Haskins v The Commonwealth of Australia; Nicholas v The Commonwealth of Australia & Anor [2011] HCATrans 77

[2011] HCATrans 77

[2011] HCATrans 077

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S8 of 2011

B e t w e e n -

ABLE SEAMAN JOSEPH ANTHONY PETER HASKINS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

Defendant

Office of the Registry
  Sydney  No S183 of 2010

B e t w e e n -

PAUL NICHOLAS

Plaintiff

and

THE COMMONWEALTH OF AUSTRALIA

First Defendant

THE CHIEF OF THE DEFENCE FORCE

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 29 MARCH 2011, AT 10.17 AM

Copyright in the High Court of Australia

__________________

MR J.G. RENWICK:   May it please the Court, I appear with my learned friends, MR D.H. KATTER and MR A.M. STEWART, for the plaintiff Haskins.  (instructed by Wyatt Attorneys)

MR B. LEVET:   May it please the Court, I appear with my learned friend, MS A.B. PETRIE, for the plaintiff Nicholas.  (instructed by Kinghan & Associates)

MR S.J. GAGELER, SC:   If the Court pleases, in the matter of Haskins I appear with MR S.J. FREE for the defendant and in the matter of Nicholas I appear with MR S.J. FREE for the first defendant.  (instructed by Australian Government Solicitor)

MR R.J. MEADOWS, QC, Solicitor‑General of the State of Western Australia:   May it please the Court, I appear with my learned friend, MR A.J. SEFTON, on behalf of the Attorney‑General for Western Australia intervening in the matter of Haskins in support of the Commonwealth.  (instructed by State Solicitor for Western Australia)

FRENCH CJ:   Yes, Dr Renwick.

.
MR RENWICK:   Can I indicate that I have spoken to Mr Levet and I intend, on the Chapter III point, to concentrate on detention and I anticipate adopting what Mr Levet says more generally about punishment.

FRENCH CJ:   Very well.

MR RENWICK:   Your Honours should have a three‑page outline.  May I just indicate that with the Court’s permission this is the order I would propose to follow:  firstly, to say something brief about what happened to the plaintiff; then to deal with the naval and military punishment of detention; then to deal with White and Lane v Morrison and then, of course, to move to the Act, which is challenged, the Military Justice (Interim Measures) Act (No 2) and the application of that Act to the facts of the case; then to deal with the Chapter III point, which is put in two ways, and then to deal with the just terms point and say something very brief indeed about relief, if that is convenient to the Court.

If your Honours have the special case book, there are three volumes of that and if your Honours also have to hand the Defence Force Discipline Act as it applied at the time of Lane v Morrison there are only a few provisions that I wish to take your Honours to and also our submissions.  This, of course, is a special case brought in the original jurisdiction of the Court.  In the large volume, volume 2 of the special case, the Court will see the special case itself of some 10 pages, I think, and I can take your Honours swiftly through the relevant facts. 

If your Honours go to page 1 of the special case, your Honours see that the plaintiff - paragraph 1 - is a member of the Royal Australian Navy, and therefore amenable to the jurisdiction of the Defence Force Discipline Act 1982 (Cth). Paragraph 4, he:

was charged with eleven charges as to misuse of a Defence Travel Card –

He pleaded not guilty.  He was convicted by the former Australian Military Court.  If your Honours go to page 15 – I should say I can deal with the facts really very briefly – if your Honours go to page 16, I should say, your Honours see the punishments imposed by the Australian Military Court and relevantly the punishments were to be served together.  In all but one case there was a punishment of detention, there was a maximum punishment of 42 days.  Seven days of that 42 days was suspended and may I say that suspension is of some small importance.

What then happened, if your Honours would go to page 26, is that the military judge issued a warrant of commitment.  Your Honours will note that our original submissions made something of the validity of the warrant.  We do not press that point.  Your Honours see, at about the middle of the page, that this was the document given to the escort and also given to the gaoler requiring the plaintiff to be detained:

as long as his detention is necessary for the execution of the said punishment.

If you go over a page to paragraph 28, you will see that there is a declaration of, effectively, military gaols. In this case, the declaration is in relation to the first item, DFCE, the Defence Force Correctional Establishment, at Holsworthy where the plaintiff was held. If I can return back to the special case itself, I need not read it, but paragraphs 10 to about 15, deal with the nature of the Defence Force Correctional Establishment and set out the relevant instructions which apply at that establishment. There is a great deal of material in the special case book relating to the nature of military detention and, in my submission – the Commonwealth may say something different – but in my submission, it comes down to this, and if your Honours turn to page 38 which is the defence instruction relating to Australian Defence Force detention centres, your Honours see in paragraph 2:

The purpose of detention in the ADF is intended:

a.        to deter members of the ADF from committing Service offences,

b.        to punish offenders, and

c.        to rehabilitate offenders –

We accept, of course, that there are those three mixed purposes.  There is only a couple of other references it may be convenient to take your Honours to now.  What did the plaintiff do while he was in military detention?  At pages 372 and 373, the weekly daily routine of a person such as the plaintiff is set out and we accept, of course, that those are useful activities for someone who is to be rehabilitated.  I need not take your Honours to it, but the detail is there.

At pages 380 and 381, there is a reference to the march‑in interview of the plaintiff setting out what he was to be told.  Your Honours might note at page 381, paragraph 6 where it says:

Explain to the detainee that they are still subject to military law and custodial punishments.

There is no doubt about that.  Pausing there, again I need not take your Honours to it, there is, in addition to the full suite of criminal and disciplinary offences in the Defence Force Discipline Act, a particular category of custodial offences which apply to people in military detention, and there is a separate category of punishments which apply.

FRENCH CJ:   There is a reference to there to remissions.  Is there some discretionary remission or some automatic remission?

MR RENWICK:   Yes, indeed.  There are remissions which were applied in this case by – I will just get the correct reference, it is regulation 24 of the Defence Force Discipline (Consequences of Punishment) Rules, I think.  I will just get that checked, but essentially there is a capacity to have remissions.  There is no attack on the remissions but your Honour the Chief Justice draws attention to the fact that in the case of this plaintiff there were in fact some remissions.  He got out a few days early.

Could I just continue on though with the special case book because there are only a couple of other references I want to take you to.  In a minute I will be reminding your Honours of the consequence of this Court’s decision in Lane v Morrison and the Interim Measures Act in response to it.  The essential point is this.  After Lane v Morrison the old court martial system was reinstated by the Interim Measures Act (No 1) and the question of punishments and administrative actions was dealt with by the Interim Measures Act (No 2), which as your Honours appreciate, is the subject of challenge here.

One of the points we make, your Honours, is that when Parliament reimposed the punishment, which is what they did and what they said they were doing, they did it with respect to a known and defined class.  That class is fully listed in the material from pages 418 to 425.  I just need to take you to a couple of instances to make some points and then I can put this volume away. 

FRENCH CJ:   Just before you do that, in relation to the No 2 Act, is it right to say – this is just my scanning of the amendment notes to the Defence Force Discipline Act - that it had no direct impact on the Defence Force.  All the amendments to the Defence Force Discipline Act were covered by No 1 and No 2 is, in a sense, freestanding?

MR RENWICK:   That is right – exactly, your Honour.  If your Honours turn to page 418, your Honours see in item No 1 the names of the individuals who have been removed.  But your Honours see under the heading “Findings/Punishments” six months civil imprisonment which the DFDAT, the Defence Force Discipline Appeals Tribunal, confirmed.  I mention that because that is the sole case of civil imprisonment in a gaol, as opposed to military detention, and the Commonwealth did not seek by the (Interim Measures) Act (No 2) to give that force, we would say, because it recognised that it could not do so. 

However, your Honours will see there are 21 cases of military detention of up to 120 days – and I mean detention which was not suspended, which was actually to be served.  Able Seaman Haskins is, in fact, item 21 and your Honours will see there – that is on page 419 – he is the second item of 8 December 2008.

The one other matter I wanted to take your Honours to is this, and it is important when coming to consider how it is that the Act works.  The Commonwealth says against us, “Look, this is just all hypothetical.  This is not actual punishment.”  That, with respect, is not entirely right.  It is not right at two levels.  Firstly, in relation to the plaintiff Haskins, your Honours recall I said that seven days of the punishment was suspended.  The way the Act works, and I will take you to it in a minute, is that that suspended sentence is not remitted by operation of law for one year.  As it applied in this case, that remission did not come to an end, as it happened, until the day after the (Interim Measures) Act (No 2) was passed.

So as of the date your Honours decided Lane v Morrison we would say that suspended sentence had disappeared.  It is then, we would say, reinstated - I appreciate it did not have to be served, but it was there, and the way the Defence Force Discipline Act works is if Able Seaman Haskins had reoffended within the 12 months, which he did not, then he could have been made liable to serve that extra seven days.  So that is the issue of suspension, but it is actual in relation to at least one person.

If your Honours go to page 423 to item No 62, your Honours will see that that is a gunner in the army who has been convicted, it seems, of assault and that conviction and punishment took place on 1 July 2009.  There were 84 days detention - my arithmetic, which is not very good, but I think it means it continues until after the date of the Interim Measures Act (No 2).

Now, it is an agreed fact that on the day your Honours decided Lane v Morrison anyone serving a sentence in the Defence Force correctional establishment was let out.  However, the effect of the Act is that, presumably, the gunner at item No 62 was, by force of the Interim Measures Act could have been required – or sorry, was required by operation of law to serve that extra period of time.  We do not know from the agreed facts what actually happened to gunner No 62, but I make mention of it to show that the operation of this Act is not purely hypothetical.

Returning then to the actual special case itself, I need not take you to any other portions, but simply to note that at paragraphs 26 to 32 there is a reference to the plaintiff’s detention and I have taken you to some of the items there.  At paragraphs 34 to 41 there is reference to Lane v Morrison.  At paragraphs 43 to the end, there are references to some historical documents, but interesting as they are, in my submission it all comes down to this.  There is that mixture of purpose for military detention.

BELL J:   The historical documents do cast light on the punishment of detention as distinct from the notion of the sentence for an offence under the general criminal law, showing, among other things, that the navy used detention in a particular way and for, I think, a period probably up to the 1982 Act - is that right ‑ ‑ ‑

MR RENWICK:   Exactly.

BELL J:   ‑ ‑ ‑ detention was available as summary punishment imposed by a commanding officer in line command. Is that the history?

MR RENWICK:   Yes.  But also by general court martial.  I am sorry to interrupt, but yes.

BELL J:   Yes, and when one turns, for example, to the 1969 report of the committee of inquiry into detention arrangements, which is in volume B at 653, one sees at paragraph 4.11 that by electing to deal with a person by detention “the Service had elected to retain the serviceman within” its jurisdiction.  So there are features of the punishment of detention within the context of military justice that may be significant.

MR RENWICK:   There is no doubt that military detention for a very long time has been used as an instrument of discipline, but, it does not, with respect, make it any the less false imprisonment if it is done without authority of law which is one of the points we would seek to develop in a minute.  The final point I should note, your Honours, is on pages 9 and 10 of the special case.  The two questions posed for your Honours are set out:

On its proper construction does the Military Justice (Interim Measures) Act No. 2) 2009 (Cth) Act provide lawful authority justifying the detention of the plaintiff.

If yes, are they valid laws and I will come to that in a minute.  That is effectively item No 1 on the plaintiff’s outline.  Justice Bell anticipated me in relation to the military punishment of detention which is the next point and may I come to it immediately.  If your Honours have the Defence Force Discipline Act, it did not change relevantly, it does not matter which version. If your Honours look at “Part IV – Punishments and Orders”. Can I quickly take your Honours through how Part IV works? There is a scale of punishments set out in section 68 which starts with:

(a)      imprisonment for life;

(b)      imprisonment for a specific period -

There was no imprisonment for life and the imprisonment for a specific period is not dealt with, as I have mentioned, by the Interim Measures Act.  There is then “dismissal”.  We accept that in the military hierarchy, dismissal is a more serious punishment than military detention because it proceeds on the basis that the person being punished can no longer serve, they are incapable of being rehabilitated.  Then there is:

(d)      detention for a period not exceeding 2 years -

If your Honours could turn to the Commonwealth materials – a single volume. Your Honour Justice Bell adverted to the Naval Discipline Act and if your Honours go to page 29 of the Commonwealth’s bundle your Honours will see a list which is, upon which in my submission, it is likely section 68 of the Defence Force Discipline Act was based. Obviously, death is no longer a punishment. That has been removed but the others are broadly similar. Your Honours will note, though, that in section 68, the only punishments which may be imposed are as there set out, whereas in section 52(11):

Such minor Punishments as are now inflicted according to the Custom of the Navy –

could also be imposed. We have set out in our reply – I need not take you to it – but it is paragraphs 7 to 14 that historically the articles of war which applied to the Navy had a provision which set out when there was capital punishment but said for everything else, punishment was according to the laws and customs used in such cases at sea and that obviously included very severe corporal punishment and section 68 obviously seeks to limit to those punishments listed and no others.

I do not need to refer further to the Commonwealth materials.  I can move swiftly through this part.  Section 70 deals with the sentencing principles and it includes the principles of sentencing applied by the civil courts from time to time.  Section 70(1)(a).  If your Honours have to hand our submissions in‑chief at paragraph 64 we have set out a quote from what this Court said in Veen v The Queen No 2.  The purposes of criminal punishment are various and they are set out but the important sentence, from our point of view, is the purposes overlap and none of them can be considered in isolation from the others in determining what is an appropriate sentence in a particular case.  Returning to section 70 there is, as one would expect, specific mention in subsection (1)(b) of:

the need to maintain discipline in the Defence Force.

Then at paragraph 78 there is a reference to the suspension of the sentence of detention and the suspension in this case was made under section 78(1).  78(3) says, in effect, when suspended it:

does not begin, and shall not be put into execution, while the suspension remains in force.

But section 80 - I talked about the new jeopardy for the plaintiff, Haskins - section 80(1) effectively says where you are “convicted of a service offence” and you are “already subject to a suspended punishment” then the punishment can be ordered to take effect.  Then in section 81(2) that is the provision which states, in effect, there is a statutory remission 12 months later.  I said a little earlier that the plaintiff’s statutory remission operated on 23 September.  That is incorrect.  In fact, it would have been on 10 December 2009, he having been punished on 10 December 2008.  I do not think I need to go any further to the Defence Force Discipline Act at this stage.

Can I just say something very brief about White’s Case?  I have now moved from paragraph 2 to paragraph 3.  Your Honours will note from the oral outline that it is admitted on the pleadings - which I can take your Honours to if you wish - the punishment was a deprivation of the plaintiff’s liberty without his consent.  That is admitted on the pleadings.  Your Honours, we accept as we must, because we are not seeking to overturn White or a long list of cases, that had the plaintiff been actually punished by a general court martial we could not have a constitutional complaint because White’s Case, at least, established that.  And, of course, as set out in Lim’ Case – I will come to White’s Case in a second – military justice is a recognised exception to the normal proposition that loss of liberty is - by Commonwealth law normally – is pursuant to an act of a court, recognised by Chapter III.

I wish to take your Honours though to a couple of passages in White (2007) 231 CLR 570 if I may. Relevantly, if I can take your Honours to the judgment of Justices Gummow, Hayne and Crennan at paragraph 53 on page 596 and there your Honours note what was said by the plurality in Tracey’s Case, and at paragraphs 53 and 54 there are the references to the 1866 Naval Discipline Act of the UK, operating as Justice Bell adverted, up until the Defence Force Discipline Act began to operate.  Surprising as it may seem, those were the rules which applied until 1981, so to that extent those provisions are relevant. 

But may I invite your Honours to turn back a couple of pages to paragraphs 37 and 38 of what your Honours there said because it is relevant to the way we put our case.  At paragraph 37, your Honours said:

the English constitutional system as it developed after the turmoil of the seventeenth century did not allow for a military caste with its own set of all-encompassing legal norms –

as was perhaps found elsewhere and at paragraph 38 your Honours say this -

the civil law of obligations does not cease to run merely because the obligations in question bind or confer rights upon a defence member.

There is reference to the capacity to bring proceedings in negligence against another service member, notwithstanding that they are both in the service.  Of course, we do not ask your Honours to make a final determination about whether we are entitled to succeed for the tort of false imprisonment.  This is very much the first step.  We are met, as a complete answer, to claim for a declaration of right and damages for false imprisonment by the (Interim Measures) Act (No 2) and we accept, as we must, that if that applies to us and it is valid we cannot succeed, and that the question of how that tort might work is, with respect, a matter for the trial court if the matter proceeds.

Then, if I may, your Honours, can I turn to – I am sorry, can I just say this.  I have already said we do not attack White, as we cannot, but there is plainly an adjustment of military and civil law which has been finely worked out, and I will come to what is said about that in Lane v Morrison in a minute.  The power of service tribunals, for example, to detain is an exception and a significant exception to Chapter III.  But we say that the courts have never held that you can move beyond an actual sentence of punishment by a general court martial to a hypothetical sentence.  That is the way the Act works, which I will come to in about five minutes.  That, we would say, would be a further intrusion into Chapter III and therefore impermissible.

GUMMOW J:   But section 5 of the (No 2) Act – thinking about your claim to false imprisonment, section 5, on one view of it, is an indemnity to the gaoler, is it not?

MR RENWICK:   Yes, and if the Commonwealth is precariously liable to the Commonwealth the Commonwealth also would be one of the people or persons referred to.

GUMMOW J:   Is there any history of provisions giving indemnities of this sort after, I suppose, the Boer War, or Crimean War or World War I?

MR RENWICK:   I am not aware of any.  Certainly acts of indemnity were discussed in Phillips v Eyre, that is the subject matter of the case, and we have said something about that in our submissions.  I think it is said in the Communist Party Case that one could imagine an act of indemnity being passed in relation, for example, to the destruction of property in wartime, but that might be because 51(vi), in wartime or immediately after wartime, has an unusually wide operation and impinges further into Chapter III.  But I am afraid the answer to your Honour Justice Gummow’s question is not that I am aware, but we will give it some consideration over the lunch break.

