In the matter of an Application for a Writ of Prohibition against Major R.R.S Tracey a Defence Force Magistrate; Ex Parte Desmond James Ryan

[1988] HCATrans 274

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MS6 of 1988

In the matter of -

An application for a writ

of prohibition against THE

COMMONWEALTH OF AUSTRALD\

and MAJOR R.R.S. TRACEY (a

Defence Force Magistrate)

Respondents

Ex parte -

DESMOND JAMES RYAN

Prosecutor

MASON CJ

WILSON J
BRENNAN J

DEANE J

DAWSON J

TOOHEY J

GAUDRON J

Ryan

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 16 NOVEMBER 1988, AT 10.10 AM

(Continued from 15/11/88)

Copyright in the High Court of Australia

ClT 1/1/ND 162 16/11/88

MASON CJ:  Yes, Mr Cooper.

MR COOPER: If the Court pleases. May I hand up outlines of

our submission.

MASON CJ:	Thank you.
MR COOPER:	Your Honours, at the outset, may I say that generally we adopt the submissions of the
Solicitor for Victoria with the reservation that the ordinary criminal charges which occur in
the course of the performance of duties do not, by that reason alone, become disciplinary offences.
I am also asked by the Solicitor for South Australia
to advise the Court that he intended to adopt the submissions of the Solicitor for Victoria and not the Solicitor for the Commonwealth
yesterday.
Your Honours, a perusal of our outline will indicate that we have placed more emphasis on
the relationship between service personnel and the Crown for the purpose of determining what
is a disciplinary matter and what is the proper
ambit and extent of discipline in relation to the armed forces. The concept of discipline, in our submission, and disciplinary offences
arises out of that relationship and it involves
two things: firstly, it involves an assumption
of an obligation of obedience to, firstly, the
legislative provisions relating to the conduct
of the armed forces and, secondly, an obligation to obey the lawful orders of superior officers.

The obligation to obey those two requirements

is enforced in the military context by disciplinary

punishment. Your Honours, there have been a

number of cases of this Court where that relationship

has been discussed and we would only wish to

refer Your Honours to two. The first is the

decision of the Court in THE COMMONWEALTH V QUINCE,

68 CLR 227, particularly in the judgment of

His Honour Justice Williams at pages 254 and 255.

QUINCE's case, of course, concerned the question

of whether the per quad civilian action was

available in relation to the defence forces.

But His Honour Justice Williams, at page 254,

in the third paragraph, at about point 3, said:

(Continuing on page 164)

ClTl/2/ND	163	16/11/88
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MR COOPER (continuing):

In Clode, Administration of Justice under

Military or Martial Law, 2nd ed. at pp. 72-82,

where the obligations to the Crown created

by enlistment are discussed, it is pointed

out at p. 73 that under military law as it

then existed (and subject to certain

ameliorations it is in substance the same

to-day) a soldier (and an airman is in the

same position) has no right to vacate his

enlistment, and that, while he is in the
service of the Crown, he is no longer sui

juris to contract any other obligation, nor can

he exercise any rights of citizenship which

may conflict with the obligation of implicit

obedience under which he stands pledged to

fulfil his military duty. "The general

purview of the Military Code shows that

a soldier gives himself up wholly to his superior

officer in ... civil relations, loyalty,

internal and external behaviour. He wears

his clothes, cuts his hair, holds his person,

and regulates his step and action at the
command of officers appointed by the Sovereign."

Clode proceeds to point out that the law which a member of the Forces has to obey may

be divided into two branches: (1) the lex

scripta, which in the present case includes

the Air Force Act, and the regulations and

other statutory provisions made under the

authority of that Act; and (2) the lex non

scripta, comprising those lawful orders which,

viva voce or otherwise, the commanding officer

may from time to time issue bidding a subordinate

to do ro refrain from doing, as a member of
the forces, certain acts till then undisclosed

to him.

At page 255 at about point 8 His Honour continues: (Continued on page 165)

ClT2/l/MB	164	16/11/88
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:MR COOPER (continuing):

In essence the obligation is the same as

the obligation of any servant to obey the

orders of his master. The difference is that

a breach of the obligation does not give rise

to an action for damages but to disciplinary

punishment.

There is a statement to similar effect by

Chief Justice Latham at page 238, at about point 4,

where His Honour says:

The Commonwealth is entitled to the services

of members of the forces. They swear that

they will serve the King. Military service

is service of the highest order of obligation.

The obligation is enforced by discipline under

the authority of military law. It is higher in degree than any contractual obligation or

any obligation founded upon family relationship.

About five lines below, he says:

But the very essence of his position is that he is bound to render service, to obey orders.

Your Honours, more .recently the relationship

was considered .by the Co:urt in the case of

GROVES V THE CO}lMONWEALTH, (1981-82)

150 CLR 113, and in the joint judgment of

Justices Stephen, Mason, Aickin and Wilson, with whom Chief Justice Gibbs agreed. At page 125
the Court dealt with the relationship in this

way, about point 8, Their Honours said:

In considering the wide scope of

this claim it is useful to recall that

it is a feature of our system that military

law has a quite restricted range of

operation and is seen as an additional,

rather than a replacement, set of rights

and duties.

If we may stop therE? for a moment, the notion of

additional obligations is something, in our
submission, which will recur through because,
in our submission, it is the enforcement of the

additional obligation over and above the normal

civil law obligations which is the proper subject-

matter of disciplinary conduct.

