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For a time, the discipline of Australian military forces provided an interesting study in the application of Imperial legislation.[1] That feature of the system has fallen away at least since the enactment of the Defence Force Discipline Act 1982 (Cth) ('Discipline Act'). Since then, attention has been directed to the consequences of a tension between the necessary (or at least universally accepted) nature of military discipline and the values embedded in Chapter III of the Constitution.
Beginning a discussion of the Constitution and military justice in 2005, Mr Tracey observed:
In the long history of warfare it has come to be regarded as a truism that any effective and successful military force must be well disciplined. That discipline is to be maintained and enforced by commanders at all levels. It is as necessary in small matters such as punctuality and cleanliness as it is in more important ones like the protection of the human rights of non-combatants.[2]
That introduction refers to two features of the maintenance of an effective defence force. First, military discipline sometimes needs to be administered in circumstances of great urgency and isolation, and commanders must take responsibility. Secondly, military life has long been regarded as calling for obedience (and hence discipline) that is all-encompassing. A soldier may face punishment for not polishing his or her buttons properly, as well as for rape or murder.
Maintenance of an effective defence force can be viewed as a constitutional imperative.[3] The tension referred to above is between these necessary (or at least widely accepted) features of military discipline and another constitutional imperative: the separation of judicial and executive powers, entrenched by Chapter III of the Constitution. Military discipline involves the imposition of punishment — historically including death[4] — upon a judgment that a person is guilty of an offence. This is a function which is normally the exclusive preserve of the courts.[5] A principled justification for allowing the function to be performed by military tribunals, lacking some of the features of a court, has so far proved elusive.
This article examines the decisions which have dealt with the constitutional validity of military discipline since the enactment of the Discipline Act. This has been done before.[6] The occasion for doing it again is an addition to that jurisprudence: White v Director of Military Prosecutions ('White').[7]
At least twice before the enactment of the Discipline Act, the High Court had accepted that punishment for offences against military discipline could validly be imposed by service tribunals that were not Chapter III courts.[8] The modern cases begin with Re Tracey; Ex parte Ryan ('Re Tracey').[9] Staff Sergeant Ryan was charged with making a false entry in a service document, and being absent without leave. His case was referred to Major Tracey, a defence force magistrate, but objection was taken to Major Tracey's jurisdiction. Sergeant Ryan sought prohibition in the original jurisdiction of the High Court, where three strong streams of judicial opinion emerged.
Nobody seriously doubted that the jurisdiction proposed to be exercised by the magistrate involved the exercise of judicial power by a body that was not, on any view, a court constituted in accordance with Chapter III. However, it was also agreed that this was not the end of the matter: s 51(vi) of the Constitution (the defence power) must be construed as conferring power on the Parliament to enact a scheme of military discipline, including rules for the trial and punishment of offences, lying outside Chapter III.[10] Differences emerged between the Justices as to how far that power reached.
Mason CJ, Wilson and Dawson JJ would have upheld the validity of s 61 of the Discipline Act, which made any conduct that would be an offence under the law of the Australian Capital Territory a service offence.[11] They regarded it as impossible to draw a 'clear and satisfactory line between offences committed by service members which are of a military character and those which are not'.[12] On that basis, even if the scheme of military discipline 'can extend no further than is thought necessary for the regularity and discipline of the defence forces', it was open to Parliament to provide that any conduct which constituted a civil offence was to constitute a service offence when committed by a 'defence member'.[13] This approach, which reflects that adopted by the Supreme Court of the United States following a fundamental change in that Court's approach in 1987,[14] can be referred to as the 'service status' theory.[15]
Brennan and Toohey JJ took what is, at least in exposition, a narrower view. They considered that, while in some circumstances the enforcement of a comprehensive code of conduct based on the ordinary criminal law can be seen as 'appropriate and adapted to the securing of discipline in the sense which s 51(vi) of the Constitution dictates', there will be other circumstances where s 61 of the Discipline Act 'would embrace cases which have no relevant connexion with service discipline'.[16] This may be described as the 'service connection' theory.[17] While acknowledging that such an approach might require difficult distinctions to be made, their Honours concluded:
Section 51(vi) does not support a jurisdiction standing outside Ch. III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline. That being the purpose which is essential to the jurisdiction, it is the purpose to which its exercise must be directed. The purpose of criminal proceedings in the civil courts is far wider and the exercise of jurisdiction by civil courts may properly embrace considerations which have no relevance to service discipline.[18]
The particular charges which Sergeant Ryan faced were 'closely, if not solely, related to service discipline'. Their Honours therefore held (along with Mason CJ, Wilson and Dawson JJ) that the challenge to Major Tracey's jurisdiction must fail.[19]
The third stream of opinion in Re Tracey comprises the much more restrictive approaches of Deane and Gaudron JJ. Those approaches are distinct from each other but are grouped together here because of their heightened concern about the relationship between military justice and the jurisdiction of the civil courts.
Deane J saw the justification for military law's exclusion from Chapter III as lying in the essentially disciplinary and supplementary nature of its subject matter: accordingly, in times of peace and general civil order, the exemption was limited to exclusively disciplinary matters and did not extend to supplanting the jurisdiction of the ordinary civil courts.[20] The imposition of a comprehensive system of criminal law administered by military tribunals was beyond power.[21]
Deane J divided the offences created by the Discipline Act into three classes:[22]
(i) those which were 'exclusively disciplinary' in nature;
(ii) those involving conduct which was normally an offence under the general law, but which took on a special character by their relationship to military discipline or duties (eg assaulting a superior officer, or falsification of service documents); and
(iii) those which had no necessary relationship with the services or military discipline except that the offender was a defence member or defence civilian.
In his Honour's view, only the first of these categories of offence could validly be administered by military tribunals under s 51(vi), and the comprehensive jurisdiction purportedly conferred by the Act was therefore valid only to that extent. His Honour would therefore have decided that Major Tracey had jurisdiction to try the charges of being absent without leave, but not the charge of falsifying a document.[23]
Gaudron J saw the power in s 51(vi) to legislate for control of the forces outside Chapter III as resting on practical and administrative necessity. Those considerations supported such a regime as 'appropriate and adapted' in relation to proscribed conduct by a service member outside Australia, but not in Australia.[24]
One distinctive feature of the Discipline Act as considered in Re Tracey was s 190, which purported to oust the jurisdiction of civil courts (including State courts) in relation to any offence that was 'substantially the same' as a service offence, where a person had stood trial for that offence in a military tribunal. The intention behind that provision was clearly enough to protect a service member against a form of double jeopardy. Deane J, as has been noted, regarded non-interference in normal civil justice as a hallmark of a valid system of military discipline. He saw s 190 as central to the regime of the Discipline Act and impossible to sever from its other provisions in relation to his second and third categories: with s 190 the Act excluded the jurisdiction of the courts (which was impermissible); without s 190 it exposed service members to double punishment (which was clearly not what Parliament intended).[25] The majority Justices regarded s 190 as clearly invalid in so far as it was directed at the jurisdiction of State courts (and impossible to read down so as to apply only to federal courts),[26] but did not have the same difficulty in severing it from the remaining provisions of the Act. Only Gaudron J regarded a provision excluding the jurisdiction of the civil courts, to avoid double jeopardy, as reasonably incidental to the creation of a regime of military discipline.[27] But that was on the basis of the narrow view which her Honour took of the kind of regime that could validly be created; indeed the potential ouster of civil jurisdiction was one factor which led her Honour to that narrow view.[28]
In Re Nolan; Ex Parte Young ('Re Nolan'),[29] the issues were similar. Staff Sergeant Young was charged with a number of offences relating to seven false pay lists which he had allegedly brought into existence. Some of the offences were under s 55 of the Discipline Act (falsifying a service document), while others (using a false instrument) were breaches of the ordinary criminal law as adopted by s 61. Wilson J had left the Court and had been replaced by McHugh J.