HAYNE J:   Right in that regard, look at the manual of military law 1941, alias “The Red Book”, particularly at page 5, footnotes 1 to 3.

MR RENWICK:   Thank you, your Honour, we shall do so.  I am coming to the Act, if I may, in about five minutes.  Can I just say something about Lane v Morrison 230 CLR 231, which I appreciate all members of the Bench were here for. May I just take your Honours to the plurality decision, particularly at page 266. Firstly, at paragraph 112, your Honours there refer to the “adjustment of military and civil law” and one of the things your Honours then go on to say in that paragraph, and in the two following paragraphs is, had the AMC been valid, there would have been a very different adjustment of military and civil law, namely, and I suppose, contrary to what was said in Tracey, you would have been able to plead autrefois acquit or autrefois convict, whereas that was the very provision which was struck down in Tracey, and your Honours were concerned enough about that to strike down the AMC as well.  So the point about these paragraphs as they apply to the plaintiff is that, as it happens, the plaintiff has been punished by an unconstitutional means, therefore he should not, we say, have been punished in that way.

I have already said that the defendant’s response to that decision was the reinstatement of the court martial system by the Interim Act (No 1) and then there is the Interim Act (No 2).  The Interim Act (No 2) evidently, as the explanatory memorandum says, relies on the important decision of R v Humby; Ex parte Rooney 129 CLR 231 which I appreciate I need to deal with and may I deal with it now.

Your Honours see from the headnotes that following the decision of this Court in Kotsis and in Knight there was a law passed which I accept is pretty much indistinguishable from the Interim Measures Act and there were various challenges to it.  The leading judgments are those of Justice Stephen and Justice Mason. At page 242, the relevant provisions are set out and, as I say, we accept the drafter, in this case, has faithfully tried to follow the format.  At page 243 in the first full paragraph, Sir Ninian Stephen explains what it is that the Act does and he says, if you drop down four lines:

It does not deem those decrees to have been made by a judge nor does it confer validity upon them; it leaves them, so far as their inherent quality is concerned, as they were before the passing of this Act.  They retain the character of having been made without jurisdiction . . . Instead, the sub-section operates by attaching to them, as acts in the law, consequences which it declares them to have always had and it describes those consequences by reference to –

what a single judge of a Supreme Court could do.

GUMMOW J:   You may get some support from Justice Mason at page 248.

MR RENWICK:   Yes, indeed, your Honour.  So just pausing there, I will come to Justice Mason immediately, your Honour.  What Sir Ninian is saying and what the Commonwealth has sought to do in this case is to leave the conviction and the punishment as ineffective acts in the law but take them as a factum and give a consequence to them.

GUMMOW J:   That is because the matrimonial causes power would include a divorce by statute.

MR RENWICK:   Yes, I accept that.  Your Honour ‑ ‑ ‑

GUMMOW J:   Just a minute.  So the question then is has there ever been a court martial system by force of statute, rather than through a chain of command established by a statute.  Do you see what I mean?

MR RENWICK:   Yes, and, in our submission, not that we are aware of and that is the problem.

GUMMOW J:   The question then becomes if that is right, whether this No 2 Act, section 5 is within the area of exception, if you like, carved out of Chapter III by the cases.

MR RENWICK:   I adopt that, indeed.

GUMMOW J:   A question that did not have to be raised in Humby because of the scope of the matrimonial causes power.

MR RENWICK:   Exactly, I accept that entirely, your Honour, and that is referred to at the bottom of page 243, where it was conceded by counsel what your Honour has just mentioned.

GUMMOW J:   I do not know what the answer is, but that seems to be the question.

MR RENWICK:   I will come to it in a minute, but the answer is, by this Act the Commonwealth seeks to make further in roads into Chapter III, and that is not permitted by this drafting technique.

KIEFEL J:   But do you say that the Commonwealth is unable to legislate with respect to the subject matter of courts martial?

MR RENWICK:   No, certainly not, we are not attacking White’ Case, nor could we.  What we are saying is you have to look at it at two levels, your Honour, in relation to Chapter III.  It is common ground, I think, between the parties that the Humby method of legislating will not permit a valid law which offends Chapter III, or an express or implied prohibition.  The question then becomes whether the Interim Measures Act is such a law offending Chapter III, and we say it is on two levels.  Firstly, we say it is an Act of pains and penalties, which a number of justices over the years have said, necessarily is usurpation - step 1.  Alternatively, and can I say, your Honour, we have tried to write this out in the oral outline, so what I have just said is under point 6, under the second paragraph, first, first, and d I will come to that, but the second point, in answer to your Honour’s question is where we say:

military justice is already a confined exception to Chapter III -

this would be an extension to that exception from an:

actual exercise of power by, service tribunals, including a General Court Marital –

which we can and must accept is within power to a hypothetical exercise as a way of using the factum and consequence method of legislation generally, but not in an unlimited way, approved by Humby.

KIEFEL J:   You say essentially that there would have had to have been a court martial in the first place to have the correct factum, is that right?

MR RENWICK:   Yes.  The way I am putting it is this:  you have already a very limited inroad into Chapter III with military justice in the first place.

KIEFEL J:   This is not within the exception?  I am just trying to characterise that a little further.

MR RENWICK:   It is not within the exceptions and this would be an extension of the notion of military justice from an actual exercise of that power to a hypothetical exercise.

KIEFEL J:   Yes, I see.

MR RENWICK:   That is why we say that offends Chapter III.

GUMMOW J:   But the Commonwealth, I think, then says, well, there is the review provision and that gets them across the line; across the line you have been drawing.

MR RENWICK:   Well, the answer is, with respect, it would not save it from being a bill of pains and penalties, and I will come to the legislation on that, but nor would it say that on the second point, that this is nevertheless an intrusion, even though a sentence of a court martial may need to be confirmed, it does not mean there is not a further inroad into Chapter III which by itself would make the Act invalid, but I take your Honour Justice Gummow’s point.

HAYNE J:   Is not that proposition one that has to take account of the fact that military discipline encompasses more than courts martial?

MR RENWICK:   You mean commanding officers and so on?

HAYNE J:   Just so.

MR RENWICK:   Yes, I accept that.

HAYNE J:   So that what you describe as the inroad to Chapter III is not confined to methods of inquiry of an adversarial nature.

MR RENWICK:   I accept that.

HAYNE J:   What sets apart confirmation by someone in the chain of command from the imposition of punishment by a superior officer, summarily?

MR RENWICK:   What is involved, as I say, is the inroad into Chapter III by the general court martial.  I have to accept, because it was held in Lane v Morrison that the fact that there could be a review within the chain of command is something which might have saved the Act in Lane v Morrison.  I must accept that.

HAYNE J:   But is it a necessary step in your argument to say that review by senior officer, presumably leading to confirmation of punishment somehow differs from imposition of punishment by senior officer in the fashion that has hitherto been common in the forces, including the imposition of punishment by way of detention, I think.

MR RENWICK:   Yes, your Honour is right, it does include that.  No, that is not part of my argument.

HAYNE J:   I know it is not.  Does it have to be, is the question, Dr Renwick.

MR RENWICK:   Yes, I understand that.  I am not seeking to avoid it in any way.

HAYNE J:   No.

MR RENWICK:   May I come back to that when I have looked at the Act and the cases on bills of pains and penalties.

HAYNE J:   Of course.

MR RENWICK:   My short point is that that does not save the Act from either of the infringements of Chapter III which we point out in our submissions.

FRENCH CJ:   Dr Renwick, assuming we are not talking about a bill of pains and penalties we are really talking about a limit on the scope of the defence power, are we not?

MR RENWICK:   Vis-à-vis Chapter III.

FRENCH CJ:   You are saying that the defence power does not extend to enable a law to be made which has the effective imposing liabilities on a class of persons directly.  There must be the intervention of some military justice system which either has historical antecedents or is otherwise recognisable as an extension or development of the historical system of military justice.

MR RENWICK:   Of course, I am limiting my submissions as to the particular punishment of detention.  There may be other issues about loss of pay and so on.

FRENCH CJ:   I appreciate that, yes.

MR RENWICK:   Yes, that is right, your Honour.  Can I just say something briefly about what Sir Anthony Mason said in Humby; Ex parte Rooney, and that is at page 250.  The first thing his Honour says, relying on Liyanage, is that usurpation of judicial power is –

a concept which is not susceptible of precise and comprehensive
definition –

and, of course, as we say in our submissions, the mere fact that this Act is different from Liyanage, as it obviously is is no more a complete answer than it was to say in Totani’s Case that the legislation was different from Kable.  Usurpation can have many forms, but as Sir Anthony makes clear, if there is an infringement of the provisions which Chapter III makes respecting federal judicial power, this drafting method will not extend so far.

Can I then go to the Act and I am sorry it has taken me so long to get to the Act.  I believe your Honours also have the second reading speech.  I am well aware of the limitations of second reading speeches, but may I just take your Honour – it is very short it is only a page – and it says in the third full paragraph:

The principal mechanism by which the Bill seeks to maintain the continuity of discipline within the ADF is by imposing disciplinary sanctions on persons corresponding to punishments imposed by the AMC . . . 

The Bill does not purport to validate any convictions or punishments imposed by the AMC.

We accept that –

Nor does the Bill purport to convict any person of any offence.

We accept that –

Rather, the Bill by its own force, purports to impose disciplinary sanctions.

That sentence the fact that it is imposing punishment in the form of disciplinary sanctions by its own force, we say it is relevant to determining whether it is an act of pains or penalties, because that is one of the distinctive things that an act of pains and penalties does.  So if your Honours have to hand the Act ‑ ‑ ‑

FRENCH CJ:   That is a necessary condition of that characterisation.

MR RENWICK:   That it imposes punishment?

FRENCH CJ:   Yes.

MR RENWICK:   Yes, indeed.  Can I just say on that the Commonwealth says it is a necessary condition that there be a finding of guilt.  We say that is not a necessary condition and there are a number of judgments of this Court which support that.  So your Honours have the schedule to the Act.  I do not need to take your Honours to anything in particular in Part I, except to note the High Court decision date obviously means there is a reference to Lane v Morrison.  Secondly, there is in item 2(1):

The main object of this Schedule is to maintain the continuity of discipline in the Defence Force.

I understand that is how the Commonwealth put it.  But just as was said in the Communist Party Case Parliament cannot definitively recite itself into power.  Your Honours have to construe it.  Item 2(2) is important.  It says:

The provisions of this Schedule that declare people to have particular rights or liabilities have effect for Defence Force service purposes only.

It is true, as the Commonwealth points out, that one effect of that sub‑provision is to ensure that someone convicted by the AMC need not disclose that conviction.  I understand that and the explanatory memorandum says that.  But it is not limited in that way and, indeed, by way of contrast if your Honours – this is probably the last time I will go back to the DFDA - can your Honours just look, if you would, at the Defence Force Discipline Act at section 131B, because this is something the Commonwealth puts against us on our construction of this provision?  It says - 131B, this is by summary authorities:

(1)If a person has been convicted by a summary authority of a service offence:

(a)the conviction has effect for service purposes only; and –

But nevertheless the drafter felt it necessary to go on and say –

(b)the person is not required to disclose to any person –

the fact that you are convicted.  The simple point I seek to make is that these words are capable of applying beyond the simple case of disclosure of convictions and one question for your Honours is whether, in a case where the sentence of punishment has been served, it is for Defence Force service purposes only to preclude someone like the plaintiff Haskins from bringing a case in a civil court against the Commonwealth.

Item 2(3) is a savings provision which essentially says that if there would be a single valid application in relation to one particular person, thing, matter, place, circumstance or case then it shall have that operation.  Obviously what we say is that it does not have that application in relation to, not just the plaintiff, but no doubt the 20 other persons who were detained by the AMC. 

The point about it is also though, that this method of drafting is a very compressed style and when it comes to characterising this law for just terms purposes, which I will come to in a minute, we say it is not so simple to say, well this is plainly within 51(vi) entirely, and if there is any acquisition, it is not a law with respect to the acquisition of property.  Item 3 deals with the reliance on or enforcement of declared rights.  That is essentially talking about, if you will, third persons and were they entitled to act on the basis that other persons had the rights and liabilities as declared by the applicable item, although, again, as your Honours will see in item 3(3), that is specifically limited, although of course the whole Act is limited, by sub‑item 2(2), and that brings us to item 4:

This Part applies to things purported done by the AMC . . . before the High Court decision date.

We are not dealing with something under Part IX.  Then in item 5(1):

This item applies if the AMC purported to:

(a)      impose a punishment, other than imprisonment as mentioned in paragraph 68(1)(a) or (b) –

There was only 68(1)(b), which was imprisonment for a term.  There was no imprisonment for life, which would have been 68(1)(a), and then, and I accept this, 5(2) follows the drafting very closely in Humby’s Case.

FRENCH CJ:   How does the concept of being convicted of an offence fit into all this?

MR RENWICK:   As we understand it, the way it is put is that there is no attempt to validate or do anything with the conviction at all.  As Sir Ninian Stephen says, it is an act which was an act in the law but ineffective.  So we know it is not something which has to be reported, the fact it was ineffective, but we would say the result of your Honours’ decision in Lane v Morrison is that there was an unconstitutional exercise of power.  There was no punishment, there was no conviction and we are entitled to proceed accordingly.

FRENCH CJ:   Is the concept of conviction, as it were, merged with the concept of the imposition of a punishment in military justice?

MR RENWICK:   I appreciate that can be so in civil justice, but certainly – and I appreciate again the limitation of second reading speeches – certainly the Minister did not think he was doing anything with respect to the convictions, and because it relates, I suppose, to someone’s reputation as well, one would expect Parliament to have said something specific about convictions, had it intended to, and it is silent. 

So perhaps to apply it to the facts of this case, and again if your Honours have to hand our outline at paragraph 5, so the way we see the Act working is that as at the High Court decision date, it was then known that the plaintiff had been made to suffer a punishment of detention which because of the Constitution he should not have suffered - step one, and if you like the latent invalidity of his detention thereby became patent or obvious, and we would say, as of 26 August 2009, we would have been entitled to a declaration of right, and because the loss of liberty is admitted, this Act could not be used against us to show the justification was lawful. If this Act is valid, though, it speaks both prospectively and retrospectively and says –

The rights and liabilities of all persons are –

This is 5(2) –

declared to be, and always to have been the same as if:

(a)the amended Defence Force Discipline Act –

that is with general court martial, is in force –

(b)the punishment or order had . . . been properly imposed or made at the punishment time . . . by a general court martial and –

(c), there had been a review which essentially left it unaffected, and (d) if the punishment is detention the general court martial had made an order in the same terms as the suspension order if it did.  We say then that means the rights and liabilities of all persons, and as I say, persons by operation of section 22 of the Acts Interpretation Act would include the Commonwealth, a body politic, that the rights and liabilities of the plaintiff as against his gaolers, and if it is vicariously liable, then it is a question for another day and another court, perhaps – the Commonwealth are completely answered by the lawful justification set up in this Act. 

HAYNE J:   That is, your argument as I understand it is that according to its terms, the Act would provide an answer and it would provide an answer regardless of item 2(2).

MR RENWICK: Not quite, your Honour. The point I was just about to come to is that, and as we set out in our submissions, one of the questions to ask – starting point, we were someone so punished, and item 5 would appear to have effect subject to the Constitution. However, one then goes to item 2(2) and says in relation to the plaintiff, is this an effect. That is to say, in relation to the plaintiff’s claims in this Court, is this an effect which goes beyond having effect for Defence Force service purposes only, and we say it is not.

We simply say that the purposes of Defence Force service discipline were spent when he served his punishment.  He served his punishment.  The one person who was in detention at the time your Honours decided the case was let out as a result of the punishment, and as far as we know, has not had to re‑serve it.  The only recourse the plaintiff has, under the common law, is the two remedies he is seeking here.  We simply say, and it is a very short point, that it extends beyond Defence Force service purposes only to seek to extinguish or impede that cause of action enforceable in the civil courts.

KIEFEL J:   Do you say that the Interim Measures Act (No 2) itself, newly and directly imposes a punishment?

MR RENWICK:   Yes. 

KIEFEL J:   Do you say that there is a difference in a critical feature in the Humby Case in that there, there was power to declare a person’s status directly by legislation?

MR RENWICK:   That is right.  I do say that.  This is where in relation to ‑ ‑ ‑

KIEFEL J:   Do you develop that in your submissions?

MR RENWICK:   Yes, certainly, your Honour.  The effect is both, as the Commonwealth would have it, hypothetical and real.  Do your Honours have our reply to hand.  Your Honours see in paragraph 6 what we essentially say about how Humby works.  It is in three steps.  The first point is, and I am quoting from Sir Ninian Stephen, at point 6(a), it:

Does not validate invalid acts -

his Honour is quite clear about that -

but ‘operates by attaching to [the invalid acts], as acts in the law, consequences which it declares them to have always had’ -

Your Honours have said in the past, this idea of factum and consequence is a permissible drafting technique providing, relevantly, it does not fall foul of Chapter III.

FRENCH CJ:   When one uses the language “invalid acts” that is really talking about the absence of legal significance attaching to those acts.

MR RENWICK:   Yes.

FRENCH CJ:   I mean, things were done so there are acts.

MR RENWICK:   Yes.

FRENCH CJ:   The legal significance of those acts has been found not to exist, as it were by virtue of Lane v Morrison and now this statute seeks to attach legal significance in place of that which was thought to exist.

MR RENWICK:   Yes, indeed.

KIEFEL J:   In paragraph 7 of your reply you go on to say that the ultimate question is whether the Commonwealth law imposing punishments of detention by a device of declaring it  - I wonder if that is, perhaps, unnecessarily complicating the matter.  Is the matter simpler?  It is whether or not the Commonwealth has the power to directly impose a punishment.  Is it as simple as that?

MR RENWICK:   As I say, we put it two ways under Chapter III and the first is, because it is a bill of pains and penalties, there is no power, we do say that.