CIT3/l/JM	165	16/11/88
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MR COOPER (continuing):

As Lord Loughborough said in GRANT V

SIR CHARLES GOULD, martial law in the all-encompassing form in which it existed

in some Continental countries was unknown

in England; the crimes of soldiers in England

have always been amenable to the civil law and our concept of martial law is confined

to the area of military discipline, the purpose
of the creation of courts-martial being to
have a system of courts: "invested with

authority to try those who are a part of the

army, in all their different descriptions
of officers and soldiers; and the object of
the trial is limited to breaches of military

duty. Even ... articles of war ... are to

be for the better government of "(the King's")

forces, and can extend no further than they

are thought necessary to the regularity and

due discipline of the army".

The effect of those judgments and the duty, in

our submission, is to limit requirements of discipline

to operate only as is necessary to enforce compliance

with the duty of obedience and also the regularity

of the armed forces. Your Honours, in our submission,

the requirements of discipline will vary depending

upon the place where the defence forces are located

and the circumstances existing at any point in

time and if one goes to a provision such as section 61

it is our submission that provisions of that sort

are to deal with circumstances where the defence
forces are overseas in order to maintain discipline

in two ways.

Firstly, because the normal civil criminal

law of the country does not operate extraterratorially

to provide a system of the civil law of the Crown
to regulate as between themselves members of the

defence forces that are outside the country and

And, secondly, it is to provide a structure of	the general reach of the ordinary criminal law.	laws and legal control dealing with the conduct
of those defence force personnel in relation to civilians that they may come into in the country
where they are then presently placed. That seems, Your Honours, to be supported, in terms of purpose,
by observations of Viscount Simonds in the House
of Lords in COX V ARMY COUNCIL, (1963) AC 48.
At page 6 7 , His Lordship said at about point 7 -
and in dealing with section 70 of the 1955 ARMY ACT of the United Kingdom, section 70 is set out in the bundle of disciplinary documents which has been
handed up by the Solicitor for the Commonwealth
and is in substantially similar terms to section 61.

ClT4/l/AC	166	16/11/88
Ryan

MR COOPER (continuing): The case concerned whether or not

an officer stationed in Germany was liable for a

charge of negligent driving under the UK TRAFFIC

ACT, it being imported into the military situation

by section 70. His Lordship said:

The question, then, is what are the acts

or omissions for which the section thus
provides. In construing the section two

things must be borne in mind. First, apart

from those exceptional cases in which specific

provision is made in regard to acts co11lIIlitted

abroad, the whole body of the criminal law of

England deals only with acts co11lIIlitted in

England. Secondly, section 70 and the

following sections have to be applied to diverse circumstances wherever the armed forces of the Crown happen to be, in developed

or undeveloped countries, as conquerors or guests, and their purpose is, as the title to that Part of the Act in which they are to

be found shows, disciplinary.

It continues at the top of the next page:

Bearing these considerations in mind, I

cannot accept the simple argument that, if an

act is co11lIIlitted on a German road, it cannot

be a civil offence within section 70. Such a

construction gives no content to the words "or

which, if co11lIIlitted in England, would be

punishable by that law," and frustrates the

clear purpose of the ARMY ACT, namely, to

make those persons subject to military law

who are serving abroad liable to punishment

for offences which, though not military

offences in a narrow sense, are yet prejudicial
to discipline. Amongst these must be placed
those acts which fall short of the standard

of behaviour towards each other and the

inhabitants of the occupied territory which

I know of no better way of describing such

acts than that which I find in section 70 -

"which, if co11lIIlitted in England, would be

punishable by that law."

military discipline traditionally demands.

That purpose, if Your Honours please, if not a purpose

which is necessary for the application of section 61

within Australia. In our submission, there is no

circumstance of lack of an appropriate legal base

or an undeveloped country or a lack of courts of

competent jurisdiction. In so far as section 61 is

concerned, there is in each of the States and

Territories a defined system of criminal law and an

appropriate system of courts of competent jurisdiction

to enforce that so that, in relation to the relations

between defence force members as between themselves

in Australia, there is an appropriate body of law

ClTS/1/SH	167	16/11/88
Ryan

to control that relationship as between the
members of the defence forces of Australia
and the citizens of Australia, there is an
appropriate set of civil law systems and laws

to control that relationship.

In paragraph l0(a) of our outline, Your Honours,

we have identified a number of sections which, in

our submission, relate solely to disciplinary offences.

One of those is section 25 which would cover, for

example, striking a superior officer, as mentioned

by His Honour Justice Brennan yesterday. In our

submission, although such conduct may also

constitute an ordinary criminal offence, it relates

directly to the maintenance of a heirarchy of lawful

command and, clearly, is a breach of the duty of obedience. As such, in our submission, it would

clearly come within the defence power and the notion

of discipline and, if the Commonwealth dealt with it
in such a way as to create an inconsistency with a

State law, then section 109 of the CONSTITUTION would restrict the operation of that State law.

However, where the offence has no connection

with. enforcing the duty of obedience and the only defence force colour, if we can use that term, is

either that of status, then the section is not one

with respect to defence or discipline or, alternatively,

in our submission, any connection is too remote. Those

offences which simply involve what we call the question
of status, namely, they simply seek to be brought into

the disciplinary code on the basis that the Act or as

a serviceman are identified in paragraph l0(c) of our

outline of submissions.