Of the Justices who had sat in Re Tracey, five adhered to the views which they had taken in that case. Applying their service status analysis, Mason CJ and Dawson J held that the creation of the offences and conferral of jurisdiction on Lieutenant Colonel Nolan as a defence force magistrate were valid.[30] Brennan and Toohey JJ again held that the making of a law to punish defence members and defence civilians for their conduct was valid so long as 'the proceedings taken to punish them can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline'.[31] That criterion was clearly met by the proceedings against Staff Sergeant Young, since the alleged offences involved the 'malperformance of his service duties'.[32] Deane J dissented, as the offences were not exclusively disciplinary but 'substantially the same as offences under the ordinary law'.[33] He was joined by McHugh J.[34]
Gaudron J modified her view in light of the outcome of Re Tracey. Her Honour regarded the position that she had taken in the earlier case as unavailable, in light of the majority view in that case that s 190 was invalid.[35] The result of her Honour's reconsideration was a position that echoed that of Brennan and Toohey JJ in terms of analysis, but was closer to Deane J in its outcome. Her Honour accepted the existence of a power, judicial in character and outside Chapter III, which might be exercised by military authorities, but maintained that this could not extend beyond 'what is appropriate and adapted to the maintenance of the authority of persons in command and the discipline of the forces'.[36] One thing that was not appropriate and adapted to that end, in her Honour's view, was participation by military authorities in 'the administration of ordinary criminal justice'. Thus, to the extent that the Discipline Act provided for the trial and punishment of offences committed in Australia which were substantially similar to offences under the ordinary law, it was beyond power.[37]
Re Tyler; Ex parte Foley[38] was decided only three years after Re Nolan and again raised similar questions. The charge against Wing Commander Foley was dishonestly appropriating a sum of money which he had received as a rental allowance. The offence was created by s 47(1) of the Discipline Act, but was substantially the same as offences under both the Commonwealth and New South Wales Crimes Acts.
Mason CJ and Dawson J again adhered to the view they had adopted in Re Tracey and Re Nolan, and thus rejected the challenge to the jurisdiction of the court martial.[39] In what was perhaps a recognition that the difference of view in the Court would have to end at some point, their Honours also noted that the same conclusion would follow from applying the criterion favoured by Brennan and Toohey JJ.[40] Brennan and Toohey JJ themselves reached the same result, applying the approach they had taken in the earlier cases.[41]
In another step towards coherence, McHugh J also joined with the majority. His Honour did this on the basis that Re Tracey and Re Nolan were indistinguishable and ought to be followed, despite remaining convinced that the majority reasoning was erroneous,[42] and without expressing a preference between the alternative 'service status' and 'service connection' approaches. Deane J[43] and Gaudron J[44] gave short judgments adhering to the positions they had taken in Re Nolan.
Re Aird,[45] decided ten years after Re Tyler, differed from the earlier cases in several respects. One was that the prosecutor, Private Alpert, did not rely on any argument concerning Chapter III:[46] his attack on the court martial's jurisdiction was in effect simply an attack on the validity of the offence-creating provision, relying on the limits of the defence power.[47] In the opinion of Kirby J that confining of the argument did not make a difference: both because the parties could not deflect the Court from considering a constitutional issue, and because the fact that the offence was triable only in a military tribunal (outside Chapter III) could not be ignored.[48]
There is much to be said for his Honour's view (even though Kirby J himself refrained from deciding the case on his preferred basis, apparently because of the absence of a wider argument).[49] The respondents for their part relied only on the defence power, not on the external affairs power, evidently recognising (no doubt correctly) that the latter head of power would not sustain the creation of a criminal offence triable in a military tribunal.[50] The issues thus came to focus on s 51(vi) because of that paragraph's particular relationship with Chapter III.
The underlying facts were also different from the earlier cases in important respects. First, Private Alpert was charged with rape, an offence with no necessary connection to the duties of a service member (although, as was pointed out, an offence that may nevertheless be seen to have significance for the morale and effectiveness of a military force).[51] It was among the offences that were created as service offences by s 61 of the Discipline Act (which by now adopted the criminal law in force in the Jervis Bay Territory rather than the ACT). Secondly, the alleged offence took place outside Australia, in Thailand. It was thus not an offence that could have been prosecuted under the ordinary criminal law of any Australian jurisdiction, although (it was assumed) the relevant conduct was an offence under Thai law. It was triable under the Discipline Act because of the extraterritorial effect given to the Act by s 9. Thirdly, the circumstances of the alleged offence had only the most tenuous connection with Private Alpert's service in the Army. He was on leave from his duties at an air base in Malaysia. He had been taken to the Thai border by a RAAF bus with some other soldiers but then travelled by private transport. He was not in uniform and used his own civilian passport (not any form of military identification) to enter Thailand. His trip had no military content or purpose and he paid his own expenses. The alleged victim was not a service member, or a national of either Malaysia or Thailand.[52]
The leading judgment is that of McHugh J. His Honour reviewed the earlier cases and characterised the difference between the two streams of majority opinion in terms of 'service status' and 'service connection'.[53] Citing a paper delivered at the Public Law Weekend in 2003, his Honour concluded that the 'service connection' test appeared now to be the correct one.[54] The issue for decision was therefore defined as
whether the discipline of the Australian Defence Force may be enhanced by requiring service personnel to conduct themselves in accordance with the prohibitions in the legislation of the Australian Capital Territory in its application to the Jervis Bay Territory. More particularly, it is whether that discipline is enhanced by a rule that requires a soldier while overseas on recreation leave not to engage in non-consensual sexual intercourse with another person.[55]
McHugh J answered that question in the affirmative, pointing to two main factors. One was that, when outside Australia, Defence Force personnel were likely to be perceived as representatives of Australia. Their conduct might reflect on the Defence Force and thus affect its morale and discipline. The other was that it was central to the maintenance of a disciplined defence force that its members not be persons who engage in acts of uncontrolled violence, including rape.[56]
Gummow J agreed 'generally' with McHugh J,[57] while adding some reasons of his own. His Honour adopted observations by Mason CJ, Wilson and Dawson JJ in Re Tracey, and of Harlan J in the Supreme Court of the United States, embodying what has been described above as the 'service status' approach.[58] Those passages maintain that it is at least open to Parliament to regard the observance by service personnel of the standards of behaviour expected of ordinary citizens as essential to the good order and discipline of the forces. Their coverage includes, but is by no means confined to, service overseas.