GUMMOW J:   Yes, this goes back to the question, I think the Chief Justice was putting to you, paragraph 7 would be better expressed by saying that it is beyond the power in 51(vi).

MR RENWICK:   Yes.

GUMMOW J:   It is beyond the power of 51(vi) because 51(vi) is subject to Chapter III.

MR RENWICK:   I accept that, your Honour.  Just very briefly going back to paragraph 6 ‑ ‑ ‑

GUMMOW J:   The question is, to what degree is it subject to Chapter III?

MR RENWICK:   Yes, indeed.  When you are dealing with, what on any view is an important common law right, the most important common law right, that is the right not to be detained except according to law, and we have put in some references to why that is so important and quoted what your Honour the Chief Justice has said in a number of cases about how one construes Acts which deal with those fundamental common law rights, and those passages, with respect, are directly applicable when one comes to consider item 2(2).  Can I try and answer Justice Kiefel’s question, paragraph 6(b), Justice McHugh, with respect, helpfully, in Macks’ Case – which was a Humby application, but in relation to State laws, and I do not need to take you to it – helpfully says, with respect, that using the word “as if” is an‑

‘expression [which] always introduces a fiction or a hypothetical contrast.  It deems something to be what it is not or compares it with what it is not.

FRENCH CJ:   That is where a State law, in effect, erected a judgment in lieu of a judgment found to be ineffective by virtue of Re Wakim in the Federal Court.

MR RENWICK:   Exactly.  One difference between that situation and this situation is, as your Honours held in Macks, a judgment of a superior court of record has effect, unless and until set aside.  That could never be said about the former AMC.  The Act operates in a number of different ways.  It is real enough in its destruction of the plaintiff’s cause of action; it is not hypothetical in that sense, but the way it does that is it, both prospectively and retrospectively, says, let it be assumed, contrary to the fact, that you were punished by a general court martial. That being something, we know from White’s Case, could have been done.  It is real punishment in relation to the plaintiff, in my submission, in relation to the suspended sentence and because as at 26 August that suspended sentence which was hanging over his head disappeared but it was reinstated by this Act.  To that extent the punishment is real.

As it happened, he was not required to serve that because he was not brought before another service tribunal. Also, in relation to the person who was let out, but had 40 days or so to serve, the Act seems to say he would be required to serve that extra time; the punishment for him was real. In relation to the served punishment, I accept the punishment is, in a sense, hypothetical, although of course, one must be careful about that because this is a person who has been detained when, as I said, by reason of the Constitution, he should not have been detained, and the real question is, what happens to his cause of action as a result of this Act?

KIEFEL J:   A courts martial, I think it was said in White that courts martial are best seen as instruments of the Executive and legislation would therefore be in aid of the need of the Executive to command and enforce discipline, and you say that this legislation cannot have those characteristics.

MR RENWICK:   No, because in this case, as I say, on any view, military discipline’s purposes have been served, vis-à-vis, the plaintiff, because he served the punishment.

KIEFEL J:   Well, I suppose legislation cannot have those characteristics, it cannot affect it directly except via the part of the command that the legislation directs its aid to, if that makes sense.

MR RENWICK:   Yes.  So, your Honours, that is essentially what we say about how the Act works.  It is valid, and your Honours have our submission about item 2(2).  I simply note again, the Commonwealth did not even attempt to give effect to the one case of civil imprisonment.  We would say it could not have, and equally it cannot, in relation to military detention.

GUMMOW J:   Now, there is no challenge to your client’s standing, is there?

MR RENWICK:   I do not believe so, your Honour.

GUMMOW J:   I would not have thought so.

MR RENWICK:   It is not pleaded.

GUMMOW J:   I do not really understand why we are approaching this statute so closely to the focus of your client’s particular situation.  Is not the relevant material the schedules we had of how many people are involved and what the offences were and what the punishment was?

MR RENWICK:   Indeed.  At the wider level, of course your Honour is right, that because of item 3 there is a reading down provision and it is theoretically possible that your Honours could find something particularly significant about the punishment of detention, but not find something of constitutional significance in relation to other punishments, and if that is so, then we are dealing only with the group of 21, and of course, that is my client’s situation.

GUMMOW J:   Sorry, item 3 is a reading down provision?

MR RENWICK:   I am so sorry, is it item 2(3), I beg your pardon, your Honour, is the reading down provision, saying that if you can find a single valid application, you will do so.  So we would say, at a minimum, we would ask for a declaration that in relation to the plaintiff, and indeed the other persons detained, there was no valid application.

Can I then turn, your Honours, to the Chapter III and the usurpation point, which is obviously at the heart of our case?  Can I first say of course we accept that there is not a problem, simply because a law is ex post facto.  That is plain from at least Kidman’s Case that retrospective laws are permissible.  But there is a very special category of laws, which can be ex post facto, which are bills of pains and penalties.  If your Honours have to hand our submissions we seek to develop this point from paragraphs 67 through to 82. 

There is a difference between the Commonwealth and us about what a bill of pains and penalties is for Chapter III purposes, which I must deal with immediately.  The Commonwealth says, in its submissions, that an essential characteristic of a bill of pains and penalties is a finding of guilt.  We say while that may typically have been the format of a bill in pains and penalties it is not why, under the Australian Constitution, it would be a usurpation.  Can I take your Honours first to Polyukhovichv The Commonwealth 172 CLR 501. Your Honours see in the headnote at page ‑ ‑ ‑

GUMMOW J:   Before we get into this, why are we talking about pains and penalties?  We are talking about Chapter III?

MR RENWICK:   Yes.

GUMMOW J:   How do you introduce into Chapter III all this learning about pains and penalties?

MR RENWICK:   Because, as I will seek to demonstrate shortly, there are four or five statements by members of this Court that accepting we do not have the same provision as in the United States Constitution which, of course, we do not, nevertheless a bill of pains and penalties, which has certain features, was regarded by those justices as necessarily a usurpation ‑ ‑ ‑

GUMMOW J:   It is because it possesses the features.

MR RENWICK:   Yes, indeed, I accept that.

GUMMOW J:   But we have to know what the relevant features are and if it has those features Chapter III is engaged without putting any label.  Why do you search for the label before you search for the features?  If you find the features under our system, Chapter III bites.

MR RENWICK:   I accept all of that.

FRENCH CJ:   You say it is a species of the genus judicial power?

MR RENWICK:   Yes.

FRENCH CJ:   Then really the question is does this fall into the genus.

MR RENWICK:   Yes, and as I say the Commonwealth says no, what is vital is the statement of guilt.  We say that is not what it is about at all and there are only a couple of passages, your Honours – I can take you to them very quickly – in Polyukhovich.  But it does support our argument and I can do this very quickly.  At page 502 at about the middle of the page, it is said that there is no usurpation of judicial power.

HEYDON J:   Page 502?

MR RENWICK:   Page 502 in the headnote at just about point 2, the Chief Justice and Justices Dawson, Toohey and McHugh.  But, in the next point, “The separation of powers,” this is – I agree with Justice Gummow:

The separation of powers effected by the Constitution would invalidate a law which inflicted punishment upon specified persons without a judicial trial on the ground that it involved a usurpation –

I accept that, and that is the proposition that this case stands for, but it seems to be in dispute and I should simply take your Honours to a couple of passages.  At page 535, Sir Anthony Mason speaks about the United States learning, and it is true that at 535, point 6, he says:

The distinctive characteristic of a bill of attainder, marking it out from other ex post facto laws, is that it is a legislative enactment adjudging a specific person or specific persons guilty of an offence constituted by past conduct and imposing punishment –

That is, as we read it, Sir Anthony talking about the US position. Over the page at 536, he applies that to the Constitution in Australia. He makes the point at the beginning of the page that, of course, there is no similar provision in our Constitution. But he then says at about point 4 that:

The application of the doctrine depends upon the legislature adjudging the guilt of a specific individual or specific individuals or imposing punishment –

either the finding of guilt or the imposition of punishment:

If, for some reason, an ex post facto law did not amount to a bill of attainder, yet adjudged persons guilty of a crime or imposed punishment upon them, it could amount to trial by legislature and a usurpation –

Justice Toohey is to the same effect, in my submission, at page 686.  At 685 he refers to a definition of “Bills of attainder”.  At the bottom of the page:

legislative acts imposing punishment on a specified person or persons or a class of persons without the safeguards of a judicial trial –

Then his Honour says in the first full paragraph that contravenes Chapter III because it is:

an exercise of judicial power . . . The vice lies in the intrusion of the legislature into the judicial sphere –

Justice McHugh does say some things about acts of pains and penalties in Polyukhovich, but he refines those, with respect, in Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1, and at page 70 at about point 3 his Honour says:

Thus, a Bill of Attainder or a Bill of Pains and Penalties is a law (1) directed to an individual or a particular group of individuals (2) which punishes that individual or individuals (3)without the procedural safeguards involved in a judicial trial -

although there is –

No express prohibition . . .  it is a necessary implication . . .  that Parliament of the Commonwealth cannot enact such Bills –

and we rely on that.  Then, of course, your Honour Justice Heydon said very briefly in International Finance – I need not take your Honours to it – that “a legislative enactment which inflicts punishment without a judicial trial” would be a problem.

I have already made the point that the fact the punishments or defects are not identical to Liyanage, is not to the point.  That is what we say and we develop that a little but I would be repeating myself if I took you to the written submissions.

Can I just say something about Nicholas v The Queen, not Nicholas this plaintiff.  I anticipate that one of the points which will be put against us is that there was no more an identifiable class in this case than there was in Nicholas’ Case, but in my submission, that is not so, and it is not so for the reasons pointed out by Justice Toohey in 193 CLR 173. Your Honours recall this case came about because of this Court’s decision in Ridgeway. There was then a change to a law of evidence. We accept that changes to the law of evidence can be made consistently with the Constitution and this case so holds. Justice Toohey, at paragraph 57, page 203, says in the second sentence:

Just how many persons –

I interpolate the provision applies to –

cannot be known.  Even though the existence of controlled operations may be ascertainable, identifying the persons affected by a controlled operation is another matter.  There is nothing in the relevant provisions which singles out an individual . . . or which singles out a particular category of persons.

Of course, that is in clear contrast to this case where your Honours have the list, it is those people and no others.

If your Honours turn to the oral outline, I think I have probably said enough about, so what I have just dealt with there was the first way we say there is a Chapter III problem but, at the bottom of page 2 – and I will not read it out again – your Honours see there is a second way we put it and it is essentially that there is this military and civil balance which limits the intrusion by 51(vi) into Chapter III and what this Act would seek to do for the first time is to increase the intrusion into Chapter III and that is not permissible and, as we say, it would offend the principle preventing Parliament from doing indirectly what it is forbidden to do directly and we have set out some cases in that regard.

May I then turn to the final topic which is the issue of just terms, unless your Honours wish me to develop the Chapter III point any further.  I can take your Honours to what we have set out in our reply, some submissions about just terms.  I can really just, I think, refer your Honours to what I have said in the oral outline and it is this.

Firstly, there cannot be a serious dispute that there is property involved.  It is, on our hypothesis, a vested chose in action at common law.  We are not dealing with a statutory right to money from consolidated revenue which of its nature can be varied.  That is not this case.  Secondly, with respect, there cannot be much doubt that there is an acquisition of that chose in action.  It existed, with respect, at all times from the date of punishment, although until Lane v Morrison we did not realise it existed.  It certainly existed as at the date of Lane v Morrison and again, if the Interim Measures Act if valid, it will acquire it for the benefit, among other people of the Commonwealth and so that is the starting point.

The defendant says, well, that guarantee is inapplicable because you cannot characterise this law as one with respect to the acquisition of property.  It is really a law fundamentally about the continuation of discipline in the services and that is the beginning and the end of it and without taking your Honours to the detail of the cases which are set out in the submissions, we say – and there is not much doubt about this – of course laws often have more than one character for the purposes of section 51, but usually that is an irrelevance.

In this area, though it can be significant, and because what the cases say is that with 51(xxxi) it is not in terms a guarantee, it is in terms a head of power, but it abstracts from the other heads of power, power to acquire otherwise than on just terms in most cases.  There are, with respect, three broad categories of exception.  One is where the whole notion of just terms is inconsistent or incongruous, and taxation is an obvious one, so is bankruptcy, wartime forfeiture.  I have already mentioned it differs from case like Mutual Pools and Peverill because we are not dealing with a statutory entitlement which is conferred and which no doubt can be varied.  We are dealing with a common law cause of action which exists outside of statute.

GUMMOW J:   What do you say about paragraph 40 of the Commonwealth’s submissions?  They fix upon Airservices Australia 202 CLR 133.

MR RENWICK:   Sorry, are you referring to Mutual Pools, your Honour, or to ‑ ‑ ‑

GUMMOW J:   No.  Airservices Australia.

MR RENWICK:   Airservices, yes, I will just get that.

GUMMOW J:   You will remember there was a statutory lien on the aircraft to support the payment of charges.

MR RENWICK:   Really what we say about it is this, your Honour.  It goes back to me saying this is a law, firstly, which is very compressed in its language, and therefore it has a number of different characterisations.  Characterised in relation to the persons detained who have served those sentences, it is a law with respect to the acquisition of their property, even though for other purposes, and with respect to other persons, it may be a law with respect to the continuation of discipline.  It is really a very unusual statute in that regard.

We do not accept the assertion that this is something which is necessary to maintain continuity of discipline and your Honours have heard what we have said about that.  It is no more and Groves v The Commonwealth is the analogy in that case.  That was a case where it was argued that it would be contrary to discipline to allow one serviceman to sue another for negligent acts for which the Commonwealth could be vicariously liable, and the Court rejected that.

FRENCH CJ:   The reference?

MR RENWICK:   It is Groves v The Commonwealth 150 CLR at pages 133 to 134.  What the Court said there is the only problems there might be with duty is if the Commonwealth would not stand by and indemnify the individuals concerned.

BELL J:   This was in the context of the Voyager disaster, was it?

MR RENWICK:   I am just not sure that is right, your Honour.  No, I think if you look at page 113 it was an air force person.

BELL J:   I see, I am sorry.

MR RENWICK:   The ladder they were using to get on an aircraft collapsed.

BELL J:   I see.  This is rather different though, is it not?  When one looks at the purpose of the Interim Measures Act No 2 and one considers – your client is still a member of the services?

MR RENWICK:   That is correct, yes.

BELL J:   It might be thought that there are rather different considerations to those involving, in the case of the survivor of a catastrophe such as the Voyager disaster or the subject matter of Groves, the right of action against the Commonwealth, as distinct from whether or not one would say of your client, still a member of the service, that a purported action falls within item 2(2) in this Act.

MR RENWICK:   Really what I am trying to deal with is the notion it is necessarily part of discipline for this Act to apply in this way.  The Commonwealth said ‑ ‑ ‑

BELL J:   Yes, I understand that.

MR RENWICK:   ‑ ‑ ‑ would it not be a terrible thing if he could sue his gaoler for which the Commonwealth might be vicariously liable.  My answer to it by analogy with Groves is it is, with respect, no worse than saying you can sue another serviceman with whom you might be working, but who the Commonwealth needs to stand behind and indemnify when there is a negligent act in question.

BELL J:   But that is the difference, is it not?  One is concerned here with the suggested affectation of your client’s rights in the context of military discipline. 

MR RENWICK:   Yes.

BELL J:   That is against a background of him having been dealt with by a tribunal that was not constitutionally valid in relation to a purported breach of service discipline and being subsequently the subject of the second Interim Measures Act which operates or seeks to operate in item 5 to provide that the rights and liabilities of your client and the person who failed him are as if he had been dealt with under a system of military justice that exists outside Chapter III, indeed, historically had he been dealt with as he might have been by his commanding officer simply determining that he be detained for a period of 42 days, less the seven‑day suspension.

MR RENWICK:   I am not saying this is a particularly easy point, far from it, but what I am seeking to say by reference to cases like Groves and to what your Honours said in White’s Case is that servicemen and women do not lose their civil rights entirely.  They still have them and to take an extreme case if, contrary to this case, there had been mistreatment by the gaoler, apart from a disciplinary response, presumably the serviceman or woman could sue the gaoler for the trespass to the person.

BELL J:   But that would be a different point and would not trench on considerations of military justice in the way, on a view, this would.

MR RENWICK: The other way then I seek to put it, is that the purposes of military justice in the case of this plaintiff have been served because he has served his sentence. It has been entirely fulfilled in that regard but we know because of the Constitution he should not have had to serve it and, at the risk of repeating what I said earlier, in contrast to the person who was let out as a result of your decision, the only recourse he may have is to bring these proceedings. I accept it is a difficult point.

HAYNE J:   Your claim is a claim ultimately for compensation for the detention, on your case, being wrongful?

MR RENWICK:   Yes, your Honour.

HAYNE J:   The argument you advance appears to be, does it not, that the only solution available following the decision in Lane v Morrison was one, in effect, accept that the detentions that had been imposed were unlawful and compensate but then start the disciplinary process afresh and assumedly, if you got to the same answer impose a further 42 days detention upon the offender, his earlier detention having been unlawful and duly compensated.  Now, how does that sit with the maintenance of military discipline when somebody has done 42 days in Holsworthy or 35, if he or she has to front up again, be tried again, but this time by general court martial, offences found proved and what, punished afresh?

MR RENWICK:   No, your Honour, there are two answers to that.  The first is, of course, as a result of this Court’s decision in Tracey, he could always be prosecuted again in the civil courts for the exact offence with which he was punished in this case and because it is a Territory offence - misuse of a Commonwealth travel card - and that is an offence under the general law.  So in a sense that jeopardy always exists. 

The answer, in that case, as in your Honour’s hypothetical case, of course, lies in the sensible exercise of discretion by the prosecuting authorities and the fact that notwithstanding Barton’s Case, perhaps, one would say it would be quite improper for a prosecutor knowing that punishment has taken place, not the conviction, the punishment has been served to bring further proceedings in that case, as it would be improper, we would say, for the Commonwealth Director of Public Prosecutions to bring proceedings in the same way.  That is the best answer I can give on that.

