
4. The basis of the application for prerogative relief is that,
the offence under s.47(1) being inherently criminal in character and
there being an appropriate civil court to determine the charge against
the prosecutor, the general court martial lacks jurisdiction.
Specifically, the prosecutor asserts that the offence with which he
is charged is substantially the same as an offence against s.71 of
the Crimes Act 1914 (Cth) and as an offence against s.178BA of
the Crimes Act 1900 (N.S.W.). He further contends that the
general court martial is not constituted in accordance with Ch.III
of the Constitution and has no authority to exercise the judicial
power of the Commonwealth. Moreover, the contention adds, a trial by
general court martial is not trial by jury as required by s.80 of the
Constitution.
5. The arguments as to the operation and constitutional validity of
the Act advanced by the prosecutor were considered by the Court in
Re Tracey; Ex parte Ryan ((13) [1989] HCA 12; (1989) 166 CLR 518.) and in Re Nolan;
Ex parte Young ((14) [1991] HCA 29; (1991) 172 CLR 460.). While differing views were
expressed by members of the Court on each of those occasions, no clear
majority view prevailed. The view we expressed in Re Tracey was ((15)
(1989) 166 CLR at 570.):
"(P)roceedings may be brought against a defence member orIt was a view we maintained in Re Nolan ((16) (1991) 172 CLR at 477.) .
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".
6. There was an additional argument by the prosecutor relating
to s.80 of the Constitution. It is clear from the judgments in
Re Tracey ((17) (1989) 166 CLR at 548-549, 578-579, 591, 596.) and Re
Nolan ((18) (1991) 172 CLR at 480.) that the trial of a defence member
for a service offence lies outside the judicial power of the
Commonwealth and does not attract the operation of s.80.
7. However, we should deal with a particular submission made on
behalf of the Attorney-General for New South Wales (an intervener)
that the conferral by the Act of jurisdiction on a general court
martial was, in terms of s.51(vi) of the Constitution, neither a law
for the "naval and military defence of the Commonwealth" nor a law for
"the control of the forces to execute and maintain the laws of the
Commonwealth". The submission contended that the second limb of
par.(vi) is not concerned with matters of service discipline and that
the first limb will not support the conferral of jurisdiction on
general courts martial because the Act is not reasonably proportionate
to the end which legislation may legitimately pursue.
8. In Re Tracey we referred to the second limb of s.51(vi) in these
words ((19) (1989) 166 CLR at 564.):
"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
..., s. 51(vi) will support."
9. Counsel for the Attorney-General drew heavily on the experience
of comparable provisions in the Constitution of the United States
with a view to showing that the true concern of the second limb of
s.51(vi) was with legislative control of the occasions on which the
Executive Government might use a military force to maintain internal
security. There is considerable historical support for that view
though we do not see that "control of the forces" is only within
legislative power when the forces are engaged in maintaining internal
security. There can be no doubt, in our view, that the Parliament has
power to legislate for the discipline of the Defence Force "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" ((20) Re Nolan (1991) 172 CLR at
482. See also Re Tracey (1989) 166 CLR at 562.).
10. We do not accept the argument that the relevant aspects of the
Act cannot be supported under the first limb of par.(vi). The end
to be pursued is, in the words of the Constitution, the "naval and
military defence of the Commonwealth". Essential to that defence is
the discipline of the armed forces. Traditionally, the maintenance
of that discipline has been through courts martial. The conferral of
jurisdiction on general courts martial is appropriate and adapted to
the end stated when prosecution before a court martial can reasonably
be regarded as substantially serving the purpose of maintaining or
enforcing service discipline.
11. The charge sheet identifies an offence by a defence member
at a RAAF Base, involving property of the Commonwealth of Australia.
The circumstances of the alleged offence, as detailed to the
general court martial, were that the prosecutor was posted to
33 Squadron RAAF Base, Richmond on 20 December 1988, initially as a
supernumerary and shortly thereafter as Commanding Officer of the
squadron. He was joined by his wife and three children. On
28 December 1988 he applied for a temporary rental allowance (TRA)
and at the same time applied for a rental ceiling increase. TRA is
available to defence members requiring temporary accommodation in the
course of their service duties. The amount of payment depends on the
size of the premises needed to house the family and also on the
defence member's rank. Importantly, it is a provision of the TRA
scheme that if a beneficiary buys his or her own premises and they
are suitable for housing the family, the beneficiary thereafter ceases
to be entitled to receive TRA benefits. Beneficiaries are required,
by an administrative order known as INDMAN 0503 ((21) An acronym for
"Industrial Manual" which is a manual of "Salaries and Conditions of
Service for the Permanent Forces" issued for members of the Defence
Force and giving effect to determinations made by the Minister pursuant
to s.58B(1)(b) of the Defence Act 1903 (Cth).), to notify the
approving officer of any such purchase.