The nexus is not established simply by pointing to the use of service property or the occurrence of

an event on a service establishment where all the

necessary elements or an ordinary criminal offence

are already present. (Continued on page 169)

··

ClTS/2/SH	168	16/11/88
Ryan

MR COOPER (continuing):  And could we explain that, Your Honours,

in this way. So far as those offences are concerned,

the disciplinary aspect is not the connnission of the
offence itself, but it is the additional circumstance
that, for example, the servicemen used defence force
property in relation to the connnission of it and

the contrast may be demonstrated by reference to two

sections in the Code. The first is section 43, which

relates to the general criminal offence of wilful

destruction of property, but involves the additional

element that it is service property. And, in our

submission, the only disciplinary element in relation

to that is the fact that it was service property. If
one goes then to section 44, it provides for an oftence
of losing service property that has been placed in

the care of the serviceman. In that situation there

is no comparable criminal offence and what is sought

to be enforced in section 44 is what has been described
earlier as the master/servant relationship to take

care of the property of the master. And in the

military context, that obligation is enforced by

punishment by way of offence. And, in our submission,

section 44 demonstrates the true disciplinary nature

of an offence in relation to Connnonwealth property. Section 43 demonstrates an attempt by the draftsman

to deal, firstly, with the general criminal obligation

not to wilfully destroy property and then to add on to

it an additional element seeking to make it, so as to

speak, a disciplinary offence namely, the element that

it involves damage to service property.

(Continued on page 170)

ClT6/l/SR	169	16/11/88
Ryan

MR COOPER (continuing):  The existence of additional

obligations in relation to servicemen in the
conduct of their affairs within the defence forces
is recognised, and has for many years been recognised,
in our submission, and the first clear statement of

it appears in the judgment of Lord Mansfield,the

Chief Justice, in BURDETT V ABBOT. Your Honours,

we will not take you specifically to the part of

the judgment but it is cited in paragraph 5 of

our outline of submissions and it has been

specifically applied by the Court of Appeal in

PITCHERS' case, which we cite in the outline of

submissions in paragraph 5, and also by this Court

in PIRRIE V McFARLANE, which we cite in paragraph 5

with the references to the judgment.

In our submission, it is also clear in that

extract of the judgment of the Court in GROVES

that the Court has in recent times always regarded

the obligations as being additional to the underlying

obligations. The concept of total control of the

lives of defence force personnel, which was referred

to by Your Honour Justice Dawson yesterday.is,

in our respectful submission, too broad, at least
in peace-time and where the forces are in Australia.

There are, in our submission, two interests relevant

to the conduct of defence force personnel.	The
first interest is a public interest in the

prevention and punishment of ordinary criminal

offences irrespective of who the actor is.

The second interest is the military interest

in the maintenance of discipline. The distinction

between the interests, in our submission, flows

clearly from the distinction between the obligations

undertaken by service personnel once they enter

the army, those additional obligations which we

refer to in paragraph 5. Your Honours, historically

the material which has been tendered by the

Connnonwealth and the cases cited in argument

and the cases cited in our outline, do not demonstrate

that at any time it has been necessary to provide

for the total control of service personnel to the

total exclusion of the civil authorities for either

defence or disciplinary reasons.

(Continued on page 171)

ClT7/l/MB	170	16/11/88
Ryan

MR COOPER (continuing): Indeed, in our submission, the

materials show to the contrary and acknowled~e

the continued role of the civil authorities 1n

relation to the question of general criminal

offences. That appears at least in section 4l(b)

of the ARMY ACT 1881 which is set out at

page 119 of the bundle of military discipline

statutes which were tendered. And to a degree,

Your Honours, it is also recognized by

section 192 of the DEFENCE FORCE DISCIPLINE ACT

itself which provides that subject to

subsections (3), (4) and (5), the jurisdiction

of a civil court to try a charge for a civil

court offence is not affected by this Act.

So that underlying the Act itself is the

notion that there is a place for the civil courts

to try civil offences but subject to the provisions

that deal, in our submission, with the question

of double jeopardy that we will return to later.

The difference is that there is a - if I can

call it -there may be an unseemly race to determine

which jurisdiction one commences proceedings

in, whether one commences it before a defence
tribunal with a view then to ousting the jurisdiction

of the States or commences in a State tribunal,

subject to the question of double jeopardy at

the later date.

The argument that the mere fact that the

actors were servicemen and that the occurrences

occurred on service land or within barracks was

an argument that was considered by the Court

of Appeal in PITCHERS' case and it involved the

question of whether or not a number of service

personnel had engaged in a riot in the barracks

and had thereby excluded themselves because they were under military discipline and in a military

place.for the operation of the civil court and

the police authorities of the Surrey County area.

The Court of Appeal rejected that notion

and, in our submission, it is implicit in the

reasoning of PIRRIE V McFARLANE in the pages_

that we cite in paragraph 9 of our outline that

this Court has also rejected the notion that

mere status and mere presence on mi}itaDJ

property is not, in itself, a reason to hold

that the civil authorities ought to be excluded.

ClT8/l/ND	171	16/11/88
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MR COOPER (continuing):  The legitimate military interest

in discipline is that which is specifically

provided for .in each of the sections which we

have identified in paragraph l0(a) and on

reflection, having heard the Solicitor for

South Australia yesterday, we would exclude from section 33 so much of the section that

relates to the use of motor vehicles and

section 60 of the Act, which is the general

provision dealing with conduct which is:

likely to prejudice the discipline

of, or bring discredit upon, the

Defence Force.

In peace-time, in our submission, the

legitimate public interest is satisfied by the
ordinary criminal law adminis.tered by the usual

courts of competent jurisdiction involving the

military interest, in our submission, is	right to trial by jury where appropriate. The
satisfied where the additional obligations
that we refer to are enforced by disciplinary tribunals for breach and those obligations, in
themselves, do not involve a breach of the
criminal law.

In wartime the position may well be

different and depending upon the exigencies

and necessities of war and the actual circumstances

existing at the time it is possible that the public

interest and the military interest may merge and

the defence power may sustain an administration of

both interests by the defence force itself. However,

within Australia, even in times of war, the Federal
nature of the CONSTITUTION remains and there will
still be limits to which the ordinary administration

of justice will be taken from the States and

Territories.

In this regard, Your Honours, we refer in

our outline to the decision of the Court in

MARCUS CLARK & COMPANY V THE COMMONWEALTH OF

AUSTRALIA and rely upon the passages cited in paragraph l0(b), particularly the judgment of

Justice Kitto, which is at page 261, to support

the contention which we have just made.