To go back, if I may just briefly, to Justice Bell’s point, I mean, we look at it at two levels.  The first is, item 2(2), can it really be said it is for “Defence Force service purposes only” to take away the right in this way.  Secondly, if it was and we get to 51(xxxi), then nevertheless you can properly characterise this as we set out in our oral outline and the reply as a law with respect to the acquisition of property and there is no just terms.

GUMMOW J:   Well, perhaps we have to look at Groves again, 150.  At page 117, Chief Justice Gibbs set out what Justice Windeyer said in Parker and disagreed with it – to a degree his disagreed with it, but then at 119, about line 10:

The short answer . . . seems to me to be that there is no principle, and no reason of policy, that would exclude the operation of the ordinary rules of the common law of negligence simply because –

“Simply because” – those are important words, I think -

the plaintiff and the defendant both happen to be members of the armed forces and the act complained of occurred in the course of military –

et cetera.  I think what Justice Bell was putting to you is, I suspect, this is more than a “simply because”.

MR RENWICK:   The only answer I can give is that ‑ ‑ ‑

GUMMOW J:   If that were right, there would not be the action in tort, so you would not get to 51(xxxi).  That is what I am trying to put to you.  Another way of dealing with it is to say, well, this is the sort of case that is outside 51(xxxi) because of the nature of the defence power by parity of reasoning with Mutual Pools in 179 CLR at pages 169 and following where there is a reference to bankruptcy and State railways, all sorts of things.  Are those not the two areas of debate, which in a way reflect the same concerns?

MR RENWICK:   We say there are three ways around 51(xxxi).  One is if the notion is necessarily inconsistent or incongruent and we say this is not one of them and we say nor is it an adjustment of rights and liabilities.  What we have done in the oral outline is we have referred to the law in Georgiadis where your Honours recall that dealt with the rights of public servants to sue the Commonwealth for injuries and purported to take those away. 

The point of it was that the Court said had the law been expressed more generally so as not to apply just to Commonwealth employees, then it may well not have been a law characterised as with respect to the acquisition of property, but because it did confine itself to the Commonwealth, it was to be so construed, and really the best I can do, your Honour, is to offer that by way of an analogy and to say that this sort of law does not fall precisely within any one of the categories found to fall outside 51(xxxi) to date.

GUMMOW J:   But if one goes back to Sir Harry Gibbs in Groves at 119, the last sentence of that paragraph, I think, is quite weighted.

The question whether the position will be different if the injuries occurred during activities of a purely military character . . . may be left until it arises.

Is not all of this purely military character because of this military discipline system?

MR RENWICK:   All I can repeat is that we say the purposes of military discipline are spent when he has served the punishment and he is no more to be denied his rights in a civil court than others.

BELL J:   How are the purposes spent merely by having served the punishment?  Surely the purposes of military discipline are more extensive than that, and ‑ ‑ ‑

MR RENWICK:   In relation to the plaintiff.  I am not saying more generally, but the category of 21 who have served their sentences.

BELL J:   Yes, but the notion that the purposes of military discipline are entirely spent by the completion of a period of detention seems to me, at least, not to be self-evident.

MR RENWICK: We have someone who has been detained when he should not have been detained by operation of the Constitution. That is our starting point, and the question is whether it is necessarily part of Defence Force discipline that he be denied his capacity to prosecute these claims. That is the question.

BELL J:   His capacity to prosecute the claims with a view to obtaining compensation for that period of detention imposed by an unconstitutional tribunal.

MR RENWICK:   Exactly.

BELL J:   I am not sure that I understood your answer to Justice Hayne.  Was it to say in response to the practical question that his Honour posed that it would be an abuse of prosecutorial discretion within a military justice context to turn around and deal with the plaintiff by way of the imposition of a further valid term of 42 days?

MR RENWICK:   Yes.

BELL J:   And is the consequence of the argument that he has his right to compensation on your analysis and the right to effectively be immune from the imposition of the punishment by a validly constituted tribunal?

MR RENWICK:   Not the latter.

BELL J:   Not the latter?

MR RENWICK:   Not the latter.  I mean, there is a discretion involved in the prosecutor.  What I was attempting to say to Justice Hayne was that he is already, like any other person, convicted of a territory offence – that is, a general Commonwealth criminal law offence – in jeopardy, potentially, of being dealt with by the civil authorities.

BELL J:   Yes, and your point there was that one might reasonably expect the civil authorities would not – does that mean you did not answer Justice Hayne’s question, which was directed to the proposition, as I understood it ‑ ‑ ‑

MR RENWICK:   I do hope not.

BELL J:   ‑ ‑ ‑that he might, on this analysis, bring proceedings in respect of the unlawful detention, and be compensated for that, and then be dealt with by a validly constituted military tribunal that might reimpose a sentence of 42 days on him.  That is the way you would see it, is it?

MR RENWICK:   As a matter of power, that could be done.  It would be an extraordinary exercise of prosecutorial discretion, as it would be for the civil authorities.

BELL J:   Why would it be an extraordinary exercise in this context for the military authorities to not proceed in that way?

MR RENWICK:   Because he has already been punished and because damages are never a complete remedy for the loss of liberty.

BELL J:   Looking now at the question of maintenance of military discipline, though damages are not ever a complete remedy for loss of liberty, they mean something in practical terms.

MR RENWICK:   Certainly, yes.

BELL J:   One might think it inimical to military discipline for a person in your client’s situation, who remains a serving member of the services, to be effectively immune – that may be putting it high – but to have in his favour the exercise of the discretion not to reimpose the penalty, but to have the compensation that you say is his entitlement as a member of the community.

MR RENWICK:   I do not think I can add to what I said a minute ago, your Honour.  We say it is an important matter of principle that you should not be detained otherwise than by lawful authority.  That is the starting point and we have developed the argument.  Your Honours see the relief we seek.  Unless I can assist your Honours further, those are our submissions.

FRENCH CJ:   Thank you, Dr Renwick.  Yes, Mr Levet.  Mr Levet, do you have an outline of oral submissions?

MR LEVET:   No, no, I apologise for that, your Honour.  I am now very aware that there has been a change to the Rules and I do apologise.

FRENCH CJ:   Right.  Perhaps you can tell us where you are going then.

MR LEVET:   Thank you, your Honour.  Your Honour, I will start very briefly as my learned friend, Dr Renwick, started by looking at the effect of what has occurred in relation the plaintiff Nicholas.  His position is basically set out on page 15 of the special case book in relation to…..  He was tried before the AMC in respect of 11 charges under the Defence Force Discipline Act pleading not guilty to all of them. 

On 25 August 2008, he was convicted by the AMC of four offences and the AMC purported to impose punishments in respect of those four convictions.  Those punishments involved the reduction in rank from captain to lieutenant with a seniority date backdated to 1 January 2006, reparations to the Commonwealth.  In respect to the second charge, he was sentenced to a severe reprimand, ordered to pay reparations to the Commonwealth.  In relation to the fourth charge, he was sentenced to dismissal from the Defence Force with effect on 19 September 2008, and in respect of the sixth charge, he was again sentenced to dismissal from the Defence Force, effective on 19 September 2008. 

In practical terms, his punishments are different in nature in two respects.  Firstly he is no longer, on the face of it, a serving member of the Defence Force, unlike the plaintiff in Haskins, save and except for any relief that your Honours might give.  Secondly, his liberty quite clearly was not a matter that your Honours have to consider. 

Your Honours, following your Honours’ decision in Lane v Morrison, we say that it is clear that the Australian Military Court became a nullity.  At that point in time, we say that any convictions and any punishments imposed by the Australian Military Court also became, in practical terms, nullities, but potentially for the operation of the Interim Measures Act, the Interim Measures Act obviously being an Act designed to reinstate the punishments that were imposed by the Australian Military Court. 

My learned friend, Dr Renwick, has talked in terms of factum and consequence and, your Honour, the manner in which quite clearly the Australian Military Court is sought to have its punishments preserved is by taking, as a historical reference point, its findings and its punishments. We say that that is something that in practical terms amounts to a bill of pains and penalties and therefore ultimately is contrary to the provisions of Chapter III of the Constitution.

Your Honours, the first defendant, in its submissions, says that in the light of the provision for administrative review, it cannot be said that the legislature has in the manner of an act of pains or penalties, made a judgment of guilt in respect of certain individuals and imposed penalties upon them.  We say that that is precisely, in fact, what the Act attempts to do.  The first defendant’s submissions argue, at paragraph 26, that:

The Interim Measures Act does not purport to convict any person, declare any person’s guilt or otherwise determine any person’s guilt in respect of any offence.

Yet, your Honours, in adopting this factum and consequence dichotomy, we would say that they are, in practical terms, guilty of what in Liyanage was described by the Privy Council as amounting to be pith and substance of the Act as being an ex post facto legislative plan to secure the conviction of particular individuals.  The legislature, it is submitted, has in the Interim Measures Act, in practical terms, performed an adjudicative function in respect of the person or persons identified in the Act and substituted its judgment for that of a court.

We would say that certainly there is no situation, other than by virtue of the Interim Measures Act where, following Lane v Morrison, the findings of guilt stand or, alternatively, the punishments stand.  Your Honours, the defendants argue that the object of the Interim Measures Act is to maintain the continuity of discipline within the Defence Force.  We say that true it is, although on its face it is an Act which is designed to maintain the continuity of discipline in the Defence Force you nonetheless are not in a position to cloak an unlawful act, in this case an act of bill of pain or penalty, with constitutional legitimacy simply by reference to a section 51 purposive power. 

Your Honours, in our reply submissions at paragraph 2 we take the example of a reference to a hypothetical imposition by Parliament of an ex post facto penalty on a person by historical reference to that person having been convicted as an enemy combatant by an arguably unlawful military commission sitting at, say, Guantánamo Bay.  We say that an act to impose such a penalty would nonetheless be a bill of attainder or a bill of pain or penalty, as the case might be, simply because it could otherwise be attached to the defence or to the external affairs power. 

If one takes that further, if such a hypothetical Act sought to rely not only on the finding of guilt by an illegal military commission and sought to use the punishment purported to be imposed by it, we would say that also would be a bill of pain or penalty and would not be any the less so simply by reference to a purposive power.  It is our submission that there has been, in this case, a usurpation of the judicial power of the Commonwealth.  But for the artifice in this case of using the decision of the Australian Military Court as an historical reference point, in our respectful submission, there is no basis upon which any current punishment that has been imposed can continue to be imposed. 

Your Honours, if I could take you very briefly to the purposes of the Defence Force Discipline Act?  The Defence Force Discipline Act imposes a regime that is for the purpose of maintaining the discipline in the Defence Force.  The regime provides for the charging, the trial and, if convicted, the consequential punishment of accused persons.  Section 66(1) is relevant in that it provides:

Each punishment imposed, and each order made, by a service tribunal shall be imposed or made, as the case may be, in respect of a particular conviction and no other conviction.

There is a requirement inherent in the Act for a conviction and a conviction to the criminal standard.  It is submitted that this places the regime beyond the merely administrative and, indeed, if one notes the context of the Military Justice (Interim Measures) Act there is no conviction upon which to base the punishment which is sought to be maintained.  The conviction, we say, following Lane v Morrison is a nullity.  The conviction is not sought to be preserved by the legislation.  It is simply used as an historical reference point upon which to attach consequences involving punishment.

Your Honour Justice Hayne referred, when discussing things with my learned friend, Dr Renwick, to summary imposition of penalties by commanding officers and it is our respectful submission that a summary penalty imposed by a commanding officer is nonetheless a penalty imposed following a trial to the criminal standard under the Defence Force Discipline Act. 

The Act itself provides for service tribunals which include courts martial, both general and restricted under the current regime, but also provide for summary authorities.  Division 2 of the Act as it existed prior to the matter in Lane v Morrison provided for summary authorities under section 104, the appointment of summary authorities and for the jurisdiction of summary authorities, commanding officers, subordinate summary authorities, et cetera.  Provision is made for rules, summary authority rules for the hearing of a charge in the military context by a commanding officer or summary authority. 

In practical terms, your Honours, what one has is something very analogous to the dealing with something, on the one hand, by a local magistrate or, on the other, by a judge of a superior court with the commanding officer/summary authority taking the position of the magistrate.  True it is, he is not imposing a penalty pursuant to Chapter III, neither at any stage was it purported that he do so. 

However, in my respectful submission, your Honours, it could not be said that it was simply the administrative decision of a commanding officer to simply impose a penalty.  There was a provision contained within the Act for a trial process before the commanding officer and the Rules provided for representation of persons before commanding officers by other defence members and for the appointment of prosecutors.

FRENCH CJ:   The concept of conviction under the Act as it stood before Lane v Morrison, does that reflect any formal process beyond the finding of guilt by whoever the relevant tribunal is, be it summary or otherwise?

MR LEVET:   Your Honour, it involved a finding of guilt and a conviction.  Indeed, if I can take your Honour to section 66(1), section 66(1) relevantly provided that:

Each punishment imposed, and each order made, by a service tribunal shall be imposed or made, as the case may be, in respect of a particular conviction and no other conviction.

Your Honour, there is, in practical terms, a finding of guilt by a service tribunal, be that service tribunal a commanding officer, court martial, Australian Military Court, whatever, but there is a finding of guilt and the Defence Force Discipline Act by virtue of section 66(1) attaches to that finding of guilt the right to make or to impose a punishment ‑ ‑ ‑

FRENCH CJ:   I suppose what I am wondering is whether you can have a finding of guilt without a decision not to record a conviction which can happen, of course, in the civil courts.

MR LEVET:   No, your Honour, you cannot.  A finding of guilt amounts to a conviction.

FRENCH CJ:   Well, that is what I am wondering, whether in this context the two concepts are really one.

MR LEVET:   Yes, one and the same, yes.  There is a finding of guilt, your Honour, but you can have a conviction without punishment according to the scale of punishments.  That is the closest you can get. 

BELL J:   Is not the reason that up until the establishment of the AMC this system of justice stood outside Chapter III that it took place within the chain of command and if one looks historically at the finding of a court martial, following what might seem like a court-like process, the recording of its finding, whether characterised as a conviction or not and the punishment that it imposed, was subject to review in the line of command.

MR LEVET:   Yes, your Honour.

BELL J:   Accepting that, I have some difficulty understanding your response to the Commonwealth’s final point concerning the right of review in the Interim Measures Act.  You can say it is a right of review only in respect of punishment but ‑ ‑ ‑

MR LEVET:   Yes, it is a right of review only in respect of punishment and that is, your Honour, the first point that I would make under the previous regime that existed in respect to both service tribunals, including summary authorities and including courts martial.  There was a right of review that extended not only to punishment, but also to the finding of guilt and in respect of that, it was open to a reviewing officer to quash the conviction and indeed, under certain circumstances, he was mandated by statute to do so.  So there is a review ‑ ‑ ‑

BELL J:   There was never finality about the determination following the trial process as you put it, whether it be summary or at court martial, because it followed that the final determination was within chain of command.  Is that not historically the way it worked? 

MR LEVET:   Yes, your Honour.  But historically within the chain of command a review could only operate to the benefit of an accused person.  It could not operate as an appeal, as it were, as a Crown appeal.  It was only a thing that was applied for an accused’s benefit and there was a possibility for the accused benefit both in terms of the review of the punishment and the review of the actual finding of guilt and we say that is something that does not happen because quite simply there is an historical reference point and that historical reference point is the adjudication of guilt by a tribunal that your Honours have found to be unconstitutional.  Does that answer your Honour’s question?

BELL J:   It is the question of the significance of the finding of guilt in the context of military justice which I am taking up with you, Mr Levet. 

MR LEVET:   Your Honour, under the court martial system there is provision for an appointment to the court martial by a person referred to as a convening authority.  He has overall control, or did have, overall control prior to the current legislation, but under the legislation as it used to stand he had the control of the appointment of a court martial, the appointment of its members and he, in practical terms, was often the reviewing authority.  So, he, in practical terms, could look at what it had done and review it and he could quash a conviction.  He could quash a punishment.  He could substitute other punishments. 

In practical terms here, though, what occurs is something inherently different.  It is Parliament saying there is a historical reference point being a conviction by the Australian Military Court.  It is Parliament saying that we accept the finding of guilt in practical terms, although we are not specifically seeking to uphold a conviction.  It is Parliament saying that the historical reference point is both the finding of guilt and the imposition of a punishment.  What Parliament then does is say, okay, you cannot have your conviction reviewed, you cannot have your finding of guilt reviewed, but you can have your penalty reviewed. 

In practical terms, it is different, in my respectful submission, from a convening authority, who had himself convened a court martial who had ownership of the process to say to a person who is going to be appointed as a reviewing officer “Go on, Parliament has said that this is the punishment.  Parliament has said that this is the reference point.  You who did not have ownership of the process, you now can review and have the power to review the punishment”.  In my respectful submission, ultimately it is a very different thing, but I accept what your Honour says that there is a power to review a punishment.

HAYNE J:   Well, Mr Levet, under the old system one body, whether court martial or commanding officer, found the offence proved.  That body proposed the punishment.  It was open to the person upon who the punishment was to be imposed to go up the chain of command and command would then determine the punishment to be inflicted.  Is that right?

MR LEVET:   Command would determine both the punishment to be inflicted and also whether the finding of guilt stood.

HAYNE J:   Under the current system, under the No 2 Act, the offence has been found proved by a body.  The body has been found to have the constitutional infirmity identified in Lane v Morrison.  That body indicated the punishment that was to be imposed under the No 2 Act.  In some cases there must be, in other cases there may be - in your client’s case there may be.  Looking up the chain of command - and chain of command determines the punishment that is to be imposed - where lies the difference between the two systems?

