FRENCH CJ, GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
ABLE SEAMAN JOSEPH ANTHONY PETER HASKINS PLAINTIFF
AND
THE COMMONWEALTH OF AUSTRALIA DEFENDANT
Haskins v The Commonwealth [2011] HCA 28 10 August 2011 S8/2011
ORDER
1.Order that the questions stated in the special case be answered as follows:
Question 1: On its proper construction does the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) provide lawful authority justifying the detention of the plaintiff?
Answer: Yes.
Question 2: If the answer to question 1 is "yes", are items 3, 4 and 5 of Schedule 1 to the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) valid laws of the Commonwealth Parliament?
Answer: Yes.
2. The plaintiff pay the defendant's costs.
Representation
J G Renwick with D H Katter and A M Stewart for the plaintiff (instructed by Wyatt Attorneys)
S J Gageler SC, Solicitor-General of the Commonwealth with S J Free for the defendant (instructed by Australian Government Solicitor)
Intervener
R J Meadows QC, Solicitor-General for the State of Western Australia with A J Sefton intervening on behalf of the Attorney-General for the State of Western Australia (instructed by State Solicitor for Western Australia)
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Haskins v The Commonwealth
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment including detention by Australian Military Court ("AMC") established under Defence Force Discipline Act1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act constituted usurpation of judicial power – Whether provisions had prohibited features of bill of pains and penalties.
Constitutional law (Cth) – Powers of Commonwealth Parliament – Acquisition of property on just terms – Whether acquisition by Commonwealth of plaintiff's cause of action for false imprisonment.
Torts – False imprisonment – Liability of Commonwealth for acts of members of defence force – Detention of plaintiff a disciplinary measure applied by one member of defence force to another – Detention in obedience to command of superior – Command of superior lawful on its face – Whether action for false imprisonment destructive of military discipline – Whether action for false imprisonment available to plaintiff.
Words and phrases – "bill of pains and penalties", "false imprisonment", "military discipline", "usurpation of judicial power".
Constitution, ss 51(vi), 51(xxxi), Ch III. Defence Force Discipline Act 1982 (Cth), ss 3, 27, 68, 170, Pt VIIIA. Military Justice (Interim…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Haskins v The Commonwealth [2011] HCA 28
Case
[2011] HCA 28
Decision Date
CaseChat Overview and Summary
In *Haskins v The Commonwealth*, the High Court of Australia considered a special case brought by Joseph Anthony Peter Haskins, an Able Seaman in the Royal Australian Navy, who sought damages for false imprisonment. Mr. Haskins had been detained between 11 December 2008 and 5 January 2009, pursuant to sentences imposed by the Australian Military Court (AMC). The Commonwealth admitted that the legislation establishing the AMC was invalid, but relied on the retrospective operation of the *Military Justice (Interim Measures) Act (No 2) 2009* (Cth) to justify the detention. The central dispute concerned the validity of this interim measures legislation and whether it provided lawful authority for Mr. Haskins' detention, thereby precluding his claim for false imprisonment.
The High Court was required to determine two primary legal issues. First, whether the *Military Justice (Interim Measures) Act (No 2) 2009* provided lawful authority for the detention of the plaintiff. Second, if it did, whether the relevant provisions of that Act constituted valid laws of the Commonwealth Parliament. These questions necessitated an examination of whether the interim measures legislation usurped the judicial power of the Commonwealth, contrary to Chapter III of the Constitution, and whether it possessed the prohibited features of a bill of pains and penalties. Additionally, the Court considered whether the Commonwealth's acquisition of Mr. Haskins' cause of action for false imprisonment was on just terms, and whether an action for false imprisonment was available to a defence force member in these circumstances, given the potential impact on military discipline.
The Court reasoned that the *Military Justice (Interim Measures) Act (No 2) 2009* operated to declare the rights and liabilities of persons in Mr. Haskins' position as if the punishments imposed by the invalid AMC had been lawfully imposed by a general court-martial, subject to review. The Court found that this legislative intervention did not constitute a usurpation of judicial power, nor did it have the character of a bill of pains and penalties. Instead, it was a measure to regularise the consequences of past invalid judicial proceedings. The Court held that the Act provided lawful authority for the detention, and that the provisions were valid laws of the Commonwealth Parliament. Consequently, no action for false imprisonment lay against the Commonwealth, and the acquisition of Mr. Haskins' cause of action was not an acquisition of property for the purposes of s 51(xxxi) of the Constitution.
The High Court ordered that the questions stated in the special case be answered in the affirmative, confirming the lawfulness of the detention and the validity of the *Military Justice (Interim Measures) Act (No 2) 2009*. The plaintiff was ordered to pay the defendant's costs.
Orders
Orders of the court
1. Order that the questions stated in the special case be answered as follows:
Question 1: On its proper construction does the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) provide lawful authority justifying the detention of the plaintiff?
Answer: Yes.
Question 2: If the answer to question 1 is "yes", are items 3, 4 and 5 of Schedule 1 to the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) valid laws of the Commonwealth Parliament?
Answer: Yes.