12. The prosecutor's applications were approved by the
Commanding Officer of Administrative Support Command, Richmond,
the relevant approving officer. The prosecutor and his family then
moved into a four bedroom home in Glenhaven and he began receiving
TRA payments. On 17 July 1990 the prosecutor purchased a home in
Castle Hill. He did not notify the TRA scheme of his purchase. He
sold the house about a year later but in the interim let the house
while continuing to live in Glenhaven and receive TRA benefits. As
appears from a record of interview, the prosecutor claims that the
Castle Hill home was too small for his family and that he had been
told that he could continue to receive TRA benefits while living at
Glenhaven. This Court is not concerned with the accuracy of the
allegations against the prosecutor or with his answer to the charge
against him. This recital of facts serves only to throw light on the
relevance of the charge to service discipline.
13. In our view the proceedings in question can reasonably be
regarded as substantially serving the purpose of maintaining or
enforcing service discipline. The factors leading to that conclusion
are as follows. The charge involves a misappropriation of
"service property" as that term is defined in s.3(1) of the Act. The
TRA scheme giving rise to the charge is a scheme administered by the
Australian Defence Force for the benefit of defence members. The
authority for the TRA scheme is to be found in s.58B of the
Defence Act 1903 (Cth) and the elements of the scheme, in the form of
INDMAN 0503, constitute a Defence Instruction (General) which is a
"general order" as defined in s.3(1) of the Act. The prosecutor was
Commanding Officer of 33 Squadron and his alleged conduct related to a
scheme instituted for the benefit of defence members, including those
under the prosecutor's command. The effect on service morale and
discipline by a breach of the kind alleged committed by a commanding
officer might reasonably be regarded as substantial.
14. It is necessary to say something of another argument by the
prosecutor. While the argument turned mainly on the proposition
that the relevant provisions of the Act were not reasonably adapted
to the legitimate purposes to be served by the disciplining of the
Defence Force, it developed a wider dimension from the decision of the
Supreme Court of Canada in Reg. v. Genereux ((22) (1992) 88 DLR (4th)
110.).
15. In Genereux a member of the Canadian Forces was charged with
narcotics offences and desertion. He was convicted before a general
court martial but, on appeal, contended that his right to trial by an
independent tribunal, as guaranteed by s.11(d) of the Canadian Charter
of Rights and Freedoms, had been infringed ((23) Section 11(d)
guarantees a person charged with an offence, the right "to be presumed
innocent until proven guilty according to law in a fair and public
hearing by an independent and impartial tribunal".).
16. The Supreme Court of Canada (L'Heureux-Dube J dissenting)
held that trial before a general court martial convened under the
National Defence Act of Canada did not meet the requirement of a fair
and public trial by an independent and impartial tribunal. In the
view of five members of the Court ((24) Lamer CJC., Sopinka,
Gonthier, Cory and Iacobucci JJ concurring.), the essential
conditions for independence, namely, security of tenure, financial
security and institutional independence, were lacking. Particular
emphasis was placed on the possibility of perceived influence by the
Executive on the exercise of the tribunal's judicial function. Three
members of the Court applied those three conditions but held that some
connection between the Executive and those participating in a military
tribunal was inevitable ((25) Stevenson J, La Forest and McLachlin JJ
concurring.). L'Heureux-Dube J dissented, focussing on the military
nature of the tribunal and holding that it was not appropriate to apply
civilian criteria to evaluate the validity of a general court martial.