The difference between the two systems is firstly, that in a court martial a service tribunal – which this Court has on many occasions has said may properly exercise an adjudicative function of guilt or innocence – has properly determined whether a person is guilty or not guilty of an offence, done so to the criminal standard.  Here, what we have quite simply is Parliament saying “You are guilty of an offence”.  They are not saying you are convicted of it, but there is an adjudication of guilt by Parliament using, as an historical reference point, an Act which would otherwise be a nullity, namely the purported exercise of a Chapter III judicial power by the Australian Military Court.  Does that answer your Honour’s question?

HAYNE J:   Well, as I understand it, the hinge about which your argument turns is that the No 2 Act provides for a parliamentary determination of guilt.

MR LEVET:   Yes, your Honour.  Your Honours, one point I would like to turn to very briefly because, your Honours, a question in relation to Phillips v Eyre came after we had filed our reply submissions.  In my respectful submission, Phillips v Eyre can be distinguished in a particular manner.  Phillips v Eyre involved, in practical terms, the giving of a right to somebody.  It involved Parliament regularising a situation by giving a right to an indemnity to a particular class of persons.  That is, in my respectful submission, very different from an Act which seeks to take away a right, that is, a right to not be found guilty of an offence under the Defence Force Discipline Act other than after a trial by a properly constituted tribunal.

Your Honours, to develop that point slightly, Phillips v Eyre is in fact analogous to a hypothetical Act which might seek to provide an indemnity to members of the Australian Military Court for having wrongfully exercised their functions.  That is all Phillips v Eyre did; it conferred a right.  We say here there is no right conferred, there is a judicial adjudication of guilt and that is completely different. 

Similarly, in Humby, we say, yes, there could have been a legislative determination of the issues relating to a marriage.  There could be a legislative annulment.  There could be a legislative dissolution of a marriage.  There is no constitutional impediment to that occurring.  But we say that cannot be a legislative adjudication of guilt because a legislative determination of guilt amounts in itself, we say, to a bill of attainder.

A punishment follows from that adjudication of guilt.  True it is, that punishment can be ameliorated by the chain of command, but it involves a conviction of wrongdoing and we say that section 66(1) of the DFDA quite clearly indicates that a finding of guilt results in a conviction and that is a conviction relating to wrongdoing.  That is, we say, one area where Parliament has trespassed. 

The other area, we say, that Parliament has trespassed is in relation to a finding by your Honours because one of the significant differences between this case and Humby is that Humby simply looked at a situation where Parliament was making certain declarations in relation to marriage.  Here, we say, that Parliament is making its declaration of guilt in the teeth of a finding by your Honours in Lane v Morrison. 

We say that your Honours in Lane v Morrison have specifically declared the Australian Military Court to be unconstitutional and that declaration of unconstitutionality, we say, is an additional factor whereby we say there is a trespassing on the Chapter III powers of a court.  We say there are two trespasses.  The first is the actual adjudication of guilt by the Act, or by Parliament.  The second, we say, is that it is immediately consequent upon and designed to remedy a finding by your Honours which had the effect of making those findings of guilt nullities.

GUMMOW J:   What would be the effect for your client if you were successful and he retained his rank of captain and membership of the force?  Does the process start again?

MR LEVET:   Well, your Honour there are, in fact, two possibilities – there are three possibilities.  One possibility is that he simply retains the rank of captain and is a member of the Defence Force.  We assume, for practical purposes that that is not something that the Defence Force would wish or is likely to countenance, but, your Honour, there are then two matters that are open to the Defence Force – or two avenues open to the Defence Force – which could have the effect of causing his separation from the Defence Force. 

One is the reinstitution of proceedings by a competent body, in this case, a general court martial.  Were he to be convicted under a subsequent court martial and were his punishments to include dismissal that would quite clearly be within the defence power of the Commonwealth and is something about which we could not cavil. 

Your Honour, the other thing that is open to the Defence Force is administrative separation.  Administrative separation is quite clearly distinguished from disciplinary separation.  It includes a number of grounds.  I think those grounds were canvassed by the Full Court of the Federal Court from memory, your Honour, in the case of Chief of the Defence Force v Shand, not included in my submissions, but it possibly is an answer to your Honour’s question where the Full Court of the Federal Court indicated that an administrative separation on the basis that retention was no longer in the interests of a service, a decision by a service chief, in other words, the chief of the army, navy or air force to terminate a member’s service on that ground was something behind which the Federal Court would not go, provided that the usual administrative decision‑making safeguards had been complied with.

So, again, there is the purely administrative means of separating him from the army as a personnel or human resource issue that can be achieved and with which we ultimately could not cavil.  But, your Honour, that administrative process set out in legislation and subordinate legislation has provision for – the provision to him of natural justice has the provision that he show cause why he should not be separated.  He has the power to bring evidence as to why that should not occur, but at the end of the day it is the service chief’s call and we would, again, concede that that is something open to a service chief.

CRENNAN J:   Does your argument that the Parliament is adjudging guilt depend on anything more than considering that item 5(2) deals with punishment and punishment infers a prior finding of guilt?  Does it depend on something more than that, or is it confined to that line of argument which I think you identified when you looked at section 66?

MR LEVET:   Yes.  Your Honour, without wishing to make light of it, if it looks like a duck, walks like a duck, quacks like a duck, it is one.  We say that quite simply that following Lane v Morrison the findings of the Australian Military Court against Mr Nicholas were a nullity, that the finding of guilt by the court against him was a nullity, that the conviction was a nullity to the extent that it is imposed by section 66(1), that the punishments were a nullity, and in practical terms, what the – and this is, in essence, the whole of our point, what the Interim Measures Act does, is it has an artifice whereby it says, well, on the one hand, we are not really maintaining the conviction.

The Act itself specifically does not purport to convict.  The Act itself specifically does not purport to make a finding of guilt.  It simply seeks to maintain the punishment, but those punishments were themselves originally based upon a finding of guilt by the Australian Military Court.  So the artifice is that you are – to use my learned friend, Dr Renwick’s term – you are adopting as a factum, the finding of guilt by the Australian Military Court and then imposing a consequence upon it.

We say that by adopting that historical reference point, being the finding of guilt, we say that Parliament is itself making that adjudication of guilt because without the Act the Australian Military Court’s adjudication of guilt was a nullity, had ceased to exist, had ceased to have consequences, but Parliament then takes a historical reference point of that finding and says we will imbue consequences upon it.

FRENCH CJ:   If the conviction was something separate from the finding then one could say, well, conviction is a nullity and always was.  I am not quite clear on what it means to say, and this is a question I put to Dr Renwick earlier, that findings of fact, that is to say that a person has done X and that X has contravened a legal rule Y, and it is therefore guilty of an offence, whether those findings of fact and law, what does it mean to say that are nullities?  I mean they are things that have been done by people said to constitute the AMC.  The consequence of Lane v Morrison was that no legal significance attached to them, and now the Parliament seeks, through this process, does it not, to attach a legal significance to those events, that is to say, the findings of fact and law?

MR LEVET:   Yes, it does, but, your Honour, in doing that, what it is really doing is it seeking to give some validity to that which this Court has declared to be invalid.  It seeks to give validity to the findings of fact made by the Australian Military Court.  It seeks to give validity to the convictions that are consequent automatically by statute on those findings of fact and then it seeks to visit consequences of punishment.  Your Honour, we say that the Commonwealth is certainly entitled under the defence power to provide for the discipline of the Defence Force.  That is not in issue.  However, we say that a member of the Defence Force is entitled to his or her trail by a properly constituted tribunal.

What this Act does is it takes a tribunal, which your Honours have found to be improperly constituted, and which your Honours have found to be unconstitutional, and it seeks to preserve its otherwise unconstitutional actions.  It seeks to preserve, in practical terms, its finding of guilt.  It seeks to preserve the convictions without specifically saying that that is what it is doing, but in practical terms, that is what it does.  Your Honours, we say in relation to that, that quite simply what is occurring is a usurpation of the judicial power that would otherwise be exercised by a properly constituted court martial.

Your Honour, there are certain things that might well be saved from the Australian Military Court.  That is something for another day, not here, but in practical terms, one might be able to preserve the evidence from it, in terms of its transcript, as a means of giving somebody an administrative notice to show cause as to why they should not be dealt with administratively.  There is probably no inherent objection to that, but in practical terms, its findings are findings that cannot exist independently, we say, of a properly constituted Tribunal.

They are findings that somebody is guilty of an offence.  Your Honour, specifically that is what is preserved or sought to be preserved by the legislation.  On the one hand, the legislation says we do not seek to preserve the conviction, do not seek to preserve the findings of guilt.  We simply seek, by reference to a historical point, to impose a penalty or to maintain the punishment imposed by that tribunal.  We say that is impermissible and it is Parliament basically adopting the findings of an invalid tribunal and importing them with a character of a different nature.

GUMMOW J:   Are you relying by analogy here with Antill Ranger in this Court in 93 CLR 83 and in the Privy Council 94 CLR 177? You remember section 92 struck down some of the transport legislation. Then the New South Wales Parliament purported to abrogate any causes of action that might have been otherwise in play by reason of acts done under the invalid Act and it was held that the subsequent Act itself contravened section 92.

MR LEVET:   We would say there would be some analogy to that.  Yes, your Honour.

GUMMOW J:   Is it referred to in the submissions?  I had an idea it is?

MR LEVET:   In ours?  No, your Honour.  In Dr Renwick’s submissions, your Honour.

GUMMOW J:   Yes.

MR LEVET:   Your Honour, our point is ultimately a fairly simple one and it is ultimately that following your Honours’ decision in Lane v Morrison the acts of the AMC are a nullity.  We simply say that in attempting to make them anything else that the legislature is making a legislative adjudication of guilt and that of itself we say amounts to a bill of pain or penalties.  We say that where you have a legislative adjudication of guilt that trespasses upon Chapter III and further we say that once you have that legislative adjudication of guilt that you do not have to go subsequently and show a legislatively imposed punishment. 

Here there is a legislative adoption of a punishment and then, as it were, a hand‑off to a reviewing authority to ameliorate the punishment should they choose to do so.  We say in practical terms the legislative adjudication of guilt by embracing as a historical reference point the finding of guilt by an otherwise invalid tribunal amounts to a bill of pain or penalty, and that what Mr Nicholas was entitled to was an adjudication of his guilt by a properly constituted tribunal.

HAYNE J:   Now, what do you mean by that phrase “by a properly constituted tribunal”?  I know you say Lane v Morrison decides that what was there was not ‑ ‑ ‑

MR LEVET:   Properly constituted, yes.

HAYNE J:   Yes, but what is a properly constituted tribunal in this branch of your argument?

MR LEVET:   Well, a service tribunal as defined by the Defence Force Discipline Act is currently – we would say that were his guilt adjudicated following a trial before either a summary authority – either subordinate summary authority, superior summary authority, general court martial or restricted court martial, we say that were that to occur that would be an adjudication as to his guilt or otherwise by a properly constituted tribunal, and that is what this legislation seeks to deny him.

HAYNE J:   It seems to me that the phrase “properly constituted tribunal” would include a Chapter III body but would not be limited to a Chapter III body, and history dictates that addition.

MR LEVET:   Yes, your Honour, I concur.

HAYNE J:   That is the addition in that understanding of what is a properly constituted tribunal that may present a difficulty in the analogy you would seek to draw with Antill Ranger.

MR LEVET:   Unless I can assist your Honours further.

FRENCH CJ:   Yes, thank you, Mr Levet.  Just before we rise, Mr Solicitor, could we have the benefit of your outline?

MR GAGELER:   I think your Honours have it.

FRENCH CJ:   Thank you.  We will adjourn then until 2.15.

AT 12.45 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

FRENCH CJ:   Yes, Mr Solicitor.

MR GAGELER:   Your Honours, there is in our written submissions in Nicholas at paragraph 15, at the top of page 4, a statement of principle that, in our submission, provides in itself a complete answer to the argument put orally to your Honours this morning for the plaintiff Nicholas, and it provides a framework for answering the arguments put orally to your Honours this morning for the plaintiff in Haskins.  The principle is that which emerges from Humby, and is confirmed by Macks, and it is put by Justice McHugh in Macks at paragraph 107, substantially in these terms:

Subject to the Constitution, it is within the legislative power of . . . the Commonwealth . . . to provide, by legislation, that the rights and liabilities of certain persons will be as declared by reference to the rights and liabilities as purportedly determined by an ineffective exercise of judicial power. “Subject to the Constitution” means –

one –

that there must be a relevant head of power under which the law is enacted –

two –

that the law must not offend Ch III –

and three, that –

the law must not offend . . . any express or implied prohibition in the Constitution.

Reference was made this morning to Antill Ranger.  Antill Ranger requires no modification of that statement of principle. It was a case that had nothing to do with Chapter III, and it was a case where the law, declaring the rights and liabilities, itself was held to offend the express prohibition in section 92 of the Constitution. Your Honours see that from the High Court judgment in 93 CLR 83 at page 101, point 3, and the Privy Council decision 94 CLR 177 at 180, point 9, put quite crisply in the Privy Council case, page 180 point 9:

The burden of his trade remains just what it was:  the freedom of his trade has been in the same degree impaired. 

It was a case of the remedial legislation breaching itself an express constitutional prohibition.  To tell your Honours ‑ ‑ ‑

GUMMOW J:   There is a constitutional prohibition here, is there not?

MR GAGELER:   In Chapter III?

GUMMOW J:   Yes.

MR GAGELER: I will come to that. Where I am going, your Honours, if I can tell your Honours exactly where I am going and then step through it, is that items 3, 4 and 5 of Interim Measures Act (No 2) in declaring rights and liabilities, by reference to rights and liabilities purportedly determined by the Australian Military Court, 1 validly enacted under section 51(vi) of the Constitution, 2 do not offend Chapter III and 3 do not offend the implied prohibition in section 51(xxxi). They are validly enacted under section 51(vi) because in their legal and practical operation they are appropriate and adapted. Indeed, they are narrowly tailored, to achieve the specific and limited defence object identified in item 2(1).

They do not offend Chapter III because the declaration of the rights and liabilities that are specified in item 5(2) and amplified in item 3(2) are for the limited purposes identified in item 2(2) and are subject to review under Part VII within the chain of military command.

GUMMOW J:   Does this expression “in Defence Force service provisions”, is that defined anywhere?

MR GAGELER:   No.  I will take your Honour in due course to an almost identical use of language in McWaters v Day where it is said that the Defence Force discipline regime itself exists for Defence Force discipline purposes only. It is really a restatement of the gist of the disciplinary regime itself, but your Honours, it is so qualified by item 2(2) and through item 5(4) by the mechanism for review in Part VII. The declaration of rights and liabilities, in our submission, involves no exercise of any power that is of its nature exclusively judicial, or in the manner of its exercise, is exclusively judicial. Those provisions do not offend the implied prohibition in section 51(xxxi), notwithstanding that incidentally they may operate to extinguish a cause of action that will have vested because they are not fairly characterised as being laws with respect to an acquisition of property. I will turn to all of those propositions in a moment, but all of them turn on an identification of the precise legal and practical operation of Interim Measures Act (No 2), and can I turn to that immediately?

The central provision, of course, is item 5(2) which must then be read with item 3(2) which is the declaration by force of this Act of rights and liabilities. The definition of “rights and liabilities” that you see in item 1, appropriately takes within those terms duties, obligations, interests and statuses. The way you get to item 5(2) is through item 4 and item 5(1) and when you trace through item 4 and item 5(1) what emerges is that the sole historical fact that triggers the declaration of rights and liabilities is that the Australian Military Court at some point in the 23 months of its purported existence – that is between 1 October 2007 and 26 August 2009 – in fact purported to impose a punishment under section 68C(2)(b) of the Defence Force Discipline Act, as it then existed or in fact purported to make a reparation order or a restitution order under section 83 or 84 of the Defence Force Discipline Act.

GUMMOW J: It would pick up section 75, would it not, as well? Is that not a Part IV order?

MR GAGELER: Yes, although it may be redundant to some extent but, yes, it would pick up section 75. No, it would not, your Honour. No, the Part IV order is limited.

GUMMOW J:   Where do we see that?

MR GAGELER:   It is defined in item 1 to mean “a restitution order or a reparation order”.

GUMMOW J:   I see.

MR GAGELER:   Your Honours, there are a number of points to note about ‑ ‑ ‑

GUMMOW J:   So, the conviction without punishment is left.

MR GAGELER:   Left in the sense that it is invalid and no rights or liabilities are declared by reference to that invalid action.

FRENCH CJ:   That comes back to a question I was asking before of what is the status of the concept of conviction under this legislation.

MR GAGELER:   Conviction is relevant only for – I will take your Honours to it immediately.  Your Honours should have the Defence Force Discipline Act as at 20 September 2008.  I hope your Honours have been supplied with a complete version of that.  To answer your Honour the Chief Justice’s question, if you turn to, I hope, page 177 you will see Division 2 of Part VIII which dealt with trial by the Australian Military Court.  There were two modes of trial for which provision was made.  One was in section 132B and the other was in section 132D and conviction in either case followed automatically from either a plea of guilty – you see that at section 132B(3) and 132D(3) – or a finding of guilt and you see that in section 132B(8) and 132D(8).

It was as a consequence of the conviction which followed automatically from either the plea of guilty or the finding of guilt that the duty in section 132F cut in requiring the taking of action under Part IV. All of that, given the nature of the charges able to be dealt with by the Military Court in the exercise of its jurisdiction, reportedly conferred by section 115, could only in respect of a person who was charged with a service offence, a service offence being able to be committed only by a defence member or a defence civilian. Now, how that translated then on the ground for the work of the Australian Military Court your Honours see from that table that you were taken to in the special case book at pages 418 to 425. Your Honours, if you were to add up the naval, army and air force convictions and punishments, would find a total of 105 and if you were to look in the columns that are headed “Plea”, you will see that all but 15 of those 105 convictions resulted from a plea of guilty.

FRENCH CJ:   I note that the concept of conviction also applies to trial by summary authority including by a commanding officer, and there were very similar provisions in relation to those.

MR GAGELER:   It is exactly the same.  Yes, at section 130, your Honours will see the same structure.