Hayne J agreed with the reasons of McHugh J and the further reasons of Gummow J.[59] Gleeson CJ did the same,[60] having also set out some additional reasons of his own. Gleeson CJ emphasised that rape was a crime with the capacity to affect the morale and discipline of the defence force (suggesting a concern with 'service connection'), but also agreed with a broad Commonwealth submission that the imposition of 'minimum standards of behaviour by reference to Australian law' was a 'legitimate means of preserving discipline'.[61]
Kirby, Callinan and Heydon JJ dissented. Kirby J expressed a preference for the approach of Deane J,[62] but proceeded on the basis that the 'service connection' test of Brennan and Toohey JJ was the correct one.[63] His Honour saw the application of the test as an exercise in limiting the exception to the operation of Chapter III brought about by 'military exceptionalism'.[64] The majority's approach was seen as leading to the conclusion that almost any rule of conduct could be seen as conducive to service discipline, and thus an unacknowledged adoption of a 'service status' test.[65]
Callinan and Heydon JJ also agreed with McHugh J's adoption of the 'service connection' test, but did not agree that its application led to the validity of the offence-creating provisions in the present case.[66] Their Honours said (in a passage endorsed by Kirby J):
If the test of service connection is to be applied on the basis that it will be satisfied if the acts alleged constitute an undisciplined application of force, or conduct that would be regarded as abhorrent by other soldiers, then it is difficult to see how any serious crime committed anywhere, including in Australia, under any circumstances would not be susceptible to the military jurisdiction exclusively. The further consequence would be the denial to the soldier and the prosecuting authority of trial by jury. It is sometimes overlooked that the prosecuting authority and the community which it represents have as great as and as real an interest in trial by jury as the person on trial.
We do not, with respect, therefore subscribe to the view that to ask the question whether the discipline of the military service will be enhanced by a certain measure or course, is to ask the same question as 'Is there a service connection?' Any measure for the proscription of any form of misconduct has as its end, discipline. If enhancement of discipline is to be effectively the only test, there will be very few offences of any kind, committed anywhere, in any countries, which will escape the all-enveloping net of 'service connection'.[67]
No member of the Court that decided Re Tracey was still on the bench when Re Aird came before the Court. Only McHugh J remained from the bench that decided Re Nolan, and his Honour had embraced the approach of Deane J in that case. Despite at least one suggestion that some radical re-assessment might occur,[68] it was McHugh J who led the Court in rejecting the restrictive views of Deane and Gaudron JJ and affirming the approach of the majority (or at least the plurality) in Re Tyler.
However, it is at least arguable that all that occurred was a displacement of the debate from the articulation of constitutional principle to its application. In light of the express agreement with McHugh J's reasons by Gleeson CJ, Gummow and Hayne JJ, each of their Honours must be read as having embraced the 'service connection' theory; but their view of the required connection was so broad as to come close (to say the least) to the 'service status' view of Mason CJ, Wilson and Dawson JJ in Re Tracey. Gummow J's reference to their Honours' judgment (concurred in by Gleeson CJ and Hayne J) adds strength to that impression. At the other end of the spectrum, the considerations that had led Deane J to take a much narrower view of the permissible scope of military justice are echoed in the judgment of Kirby J (and to some extent perhaps in that of Callinan and Heydon JJ), notwithstanding that their Honours also proclaim their adoption of the 'service connection' test. The explanation for this divergence may be that to pose the test in terms of 'service connection', without some detailed background and explanation of what the writer means by that phrase,[69] does not advance matters far beyond observing that the law must be one with respect to defence.
The alleged offences in White took place in Australia. The charges involved acts of indecency and assault which (like the charge of rape in Re Aird) were offences against the ordinary criminal law, as adopted by s 61 of the Discipline Act, rather than explicitly service-related offences created by that Act. As in Re Aird, the relevant events had occurred while the plaintiff was out of uniform and not on duty. However, there was a clear connection with military duty and discipline that was not present in Re Aird, in that the victims of the alleged offences were other members of the Defence Force of lower rank than the plaintiff.[70]
In the light of Re Aird those circumstances provided decidedly infertile ground for an attempt to argue that the proceedings against the plaintiff were invalid for want of a sufficient 'service connection'. No doubt with that in mind, counsel for the plaintiff did not make such an argument. Instead he argued:
(a) that, despite the reasoning of all of the Justices in Re Tracey and subsequent cases, there is no power in s 51(vi) to establish a system of military justice involving the trial and punishment of offences by tribunals other than courts established in accordance with Chapter III; and
(b) alternatively, that any such system may validly apply only to 'exclusively disciplinary' offences and not to conduct which would also be an offence under the ordinary criminal law.[71]
Both of these arguments were put on the basis that they led to the invalidity of the whole scheme of the Act: ie, there was to be no attempt to sever particular offences or particular circumstances in respect of which it might operate validly. There was no argument by the plaintiff that the alleged offences were outside the scope of valid operation of the Act, because they lacked a 'service connection'. The arguments in the case therefore steered clear of the particular issues that had been debated in Re Aird, although aspects of that debate inevitably resurfaced in dealing with the plaintiff's second argument.
It is convenient to look at the plaintiff's second argument first, as it is closer to the main stream of the discussions in Re Tracey and subsequent cases. The argument drew its inspiration from the judgment of Deane J in Re Tracey, and his Honour's view was endorsed by Kirby J,[72] who would therefore have granted relief.
All of the other Justices rejected it. Callinan and Heydon JJ did so because it was precluded by the earlier decisions, which their Honours considered ought not to be re-opened. Gleeson CJ, and Gummow, Hayne and Crennan JJ in joint reasons, reconsidered the merits of Deane J's approach.
Gleeson CJ analysed the reasoning of Deane J in some detail and noted that his Honour had drawn the boundary of s 51(vi) by reference to functions which lay outside 'the judicial system administering the law of the land'.[73] Accordingly, Deane J accepted that service tribunals could validly be authorised to deal not only with purely disciplinary offences (his first category, discussed above), but also with 'service-related offences' (his second category), if such jurisdiction was purely disciplinary and did not supplant the role of the ordinary courts in dealing with the 'general community aspects' of such offences.[74] The problem in the end was one of severance. Deane J did not restrict the possible valid reach of military justice under s 51(vi) to exclusively disciplinary offences.
For Gleeson CJ, the necessity to distinguish between disciplinary and other offences, and between different aspects of the same offence, created insuperable difficulties.[75] Such a distinction simply cannot be made neatly in relation to a wide range of conduct which breaches the ordinary criminal law but which has particular significance in a disciplinary context (eg assaulting a superior, or theft from a comrade). Such a distinction (given its conceptual basis) also cannot be applied to conduct overseas or to situations of combat or disorder,[76] and thus requires different lines to be drawn in different circumstances. In the end, whether and to what extent an offence is 'essentially disciplinary' is likely to depend on the circumstances in which it was committed rather than the elements of the offence. If the test is to be framed (as the plaintiff attempted to do) in terms of the minimal intrusion into Chapter III that is consistent with the requirements of 'necessity', the infinite variety of circumstances that must be dealt with makes it impossible to express that necessity in a simple verbal formula referring to types of offence.