L'Heureux-Dube J considered that the three essential conditions
identified by the majority could not always be applicable to every
tribunal. Section 11(d) of the Canadian Charter of Rights and Freedoms
has no express analogy in our Constitution. If there were any analogy,
it would be found in Ch.III governing the courts in which the judicial
power of the Commonwealth is or can be vested. But a court martial
under the Act does not exercise the judicial power of the Commonwealth
((26) The King v. Bevan; Ex parte Elias and Gordon [1942] HCA 12; (1942) 66 CLR 452;
Re Tracey; Ex parte Ryan and Re Nolan; Ex parte Young.) and Ch.III has
no application to a law creating or conferring the jurisdiction of a
court martial.
17. In any event, the constitution of a general court martial
pursuant to the Act answers the requirement of independence of a
service tribunal exercising disciplinary power. Eligibility for
membership of a court martial under the Act is in effect confined to
officers ((27) s.116.). A person is eligible to be the judge advocate
of a court martial if, and only if, he is a member of the judge
advocates' panel ((28) s.117.). The panel is constituted by officers
appointed by a chief of staff on the nomination of the Judge Advocate
General ((29) s.196(2).). An officer is not eligible for appointment
unless enrolled as a legal practitioner for not less than five years
((30) s.196(3).). The judge advocate fulfils the function performed
by a judge in a trial by jury ((31) s.134.). The position of Judge
Advocate General is dealt with in Pt XI of the Act. That appointment
is made by the Governor-General and may be made on a full-time or
part-time basis ((32) s.179(1).), for a term not exceeding seven years
((33) s.183(1).). A person shall not be appointed as Judge Advocate
General unless he is or has been a Justice or Judge of a federal court
or of a Supreme Court of a State or Territory ((34) s.180(1).).
18. A court martial is convened by a convening authority who is an
officer, or an officer included in a class of officers, appointed
by a chief of staff to be a convening authority ((35) s.102.). A
convening authority shall not appoint as a member, or as the judge
advocate, of a court martial an officer whom he believes to be biased,
likely to be biased, or likely to be thought on reasonable grounds to
be biased ((36) s.118.). The accused may object to a member of the
court martial or to the judge advocate on similar grounds ((37) s.121.).
The Judge Advocate General has security of tenure within the period
of his appointment. It is true that the members of the court martial
are chosen by the convening authority on an ad hoc basis but
historically this has always been the pattern according to which courts
martial have been appointed and necessarily so given the exigencies of
war.
19. Part IX of the Act contains provisions for the review of a
decision of a court martial. The Defence Force Discipline Appeals Act
1955 (Cth) provides a right of appeal to the Defence Force Discipline
Tribunal against conviction, though only by leave of the Tribunal on a
ground that is not a question of law ((38) Defence Force Discipline
Appeals Act, s.20.).
20. The provisions of the Act to which we have referred establish
an independence on the part of courts martial commensurate with the
system of service tribunals for the discipline of the Defence Force.
21. The application should be refused.
DEANE J The argument of the present case, including the discussion
of the judgments of the Supreme Court of Canada in Reg. v.
Genereux ((39) (1992) 88 DLR (4th) 110.), has served to confirm the
conclusions which I expressed in Re Tracey; Ex parte Ryan ((40) [1989] HCA 12; (1989)
166 CLR 518.) about the limits of the judicial power which the
Parliament can, consistently with Ch.III of the Constitution, confer
upon service tribunals to deal with offences by members of the armed
forces. It has also served to reinforce the reasons which led me to
conclude, in Re Nolan; Ex parte Young ((41) [1991] HCA 29; (1991) 172 CLR 460.), that
I should continue to reject what I see as an unjustifiable denial of
the applicability of the Constitution's fundamental and overriding
guarantee of judicial independence and due process to laws of the
Parliament providing for the trial and punishment of members of the
armed forces for ordinary (in the sense of not exclusively
disciplinary) offences committed within the jurisdiction of the
ordinary courts in times of peace and general civil order.
2. The alleged offence against s.47 of the Defence Force Discipline
Act 1982 (Cth) in the present case is not exclusively a disciplinary
offence. It is substantially the same as offences under both
Commonwealth ((42) Crimes Act 1914 (Cth), s.71.) and State ((43)
Crimes Act 1900 (N.S.W.), s.178BA.) legislation. That being so, the
general court martial lacks jurisdiction to entertain the proceedings
against the prosecutor in relation to it.