2. The plaintiff pay the defendant's costs.
Background
Background to the litigation
This is an action seeking damages for false imprisonment. The plaintiff, Joseph Anthony Peter Haskins, is an Able Seaman in the Royal Australian Navy. He was detained from 11 December 2008 to 5 January 2009 under invalidly enacted legislation. The Commonwealth admits that the legislation was invalidly enacted, but relies on the "retroactive operation" of the Military Justice (Interim Measures) Act (No 2) 2009 (Cth), which commenced on 22 September 2009. The background It is characteristic of states governed by the rule of law that substantive laws are prospective, not retrospective. That is particularly so where the criminal law is concerned. The rule of law requires that people are not to be punished for conduct which was not unlawful at the time it was carried out. This case does not concern a retrospective substantive law. The crimes of which the plaintiff was convicted were known to the law at the time of the conduct alleged against him by reason of s 60 of the Financial Management and Accountability Act 1997 (Cth) and s 61(3) of the Defence Force Discipline Act 1982 (Cth). Instead this case concerns another type of retrospectivity. A free society under the rule of law seeks to control the use of force by conferring a monopoly of it on the state through a "social apparatus of compulsion and coercion"[69]. But coupled with that monopoly is an expectation. The expectation is that, at least in relation to the more extreme forms of force, such as the deprivation of liberty under coercion, the state will supply as part of the social apparatus a system of courts or tribunals in which the allegations against persons allegedly in breach of the law can be heard, relevant factual circumstances proved, relevant rules of law applied to them, and, if guilt is established, relevant criminal sanctions imposed. [69]Ludwig von Mises, Human Action: A Treatise on Economics, (1949) at 239. The plaintiff was subjected to deprivation of liberty under coercion and the threat of coercion. The plaintiff was detained in a cell in the Defence Force Corrective Establishment at Holsworthy in New South Wales. When not in that cell, he was obliged to participate in various training activities and in work. Section 54A(1)(g) of the Defence Force Discipline Act 1982 (Cth) made it an offence for the plaintiff to enter or leave his cell without lawful authority, and that offence was punishable by segregated confinement for a maximum of 10 days (s 54A(4)). The state had no legal warrant for treating the plaintiff in this way. That is because the "Australian Military Court" which imposed the relevant orders and sentences was held in Lane v Morrison[70] to carry out judicial functions although it was not a court, and hence contravene Ch III of the Constitution. It was also held to make decisions which were not amenable to intervention from within the chain of command, and hence not to operate validly in accordance with earlier authorities on the court martial system. It had no validity. It had no power to coerce the plaintiff in the way it did. The Commonwealth had failed to supply a court or tribunal in which the allegations against the plaintiff could be heard, the facts found, the rules of law applied and the sanctions imposed. [70](2009) 239 CLR 230; [2009] HCA 29.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ
HEYDON J
In the circumstances of this case, no action for false imprisonment lies against the Commonwealth. It follows that the Interim Measures No 2 Act acquired no property of the plaintiff. His second argument fails.Conclusion and orders The questions in the special case should both be answered "Yes". The plaintiff sought a special order for costs. He submitted that the question whether an action for false imprisonment will lie in the circumstances of this case is a novel question and for that reason he should have a protective order for costs. The Commonwealth submitted that no order should be made in favour of the plaintiff and submitted that costs should follow the event. No reason is shown to depart from that rule. The plaintiff must pay the Commonwealth's costs. This is an action seeking damages for false imprisonment. The plaintiff, Joseph Anthony Peter Haskins, is an Able Seaman in the Royal Australian Navy. He was detained from 11 December 2008 to 5 January 2009 under invalidly enacted legislation. The Commonwealth admits that the legislation was invalidly enacted, but relies on the "retroactive operation" of the Military Justice (Interim Measures) Act (No 2) 2009 (Cth), which commenced on 22 September 2009. The background It is characteristic of states governed by the rule of law that substantive laws are prospective, not retrospective. That is particularly so where the criminal law is concerned. The rule of law requires that people are not to be punished for conduct which was not unlawful at the time it was carried out. This case does not concern a retrospective substantive law. The crimes of which the plaintiff was convicted were known to the law at the time of the conduct alleged against him by reason of s 60 of the Financial Management and Accountability Act 1997 (Cth) and s 61(3) of the Defence Force Discipline Act 1982 (Cth). Instead this case concerns another type of retrospectivity. A free society under the rule of law seeks to control the use of force by conferring a monopoly of it on the state through a "social apparatus of compulsion and coercion"[69]. But coupled with that monopoly is an expectation. The expectation is that, at least in relation to the more extreme forms of force, such as the deprivation of liberty under coercion, the state will supply as part of the social apparatus a system of courts or tribunals in which the allegations against persons allegedly in breach of the law can be heard, relevant factual circumstances proved, relevant rules of law applied to them, and, if guilt is established, relevant criminal sanctions imposed. [69]Ludwig von Mises, Human Action: A Treatise on Economics, (1949) at 239. The plaintiff was subjected to deprivation of liberty under coercion and the threat of coercion. The plaintiff was detained in a cell in the Defence Force Corrective Establishment at Holsworthy in New South Wales. When not in that cell, he was obliged to participate in various training activities and in work. Section 54A(1)(g) of the Defence Force Discipline Act 1982 (Cth) made it an offence for the plaintiff to enter or leave his cell without lawful authority, and that offence was punishable by segregated confinement for a maximum of 10 days (s 54A(4)). The state had no legal warrant for treating the plaintiff in this way. That is because the "Australian Military Court" which imposed the relevant orders and sentences was held in Lane v Morrison[70] to carry out judicial functions although it was not a court, and hence contravene Ch III of the Constitution. It was also held to make decisions which were not amenable to intervention from within the chain of command, and hence not to operate validly in accordance with earlier authorities on the court martial system. It had no validity. It had no power to coerce the plaintiff in the way it did. The Commonwealth had failed to supply a court or tribunal in which the allegations against the plaintiff could be heard, the facts found, the rules of law applied and the sanctions imposed. [70](2009) 239 CLR 230; [2009] HCA 29.
Ratio Decidendi
Legal Principle Established
Established by:
FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ,
HEYDON J