The joint judgment of Gummow, Hayne and Crennan JJ took issue with two 'implicit assumptions' in the dicta upon which the Plaintiff based her argument, observing that they 'do not provide an adequate starting point for an analysis of what is permitted to service tribunals'.[77] What their Honours identify as inadequate 'assumptions' are a characterisation of the effect of the system established by the Discipline Act (that it attempts to displace or overreach the obligations of ordinary criminal law) and a feature of the way in which Deane J and others sought to resolve the difficulty (the comparison of elements of a service offence and a general law offence). The point seems to be that in these respects the reasoning relied on by the plaintiff was wrong.
A 'more adequate starting point' was said to be the proposition that a soldier remains a citizen, with rights and duties under the ordinary law of the land accordingly, but also incurs additional responsibilities. Those 'additional responsibilities' could 'give to general norms of conduct a distinct and emphatic operation'. Thus, it was wrong to attempt to assess constitutional validity by attempting to identify a class of offences that were 'exclusively disciplinary in character'.[78]
The plaintiff's first and more fundamental argument went to a matter which had received less attention in the earlier cases: whether there is a justification for the long held view that Parliament has power to provide for the trial of service offences by tribunals that are not courts established under Chapter III of the Constitution. That issue — which was touched upon in the introduction to this article — arises in the context of three very clear propositions.
First, it has been an article of faith at least since Alexander's Case[79] that the 'judicial power of the Commonwealth' may be vested only in a court constituted in accordance with Chapter III.[80] All of the heads of legislative power in s 51, including paragraph (vi), are granted 'subject to' the Constitution, and have always been understood to be subject to the overriding requirements of Chapter III. Hence, even if the second limb of s 51(vi) ('the control of the forces to execute and maintain the laws of the Commonwealth') were construed as a separate and express power to control military personnel,[81] s 51(vi) cannot displace Chapter III without some departure from ordinary principles.
Secondly, as was observed in Re Tracey, there has never been any real dispute that the function performed by service tribunals is judicial in character.[82] There was no disagreement about this in White.[83] That function involves the adjudgment and punishment of criminal guilt under a law of the Commonwealth, a function which 'appertains exclusively to and "could not be excluded from" the judicial power of the Commonwealth.'[84]
Thirdly, up to and including the time when White was argued and decided, service tribunals have lacked essential features of a court under Chapter III and have therefore not been qualified to exercise the judicial power of the Commonwealth. Their procedures have been closely modelled on the courts[85] and they have been described as 'acting judicially'.[86] However, neither the defence force magistrates whose jurisdiction was challenged in Re Tracey and Re Nolan, nor the members of the courts martial in Re Tyler and Re Aird enjoyed the judicial tenure provided for in s 72.[87] In White the proceedings were commenced before the case had been referred to a defence force magistrate or a court martial;[88] but there was no doubt that either form of trial would have involved a tribunal whose member(s) lacked the judicial tenure required by Chapter III.[89]
It should be noted that the system of military tribunals has since been changed, by amendments to the Discipline Act, so as to provide for the trial of at least some offences by the Australian Military Court.[90] The amendments are a major reform of the system of military justice and were developed in response to a report by the Senate Foreign Affairs, Defence and Trade References Committee.[91] However, significantly for constitutional purposes, the amendments did not take up the Committee's recommendation that a permanent military court should be established in accordance with Chapter III of the Constitution:[92] the Australian Military Court comprises a Chief Military Judge and other Judges appointed for a period of 10 years,[93] and a note to the new s 114(1) makes the obviously correct observation that the Court is not 'a Court for the purposes of Chapter III of the Constitution'. The validity of the scheme continues to rely on the cases under discussion, now including the decision in White.
In White, the High Court declined to depart from the settled view that, despite the three clear propositions referred to above, the administration of military justice under the Discipline Act does not contravene Chapter III.
Attempts to provide a principled explanation for this position, or one based in the constitutional text, have been fitful. In Bevan,[94] a wartime case which appears to be the earliest decision touching on the subject, Starke J referred to the position taken in the United States and the 'extensive' nature of the defence power and observed that its terms,
coupled with sec 69 [sic] and the incidental power (sec 51(xxxix)), indicate legislative provisions special and peculiar to those forces in the way of discipline and otherwise, and indeed the Court should incline towards a construction that is necessary, not only from a practical, but also from an administrative point of view.[95]
In the same case Williams J also concluded that such tribunals must be permitted because they were 'necessary to assist the Governor-General, as Commander-in-Chief of the Naval and Military Forces of the Commonwealth, to control the forces and thereby maintain discipline'.[96]
Dixon J in Cox[97] offered what is possibly the only attempt so far to reconcile the system of military justice with the actual text of Chapter III. Private Cox objected to being tried by a court martial in relation to events that occurred after he was discharged from the Army. Latham CJ and Williams J held that this circumstance did not make a difference to the necessity of maintaining discipline referred to in Bevan.[98] Dixon J attempted a quite different explanation:
In the case of the armed forces, an apparent exception is admitted and the administration of military justice by courts-martial is considered constitutional (R v Bevan). The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force. But they do not form part of the judicial system administering the law of the land.[99]
The italicised portion of this passage appears at first blush to make a telling distinction with confident brevity. However, on further reflection it merely states a conclusion, in terms which tend to conceal rather than reveal the reasoning process behind it. What is meant by the 'law of the land' is not clear. If it refers to the corpus of Australian law generally or the law in force at a place within Australia, his Honour's conclusion is obviously wrong. If it refers to a body of laws binding on all Australians (or all persons in Australia) it might well be right, but does not serve to distinguish military discipline from any other body of rules directed at a particular group of persons.
Dixon J's explanation has been referred to, although not enthusiastically embraced, in later cases.[100] In Re Tracey, Mason CJ, Wilson and Dawson JJ essentially reverted to necessity:
However, the defence power is different because the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch III, but as part of the organization of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch III and to impose on those administering that code the duty to act judicially.[101]
Brennan and Toohey JJ referred to the absence of discussion of this point in the Convention Debates as showing that the framers must have understood the defence power to include the power to maintain and enforce discipline, especially in circumstances where the ordinary courts could not operate. They cited Harrison Moore, an early commentator, who regarded courts martial as an instance of judicial functions outside Chapter III, essentially on the basis that 'logical consistency may have to yield something to history and familiar and established practice in determining what is the judicial power of the Commonwealth committed to the Courts by sec 71.'[102] Dixon J's characterisation of military tribunals as being outside the judicature administering 'the law of the land' was regarded as flowing from 'history and … established practice'[103] rather than text or principle. While their Honours did characterise s 51(vi) as a special provision authorising the conferral of judicial power outside Chapter III (like s 49 in the case of the powers of Parliament),[104] no explanation other than '[h]istory and necessity'[105] was given for that conclusion; and no attempt was made to reconcile it with the important words 'subject to this Constitution' in the chapeau of s 51 (words which are not present in s 49).