3. Prohibition should issue.
GAUDRON J This Court has twice considered the Defence Force
Discipline Act 1982 (Cth)("the Act"), first in Re Tracey; Ex parte
Ryan ((44) [1989] HCA 12; (1989) 166 CLR 518.) and, later, in Re Nolan; Ex parte
Young ((45) [1991] HCA 29; (1991) 172 CLR 460.). In both cases, the central issue
was whether the Parliament can validly authorize service tribunals to
hear and determine charges against persons subject to military
discipline, where the service offence charged is also a criminal
offence under the general law ((46) Note, there was also an issue in Re
Tracey as to the validity of provisions ousting the jurisdiction of the
civil courts.). The same question arises in this case, this time
involving s.47(1) of the Act ((47) Section 47(1) provides that it is a
service offence for a defence member or a defence civilian dishonestly
to appropriate the property of another. Section 178BA(1) of the Crimes
Act 1900 (N.S.W.) covers the same conduct, as does s.71(1) of the
Crimes Act 1914 (Cth) in relation to the property of the
Commonwealth.).
2. Neither of the earlier cases was determined by reference to a
principle or line of reasoning which commanded majority support. They
are, thus, of limited authority ((48) See Philip Morris Ltd. v.
Commissioner of Business Franchises (Vict.) [1989] HCA 38; (1989) 167 CLR 399 at
437-438, 481, 496-500 and the cases there cited.). Moreover, where
fundamental constitutional principle is involved, as in this and the
earlier cases, the Constitution must prevail over judicial
pronouncements on the subject ((49) See Stevens v. Head [1993] HCA 19; (1993) 176 CLR
433 at 461-462, 464-465 and the cases there cited.). Even so, I have
considered afresh whether Parliament can validly authorize service
tribunals, which plainly are not courts of the kind contemplated by
Ch.III of the Constitution, to hear and determine charges under the Act
in relation to acts or omissions which, although called "service
offences", are, in essence, the same or substantially the same as
criminal offences under the general law.
3. I remain firmly of the view that persons who are subject to
military discipline cannot, on that account, be made "immune from
the operation of the general law .... or deprived of (its)
protection" ((50) Re Nolan (1991) 172 CLR at 497.). In particular,
they cannot, on that account, be deprived of the protection which flows
from Ch.III of the Constitution. For the reasons which I gave in Re
Nolan and which need not be repeated, the Act is invalid to the extent
that it authorizes a service tribunal to hear and determine the charge
laid against the prosecutor under s.47(1) of that Act.
4. Prohibition should issue.
McHUGH J The prosecutor seeks a writ of prohibition directed to
the respondents, who are the President and members of a general court
martial. The prosecutor asserts that the general court martial has no
jurisdiction to try charges brought against him for alleged offences
against ss.29(1) and 47(1) of the Defence Force Discipline Act 1982
(Cth) ("the Act"). The charge under s.29(1) alleges that the
prosecutor, who was a Wing Commander at the RAAF Base, Richmond "did
not comply with a lawful general order that was applicable to him by
failing to advise the approving authority, namely, the Commanding
Officer of the Administrative Support Squadron Richmond, in writing of
a change in circumstances that could have affected his eligibility to
receive temporary rental allowance". The charge under s.47(1) alleges
that the prosecutor "(b)eing a Defence member, at RAAF Base Richmond
... did dishonestly appropriate the sum of $24,761.40, being the
property of the Commonwealth of Australia, with the intention of
permanently depriving the Commonwealth of Australia thereof." The
prosecutor contends that the Act is invalid in so far as it purports
to authorise the general court martial to hear the charges. He
alleges that the members of the court martial are exercising the
judicial power of the Commonwealth and have not been appointed to
their offices in accordance with Ch.III of the Constitution. In my
opinion, the application should be refused.
2. In Re Tracey; Ex parte Ryan ((51) [1989] HCA 12; (1989) 166 CLR 518.), a majority of
this Court ((52) Mason CJ, Wilson, Brennan, Dawson and Toohey JJ,
Deane and Gaudron JJ dissenting.)
held that the Act validly invested a Defence Force Magistrate with
jurisdiction to hear a charge that a Staff Sergeant in the Australian
Regular Army had made an entry in a service document with intent to
deceive, contrary to s.55(1)(b) of the Act. The majority of the Court
held that s.51(vi) of the Constitution authorised the Parliament to
invest the magistrate with that jurisdiction although he had not been
appointed in accordance with Ch.III of the Constitution. However, the
reasoning of the majority Justices differed in fundamental respects.