FRENCH CJ:   Yes.

MR GAGELER:   The only difference, and I cannot explain the difference, was that a summary authority you will see in section 130(1)(g), would find the charge proved.  The language employed for the Australian Military Court, and the language employed for courts martial, traditionally and currently, is a finding of guilt, that is the only difference.

Your Honours, the first point that we wanted to make about the historical fact that is seized upon to trigger the declaration of rights and liabilities in item 5(2) is that it was limited to circumstances where there had in fact been either a plea of guilty or in fact a finding of guilt on the part of a defence member and in respect of a service offence. The second point that we want to make is that under the Act, as it then existed, that is under Part IV, the imposition of punishment by the Australian Military Court was in every case governed by the sentencing principles that you will see in section 70, in particular, section 70(1)(b), and in every case, subject to the restrictions in section 71, in particular, relevantly, to the plaintiff Haskins, section 71(3).

The effect of section 71(3) is that a person could only be detained if the person was to remain a member of the Defence Force. The whole purpose of detention being to attempt to make that person a better soldier or member of another service. The third point that we wanted to make about the historical fact is that the consequences of the imposition of the punishment were governed – your Honours might note in passing – in some cases by section 68(2) and by rules made under that subsection. The rules your Honours have but they are largely mechanical and they were governed in every case by Part X.

If your Honours turn to Part X - that is at page 228 of the print. By section 171(1) the punishment or order took effect forthwith, subject to some currently immaterial qualifications, and in the case of a punishment of detention under section 68(1)(d) the detainee, if not required automatically simply by virtue of the pronouncement of the punishment and section 171(1) itself, was at least permitted by section 170 by the mechanism of a warrant of commitment to be conveyed to and then detained in a detention centre. A detention centre or the term “detention centre” being defined in section 3 at page 5 to mean:

a place, not being a prison, that is operated by the Defence Force as a place for the detention of persons on whom punishments of detention have been imposed.

Then the final point to make, but it is the critical one, is that the execution and enforcement of those orders had consequences necessarily for the rights and liabilities, duties and obligations of myriad persons within the Defence Force structure.  Under the Defence Force Discipline Act itself, under the Defence Act, under regulations made under both of those Acts and by virtue of instruments and orders made within the hierarchy of military command.  Your Honours see that in the materials – I will not go through this exhaustively – but your Honours will see that in the materials that are before the Court in these places, in respect of detention centres, that the operation of detention centres was governed as a matter of law by Part XA of the Defence Force Discipline Act and by regulations made under section 178D(b) of the Act.

Your Honours, I think, have the Defence Force discipline regulations in their correct form.  Your Honours will note regulation 6 in particular imposed certain duties on the officer in charge of a detention centre.  Sub‑regulation (1) is significant, sub-regulation (2)(b) and sub-regulation (3)(c) should all be noted, as should regulation 17(1) and 18(1).  The operation of a detention centre was then governed as a matter of administration by some Defence instructions, issued under section 9A of the Defence Act.  Your Honours will see the relevant instructions at pages 36 to 43 of the special case book, where again in familiar terms, your Honours see at the top of page 38 an explanation of the purposes of detention and then responsibilities cast upon a variety of officers by the provisions that follow.

There was also the Discipline Law Manual that your Honours will see at pages 58 to 63 again imposing responsibilities on a variety of persons.  There were operating procedures that you then see at pages 67 through to 252.  Within that, in particular, your Honours might note at page 89 at paragraph 1.1 dealing with the nature of detention.  At pages 90 to 91, then a further explanation of that point at paragraphs 1.6 through to 1.8.  Then at pages 115 through to 118 a description of command responsibilities, which, as you would expect, include by paragraph 3.13c, when necessary the use of force by staff members.  Then at pages 207 through to 214, your Honours will see consequences in terms of corrective training, which could include, by paragraph 7.19, the “Use of Segregated Confinement”, and by paragraph 7.22 and following, the “Use of Restraints”.  There is also, relevant to the particular position of the plaintiff Haskins, in the same volume at page 358 through to 376, an extract from the relevant standing orders of the particular detention centre at which he was detained and that very much gives further flesh to the bones your Honours have already been taken to.

CRENNAN J:   Is this all directed to policy considerations in relation to discipline and morale and your argument under item 2(1) which I understand emphasises the continuity of discipline?

MR GAGELER:   Yes, it is directed to two things, your Honour.  One is to emphasise that what had occurred in fact in respect of persons detained in a detention centre, was essentially corrective and disciplinary in nature, is what had occurred, and the second point is to emphasise that the duties, rights, status and responsibilities of many persons other than the person the subject of the punishment, were affected by the AMC’s order, and it is to the totality of that situation that the rights and liabilities then declared by item 5(2) and item 3(2) are directed and there are, in this respect, two features of those rights and liabilities as so declared that I want to emphasise, and two important qualifications.

The first feature, if your Honours look to the structure of item 5(2) is that there is, in form and intent, a scrupulous adherence to the model of Humby and Macks.  There is no attempt to alter the legal status of an invalid punishment or order, much less an attempt to alter the legal status of an invalid conviction.  Your Honours, it appears to us that within the scheme of the Act as it previously stood, indeed within the scheme of the Act as it currently stands, apart from being a formal step between a finding of guilt or a plea of guilty and the imposition of a punishment, a conviction had only two consequences.  One is, it could be taken into account in sentencing a person for a subsequent offence that is under section 70(2)(d) and it was required to be the subject of a record made under regulation 47 of the Defence Force Discipline Regulations.

Those were the only consequences of a sentence, and the making of the record being, it seems, for no purpose other than so that it could be taken into account in subsequent sentencing, and, there is no attempt in this legislation to give an invalid conviction of those consequences, and you can see from the Director of Military Prosecutions’ letter at page 416 covering the table of affected persons that your Honours have already been taken to that as a matter of administration those invalid convictions are treated as remaining invalid and as having no consequences, either for section 70(2)(d) of the Act, or for regulation 47 of the Defence Force Discipline Regulations.

The second feature of the rights and liabilities as declared by item 5(2), read with item 3(2), is that they do not go beyond the rights and liabilities, duties and obligations that would have existed had the punishments and orders of the Australian Military Court been valid in the first place.  The drafting technique is the same drafting technique as was used in Humby and Macks, and it is nothing more than a convenient shorthand way of letting everybody know exactly where they stand.  When you work through item 5(2) with the current version of the Defence Force Discipline Act in hand, what you hypothesise by paragraph (b) is a punishment of detention imposed “by a general court martial” under section 68 of the Defence Force Discipline Act in its current form.  That would be something that the court marital would do under section 132(1)(g).  You would then hypothesise by paragraph (c)(i), “a competent reviewing authority” conducting a review under section 154(4) of the Act.  You would hypothesise then by paragraph (c)(ii), a decision being made “not to quash or revoke” under section 162(2), and you would hypothesise then by virtue of paragraph (c)(iii), the situation where “any possibility of further review” was exhausted.

By doing all that, you get to the same result as if the punishment or order made by a service tribunal under section 68 or 83 or 84 had been made, had taken effect forthwith under section 171(1), and in the case of detention had resulted or at least allowed conveyance to and detention in a detention centre. What is being declared – quite fundamentally from the Chapter III point – is nothing more than the regularisation of irregular acts, or at least arguably irregular acts that had occurred in the past.

GUMMOW J:   What do you mean by regularisation, Mr Solicitor.

MR GAGELER:   I will deal with that, particularly in the Chapter III context, your Honour.

FRENCH CJ:   Can I just ask – I know that item 3(2) is of general application, but what does it add to item 5(2), given that that is applicable to all persons?

MR GAGELER:   You would read that into item 5(2), in any event.

FRENCH CJ:   Yes, but what does it add to it?

MR GAGELER:   It is really for the avoidance of doubt.  It is, I think, a reproduction of a provision along similar lines in Humby, and having read the judgment in Humby it did not seem that the two provisions were treated as doing any particularly different work, rather reinforcing the same point.  Your Honours, the first of the two qualifications that I wanted to emphasise is that which you find in item 2(2), which is important but it is not as extreme as has been put to your Honours on behalf of the plaintiff in Haskins.  If your Honours have McWaters v Day 168 CLR 289 to hand, what you get from page 297 is this - in the paragraph that begins at about point 7 of the page with reference to Tracey, it is said:

The judgments in that case demonstrate that the purpose of the Discipline Act is to create a disciplinary code for the promotion of the efficiency, good order and discipline of the defence forces and no more.

Item 2(2) is doing no more than to give emphasis to the same limited purpose underlying the Interim Measures Act (No 2) and to say that rights and liabilities have effect for Defence Service purposes only does not mean that within their area of operation they do not affect the legal relations of the persons who are bound by them. 

CRENNAN J:   They are the same considerations, I think, mentioned by Justice Windeyer in Parker’s Case.

MR GAGELER:   Yes.  So what is being said is no more and no less than that the Interim Measures Act is intended to have the same substantive operation and no more than the Defence Force discipline regime had before the AMC era, during the AMC era, and now has after the AMC era.  The qualification then introduced by item 5(4) is of some significance, particularly in the Chapter III context.  Item 5(4) makes the rights and liabilities declared subject to the outcome of the review provided by Part 7.  Part 7 includes, relevantly, item 24 and item 25.  Item 24(3) spells out that a –

review may modify or affect a punishment or Part IV order that is declared by –

item 5(2) alone or in combination with item 3(2).  Your Honours will then see that what item 24 does in paragraph (1) and paragraph (2) is to make Part VIIIA of the Act, as currently amended, applicable to a review of a punishment as declared by those relevant items.  It is to apply, it is said, “as nearly as possible”.  They are the bracketed words in item 24(2).  There is then provision for the making of an application for review under item 25(2) in every case and there is, in a case of detention, a requirement for automatic review under item 25(4). 

When you go to the provisions of Part VIIIA of the Act in its current form and necessarily reading them as required by item 24(2) to now be applicable to a review of a punishment, section 153(1) allowed for the lodging of a petition for review, with a competent reviewing authority.  Subsection (4) then required a review of the proceedings and relevant to punishment your Honours will see section 162 allows for the review to quash the punishment or revoke the order in circumstances where it is found to be wrong in law or excessive, the review encompassing the totality of the proceedings and, in addition, relevant to the position of the plaintiff Nicholas, but not the plaintiff Haskins, your Honours should also turn to section 167 ‑ ‑ ‑

FRENCH CJ:   At what stage are we looking at the Act because I think 167 has been amended by the No 1 Interim Measures Act?

MR GAGELER:   Your Honours should now be looking at the version as at 7 July 2010 and at page 220 you will see Division 5 of Part VIIIA.  Section 167 applies to:

a review of a punishment specified in section 172 –

You will see that at page 231. Section 172, except in the case of a summary authority did not include detention, but it does include dismissal. So that is the kind of review picked up in section 167 and your Honours see section 169(1) provides that:

Where in a review the reviewing authority does not approve a punishment or an order, the reviewing authority shall quash the punishment or revoke the order, as the case may be.

So in the case of the section 172 orders, which relevantly include the order for dismissal in the Nicholas Case, there is the complete unqualified authority in section 169 to approve, or not approve, as the case may be and in the case of detention there is section 162 which allows quashing in circumstances of error of law in the proceedings or excessiveness found in punishment.

GUMMOW J:   Now, does the 2010 reprint we have still engage the Defence Force Discipline Appeals statute?  One gets into the Federal Court from the Defence Force Discipline Appeal Tribunal ‑ ‑ ‑

MR GAGELER:   I think the answer is yes, but ‑ ‑ ‑

GUMMOW J:   One gets into that Tribunal under the Defence Force Act, does it not?

MR GAGELER:   I think it does, your Honour.  I will get a precise answer to that.  Your Honours, could I then go to the defence power before I get to Chapter III and in dealing with the defence power could I take your Honours to two cases.  One is to Werrin 59 CLR 150 and the other is to Nelungaloo.  I go to Werrin first.  It is on the defence power case, but it is picked up in Nelungaloo. 

Werrin is a case where there was a challenge to the validity of a provision of the Sales Tax Procedure Act 1934. The provision was section 12A. Its operation was to bar recovery of money that had in fact been paid and collected as sales tax on second‑hand goods, it having been held in Ellis & Clark – that is mentioned in the headnote – that second‑hand goods were not dutiable.  Three members of the Court addressed the validity of section 12A - Justices Rich, Starke and Dixon.  Justice Rich at page 161 said this, in the middle of the page:

As to the validity of the section, I should have thought it was clearly within the competence of the Federal Parliament to say that a sum of money erroneously collected under a tax Act by administrative officers acting in good faith should be retained.

At page 163, Justice Starke dealt with the argument which he interpreted as an argument based perhaps on section 75 of the Constitution, and perhaps on section 51(xxxi) of the Constitution. In any event, he said after the references to those sections, that:

The prompt collection of revenue is of the utmost public importance . . . It would upset public finance unless some safeguards were provided against mistakes in assessment or the illegal exaction and collection of taxes.

He said at the bottom of that page that if not a tax, the law was –

clearly a law with respect to taxation –

At page 165, Justice Dixon said this in the second full sentence on the page:

For the enforcement of the taxation laws, as of other laws, is the function of the government under sec. 61 and it is a matter incidental to that function or power to receive payments on account of tax including sums which, through some mistake of fact or law, are collected although not strictly payable . . . 

There is, I think, no constitutional provision preventing the Parliament from extinguishing a cause of action against the Commonwealth.

That, of course, needs to be qualified from those absolute terms by Mewett and other cases, but, nevertheless, in this particular context undoubtedly correct. 

Your Honours then go to Nelungaloo 75 CLR 495. This was a case that concerned the validity of a provision that you will see set out at the bottom of page 501 and the top of page 502. It was section 11 of the Wheat Industry Stabilization Act 1946 which in its terms gave retrospective legal effect to an administrative order that had previously been made and that had purported to authorise the acquisition of wheat. That retrospective provision was held to be an exercise of the defence power by Justice Williams at first instance and then by the Full Court on appeal. Justice Williams said this at page 503 at about point 7:

It was within the ambit of the defence power for the Commonwealth Parliament, subject to complying with s. 51 (xxxi) of the Constitution, to acquire all wheat harvested in Australia during hostilities or their aftermath as a means of prosecuting and winding up the war.

At pages 504 to 505, he addressed specifically the validity of section 11, seeing it as governed by Werrin’s Case which he cited and he said this in the last three lines on page 504:

But in any event, I think that the Commonwealth Parliament is authorized under the defence power at any future time to legislate retrospectively with respect to past occurrences where the ambit of the power would have been wide enough at the time of such occurrences to enable similar legislation to have been then passed having a prospective operation.  Otherwise the Commonwealth Parliament, after the cessation of hostilities, could not pass an ordinary Indemnity Act indemnifying its subjects against the consequences of bona-fide acts unlawfully done in the prosecution of the war.

On appeal Chief Justice Latham at page 531, in the middle of the page specifically agreed with Justice Williams.  Justice Rich at page 543, in the second short paragraph did the same, and Justice Dixon stated his own reasoning at pages 579 to 580, and I draw your Honours’ attention to the whole of the discussion that begins at about point 7 with the paragraph “The validity of this section” through to the first three lines on the next page.  Particularly, the last two lines on page 579 and following, where his Honour said:

I can see no objection to its validity (see Werrin v The Commonwealth).  I do not understand why a law to validate an order bone fide made and acted upon in the administration of a matter clearly falling within defence and arising in the course of the prosecution of the war ‑ ‑ ‑

GUMMOW J:   Why would it matter if was bona fide?

MR GAGELER:   It probably does not matter.

GUMMOW J:   It is just for colour, is it not ‑ ‑ ‑

MR GAGELER:   Yes.

GUMMOW J:   This is 1947.  Defence powers ‑ ‑ ‑

MR GAGELER:   Yes, you could delete bona fide, your Honour.

GUMMOW J:   Is there any treatment of Nelungaloo and Mutual Pools?

MR GAGELER:   Yes.  Nelungaloo is one of the cases said to support the Mutual Pools approach.  I will turn to Mutual Pools when I get to section 51(xxxi). Mutual Pools is an endorsement and an application of the reasoning in Werrin and the reasoning in Nelungaloo.  I wanted to particularly draw your Honours’ attention to Nelungaloo because it is a defence power case. So what we say, and I will come to Chapter III in just a moment, but what we say, subject to Chapter III, there is no doubt that 51(vi) authorises a law of the nature before the Court in the present case. Section 51(vi) is a purposive power, it permits the enactment of a law that is appropriate and adapted to the fulfilment of a defence purpose.

As at the date of the enactment of the Interim Measures Act (No 2), three weeks after the decision of the Court in Lane v Morrison, there had been revealed to be a legal gap in the prior and ongoing administration of military discipline that itself created a situation which was adverse to the good order and discipline of the defence force, and it was that situation, that mischief, that then formed the defence purpose identified in item 2(1) of the Act, that it lay within the defence power to correct, and in our submission, subject only to Chapter III, the legislation is appropriate and adapted to the fulfilment of that purpose.  That brings me to Chapter III.

GUMMOW J:   Wait a minute.  Are you going to deal with Mutual Pools?

MR GAGELER: Yes, I was going to do that when I deal with section 51(xxxi), unless your Honour would prefer me to deal with it now?

GUMMOW J:   You said it endorsed Werrin, but I am not sure it is giving it 10 out of 10.  Look at Chief Justice Mason at 173, the second paragraph, “There is some authority to suggest”.  The last couple of sentences, I do not understand:

the cause of action in question was a claim for restitution of taxes mistakenly paid and was not based on a contractual right –

undoubtedly so –

As such, the cause of action, if there was one –

we know there was one now, after David Securities - mistaken law was not to the point –

which the Court in Werrin assumed . . . was not assignable –

why not ‑

and his Honour may have thought that it did not amount to property –

I just do not understand that.

MR GAGELER:   Your Honour is referring to Chief Justice Mason’s judgment in Mutual Pools.