(Continued on page 173)

CIT9/l/JM	172	16/11/88
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MR COOPER (continuing):  Your Honours, may we come finally to

the questions of double jeopardy and severance.	As
to the first, as we submit in paragraph 4 of our

outline, the cases there cited support the contention

that statutes, in our submission including the

CONSTITUTION, ought to be construed against the

background of the common law dealing with the relationship

between service personnel and the Crown. Properly

characterized, disciplinary punishment does not involve

questions of double jeopardy for these reasons. Firstly,

the military discipline punishes the breach of the

additional obligations. Secondly, prosecution for

ordinary criminal offences is punishment for the breach

of an obligation which service personnel have in

common with all citizens in the community. And,

finally, section 61, when it operates outside Australia,
operates by way of discipline only because there is
generally no extraterritorial operation of the

ordinary criminal law and in those circumstances, we

submit no question of double jeopardy arises.

May we turn to the question of severance. The

structure of the DEFENCE FORCE DISCIPLINE ACT in
relation to those sections which provide for ordinary

criminal offences, albeit some with defence force

colour and section 61, is to address and punish on

the basis of dealing with both the disciplinary and the

criminal law aspects. And, in our submission, the

penalties reflect the structure of dealing with both

aspects. If one severs section 190, that does not,

in our submission, overcome the problem because it

leaves the dual structure, if I can use that term, in

place with the possibility of being dealt with in a

civil court in addition to proceedings under the

DISCIPLINE ACT. In our submission, the problem may

only be overcome if one severs not only section 190 but

section 61 and those offences set out in paragraph l0(b)

of the outline. That would leave the offences which

relate directly to discipline and any question of a

remaining area of operation of State or territory

criminal law would be determined by the question of

inconsistency and the operation of section 109 of the

CONSTITUTION.

In the result, we would submit that the prosecutor

would fail in this action in respect of those charges

under section 24, dealing with absence without leave,

but he would succeed in relation to the charge under

section 55 which, in our submission, is essentially

a forgery charge, as Your Honour Justice Deane indicated

yesterday, and that charge ought properly to be dealt

with in the ordinary civil jurisdiction. Those are

our submissions, if the Court pleases.

~.ASON CJ: Thank you, Mr Cooper. Yes, Mr Solicitor for

New South Wales?

ClTl0/1/SR	173	16/11/88
Ryan

MR MASON:	We hand up the outline of our submissions.
MASON CJ:	Yes.
MR MASON:	We submit that this is not an appropriate

case in which to decide the issues of the validity

of section 190 or the sections like section 61

which create service offences which are tangently

related to matters of discipline. So far as

section 190 is concerned, · our reasons are stated

in paragraph 1 and I do not wish to burden the

Court by reading those reasons. Our primary

submission about section 190 is that properly

construed its impact is very narrow in that it

scarcely merits the great concern that seems to

have been attached to it. As to section 190(1),

a matter which Your Honour Mr Justice Toohey

raised yesterday at page 153, our submission is

that the only preclusion effected by that subsection

is a preclusion of authority to try a charge of

an offence created under that Act and that if

there is a parallel civil court offence, even

one arising under the criminal law of the Australian

Capital Territory which might apply to a service
member in the ACT, then that may be prosecuted

in the civil courts of the ACT and it would only

be if there had been a prior conviction or acquittal

that would provide an autrefois defence that would

operate to preclude jurisdiction in that situation.

TOOHEY J: The difficulty about that, Mr Solicitor, is that

the definition of "service offence" simply draws

in the conduct which section 61 makes an offence.

MR MASON:	Yes.
TOOHEY J:	I understand the notion that section 19.0 (1)

speaks of a service offence and not of a civil
offence and yet when you pick up the definition

of service offence and carry it through it does

not seem to be doing any more than making a

2erson liable under the DEFENCE FORCE DISCIPLINE ACT

for conduct for which that person would be liable

in any event in the civil courts.

MR MASON:  We would respectfully seek to draw emphasis from

the word "offence" in that it speaks, as it were,

of the legal categorization of the acts rather

than use the words "acts". For example, if 190(1)

had said, "Shall not have jurisdiction to charge

a person for having committed an act which is

a service offence", it would be stronger support

for the view that Your Honour has put forward.

And, secondly, we would submit that if one looks at 190 in its context, particularly when

subsection (2) follows straight after,where the
jurisdiction of a civil court to try a charge

of a civil court offence is expressly preserved,

ClTll/1/MB	174	16/11/88
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when it is clear that civil court offences and

service offences can impact upon the same conduct,

that the intention is that, in subsection (1),

the preclusion is merely a preclusion from
exercising a jurisdiction over the offences

created by an enforceable - by virtue of the

DEFENCE FORCE DISCIPLINE ACT.

DEANE J:  What on your approach to section 190 is the

effect of conviction of substantially the

same conduct in a civil court?

MR MASON:	What is the effect?
DEANE J:	Yes.
MR MASON:	It is 144(3) which deals with the reverse

situation.

DEANE J: Section what?

MR MASON:  144(3), because there the federal Act provides

that an acquittal or conviction:

by a civil court of a civil court offence -

means that -

the person is not liable to be tried by

a service tribunal for .... a substantially

the same offence.

(Continued on page 176)

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MR MASON:  And we submit that the expression ''substantially

the same" picks up the current judicial exegesis
of the concepts of autrefois. Subsections (3) and (5)
should be seen, in our submission, by reference
to subsection (2), which is the primary provision,

in that it preserves and states the jurisdiction

of the civil court. The scope of those three

subsections may be very narrow if, in fact, sections

like 61 are invalid - if, in truth the federal

power to create service offences is constricted

and if the preclusion here only applies to civil

court offences that are substantially the same

well then the scope of the preclusion narrows.