Mason CJ, Wilson and Dawson JJ held ((53) Re Tracey (1989) 166 CLR
at 545.) that a service tribunal need not be constituted in accordance
with Ch.III of the Constitution to hear and determine charges under
military law if the charge is sufficiently connected with the
regulation of the defence forces and their good order and discipline.
If the offence is so connected, it is for the Parliament to say whether
the offence is necessary for the regularity and discipline of the
defence forces. Brennan and Toohey JJ took a more limited view of the
power of the Parliament. Their Honours held ((54) ibid. at 570.) that
a service tribunal not appointed in accordance with Ch.III of the
Constitution had jurisdiction to hear a service offence only if the
proceedings could reasonably be regarded as substantially serving the
purpose of maintaining or enforcing service discipline. In determining
whether the proceedings could be so regarded, the accessibility and
appropriateness of hearing the charge in a civil court was a variable
factor to be weighed according to the circumstances.
3. In Re Nolan; Ex parte Young ((55) [1991] HCA 29; (1991) 172 CLR 460.), this Court by
majority ((56) Mason CJ, Brennan, Dawson and Toohey JJ, Deane and
Gaudron JJ and myself dissenting.) again rejected a challenge to the
power of the Parliament to invest a Defence Force Magistrate, who had
not been appointed in accordance with Ch.III of the Constitution, with
jurisdiction to hear charges under the Act. In Re Nolan, the defence
force member was charged with fourteen offences in relation to seven
documents. He was charged with two offences in respect of each
document. The first charge was that he had falsified a pay list,
contrary to s.55(1)(a) of the Act; the second charge was that he had
used a false instrument contrary to s.61(1) of the Act which adopts
s.135C(2) of the Crimes Act 1900 (N.S.W.). Mason CJ and Dawson J
said ((57) Re Nolan (1991) 172 CLR at 474.) that there was no reason
to resile from the view that they had expressed in Re Tracey. Brennan
and Toohey JJ also followed the views that they had expressed in Re
Tracey ((58) ibid. at 484.).
4. The divergent reasoning of the majority judges in Re Tracey and
Re Nolan means that neither of those cases has a ratio decidendi. But
that does not mean that the doctrine of stare decisis has no relevance
or that the decisions in those cases have no authority as precedents.
Because it is impossible to extract a ratio decidendi from either
of the two cases, each decision is authority only for what it
decided ((59) Dickenson's Arcade Pty. Ltd. v. Tasmania [1974] HCA 9; (1974) 130 CLR
177 at 188; Philip Morris Ltd. v. Commissioner of Business Franchises
(Vict.) [1989] HCA 38; (1989) 167 CLR 399 at 496.). But what is meant by saying that
a case, whose ratio decidendi cannot be discerned, is authority for
what it decided? It cannot mean that a court bound by that decision is
bound only by the precise facts of the case. Stare decisis and res
judicata are different concepts.
5. In my opinion, the true rule is that a court, bound by a previous
decision whose ratio decidendi is not discernible, is bound to apply
that decision when the circumstances of the instant case "are not
reasonably distinguishable from those which gave rise to the
decision" ((60) Scruttons Ltd. v. Midland Silicones Ltd. [1961] UKHL 4; (1962) AC 446
at 479 per Lord Reid.). In Great Western Railway Co. v. Owners of
S.S. Mostyn ("The Mostyn") ((61) (1928) AC 57.), Viscount Dunedin,
after concluding that no binding ratio decidendi could be extracted
from the House's decision in River Wear Commissioners v. Adamson ((62)
(1877) 2 App Cas 743.) said ((63) The Mostyn (1928) AC at 74.):
"Now, the judgment is binding. What, therefore, I think is
our duty on this occasion is to consider the statute for
ourselves in the light of the opinions, diverging as they
are, and to give an interpretation; but that interpretation
must necessarily be one which would not, if it applied to
the facts of Wear v. Adamson, lead to a different result."
6. This Court is not bound by its previous decisions but, in the
absence of special circumstances, its longstanding practice is to
follow its own decisions. However, the present case involves the
interpretation and application of provisions of the Constitution. The
doctrine of precedent is not as rigid in relation to decisions on the
Constitution as it is in relation to decisions under the general law.