GUMMOW J:   Yes, as Justice Heydon reminds me, there is a citation of Poulton at footnote (57), which we had some not altogether happy encounter with a couple of weeks ago.

MR GAGELER:   I am not familiar with that, your Honour.  I will turn to Mutual Pools in due course.

HAYNE J:   Werrin is also dealt with in Chief Justice Mason’s reasons, at 166 to 168, but that may well be understood as being preliminary to what occurs at 173.

MR GAGELER:   I can certainly say that the outcome in Mutual Pools is entirely consistent with the outcome in Werrin and both of them could ‑ ‑ ‑

GUMMOW J:   I think what Justice Mason gets to at the bottom of page 174, “So understood”, which tend to be ominous words:

So understood, both Magrath and Perpetual Executors, as well as Werrin, is consistent with the general proposition that a law with respect to taxation which regulates competing claims and interests is not a law for the acquisition of property.

MR GAGELER:   Yes.  It was a law within section 51(ii), and as I said, I only took your Honours to it to make sense of the references in Nelungaloo.  Can I turn then to Chapter III and, your Honours, the question for the purposes of Chapter III, in our submission, is not whether the legislation meets some abstract definition of a bill of pains and penalties or falls within that expanded notion of a bill of attainder that the United States Supreme Court has invoked in explaining the operation of Article 1, section 9 of the United States Constitution.  The question, as really brought out usefully in Polyukhovich 172 CLR 501 in the judgment of Justice Deane at page 608, is whether the law involves an exercise by Parliament of the judicial power exclusively vested in the federal judiciary by section 71 of the Constitution. The difficulty for the plaintiffs is to identify with any precision the factor or combination of factors that takes the rights and liabilities declared relevantly by item 5(2) into a realm that can be declared only by a Chapter III court.

One possibility would be to seize on punishment, but as we understand the argument at least put quite clearly this morning, it is accepted that punishment can be imposed consistently with Chapter III for Defence Force purposes, just as it can be imposed consistently with Chapter III for other disciplinary purposes as, for example, shown y by Ex parte White and more recently the reasoning of the Court in Albarran 231 CLR 350. Another possibility would have been to seize on the particular kind of punishment, in the case of Haskins the punishment of detention, but again, as we understand the argument, it is accepted that there is no universal rule that detention can only be consequential upon a conviction of criminal guilt by a court.

Indeed, Lim and M61 make that clear, and it is accepted that military detention is, and always has been, an aspect of military discipline.  As we understand it there are basically two ways the plaintiff seeks to put the case in Haskins, one is to say that here you have disciplinary action that is focused on a small and discrete group only, and the other – although it is not quite put this way – is that here you have disciplinary action that is taken by the Parliament itself; it is taken outside the chain of command.  Can I deal with those two points in that order?  As to the first of them, that is that we are concerned only with a discrete group of 105 people, that factor in itself, in our submission, does not take a punitive measure into the realm of judicial power where the punitive measure is properly characterised as disciplinary in character.

That is really the basis upon which the Privy Council decided the case of Kariapper [1968] AC 717. I will take your Honours to that. If I can say this about Kariapper, your Honours referred with approval to the judgment of Sir Douglas Menzies in this case in Albarran 231 CLR 350 at paragraph 17, and its essential reasoning was treated as applicable to Chapter III by Chief Justice Mason in Polyukhovich 172 CLR 501 at page 537. Kariapper concerned some Ceylonese legislation which is sufficiently extracted at the bottom of page 730, and what your Honours will see about line F on page 730 was that the Act imposed certain disabilities on:

“each person specified in the schedule to this Act in regard to whom -

a particular commission which had not exercised judicial power had:

found that any allegation or allegations of bribery have been proved.”

Then certain disabilities flowed, in particular certain disqualifications.  Now, that was challenged on the ground that it involved an exercise by the legislature of exclusively judicial power.  It had been held in Liyanage, mentioned at page 732.  There was separation of powers under the Ceylonese Constitution.  This legislation was challenged on the basis that it infringed that separation of power and it was held not to do so.  At page 733D, consistently with the Humby line of cases, it is mentioned that:

the problem is rather to ascertain the true character of an enactment which is in form legislation altering legal rights by its own force.  This observation does however point to what appears to their Lordships as the appellant’s fundamental difficulty, i.e. that what is claimed to be a judicial determination is in form legislation altering the law as it stood.

At page 734, letters C to D, it is said that the law is not “a bill of pains and penalties” for two reasons:

it contains no declaration of guilt, and because the disabilities which it imposes have not the character of punishment for guilt.

At page 736, letters D to E, there is a rejection of the arguments put in that case as to why the focus on the individuals named in the schedule did not take the law into the realm of judicial power.  At page 737F, with reference to Ex parte Byrnes, your Honours will see a general statement and it is that general statement that was picked up and endorsed in Albarran, to which I have already referred.  So the first of the arguments put in Haskins, in our respectful submission, is met by the reasoning in Kariapper.  The second argument that ‑ ‑ ‑

CRENNAN J:   The disability seems to have been imposed in order to preserve, I suppose, the integrity of elections?

MR GAGELER:   Yes, yes, here ‑ ‑ ‑

CRENNAN J:   It is sort of disciplinary in a very wide sense.

MR GAGELER:   In a very broad sense.  Here, it is disciplinary in a much more narrow sense.  Your Honours, the second point about chain of command we do not for a moment suggest that post‑Lane v Morrison the Parliament prospectively, in the exercise of power under section 51(vi), could set up a disciplinary system that resulted in punishment for a service offence that is outside the chain of command. But we say here two things. We say if it is necessary in trying to fix up the sins of the past to anchor the punishment within the current chain of command, then that is achieved by the mechanism for review under Part VII. It is that mechanism for review that was acknowledged in Lane v Morrison to be what distinguished the valid old system from the invalid system considered in that case - paragraphs 89, 90 and 97 of Lane v Morrison.

But we would go so far – we do not need to – but we would go so far as to say that in particular circumstances where there is a legislative declaration of rights and obligations designed only to rectify an historical anomaly it would be possible for the legislature to confirm, by the mechanism of declaration of rights and obligations, an irregular act in the way done by article 5(2) and in so doing that confirmation of irregular acts is qualitatively different, in our submission, from the authorisation by the legislature of a punishment itself.  I have put that rather badly ‑ ‑ ‑

KIEFEL J:   Do I understand you then to say that you would not suggest that these measures were appropriate and adapted where there was a military tribunal operating within power, that it is these peculiar circumstances that require a particular response to discipline.  Is that what it hinges on?

MR GAGELER:   Your Honour has put it better than me.  I had actually written the text that was much clearer than what I actually said, but your Honour has put it the way I wish to say it.  We have here what is akin to an act of indemnity of the kind referred to in Phillips v Eyre and of the kind held valid by the Supreme Court of the United States in a case called Mitchell v Clark. 

Could I remind your Honours of Phillips v Eyre?  I know it was in the Court’s letter to the parties.  Phillips v Eyre (1870) LR 6 QB 1 at 25, about point 7, draws an essential qualitative distinction between an act of indemnity and an act of attainder and invokes in support of that distinction what was said by Justice Chase in Calder v Bull.  That is discussed over the next page.  The essential point in Calder v Bull, appearing at about point 7, page 26, where it said:

Every law that is to have an operation before the making thereof . . . is retrospective.  But such laws may be proper or necessary, as the case may be.  There is a great and apparent difference between making an unlawful act lawful and the making an innocent action criminal and punishing it as a crime.

In Mitchell v Clark, which your Honours should also have, a similar approach was taken by the Supreme Court of the United States to the validity of an act of indemnity of 1863 that your Honours will see at page 638, at the bottom of the page.  Your Honours will note it was a Civil War provision and it was in extremely broad terms and what was said by the majority about the validity of that act, notwithstanding the Bill of Rights provisions of the United States Constitution appears at page 640 in the paragraph beginning at about point 7:

That an act passed after the event –

We have found one act of indemnity in Australia, and it was an act of indemnity passed, it seems, two weeks after the Eureka Stockade.

HAYNE J:   It may be observed if all of the indemnity Acts, to which our attention is drawn, they include, amongst others the Indemnity Act 1920 (UK), but they are all Acts passed after war, disturbance, civil war, insurrection, rebellion.  Now, to the extent to which it is said that 51(vi) does not give power to pass this Act if it is to be seen as wearing the hat “act of indemnity” or something akin to it, is it important to observe that the examples to which our attention is drawn have that origin, that is, they are – in Australian terms – an exercise of defence power at the flood?

MR GAGELER:   It is relevant to observe that.  The question, however, becomes always one of characterisation of the law as being appropriate and adapted to the maintenance of defence discipline.  Now, I accept that is a question of degree, and what your Honour has pointed out is that in those indemnity cases that I mentioned to your Honour, and the ones that your Honour mentioned in the Red Book, the degree was acute, I have to accept that.

HAYNE J:   But those indemnities included acts against persons other than defence personnel.  This is within ‑ ‑ ‑

MR GAGELER:   This is within the family, within a narrow compass.

HAYNE J:   Within a small group; within the forces.

MR GAGELER:   All of whom were at the time defence members, that is, at the time of the punishment being imposed, defence members, and 90 out of 115 of whom had pleaded guilty to a service offence.

KIEFEL J:   But as I understand your argument about the characterisation of the power, you were saying that the peculiar circumstances here requiring the continuation of discipline where it could effectively fall apart for a period, went no further than was necessary to fulfil that purpose; to achieve that purpose, and you say that that is sufficient for the test.  You do not need to look to analogies really such as indemnity legislation to draw upon your – what circumscribes the limit to the purposive power here.

MR GAGELER: Yes. Well, your Honour I was here dealing with Chapter III. I am accepting that, of course, section 51(vi) is limited by Chapter III and therefore I must accept that one could ‑ ‑ ‑

KIEFEL J:   There is another limitation upon the power.

MR GAGELER:   There is another limitation.  One could have a law that is appropriate and adapted to the maintenance of service discipline that nevertheless offends Chapter III.  Lane v Morrison ‑ ‑ ‑

KIEFEL J:   You probably would not get to it being appropriate and adapted if it offended Chapter III.

MR GAGELER:   That is one way of looking at it.  In any event, what I am saying here is this is a narrowly tailored law which addresses a particular historical anomaly ‑ ‑ ‑

KIEFEL J:   But that assumes it is otherwise within power.

MR GAGELER: ‑ ‑ ‑ that is enough both to bring it within section 51(vi) and to avoid the operation of Chapter III, in our submission, which brings me to section 51(xxxi) about which I will be really quite brief. Your Honour Justice Gummow has already referred to Mutual Pools, which is really the only case that I wanted to take your Honours to.  There was in Werrin no acquisition of property.  The law was justified as being either under section 51(ii) or under the incidental power.  There was in Nelungaloo no acquisition of property.  The law there was justified as being within the defence power.

In Mutual Pools 179 CLR 155, there was again no acquisition of property. The law, your Honours are familiar with this case, was again justified as being a law with respect to taxation, although not a law imposing taxation. The imposition of taxation had been held to be invalid in a previous case. At page 171 there is, in our submission, a statement of principle by Chief Justice Mason, which is applicable in the circumstances of the present case. His Honour put it at two levels, having surveyed the case law. He said, about point 6 of page 171:

Of these instances, it may be said that they are all cases in which the transfer or vesting of title to property or the creation of a chose in action was subservient and incidental to or consequential upon the principal purpose and effect sought to be achieved by the law so that the provision respecting property had no recognizable independent character.  Indeed, the taxation cases apart, they were all cases in which the relevant statute provided a means of resolving or adjusting competing claims, obligations –

et cetera.  Of course, that language, the second sentence was then – as your Honours are well aware – taken up and used by six members of the Court in Nintendo 181 CLR 134 at 161, the essential point being that in such a case where the law is really directed towards resolving or adjusting competing claims, the law is unlikely to be characterised as a law with respect to an acquisition of property, but the reason, we submit, lies in his Honour’s earlier statement – that is, the preceding sentence, page 171 – where the point comes down to one of characterisation, and there are circumstances in which the incidental operation of a law to acquire property does not give the law the character of a law with respect to the acquisition of property. That, in our submission, is essentially what was also said in the joint judgment of Justices Deane and Gaudron at pages 189 to 190.

GUMMOW J: Has this doctrine restricting section 51(xxxi) been applied in any other cases since 1994?

MR GAGELER:   It has not received ‑ ‑ ‑

GUMMOW J:   I know the Commonwealth is greatly attracted to it.

MR GAGELER:   We do like to rely on judgments of six Judges of the Court, your Honour, whenever possible, and ‑ ‑ ‑

GUMMOW J:   Was it necessary for Nintendo?

MR GAGELER:   No, well, it formed part of the ratio in that case, page 161, but was it necessary?  No.  The case could have been decided by reference to the preceding paragraph but ‑ ‑ ‑

HEYDON J:   If it was not necessary, it is arguably not the ratio.

MR GAGELER:   Well, when two independent reasons are given for a proposition, your Honour, I would not wish to debate what is ratio and what is dicta, but ‑ ‑ ‑

GUMMOW J:   A lot of legislation is about resolving competing claims.  That is what parliaments are for.

MR GAGELER:   Of course.

GUMMOW J:   The question is, in the course of doing it, do they acquire someone’s property ‑ ‑ ‑

MR GAGELER:   We have the outcome in Werrin, we have the outcome in Nelungaloo and we have the outcome in Mutual Pools.  All of those cases involved a law, the legal operation of which was to prevent a cause of action being pursued; an existing cause of action being pursued.  The question is how are those cases explained and what I am seeking to do is to take your Honours to how the explanation was given in the last of those cases by the majority of the Court which, in our submission ‑ ‑ ‑

GUMMOW J:   Well, Mutual Pools is said to be linked to the character of the tax power.

MR GAGELER:   Exactly, yes.

GUMMOW J:   Nelungaloo is said to be linked to a view of the defence power in wartime.

MR GAGELER:   Yes, and I am seeking to link the present submission to a view of the defence power in the circumstances of the present – in addressing the mischief identified in item 2(1) of Interim Measures Act (No 2) and in that particular narrow circumstance the acquisition of property that may be consequent upon giving legal force and effect to what did not previously have legal force and effect does not give the law the character of a law with respect to the acquisition of property.  To say that is to distinguish between principal purpose and subsidiary or consequential or incidental operation.  I make no apology for that.  That is exactly the reasoning employed by Chief Justice Mason to decide this case ‑ ‑ ‑

GUMMOW J:   I know.

MR GAGELER:   ‑ ‑ ‑at page 171.

GUMMOW J: I know, and I think it has an echo in it of old section 92 reasoning.

MR GAGELER:   Well, your Honour, the same reasoning was applied by Justices Deane ‑ ‑ ‑

GUMMOW J:   This notion of essential and incidental burdens on interstate trade and so on.

MR GAGELER:   Well, it has echoes of that, but ‑ ‑ ‑

GUMMOW J:   I thought we got past that.

MR GAGELER:   That does not mean that it is to be rejected, and the same echoes, your Honour, are at pages 189 to 190 in the joint judgment of Justices Deane and Gaudron, and in the actual application of that reasoning to the case before them at page 191 at about point 8, that is, they were saying that the incidental operation of the provisions did not impart ‑ ‑ ‑

GUMMOW J:   Why is just incidental?

MR GAGELER:   It is perhaps consequential, is a better way of putting it.  What the law is directed to doing is declaring rights and liabilities to be, in effect, as those now retrospectively governed by them thought them to be at the time.

HAYNE J:   That seems, Mr Solicitor, to be two propositions, I think, which might possibly be expressed in this fashion.  The sailor who was detained was directed – I insert “invalidly” – by apparently superior authority to a particular place and there he was subjected to a particular regime of treatment, within the services, a not uncommon event within the services that a serving member of the forces who is directed to go somewhere is there subjected to a particular regime of treatment.  I think the argument that you have advanced seems to be, or may be capable of being expressed as being that the validation of the direction, which as I said was an invalid direction, is what, consequential?  What is the expression you are putting on it?

MR GAGELER:   No, the validation of the direction is the direct legal operation of item 5.

HAYNE J:   Of item 5, I understand that.

MR GAGELER:   The consequence or incidental effect is to deprive the person who had been the subject of an invalid direction of a cause of action that the person may have acquired by virtue of that fact.  That is the distinction best put between the direct central purpose of the legislation and the consequential or incidental operation of the legislation.

FRENCH CJ:   Does that suggest some distinction between property acquired for a purpose and property acquired as an accident or something else?

MR GAGELER: No, no. What it recognises is that section 51(xxxi) ultimately involves an exercise in characterisation and that there will be laws which effect an acquisition of property, even effect an acquisition of property for the purposes of the Commonwealth, that are still not properly characterised as laws with respect to the acquisition of property. They have that effect, but that is not the character of the law. It is a difficult distinction, perhaps. It is nevertheless the distinction employed in these cases.

HAYNE J:   But does it then come to that the validation of otherwise invalid military orders is inconsistent with the notion of 51 (xxxi) acquisition of property.  I think you have to get down to that, do you not?

MR GAGELER:   Yes.

HAYNE J:   That to validate what was an invalid military direction ‑ ‑ ‑

MR GAGELER:   Yes.

HAYNE J:   ‑ ‑ ‑ is a step that is by its nature outside 51(xxxi).

MR GAGELER:   That is right.  I am sure I could put these propositions somewhat better.  There are some exercises of power which of their nature are inconsistent with section 51 (xxxi) applying, for example, the imposition of taxation or the imposition of a penalty.  Both of them involve the acquisition of property.  Neither of them fall within section 51 (xxxi).  Why is that?  It must be because the element of acquisition of property is not, in itself, enough to explain the character of the laws.

HEYDON J:   It is because the laws are antithetical to the idea of acquiring something on just terms.

MR GAGELER:   Yes.

HEYDON J:   You cannot pay a penalty of $100 and then get $100 back.

MR GAGELER:   That is right.  That is right.