For Deane J also, the explanation of Dixon J in Cox was ultimately not enough to escape reliance on pragmatism:
I do not think Dixon J was … expressing the view that Commonwealth military tribunals do not exercise both judicial power and Commonwealth power. … When such an instrumentality so acting exercises powers of trial and punishment of a person charged with an offence against a law (albeit a military law) of the Commonwealth, it is exercising powers which are judicial in character and which appertain to the Commonwealth. That being so, the legal rationalization of any immunity of those powers from the net cast by Ch III of the Constitution does not lie in a denial of their intrinsic identity either as judicial power or as part of the judicial power of the Commonwealth. Nor does it lie in reversing the express words of the Constitution and making Ch III 'subject to' s 51(vi) with the consequence that the Parliament has legislative authority to confer upon military tribunals any judicial powers whose conferral might reasonably be seen as appropriate and adapted for the purposes of defence. The legal rationalization of such immunity can only lie in an essentially pragmatic construction of the reference to 'the judicial power of the Commonwealth' in Ch III to exclude those judicial powers of military tribunals which have traditionally been seen as lying outside what Dixon J described as 'the judicial system administering the law of the land'.[106]
Gaudron J also appears to have based her acceptance of an exemption on notions of necessity (and the authority of the earlier cases), although her Honour also referred to s 68.[107]
In Vasiljkovic v Commonwealth,[108] an extradition case, an analogy was drawn with military justice. Gummow and Hayne JJ characterised Dixon J's explanation as an essentially pragmatic one:
Dixon J said that any 'exception' here was not 'real'. The necessity and occasions for the imposition of military discipline stood that system outside Ch III.[109]
In White, Gleeson CJ set out the passage from Dixon J's reasons in Cox quoted above, but also appeared to regard the explanation being offered there as an essentially pragmatic one.[110]
The reasons in White continue the reliance on history and necessity. Gleeson CJ found, in the Convention debates on s 68, a remark by Mr O'Connor that Parliament would have 'abundant power to decide' the mode in which courts martial would be conducted.[111] This was said to indicate that the Convention delegates were 'well aware of the role and functions of service tribunals'.[112] That observation provided an introduction to the role that history had played in Re Tracey, in the jurisprudence of the US Supreme Court and in the understanding of commentators.[113] His Honour's conclusion, consciously echoing Brennan and Toohey JJ, was that
history and necessity combine to compel the conclusion, as a matter of construction of the Constitution, that the defence power authorises parliament to grant disciplinary powers to be exercised judicially by officers of the armed forces and, when that jurisdiction is exercised, 'the power which is exercised is not the judicial power of the Commonwealth; it is a power sui generis which is supported solely by s 51(vi) …'.[114]
Gummow, Hayne and Crennan JJ referred to some remarks of Kitto and Jacobs JJ concerning the role of historical understandings in giving content to concepts such as 'the judicial power of the Commonwealth', and appeared to suggest that an ahistorical, a priori notion of what constituted judicial power had emerged only in response to new rights created by the 'modern regulatory state'.[115] Bevan was an example of an accommodation between 'generally expressed theories' about judicial power and historical considerations. The 'decisive consideration' was that, at the time of federation, legislatively based military justice tribunals were a 'well-recognised exception' to the judicial system for determination of guilt.[116] The history of the development of that exception, in Imperial law and in the Australian colonies, had been rehearsed by the majority Justices in Re Tracey.[117] Thus, apart from the inconvenience of overruling the long-standing decisions in Bevan and Cox[118] (to which one might of course add Re Tracey and the other modern cases), those decisions were correct: 'abstract reasoning alone' should not be preferred to 'an appreciation of the content of "the judicial power of the Commonwealth" which must have been universally understood in 1900.'[119]
Their Honours' reasoning thus relies squarely on 'history', but seeks to provide a theoretical foundation for the use of that reasoning rather than resorting to it as a pragmatic exception from the words of Chapter III. The attempt is, it is submitted, not wholly successful.
Dicta such as those of Kitto J in R v Davison,[120] which their Honours cite, form part of a reasonably well-known stream of authority which justifies consideration of the historical functions of courts in developing an understanding of the notion of 'judicial power'. Recourse to history is necessary if matters such as divorce and company administration are to be brought within the concept of judicial power, and vested in federal courts. However, it is a different exercise to rely on history to take functions which are on any view 'judicial'[121] out of the judicial power referred to in Chapter III.
This change of direction is apparently accomplished by shifting the focus to 'the judicial power of the Commonwealth': historical considerations determine how we are to understand the phrase 'of the Commonwealth' and the way in which it qualifies 'judicial power'. However, apart from transcending the authority of the dicta referred to in the previous paragraph, this is at least textually unsatisfactory. 'Judicial power' may well have been a pre-existing concept which people in 1900 would have understood by reference to history and experience, but 'the Commonwealth' was a new entity being brought into existence by the Constitution itself. Pre-1900 history seems an unlikely guide to determining whether a particular subset of 'judicial power' is judicial power 'of the Commonwealth' or not. Apart from considerations of sheer practicality, it would be plausible to assert that s 71 represented a conscious decision to require that all justiciable controversies arising under laws of the Commonwealth were to be dealt with by the courts, whatever might have gone before.
Kirby J accepted that there was a power to establish 'service tribunals for service discipline', based entirely on 'the necessities of military discipline, strictly so called'.[122] In his Honour's view, the only persuasive foundation for an exception authorising service tribunals outside the Chapter III courts was that it arose by implication from s 51(vi) as a consequence of 'military necessities'.[123] Apart from that necessity, language, logic, the object of s 71 and policy all dictated that military justice should be seen as part of the judicial power of the Commonwealth referred to in s 71;[124] and attempts to justify an 'exception' from the coverage of Chapter III were unavailing.[125]
Callinan J held that the plaintiff's arguments were foreclosed by the earlier cases,[126] and thus appears to have based his decision primarily on the view that those cases should not be re-opened. Heydon J agreed with that conclusion.[127] However, Callinan J also sought to add a textual justification for the position that had been taken in the earlier cases. Drawing on Starke J's reference to s 68 in Bevan,[128] his Honour suggested that that provision indicates that matters of command (including discipline) are to be vested in the executive. Further, it is a power of command that is not expressed to be subject to the Constitution and cannot be diminished.[129] It will be recalled that s 68 had also been referred to by Gaudron J in Re Tracey.[130]
On its face s 68 does not provide any direct textual support for a legislative power to create service tribunals outside Chapter III. Beyond a broad agreement that the command vested by s 68 is 'titular'[131] and to be exercised only on ministerial advice, commentators seem to have been somewhat bemused as to the exact significance of the section.[132] In the Convention Debates Mr Barton, when asked to consider whether the provision was really necessary, described it as 'simply declaratory';[133] and it seems to have done no more than reproduce the position that had obtained in each colony.[134] The inclusion of s 68, in circumstances where the executive power had already been vested in the Governor-General by s 61 (and see also s 70), might be thought to have something to do with establishing Australian, rather than Imperial, control over Australian military forces. However, that motivation is not apparent from the Convention Debates or contemporary commentaries; and a substantial degree of local control over colonial forces had already been established.