A decision by the Court on a statute or the doctrines of the common
law or equity can be changed by the legislatures. A decision by the
Court on the Constitution can be changed only by referendum or by the
Court overruling the decision. In Australian Agricultural Co. v.
Federated Engine-Drivers and Firemen's Association of
Australasia ((64) [1913] HCA 41; (1913) 17 CLR 261 at 278.), Isaacs J declared:
"Our sworn loyalty is to the law itself, and to the organic
law of the Constitution first of all. If, then, we find
the law to be plainly in conflict with what we or any of our
predecessors erroneously thought it to be, we have, as I
conceive, no right to choose between giving effect to the
law, and maintaining an incorrect interpretation. It
is not, in my opinion, better that the Court should be
persistently wrong than that it should be ultimately right."
7. But as Gibbs J pointed out in Queensland v. The
Commonwealth ((65) [1977] HCA 60; (1977) 139 CLR 585 at 599.), this statement can be
misleading because, even in constitutional cases, no Justice of this
Court "is entitled to ignore the decisions and reasoning of his
predecessors, and to arrive at his own judgment as though the pages of
the law reports were blank". It is, as his Honour also pointed out,
only after the most careful consideration of the earlier decision and
after giving due weight to all the circumstances that a Justice may
give effect to his or her own opinion in preference to an earlier
decision of the Court.
8. In Re Nolan, I agreed with the judgment of Deane J in Re Tracey
and with his judgment in Re Nolan. I expressed the view ((66) Re Nolan
(1991) 172 CLR at 499.) that, unless a service tribunal is established
under Ch.III of the Constitution, it has jurisdiction to deal with an
"offence" only if that "offence" is exclusively disciplinary in
character or is concerned with the disciplinary aspects of conduct
which constitutes an offence against the general law. However, that
conclusion was rejected by a majority of Justices in both cases.
9. Although I remain convinced that the reasoning of the majority
Justices in Re Nolan and Re Tracey is erroneous, I do not regard that
as a sufficient reason to refuse to give effect to the decisions in
those cases. They are recent decisions of the Court where, after full
argument on each occasion, the Court upheld the validity of the Act in
circumstances where the facts are not readily distinguishable from the
present case. In both Re Tracey and Re Nolan, the Court held that,
consistently with Ch.III of the Constitution, a person, not appointed
in accordance with Ch.III, had jurisdiction under the Act to hear and
determine charges against a member of the defence forces. In each
case, the relevant charges involved allegations of dishonest conduct
by a member of the defence forces in the performance of his duty in
circumstances that were contrary to the good order and discipline
of the defence forces. In the present case, one charge alleges the
dishonest appropriation by a defence member of a large sum of money
belonging to the Commonwealth. The other charge alleges a failure
to comply with a lawful order that he advise a Commanding Officer at
an RAAF Base of any change in circumstances that could affect his
entitlement to receiving a temporary rent allowance. Obviously, the
two charges are connected.
10. Although a magistrate constituted the service tribunal in the two
earlier cases and a general court martial is the service tribunal in
the present case, I am unable to see any legally relevant distinction
between the three cases. Like cases should be decided alike.
Uniformity of judicial decision is a matter of great importance.
Without it, confidence in the administration of justice would soon
dissolve. As Lord Devlin has pointed out ((67) "The judge and the aequm et
bonum in the Judge (1979) at 85.) : "A sense of injustice
is more easily aroused by the apprehension of unequal treatment than
by anything else."
11. Furthermore, for the Court now to hold that a service tribunal
had no jurisdiction to try this case after reaching the opposite
conclusion twice in the past five and a half years would defeat
the expectations of the Parliament and those concerned with the
administration of discipline in the defence forces. Both the
Parliament and those responsible for the administration of service
discipline could be fairly excused for thinking that the
constitutional question had been settled. Moreover, the two decisions
are confined to the special position of the defence forces and give
effect to a tradition that has existed in this country from its
earliest days. The decisions have no authority outside the situation
of the defence forces.
12. Accordingly, in my opinion, the Court should continue to follow
Re Tracey and Re Nolan in any case whose circumstances are not readily
distinguishable from the circumstances of those two decisions,
notwithstanding that they contain no binding ratio decidendi.
13. The application should be refused.
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