One starts, in our submission, against the

background that cases such as HUME V PALMER,

38 CLR 441, and REG V LOEWENTHAL, 131 CLR 338,

would affirm the Commonwealth's power by entering

a field validly to preclude the substantive operation

of State criminal law. In LOEWENTHAL EX PARTE BLACKLOCK

the federal Acts which dealt with malicious damage

to, I think it was defence property, Commonwealth

property,was held to evince an intention to cover

the field and rendered totally invalid a State

Act which created an identical offence.

These three subsections really temper the

operation of any such doctrine and make plain that

the State criminal law is to have its continuing

substantive operation and that it is only if there

has been a prior exercise, and we stress prior

valid exercise, of the federal power that one is

concerned with questions of autrefois in a traditional

context. We have, Your Honours, in paragraph 3

of our submissions drawn attention to other sections

of the Act of which 144(3) is the major one which

similarly show the intention not to cover the field.

Now, it may be that one could say, "Well, we are

happy to take all the other sections but we will

balk at the preclusions in section 190".	But taking
the Act in its overall context that is the theme

which emerges,in our submission.

DEANE J: But if you take 144(3), one thing that it does

do is to emphasize that this Act is not concerned

with drawing a distinction between disciplinary
and ordinary civil offences at all because it says

whatever the offence is if it has been dealt with

in terms of its civil aspects the disciplinary
side adds nothing and it simply disappears.

MR MASON: Well, I would, with respect, agree with that and, in effect, what the Commonwealth has done

is said, "Well, we'll take our chances that the constitutional power and our concept of what is

a disciplinary offence, if that be a necessary

requisite, is broad enough for us to enter such a

wide field as we have in this Act.

ClT12/l/AC	176	16/11/88
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DEANE J:  But this goes right back to your first submission,

does it not? And that is in the context of a section

such as 144(3), is it possible to embark upon any

exercise of severability and say, "We will work out

what are disciplinary offences and even though

that is not why they are there and no effort has

been made to identify the distinction between

disciplinary and otherwise, we will engage in the

drafting job and work out what is and what is not"?

MR MASON:  The offences charged here - I think I am right,

save for my learned friend from Queensland, nobody

has said to date are not themselves disciplinary

offences that fall within a narrow scope of

Commonwealth power. The attack has been to try

and drag the whole temple of the Act down so that

these two offences collapse with it.

DEANE J:	Except Mr Cooper did say it very effectively.
MR MASON:	Yes.

(Continued on page 178)

ClT12/2/AC	177	]6/11/88
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MR MASON (continuing):  Your Honour, one has the

INTERPRETATION ACT injunction about severability

and one also asks if the Commonwealth Parliament

had the choice between making some offences offences
and having none then one would think that the
answer would be they would take as much of the

Act as was available and for that reason we would

respectfully have thought that it is not a case

in which the Act would totally fall.

Certainly the way the attack was put by

my learned friend, Mr Woinarski, for the prosecutor

which was based on the chapter III aspects rather

than so much on the section 61 aspects we find

some difficulty in seeing how it. assists to narrow

down the range of offences or the scope of

protections that the legislation gives. It is

only if this is seen to cover a very wide field

of the whole criminal law that perhaps one's chapter III argument is so much strengthened that one then says, 11 Well, this is really a

criminal code masquerading as a disciplinary

code and it is therefore an exercise of judicial

power of the Commonwealth with respect to that	1 aw 11 •
Your Honours, attachment A to the papers we have handed up is an extract from a report
of a 1973 working party-In the second reading speech which my learned friend the Solicitor- General for the Commonwealth provided yesterday,
the statement is made that this Act is based
heading 11 Trial Provisions 11 the third paragraph upon that working party report and under the
states the assumption that:

For historical reasons, an acquittal or

conviction by an Army or Air Force court martial does not, under the present law,

prevent a subsequent trial by a criminal

court. This double jeopardy no longer seems

justifiable. However, as a check on its

removal, the legislation provides that a

service tribunal may not in Australia try

the most serious criminal offences without

the consent of the Attorney-General.

(Continuing on page 179)

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MR MASON (continuing):  Then there is a provision which is shown

as 131 on the next page, but is clearly what becomes

section 190. Now, Your Honours, I understand that

my learned friend, the Soiicitor-General for

Your Honours have various pages from that book? It was on his list of authorities. It was a book published in 1969 and at pages 335 and following

South Australia, gave the Court a reference to

FRIEDLAND's case,and I wonder do Your Honours have

there is an extensive - - -

MASON CJ:	We do have it, Mr Solicitor.
MR MASON:	Thank you.  There is an extensive discussion of the

doctrine of autrefois in its application to courts

martial followed by civil proceedings. It is pointed

out that in England in 1966 the matter was given

statutory attention. It is pointed out on page 335,

particularly the reference to footnote 3, that a

large number of commentators have stated the view

that:

a proceeding in a military court martial

will not bar a proceeding in the ordinary

criminal courts.

The author goes on to point out that none of them

cite any authority for the proposition and at the top

of page 337, under the heading "Does the Rule Exist",

points out that there is a decision of the United States

Supreme Court, GRAFTON V UNITED STATES, which is

authority for the contrary proposition in a unitary

system and then proceeds to discuss in the remaining

pages, which I will not take the Court t~ the principles

as to whether or not the doctrine should apply in

this context.

Your Honours, it was not in our list of

authorities, so may I be permitted just to read one

sentence from the speech of Lord Devlin in CONNELLY's

case, CONNELLY V THE DIRECTOR OF PUBLIC PROSECUTIONS.