What is clear is that command of Australia's military forces is a branch of executive power. Quick and Garran thought it indistinguishable from 'the routine work of any local department.'[135] The scope of the executive power and its manner of exercise are generally subject to legislative control and, at least prima facie, subject also to the supervision of the High Court under s 75(v). While there has been some academic support for the view expressed by Callinan J that the authority conferred by s 68 cannot be diminished,[136] the consensus among more recent commentators (and, it is submitted, the better view) is that Parliament may impose limits on the exercise of executive power[137] even where a particular prerogative is expressly recognised and vested in the Governor-General.[138] The creation of a sphere of executive power involving disciplinary functions that cannot be invested by legislation in a Chapter III court seems, on any view, unlikely to have been intended. Section 68 may provide a small measure of support for the position that military discipline need not be allocated to such a court, but only by confirming the existence of expectations or assumptions about military command, based on history.
One other possible source of textual support was referred to briefly in argument in White.[139] Section 69 provided for (inter alia) the department of 'naval and military defence' of each State to be transferred to the Commonwealth on a date to be proclaimed. It is cited in the reported judgment of Starke J in R v Bevan,[140] but this is probably a misprint.[141] Section 69 is spent in terms of practical force and its repeal has been recommended.[142] Arguably, the transfer of the State defence departments to the Commonwealth under s 69 (which occurred by proclamation on 25 February 1901)[143] involved the inheritance, not only of Colonial defence bureaucracies, but of armed forces organised and disciplined under the applicable Imperial legislation – thus implying an intention that such modes of command and discipline were to continue. This does not appear to be a very strong argument, and it does not figure in any of the judgments. Section 69 applied to a number of public service departments, and (as the experience of State quarantine and lighthouse officers indicates)[144] it did not actually require the transfer of personnel to take place. Its brief terms may suggest that certain assumptions were held, but they do not make particular principles of military organisation '[inhere] in the instrument'.[145]
White's case confirms, again, that there is a sphere in which the Commonwealth may create service offences and provide for their trial and punishment by service tribunals, rather than courts operating under Chapter III. It is also possible to say with reasonable confidence, following White, that the foundations for that exception are essentially pragmatic. This tends to suggest that it is part of a line of cases whose significance, for constitutional jurisprudence more generally, is limited.
A potential broader significance may be seen in the explanation given by Gummow, Hayne and Crennan JJ for their avowed reliance on history. Those remarks may signal a move away from 'ahistorical' conceptions of judicial power, and a greater willingness to rely on historical experience as a guide to what is required and permitted by Chapter III. This is a trend which can be seen in other recent cases,[146] although its novelty should not be overestimated.[147]
The precise scope of the sphere in which service discipline may be enforced without recourse to Chapter III courts remains somewhat unsettled. In this respect, given the nature of the arguments advanced in White, the judgments could not reasonably be expected to advance understanding much beyond the point reached in Re Aird. There, there was unanimous acceptance of a 'service connection' test but a wide disparity of views about how that test applied in the circumstances of the case.
A further issue that remains unresolved is whether the exception from Chapter III's requirements identified in the cases is co-extensive with, or narrower than, the scope for offences to be created by laws enacted under the defence power: in other words, whether the scope for creation of service offences would be wider if some or all of those offences were made triable in the ordinary courts.
(a) It would seem to be at least implicit in the narrow views of the exception adopted by Deane and Gaudron JJ, and more recently Kirby J, that s 51(vi) would permit the enactment of a more comprehensive calendar of offences, if alleged offences were to be tried in the ordinary courts.[148] For their Honours, constitutional limits were transgressed by the conferral of jurisdiction rather than by the creation of the offence.[149]
(b) The broad 'service status' approach of Mason, Wilson and Dawson JJ (which appears to have influenced the majority in Re Aird) would seem to align the limit of the exception from Chapter III with the limit of power under s 51(vi). In so far as the head of power supports the imposition of rules of conduct on service personnel (and on civilians in closely related roles), on this view it also supports the administration and enforcement of those rules by service tribunals.
(c) Given that the prosecutor in Re Aird sought to confine the argument to s 51(vi), the endorsement of the 'service connection' approach in that case should probably be taken to mean that all of the Justices saw this test as describing the limit of the power to create offences under s 51(vi). On that view, the 'service connection' approach also makes no distinction between the offences that may be created and the offences which (when alleged against service personnel) may be tried in service tribunals.
There is some suggestion that, in its earlier statements, the 'service connection' approach was driven by Chapter III rather than the canons of characterisation. Brennan and Toohey JJ arrived at their approach as a way of reconciling 'two sets of constitutional objectives', and their conclusion was that s 51(vi) 'does not support a jurisdiction standing outside Ch III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline.'[150] Chapter III casts its shadow over all of the cases, including Re Aird. It is somewhat uncertain whether the constitutional limits on the legislative power to create service offences could be relaxed by establishing military courts under Chapter III (as recommended in the Senate Committee Report).
Another feature of the 'service connection' approach which is noteworthy is that, as stated by Brennan and Toohey JJ, the test would invalidate particular proceedings rather than offence-creating provisions. In some circumstances the prosecution of a service member for (eg) theft would serve a substantial disciplinary purpose; in others, it would not. The answer would depend on where and when the alleged offence occurred and in what circumstances it was proposed to be tried.[151] This is a somewhat different phenomenon from the expansion and contraction of the defence power itself, and would seem to call for delicate exercises of judgment by service tribunals and prosecuting authorities. The later decisions do not shy away from this result.[152] This may ultimately prove a powerful practical argument for adopting a view of 'service connection' that is very close to the 'service status' test. The fact that the accepted test requires distinctions between the circumstances of individual prosecutions means that there is not yet, and perhaps never will be, any comprehensive guide to the permissible limits of military justice.
[*] Barrister, Sydney. This article is an expanded version of a paper delivered at the Public Law Weekend, Australian National University, 10 November 2007. The author thanks Benjamin O'Donnell for his comments on an advanced draft.
[1] See the sources referred to in Richard Tracey, 'The Constitution and Military Justice' [2005] UNSWLawJl 30; (2005) 28 University of New South Wales Law Journal 426, 426–8.
[2] Ibid 426.
[3] At least in a 'small-c' sense. Adam Smith famously made defence the first duty of government ('According to the system of natural liberty, the sovereign has only three duties to attend to ... first, the duty of protecting the society from the violence and invasion of other independent societies': The Wealth of Nations, Book IV, Chapter IX). In Re Tracey; Ex parte Ryan [1989] HCA 12; (1989) 166 CLR 518, 569–70 Brennan and Toohey JJ described the defence of the Commonwealth and the several States as a 'constitutional objective'.
[4] As in R v Bevan; Ex parte Elias [1942] HCA 12; (1942) 66 CLR 452 ('Bevan').
[5] See eg Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 608–9 (Deane J) ('War Crimes Act Case').