GUMMOW J:   Why is it antithetical for the Commonwealth to be able to immunise itself from the consequences of enacting invalid laws which have a deleterious effect on the citizen and which give rise at common law to an action in the citizen against the Commonwealth.

MR GAGELER: I do not have to go so far as to explain every application of the principle in terms of the application of section 51(xxxi) being antithetical. I assented to your Honour Justice Heydon’s explanation of the precise examples that I had given but really Werrin, Nelungaloo and Mutual Pools each illustrate that it is not necessary to go that far.

FRENCH CJ:   Would it be any different if the law had said that any cause of action vested in a serviceman by reason of an invalid application of punishment under the former Act shall be extinguished?

MR GAGELER:   The law would be different in form, and the law would be differently focused.

FRENCH CJ:   It would have the same effect, of course.

MR GAGELER:   It would have relevantly the same effect.

GUMMOW J:   We are looking at substance, are we not, of 51(xxxi)?

MR GAGELER:   We are looking at substance, but we are looking at the character of the law, so yes, but.

CRENNAN J:   This is the kind of point I tried in a way to deal with in Wurridjal, the same sort of points you are putting now, which was a very sui generous context distinguishing it from taxation and so on where there is an obvious point to be made about acquisition of property.

MR GAGELER:   Yes.  Your Honours, on this point, Mutual Pools is directly in point and your Honours’ discussion took into account in particular Mutual Pools.  The other cases that I have referred to are also directly in point.  We invoke the explanation of Mutual Pools given in Mutual Pools itself and, in our submission, that explanation applied to the circumstances of the present case leads to the result that such an acquisition of property as may have occurred by reason of the retrospective declaration of rights and obligations is not one which leads to the characterisation of the law as one, with respect, to the acquisition of property.  To say that again would be, I am afraid, just repetitive, your Honours.

BELL J:   In the way it was put it leaves open whether a cause of action in the events that occurred arose, having regard to the question that was debated earlier today about the scope of Grove’s Case.

MR GAGELER:   Yes, that is correct, and it is on that assumption that it is at least arguable that a cause of action arose that the matter in Haskins comes before your Honours.

BELL J:   Yes.

GUMMOW J:   But you would want to reserve your position, would you not?

MR GAGELER:   Yes, we would.  We have pleaded, I am not sure we have explicitly brought that point out, but we would wish to preserve our position at the trial, yes.

HAYNE J:   Have not yet, but soon will.

MR GAGELER:   If necessary.

GUMMOW J:   But it is awkward to decide it on an assumption actually.  It is awkward to decide the constitutional question on an assumption that there is an action.  Why should we do that?

MR GAGELER:   Well, it would be no different from the point being decided on plaintiff’s demurer, your Honour.  There is a cause of action pleaded against us amongst the other defences we have raised as the Interim Measures Act.  Our learned friends could have demurred.

GUMMOW J:   Speaking for myself, there has to be a real question that Sir Victor Windeyer was correct, as a starting proposition and Grove’s is some drifting away, and I can understand the exception.

MR GAGELER:   Yes.  Your Honours, that issue is not and need not be before your Honours today and would not arise if the Interim Measures Act is valid in any event.

HAYNE J:   It seems at least to me at the moment, Mr Solicitor, that it does directly impinge upon that aspect of your argument about 51(xxxi).  That depends upon identifying some incongruity in application of 51(xxxi) to legislation of this kind.  It impinges upon it because it seems to raise a set of issues about intersection between, if you like, military law and the ordinary civil law, the position of the service person as holder of ordinary rights and privileges of a citizen and yet as a person who, “I say to this man ‘Go’ and he goeth” - I do not know where all of this leads itself to but ‑ ‑ ‑

MR GAGELER:   Your Honour, it seems that there are three possibilities.  One is that there is no cause of action at common law.  Another is that there is a cause of action at common law and another is that there is at least significant doubt about cause of action at common law.  The third of those possibilities, in our submission, your Honours, could and should accept for the purposes of this case at this point, that is, the position at common law is, at least, doubtful.  That, in itself, is a factor that contributes to the proper character Measures Act as one which is, if it effects an acquisition of property, does so only incidentally.  Beyond that, I would not wish to seek to take the point for present purposes.

GUMMOW J:   Well, I mean, the result may be that it would be inappropriate for us to answer at this stage the question of 51(xxxi).

MR GAGELER:   Possibly.  If the Court pleases.

FRENCH CJ:   Thank you, Mr Solicitor. 

MR MEADOWS:   May it please the Court.  You will be pleased to hear that I do not expect to detain you for very long.

FRENCH CJ:   We are looking for the point of difference.

MR MEADOWS:   There is not any, I would respectfully submit.  We are happy to adopt the Commonwealth’s written submissions, in particular, in paragraph 31 to 36 in the Haskins matter and also, even though we are not intervening in respect of the Nicholas matter to what the Commonwealth has said in paragraph 16 to 29 of the Commonwealth submissions but we would also adopt my learned friend the Solicitor-General for the Commonwealth’s submissions in respect of those matters that he has addressed to the Court today.

The Court has our outline of propositions which, I think as the Chief Justice has observed, are markedly similar to what the Commonwealth is putting to the Court.  There are only four very short points that I wanted to refer to.  The first of these is with respect to Humby itself and to observe that Humby was the subject of a complaint.  He had failed to comply with the purported order that he pay maintenance and the complaint was that in doing so he had breached section 169 of the Community Welfare Act 1972 (SA).  A consequence of the legislation that was enacted following the decisions which led to the Humby legislation the effect was that Humby was exposed to a potential penalty not for failing to comply with the purported order but for failing to comply with the obligation to pay maintenance declared by the legislature couched in terms of the purported order, so that this illustrates, in our submission, that at that point, Humby was in a position where he had become liable to imprisonment for breach of the maintenance order as declared by the legislature.

Similarly, any persons who had already been committed to prison for an alleged breach of a purported order would have been required to continue to serve that term of imprisonment under the terms of the obligation declared by the Act.  So these are illustrations, we would submit, that it is permissible for a legislation following the Humby model to apply in a situation where the consequences of the legislation are that a person could be required to serve a term of imprisonment or some other form of detention.

The second point that I wanted to advert to was what we have said in paragraph 27 of our written submissions in providing another example of the application of the Humby model to ineffective orders.  You can see from that paragraph that both the Commonwealth and the State of Western Australia enacted legislation in accordance with the Humby model to overcome the decision in Horne v Horne (1997) 137 FLR 144. The legislation sought:

to remedy the effect of the invalid determinations that had been made by the Registrars –

of the Family Court of Western Australia under delegated powers.  The reason why there were two pieces of legislation there put shortly is that the Family Court of Western Australia being a State court both has jurisdiction under the Family Law Act, federal jurisdiction, and jurisdiction under the Family Court Act (WA), which is State jurisdiction.

The third point that I wanted to advert to was what we have set out in paragraphs 29 to 34 of our written submissions and in particular we refer in paragraph 31 to the situation where there is an inconsistency between Commonwealth laws which are criminal in nature and State legislation which is also criminal in nature.

If that gave rise to an inconsistency in terms of section 109 of the Constitution, we would submit that it would be open to the Commonwealth

to enact legislation based on the Humby model under the same head of power.  I will not take the Court through the argument that is suggested there, but we do submit that the Humby model could be invoked there in order to ensure that orders for imprisonment or detention made under the State law held invalid by virtue of section 109, could be the subject of Humby legislation so that those orders of detention or imprisonment could be continued.

FRENCH CJ:   This is to deal with a Dickson‑type problem, is it?

MR MEADOWS: Well, yes, I suppose that could be said, your Honour. But I think the point that I am trying to make is that this particular case has its own domain and I think it would be incumbent on the Court to take some care in not anticipating future problems that might arise in relation to section 109 inconsistencies.

I suppose that leads me to an observation about Antill Ranger, which my learned friend, the Solicitor‑General for the Commonwealth, pointed out where it speaks of constitutional prohibitions or immunities. I would suggest that in the section 109 problem where the State legislation simply remains in abeyance so long as the inconsistent Commonwealth law remains, that that does not give rise to infringements of constitutional prohibitions or immunities. They are the only matters that I wish to address the Court.

FRENCH CJ:   Yes, thank you, Mr Solicitor.

MR MEADOWS:   May it please the Court.

FRENCH CJ:   Yes, Dr Renwick.

MR RENWICK:   Thank you, your Honour.  I can be quite brief, I think, your Honours.  As to the last point raised in debate with the Solicitor‑General as to whether you should decide the just terms issue or not, or to be more precise, as to whether the tortious notion is ripe perhaps I accept, of course it is a matter for your Honours to decide whether the matter is ripe or whether it is premature.  But there is not a word that we could see in the Commonwealth’s submissions saying that the tortious case was inherently unviable and nor is that pleaded.  I accept it does not bind your Honours, but that is not the way the case came to your Honours.

Justice Hayne said that on one view this was a particular type of military order which was required to be followed by Haskins but, your Honour, it is admitted on the pleadings in this case that he was deprived of his liberty without his consent and if your Honours look at our submissions in‑chief at paragraph 66, in a case called Marshall v Watson in 1972, it was said by the Chief Justice and Justice McTiernan that:

“an imprisonment for the benefit of the person imprisoned is none the less an unlawful imprisonment if not otherwise justified.”

That is in paragraph 66.  Can I just make a few other submissions concentrating on Chapter III?  Can I say that we are well aware that there may well be difficulties in obtaining damages for the tort of false imprisonment at the end of the day but we plead not just damages for the tort or false imprisonment, but also a declaration of right that we were falsely or unlawfully imprisoned and if your Honours look to, again, our submissions in paragraphs 52 and 53, we quote what your Honours very recently said in Pape’s Case, that a resolution of the plaintiff’s particular controversy pursuant to Chapter III acquires a permanent, larger and general dimension.  The declaration would vindicate the rule of law and then in paragraph 53, there is reference to a series of cases culminating in M69 that the grant of the declaration, or here, the answer to the questions would have utility.

The larger dimension, your Honours, is this.  It concerns the limits of the Humby principle and its potential for intrusion in Chapter III, not just through the mechanism of using the “as if” notion with service tribunals, but presumably for all of the other exceptional cases mentioned in Lim.  As we say in our submissions, if it is permissible to do this, to assume contrary to the fact that one was dealt with properly by a general court martial, why is not equally permissible to say, contrary to the fact that one was dealt with by a Chapter III court, or that one was dealt with for migration or quarantine or national security purposes, contrary to the fact, all of which are recognised exceptions under Lim, and in cases like Thomas v Mowbray ‑ ‑ ‑

GUMMOW J:   Well, you may be right about that.  The only full treatment, I think, of the point about usurpation is by Justice Mason in Humby at 249 and 250.  Is there anything you want to say about that?  In particular one looks at page 250 about point 5:

Chapter III contains no prohibition, express or implied, that rights in issue in legal proceedings shall not be the subject of legislative declaration or action.

Does that have any bearing on this case?  Then lower down, talking about the Ceylonese case:

The legislation . . . constituted a marked interference with the judicial process and circumscribed the judicial function and the discretions incidental to it.

MR RENWICK:   Those examples, your Honour, are all a little different from the current case.  I suppose what I get out of that page from Sir Anthony’s judgment is the notion that usurpation is not susceptible of precise and comprehensive definition.  It is not quite either one of those things but nevertheless we do say there is a bill of pains and penalties.

GUMMOW J:   The Solicitor-General for Western Australia reminds us that this gentleman was being prosecuted in South Australia.

MR RENWICK:   In Humby’s Case?

GUMMOW J:   Yes.

MR RENWICK:   Yes, and it is true ‑ ‑ ‑

GUMMOW J:   He turned around and said, “Well, this order I am delinquent about was an order that was not validly made”.

MR RENWICK:   The distinction perhaps is this, your Honour.  In Humby’s Case, Mr Humby could perhaps have ended up in gaol as a result of this determination but here there is a declaration itself imposing punishment in both the hypothetical and actual ways I sought to develop this morning.  That would seem to be the point of distinction there.  But really, your Honours, this – the factum and consequence method of legislating has its limits.  It is accepted by the Commonwealth that there are some limits and this case presents an opportunity to mark out one of the limits. 

Can I just make a couple of other points? I will not be very long. Much was made, I think, of the point about confirmation by command and I should just clarify the position there. The position is that an act of a general court martial imposing detention is not tentative or conditional and that is because section 172 of the Act - the Defence Force Discipline Act – as it now reads says - 172(1):

The following punishments imposed by a service tribunal do not take effect unless approved –

Detention is not one of them.  Detention is something which needs approval or confirmation, if it is a summary authority.  I do accept that there is the capacity to have a review and the reviewer is able to quash it, in effect, or reduce the punishment.  But as I say that does not make the punishment any more conditional or subject to endorsement than the notion that the prerogative of mercy would make it conditional.

The distinction in relation to a bill of pains and penalties is this.  The cases I have taken your Honours to this morning say the vice is it is legislative punishment without judicial involvement.  It cannot be suggested that the power to petition or the power to seek review is judicial involvement.  It is not.  It is just a possible act by the Executive which may or may not ameliorate that punishment.  So we say that does not detract from the first way we put the Chapter III point.

Similarly, if the second way we put the Chapter III point is right, there is a further incursion by section 51(vi) into Chapter III and it is no less so because of the capacity of command, perhaps, in a particular case, to diminish or set aside the punishment. A couple of then housekeeping matters, your Honour, Justice Gummow asked about Defence Force Discipline appeals. They are still dealt with by the separate Act of that name. My learned friend, the Solicitor‑General for the Commonwealth, spent some time on Kariapper and Albarran but Albarran does certainly not endorse the statement in Kariapper that an essential component of a bill of pains and penalties for the legislation being considered there which, of course, was not Chapter III of the Constitution. There is no endorsement by this Court of Kariapper in that regard and nor, with respect, is there an explanation from the Commonwealth as to why the statement by the four Justices I took your Honour to this morning about what a bill of pains and penalties is, is not sufficient for our purposes.

Finally, there was a reference, I think, to Phillips v Eyre and acts of indemnity.  We, too, had looked up the statute Justice Hayne referred us to.  I suppose for completeness, I infer from Burmah Oil v Lord Advocate [1965] AC 75, a Privy Council decision. You will remember that was all about the destruction of oil wells in Burma, that there was no reliance on a similar act of indemnity for World War II from which one might infer that there was not such an act of indemnity. The other point to make about an act of indemnity, is that one can imagine in dealing with Justice Hayne’s examples of war, rebellion or insurrection, that section 51(vi) would be at its largest and, for example, Little v The Commonwealth permitted the detention of disaffected citizens in World War II. That is section 51(vi) at its largest. There is no suggestion, of course, it could do that now. Unless I can assist the Court further, that is the reply for Haskins.

FRENCH CJ:   Thank you, Dr Renwick.  Yes, Mr Levet.

MR LEVET:   Your Honours, I will be, like my learned friend, brief.  There are three matters that I would like to take up in reply with your Honours.  Your Honour, the learned counsel for the first defendant talked about the necessity of fixing up the sins of the past as providing a rationale for the legislation.  In talking about that he told your Honours that there were only 105 persons to whom the Act applied, and that 90 of those had pleaded guilty.  He seemed to make virtue of the pleas of guilty for the purposes of his position.  Of course, my client, and also the client of my learned friend, Dr Renwick, did not plead guilty.  Each is one of the 15 persons to whom the Act applies, for whom there has been a trial, and an adjudication of guilt.

We would say that the limited numbers involved are important for a number of reasons.  Firstly, they are important because it certainly falls within the definition of a bill of pain and penalty that it relates to an identified or identifiable class of persons -105 persons to whom the Act has potential application, 15 persons to whom the Act has application in respect of a finding of guilt.  It therefore, we would say, assists us in saying that this is a bill of pain or penalty. 

My learned friend indicated that the bill was passed, his phrase, for the necessity of fixing up the sins of the past, which he went on to discuss as meaning the maintenance of discipline within the Defence Force in the circumstances that the Commonwealth found it itself immediately after Lane v Morrison.  It seems to be implicit that there was a need to maintain discipline and that this was a lacuna that was filled by the legislation.

Equally it might be said that a disciplined force such as the Australian Defence Force derives its legislative existence and its discipline from being a force subject to the rule of law.  Equally it could be said that it is not in the interests of maintaining discipline within the Defence Force that a relatively small number of persons can be seen as being dealt with in a manner outside the manner ordinarily prescribed by lawfully constituted tribunals.

In relation to indemnities, your Honours, Phillips v Eyre has been discussed before your Honours and in particular by my learned friend.  We would say – I think I did say in‑chief – that Phillips v Eyre relates to the giving of an indemnity.  It relates to the giving of an additional right to persons, namely a right to be indemnified.  It does not involve the taking away of certain rights.  If I can take your Honours to Phillips v Eyre (1870) LR 6 QB 1 at 26 at about point 4:

Every law that takes away or impairs rights vested agreeably to existing laws is retrospective and is generally unjust, and may be oppressive; and it is a good general rule that a law should have no retrospect; but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion or of pardon.

Your Honour, the Interim Measures Act is not a statute of oblivion or of pardon; it is an Act that takes away rights, that is to say, a right not to be punished or to be convicted of a matter other than following trial by a lawfully constituted tribunal.

Finally, your Honours, my learned friend the Solicitor-General for Western Australia talks about the Humby decision, and made the observation at number one of his four points that in Humby persons were made liable for imprisonment for breach of particular orders as declared by the legislature.  Your Honours, quite clearly the difference that arises there is that it was open to the legislature to make an order relating to marriage and matrimonial causes.  The distinction here, however, we would say obviously is that 51(vi) is circumscribed by Chapter III.  There was no question of that in Humby.  Unless I can assist your Honours further.

FRENCH CJ:   Thank you, Mr Levet.  The Court will reserve its decision.  The Court adjourns until 10.15 tomorrow morning.

AT 4.23 PM THE MATTER WAS ADJOURNED