(1964) AC 1254, at page 1347 and .wnen speaking about the

general power to prevent unfairness to an accused

which has always been part of the English criminal law,

His Lordship said this:

I must observe that nearly the whole of the

English criminal law of procedure and evidence has been made by the exercise of the judges of

their power to see that what wa·s fair and
just was done between prosecutors and accused.

The doctrine of autrefois was itself doubtless

evolved in that way. The process is still

continuing, and it is easy to think of recent

examples.

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-Your Honours, at page 140 of the transcript yesterday,

my learned friend, the Solicitor-General from Victoria,

made reference to a footnote in a page on the big
bundle of papers that was handed up by the Corrrrnonwealth,

it was at page 347 of that bundle of papers. That

footnote refers to a discussion in the American case

law about the question of whether the double jeopardy

principle, which GRAFTON's case established, can extend

across a jurisdictional barrier and the cases are all
reviewed, most recently in a decision of the

Supreme Court in HEATH V ALABAMA, 474 US 82 in 1985 - it was not on our list. That was a case where a

conviction in one State for murder was held not to give rise to an autrefois when a murder charge was

brought for the same event in another State.

The American doctrine, however, appears to be

based upon a concept of sovereignty which, in our

sovereigns and that derived from this concept of a separate sovereignty is a separate power in

submission, does not appear to be the law accepted in separate

each to punish which neither can trench upon. Now

given the Australian position where the States under

the federal CONSTITUTION are brought into a unified but

federal legal system, we have some difficulty in

applying those principles to the Australian context,

but I draw them to the Court's attention.

In our submission, if one has a valid offence

that is substantially the same as a civil court offence,

and if it has been tried to conviction or acquittal by

a service court, the question is can the Corrrrnonwealth

mandate a rule of double jeopardy in a later civil

court trial?

(Continued on page 181)

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MR MASON (continuing): "Civil Court" is defined to

extend not just to State courts but to federally
created courts as well.

Since there is no singling out of State courts, since there is the more rigorous background

of the DEFENCE FORCE DISCIPLINE ACT itself, a

matter which, of course, creates a chapter III

problem which we are not concerned with, since

the Commonwealth has the capacity through section 109
to deprive the State of the power to create an offence

in the first place, and since the rule that is mandated

is one which the common law applies, or if it does

not, seems to be fair, for that reason we do not

attack 190(3) and (5). We would certainly wish to

reserve any position which would apply if, for

example, a Commonwealth certificate of exemption

or a no-bill decision by the Commonwealth created a

right of immunity from the general State criminal

law.

BRENNAN J:  How do you make those two considerata run

together? After all, if the military, in an

excess of enthusiasm, should commit what would be an

offence against the law of New South Wales and

punish the offender by a slap on the wrist with

a feather, that would set the law of New South Wales

at nought.

MR MASON:  Yes, well, the Commonwealth can say the punishment

for that act is a slap on the wrist with a feather

and if the Commonwealth-created offence is valid

and the Commonwealth enters the field in an

exclusive way, it would appear that there is
nothing the State could do about it in that

situation. I do stress that the slap on the wrist in the present context is one that is administered

by a detailed and apparently rigorous and fair

criminal justice syst~?· ·

The question corr:es down, in our submission,

to asking whether, if the Commonwealth has power

to create a criminal law, has it the power to

create a fair criminal law?

DAWSON J:  When you say "in an exclusive way", excluding

what?

MR MASON:  The only exclusion here is against double

jeopardy in a true autrefois context where there

has been a valid Commonwealth law. I am not conceding

that all of the offences are validly created offences,

but where one has an overlap, such as the forgery

charge in the present case, if that itself is

conducive to discipline, or for other reasons falls

within 5l(vi) of the CONSTITUTION -

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DAWSON J:  Once you put military offences and civil offences

into different categories, there is no overlap,

is there?

MR MASON:  That is the difficulty we have. To say that

the military power is triggered off by concern

for discipline might be historically true; it

might be an explanation for why the Commonwealth

has validly entered the field. But if one looks

at it from the point of view of the accused
person, Mr Elias and Mr Gordon, if they were

told they had been hanged for a .....

they would not have said, "Well, thank you

very much, that makes it a lot better."

If one is seeing this law as operating

within Australia validly as the Commonwealth's
contribution to a unified legal system then,
as I say, we find difficulty in arguing that

part of that contribution, particularly where

it is reciprocated and where there is an

affirmation of a State power to punish that

offence itself, absent a prior conviction or

acquittal, then it is difficult~- in our

submission, to argue that that is not incidental

to the effectuating of the major purpose of the

Act itself.

If it were a manufactured inconsistency,

and we have given Your Honours some cases in

page 3 about manufactured inconsistency, it would

certainly be otherwise.

(Continued on page 183)

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MR MASON (continuing): Your Honours, may I just give the

Court a reference to a Canadian decision of

WIGGLESWORTH V REG, (1987) 45 DLR 4th 235, an

extensive discussion by the Supreme Court of

Canada about the concept of discipline and

disciplinary offences in the application of

section 11 of the Canadian Charter of Rights

and Freedoms which provides that when a person

is charged with an offence, that person has

certain rights and there, there was a police

officer charged with an assault of a prisoner

in custody under a police disciplinary code and

he was liable to up to 12 months' imprisonment

for that infraction of that code and there was a

discussion in the principal judgment of

Madam Justice Wilson of when a disciplinary

offence can also operate as an offence which

triggers off the section 11 rights and freedoms.

As it turned out, the court held that this

offence, because of the seriousness of the
punishment, did trigger off the right but it did

not trigger off the right of double jeopardy which

was the one that was invoked because the court held

that the two offences were different matters even
though the same act gave rise to the disciplinary

power to punish and the civil power to punish.