[6] For example, by Tracey, above n 1; Mitchell and Voon, 'Justice at the Sharp End — Improving Australia's Military Justice System' [2005] UNSWLawJl 29; (2005) 28 University of New South Wales Law Journal 396; Andrew Mitchell and Tania Voon, 'Defence of the Indefensible? Re-assessing the Constitutional Validity of Military Service Tribunals in Australia' (1999) 27 Federal Law Review 499.
[7] [2007] HCA 29; (2007) 231 CLR 570.
[8] Bevan [1942] HCA 12; (1942) 66 CLR 452, 467–8 (Starke J); R v Cox; Ex parte Smith [1945] HCA 18; (1945) 71 CLR 1 ('Cox').
[9] [1989] HCA 12; (1989) 166 CLR 518.
[10] Ibid 540–1 (Mason CJ, Wilson and Dawson JJ), 574 (Brennan and Toohey JJ), 581–3 (Deane J), 598 (Gaudron J).
[11] Ibid 545.
[12] [1989] HCA 12; (1989) 166 CLR 518, 544.
[13] Ibid 545.
[14] In Solorio v United States [1987] USSC 159; 483 US 435.
[15] Using terminology later adopted in Re Aird; Ex parte Alpert (2004) 220 CLR 308, 321 [36] ('Re Aird').
[16] [1989] HCA 12; (1989) 166 CLR 518, 568.
[17] See Re Aird (2004) 220 CLR 308, 321 [36].
[18] Ibid 571.
[19] Ibid 579.
[20] Ibid 583, 585–6.
[21] Ibid 586.
[22] Ibid 586–7.
[23] Ibid 591.
[24] Ibid 600–2.
[25] Ibid 589, 590.
[26] Ibid 547, 575.
[27] Ibid 599.
[28] Ibid 602–3.
[29] [1991] HCA 29; (1991) 172 CLR 460.
[30] Ibid 474–5.
[31] Ibid 484.
[32] Ibid 489.
[33] Ibid 493.
[34] Ibid 499.
[35] Ibid 494–5.
[36] Ibid 498.
[37] Ibid 498–9.
[38] [1994] HCA 25; (1994) 181 CLR 18.
[39] Ibid 26.
[40] Ibid 26–7.
[41] Ibid 31–2.
[42] Ibid 39.
[43] Ibid 34.
[44] Ibid 34–5.
[46] Despite some encouragement from the Bench: see Tracey, above n 1, 436.
[47] See (2004) 220 CLR 308, 322 [39] (McHugh J), 327 [57] (Gummow J).
[48] Ibid 334–6.
[49] Ibid 337 [90].
[50] Ibid 317–8 [27] (McHugh J), 334 [82] (Kirby J).
[51] And an offence that has come to be seen as a war crime. See Transcript of Proceedings, Re Aird (High Court of Australia, Kirby J, 3 March 2004).
[52] See Re Aird (2004) 220 CLR 308, 308–9, 314–16 (McHugh J), 357–8 (Callinan and Heydon JJ).
[53] Ibid 321 [36].
[54] Ibid 322 [37] (citing Tracey, 'The Constitution and Military Justice' – apparently the paper published in 2005 and referred to above n 1).
[55] Ibid 322 [38].
[56] Ibid 323–4 [40]–[44].
[57] Ibid 325 [49].
[58] Ibid 329–30 [65]–[68].
[59] Ibid 356 [156].
[60] Ibid 314 [9].
[61] Ibid 312-13 [5]–[6].
[62] Ibid 337 [89].
[63] Ibid 337 [90].
[64] Ibid 340 [98], 343 [109]–[110], 353–4 [142]–[147].
[65] Ibid 339–40 [96]–[100], 341 [104], 355 [152].
[66] Ibid 356 [158].
[67] Ibid 359 [163]–[164], and see Kirby J at 340 [98].
[68] Mitchell and Voon, 'Defence of the Indefensible?' above n 6, 499–500.
[69] As undertaken, over the course of eighteen pages of the Commonwealth Law Reports, by Brennan and Toohey JJ in Re Tracey [1989] HCA 12; 166 CLR 518, 554–571.
[70] See White [2007] HCA 29; (2007) 231 CLR 570, 579-80 [1]–[3].
[71] See ibid 580 [2].
[72] Ibid 630 [165].
[73] Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 583, discussed in White [2007] HCA 29; (2007) 231 CLR 570, 586–7 [17].
[74] Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 589; Re Nolan [1991] HCA 29; (1991) 172 CLR 460, 489, discussed in White [2007] HCA 29; (2007) 231 CLR 570, 587 [18].
[75] White [2007] HCA 29; (2007) 231 CLR 570, 587-9 [19]–[23].
[76] As seems to be acknowledged in the limited way in which Deane J framed his propositions in Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 592 and Re Nolan [1991] HCA 29; (1991) 172 CLR 460, 489.
[77] White [2007] HCA 29; (2007) 231 CLR 570, 601 [68]–[69].
[78] Ibid 601-2 [71]–[75].
[79] Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56; (1918) 25 CLR 434, 442 (Griffith CJ), 467–8 (Isaacs and Rich JJ).
[80] See eg R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254, 270 (Dixon CJ, McTiernan, Fullagar and Kitto JJ); Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 26–7 (Brennan, Deane and Dawson JJ), 66 (McHugh J).
[81] A view favoured by Brennan and Toohey JJ in Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 564 but rejected by Mason CJ, Wilson and Dawson JJ in that case (at 540) and by Gummow J (and semble Gleeson CJ) in Re Aird (2004) 220 CLR 308, 311 [2], 327 [60].
[82] [1989] HCA 12; (1989) 166 CLR 518, 540 (Mason CJ, Wilson and Dawson JJ), 572 (Brennan and Toohey JJ).
[83] See [2007] HCA 29; (2007) 231 CLR 570, 646 [234] (Callinan J).
[84] Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1, 27 (Brennan, Deane and Dawson JJ), citing Waterside Workers' Federation of Australia v J W Alexander [1918] HCA 56; (1918) 25 CLR 434, 444; R v Davison [1954] HCA 46; (1954) 90 CLR 353, 368, 383; and Polyukhovich v Commonwealth [1991] HCA 32; (1991) 172 CLR 501, 536–9, 608–10, 613–14, 632, 647, 685, 705–7, 721.
[85] See eg Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 536–7 (Mason CJ, Wilson and Dawson JJ).
[86] Cox [1945] HCA 18; (1945) 71 CLR 1, 23 (Dixon J).
[87] Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 534 (Mason CJ, Wilson and Dawson JJ), 553 (Brennan and Toohey JJ), Re Tyler [1994] HCA 25; (1994) 181 CLR 18, 24 (Mason CJ and Dawson J).
[88] Application was made in the original jurisdiction of the High Court for orders restraining either the referral of the charges to a defence force magistrate or the convening of a court martial: see White [2007] HCA 29; (2007) 231 CLR 570, 570, 591 [33].
[89] See White [2007] HCA 29; (2007) 231 CLR 570, 605-7 [91]–[95] (Kirby J).
[90] The amendments were effected by the Defence Legislation Amendment Act 2006 (Cth) and came into force on 1 October 2007.