Your Honours, very little has been said about 190(4). It is a little janus-like in that it speaks

of a civil court not having jurisdiction to try- a

charge of a civil court offence and at first blush

it appears to preclude State jurisdiction but it

goes on to say:

A civil court offence that -

(a) is an ancillary offence in relation to

an offence against this Act.

"Ancillary offence" is defined in 3 (13) of the Act

on page 10 as being:

An offence is an ancillary offence in relation to another offence if the first-mentioned offence is an offence against -

various sections of the CRIMES ACT. They are the

sections that deal with attempt, incitement,
conspiracy. "Civil court offence" is defined in

section 3(1), page 2 at the bottom, to mean:

(a) an offence against a law of the

Commonwealth (other than a service offence); or

(b) an offence against a law of a State or

Territory;

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It is our submission that the impact of 190(4)

is that it only bars civil court offences which

are offences against a law of the Commonwealth,

ie ancillary offences. So, to take an example,

it would bar a State court from prosecuting an

offence under the Commonwealth CRIMES ACT for

conspiracy that would not bar a State court from

prosecuting a common law or a State law-created

offence of conspiracy or incitement. The double

jeopardy rule brought in by (3) and (5) may have

some operation but not subsection (4).

We draw attention to (4)(b) in that it limits

it to an ancillary offence committed by a defence

member. Attachment B to our submissions is the

relevant paragraph of the explanatory memorandum

which is consistent with the interpretation of

190(4) that we have just offered to the Court.

The validity of section 61 and the other

sections which appear to overlap with State
criminal jurisdiction, if it is befdre the Court,

we wish to submit that 61 may be capable of valid

operation in some contexts but is not capable of

operation in all contexts. In other words, that

some of the offences that are made services offences

via 61 are so remote from any service connection, to

use an American expression I will come to, or

discipline purpose or connection or connection with

the control of the defence forces, to use the

language of Sl(vi), that they do no validly come

within the scope of Commonwealth legislative power.

(continued on page 185)

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MR MASON (continuing):  The American doctrine of service

connection has recently been abandoned but may

I hand up to the Court a page of a judgment in

RELFORD V COMMANDANT, U.S. DISCIPLINARY BARRACKS,

FT LEAVENWORTH, (1971) 401 US 355, and the extract

I have given are pages 364 and 365 of the report

there where the judgment in O'CALLAHAN's case,

which was the law until 1987 in America is set

out, and on page 365 the court stressed a number

of factors which they identified as being relevant

to identifying a service connection.

The way the American courts until 1987

approached the matter is pertinent to the question

of severability. The American CRIMINAL CODE

OF MILITARY JUSTICE enacts a wide range of offences

roughly in the same wax that the DEFENCE FORCE

DISCIPLINE ACT does.	'A serviceman shall not
murder" - very general criminal offences.	But

the doctrine which was applied in RELFORD's case
and in other cases held that the court martial

only had jurisdiction to try that offence if

it found as a jurisdictional fact that the offence

was service connected. So there was no questioning

of the validity of the offence itself but the

constitutional restraint occurred in the

jurisdictional sense.

As we would see it and submit to the Court,

there may be some difficulty in applying that

approach to section 61. If section 61 goes too

far then the whole section may fall and that the

Australian doctrine would not allow one to say, "Well, the court trying the criminal charge can say, 'Well, you're guilty if we find that this

offence took place with the sufficient connection

but not if otherwise"'. But subject to that
problem of severability we would submit that

the doctrine of service connection which was
developed in the American law should be applied

as the controlling factor on the outer limits

of the federal power to create service offences.

Having said that, I draw to the Court's

attention that in SOLARIO's cas~ which the Court

does have, I believe, SOLARIO V UNITED STATES, (1987)

97 L Ed2d 364. Your Honours may have it in another

citation, 107 Supreme Court 2924 and 55 Law Week 5038

The court, by_ a majority, abandoned the O'CALLAHAN

and RELFORD test and held that the jurisdiction

of a court martial depends solely upon the accused

person's status as a member of the armed forces

and they relied upon the meaning of article I,

section 8, clause 14:

CIT17/l/ND	185	16/11/88
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which grants to Congress the power to

make rules for the government and regulation

of the land and naval forces -

similar although not identical to the second part of Sl(vi) of our CONSTITUTION. And the reasoning of the majority judgment was, in effect,

that a serviceman is never off the job and very

near the end of the majority judgment, about

four paragraphs back:

Decisions of this Court after O'CALLAHAN

have also emphasized that Congress has primary

responsibility for the delicate task of

balancing the rights of servicemen against the needs of the military. As we recently

reiterated, "judicial deference ... is at

its apogee when legislative action under

the congressional authority to raise and

support armies and make rules and regulations

for their governance is challenged."

Lest I forfeit, entirely, mv membership of the

States' Solicitors'-General'sclub, may I say that

we would ask the Court to follow the dissenting

judgment in SOLORIO's case which joined issue

with the majority mainly on the history of the

matter. The opening main paragraph shows a sturdy

method of dissent - I just draw attention to

the second part of the paragraph:

(Continuing on page 187)

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MR MASON (continuing):

Today the Court overrules O'Callahan. In doing so, it disregards constitutional

language and principles of stare decisis

in its singleminded determination to subject
members of our armed forces to the

unrestrained control of the military in

the area of criminal justice. I dissent.

Now, the two reasons which the minority fixed upon were the protections of trial by jury which were

constitutionally available if the accused person

was kept out of the exclusive control of the

military, something which in fact is the case

in the Australian law but not as a matter of

constitutional right and, secondly, the historical

factor. There is a paragraph conn:nencing:

In that respect it is significant that the

British political and legal writing of

the 17th and 18th centuries demonstrates a longstanding suspicion of broad court-

martial jurisdiction.