[91] Senate Foreign Affairs, Defence and Trade References Committee, Parliament of Australia, The Effectiveness of Australia's Military Justice System (2005) ('Senate Committee Report').
[92] Ibid 102 [5.95].
[93] Discipline Act ss 188AA, 188AP.
[94] [1942] HCA 12; (1942) 66 CLR 452.
[95] [1942] HCA 12; (1942) 66 CLR 452, 468. Section 69 is referred to in the CLR report, but his Honour probably intended to refer to s 68.
[96] Ibid 481.
[97] [1945] HCA 18; (1945) 71 CLR 1.
[98] Ibid 14, 27.
[99] Ibid 23 (citations omitted, emphasis added).
[100] Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 539–40 (Mason CJ, Wilson and Dawson JJ), 565, 573 (Brennan and Toohey JJ), 581–3 (Deane J), 598 (Gaudron J); Vasiljkovic v Commonwealth [2006] HCA 40; (2006) 228 ALR 447, 476 [114] (Gummow and Hayne JJ); White [2007] HCA 29; (2007) 231 CLR 570, 585 [12]–[13] (Gleeson CJ), 502 [177] (Kirby J).
[101] Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 540–1 (emphasis added).
[102] Ibid 573 (citing Harrison Moore, The Constitution of the Commonwealth of Australia (2nd ed, 1910) 315–16).
[103] Ibid 573.
[104] Ibid 574.
[105] Ibid 573.
[106] Ibid 582–3 (citations omitted, emphasis added).
[107] Ibid 598.
[108] [2006] HCA 40; (2006) 227 CLR 614.
[109] Ibid 649 [114].
[110] White (2007) 231 CLR 571, 585 [12]–[13].
[111] Ibid 583 [7] (citing Official Record of the Debates of the Australasian Federal Convention, Melbourne, 10 March 1898, 2259 (Richard O'Connor)).
[112] White [2007] HCA 29; (2007) 231 CLR 570, 583 [8].
[113] Ibid 583–5 [9]–[13].
[114] Ibid 586 [14].
[115] Ibid 594–5 [44]–[49].
[116] Ibid 595–6 [50]–[52].
[117] Ibid 596–7 [51]–[55].
[118] Ibid 597–8 [57].
[119] Ibid 597–8 [57]–[58].
[120] [1954] HCA 46; (1954) 90 CLR 353, 380–2.
[121] And long acknowledged as such, including by Starke J in Bevan [1942] HCA 12; (1942) 66 CLR 452, 466.
[122] White [2007] HCA 29; (2007) 231 CLR 570, 632 [171].
[123] Ibid 621–5 [142].
[124] Ibid 616–18 [123]–[132].
[125] Ibid 621–5 [141]–[142].
[126] Ibid 648 [238].
[127] Ibid 650 [246].
[128] [1942] HCA 12; (1942) 66 CLR 452, 466.
[129] [2007] HCA 29; (2007) 231 CLR 570, 649 [240], [242].
[130] [1989] HCA 12; (1989) 166 CLR 518, 598.
[131] A-G (Vic) v Commonwealth [1935] HCA 31; (1935) 52 CLR 533, 567 (Starke J) ('Clothing Factory Case').
[132] See Gabriёl Moens and John Trone, Lumb and Moens' The Constitution of the Commonwealth of Australia (7th ed, 2007) 256; Margaret White, 'The Executive and the Military' [2005] UNSWLawJl 31; (2005) 28 University of New South Wales Law Journal 438, 442–4; P H Lane, Lane's Commentary on the Australian Constitution (2nd ed, 1997) 450; George Winterton, Parliament, the Executive and the Governor-General (1983) 23, 99–101.
[133] Official Record of the Debates of the Australasian Federal Convention, Melbourne, 10 March 1898, 2264 (Edmund Barton).
[134] See John Quick and Robert Garran, The Annotated Constitution of the Australian Commonwealth (1901) 713. The debate at the Convention suggests that there was controversy in at least one Colony as to whether the Governor could exercise power as Commander-in-Chief without ministerial advice. Despite that experience, an amendment that would have added an express reference to the Executive Council was negatived (Official Record of the Debates of the Australasian Federal Convention, Melbourne, 10 March 1898, 2249–64). It was during this debate that two future Justices of the High Court expressed an unwillingness to spell out matters of responsible government in the Constitution, for fear of what sophisticates at Westminster might think (at 2254 (Mr Barton), 2259 (Mr O'Connor)).
[135] Quick and Garran, above n 134, 713.
[136] J E Richardson, 'The Executive Power of the Commonwealth' in Leslie Zines (ed), Commentaries on the Australian Constitution (1977) 50, 72; Winterton, above n 132, 99 (citing Australian Constitutional Convention, 1978, Standing Committee 'D', Opinion prepared for Standing Committee D of the Australian Constitutional Convention, K W Ryan, [36]).
[137] Brown v West (1990) 169 CLR 195, 202 (Mason CJ, Brennan, Deane, Dawson and Toohey JJ).
[138] Winterton, above n 132, 99–100; Geoffrey Lindell, 'The Constitutional Authority to Deploy Australian Military Forces in the Coalition War Against Iraq' (2003) 5 Constitutional Law and Policy Review 46, 47, 49; Leslie Zines, The High Court and the Constitution (4th ed, 1997), 262–3, 269–70.
[139] Transcript of Proceedings, White (High Court of Australia, Mr Street, Gummow J, 6 February 2007).
[140] Bevan [1942] HCA 12; (1942) 66 CLR 452, 467–8.
[141] Tracey, above n 1, 428.
[142] Final Report of the Constitutional Commission (1988) 363 [5.242].
[143] Ibid 359 [5.226].
[144] Ibid.
[145] Australian Capital Television Pty Ltd v Commonwealth [1992] HCA 45; (1992) 177 CLR 106, 135 (Mason CJ).
[146] For example, Thomas v Mowbray [2007] HCA 33; (2007) 237 ALR 194, 206 [17] (Gleeson CJ), 218 [66]–[67] (Gummow and Crennan JJ), 356 [595] (Callinan J) (and see Heydon J at 371 [651]; also Hayne J (dissenting) at 319–20 [463]); Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45, 63–4 [31]–[32] (Gleeson CJ), 82–3 [82]–[85], 84–5 [88]–[89] (Gummow, Hayne and Crennan JJ), 141–6 [256]–[267] (Heydon J).
[147] In addition to R v Davison [1954] HCA 46; (1954) 90 CLR 353, 380–2, see Cominos v Cominos [1972] HCA 54; (1972) 127 CLR 588; R v Richards; Ex parte Fitzpatrick and Browne [1955] HCA 36; (1955) 92 CLR 157.
[148] See the acceptance noted in White [2007] HCA 29; (2007) 231 CLR 570, 593 [40] (Gummow J).
[149] But see Re Tracey [1989] HCA 12; (1989) 166 CLR 518, 592 (Deane J).
[150] Ibid 569–71 (emphasis added).
[151] Ibid 570.
[152] See eg White [2007] HCA 29; (2007) 231 CLR 570, 589 [21] (Gleeson CJ).
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