At the very end of that paragraph the statement

is made that:

The reach of military law in Britain at the time of the Revolution thus permitted courts-

martial only for offenses conn:nitted by

members of the armed forces that had some

connection with their military service.

Reference is made to GOULD's case which has been

referred to by three of my learned friends already. There is also a reference in the

paragraph conn:nencing "American colonists"~about

two further paragraphs further down, to:

One of the grievances stated in the

Declaration of Independence was King George III's
assent to "pretended Legislation: For

quartering large bodies of armed troops among

us: For protecting them, by a mock Trial

from punishment for any Murders which they

should conn:nit on the Inhabitants of these

States."

Now, if we were in a feather slapping era where

that was a matter of concern then that would be

one matter. In our submission, the minority

approach, taking the narrower historical reach
of the military law at its purpose, should infuse

the extent of the Conn:nonwealth legislative power

under Sl(vi). Alternatively, we would wish to

ClT18/l/MB	187	16/11/88
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reserve the position by saying that if the majority

approach in SOI.ARIO is applied, in other words,

service connection is just about all that the

Commonwealth needs to fix upon because a serviceman

is never on leave, we would wish to put the caveat

that that follows only from the express words

of Sl(iv), the tail end of the express words, where
it speaks of controlling the military forces, and

the particular disciplinary needs that are emphasized

by the majority judgment in SOI.ARIO, and that if

section 61 is valid it provides no precedent for
the Commonwealth saying, for exampl~ "A Commonwealth

public servant shall obey the following code of

Commonwealth criminal law."

DAWSON J:  What do the concluding words of paragraph (vi)

mean:

control of the forces to execute and

maintain the laws of the Commonwealth.

MR MASON:  Well, the execution and maintenance of law

was traditionally -

DAWSON J:  You take it to be a reference to military,

do you?

MR MASON:  Yes. The execution and maintenance of law

was traditionally a part of the oath that the

serviceman took, part of the function of the

armed services to protect the constitutional

authority.

DAWSON J:  So it is the equivalent of the control of the

armed forces?

MR MASON:  We would read that as the control of the armed

forces.	Now, whilst there would be limits even
to that power it is an explicit grant of power

which is absent from other heads of Commonwealth

power. I am reminded that QUICK V GARRAN discuss

Sl(vi) in those tail-end words and suggest that that is the proper interpretation for them.

If the Court pleases.

MASON CJ:  Yes, thank you, Mr Solicitor. Yes, Mr Solicitor

for the Commonwealth.

(Continued on page 189)

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MR GRIFFITH: If the Court pleases, may I hand up our

contentions?

MASON CJ:	Yes.
MR GRIFFITH:	Your Honour Justice Brennan referred to the

"slap of a feather" in military discipline. The

extract from the naval ordinances of Richard I

which commence the article by McDonald, which I

handed up yesterday, would seem to indicate that

the feather is slapped on in a different way.

If I could take the Court briefly to that introduction.
It refers firstly to the penalty referred to by

my learned friend,Mr Woinarski, on the last occasion:

whoever shall commit murder aboard ship

shall be tied to the corpse and thrown into

the sea; if a murder be committed on land

the murderer shall be tied to the corpse and

buried alive; if any man be convicted of

drawing a knife for the purpose of stabbing

another or shall have stabbed another so that
blood shall flow, he shall lose a hand; if

a man strike another with his hand, he shall

be ducked three times inthe sea; if any man

defame, vilify, or swear at his fellow, he

shall pay him as many ounces of silver as

times that he has reviled him. If a robber

be convicted of theft, boiling pitch shall

be poured over his head, and a shower of

feathers shaken over to mark him, and he shall

be cast ashore on the first land at which

the fleet shall touch.

So, perhaps, in those days, Your Honour, the feather

hit fairly hard.

BRENNAN J:	Yes, but the basic problem - perhaps 1 should not interrupt you at this stage - when one is speaking
of constitutional dispositions of power are the
checks and balances which ensure that the repositories
of power do not destroy a society dedicated to
freedom.

MR GRIFFITH: Yes. Well, Your Honour, that we most certainly

accept. Our submission would be, Your Honour,

that the mechanism of this Act is in conformity

with such principle. Section 63 is one overt

statement of that dealing with the requirement
for Attorney-General's consent as to military

offences in respect of defined serious crimes

proceeding and we would submit, Your Honour, that

it should be taken as of course that there would

be a mechanism for the creation of an appropriate

relationship between the application of civil law

and military law. One picks that up, for example,

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Your Honour, in the report of the English select

committee where it refers to the mechanism for

consultation as to whether or not offences should be proceeded in civil courts and military courts,

and we would submit, Your Honour, that it should

be accepted that the ordinary practice of the

mechanism provided for in this Act should involve,

similarly, Your Honour, a sensitive application

of the provisions of the Act and the Court should

make no assumptions that there is any intention

to create a mechanism to provide for a capacity
to substitute the slap of a feather to the rigorous

operation of the law.

After all, as my learned friend, Mr Mason,

pointed out, Your Honour, the penalties are the

same. There is a rigorous form of application

of the criminal process leading to the same penalty

and we would submit, Your Honour, that there should

be no occasion for this Court to approach issues

of power with any assumption that there is any

attempt to undermine the matter Your Honour refers

to.

If we could commence with a little bit of

law to make out our proposition in paragraph 1.

Of course, the Court has already been referred

to the common place that the defence power is a

purposive one and has had reference, amongst others,

to the statement of Justice Fullagar in the

COMMUNIST PARTY case, 83 CLR 253.

(Continued on page 191)

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MR GRIFFITH (continuing): Now, we would submit that there

is a close analogy in this aspect with laws passed

for the purpose of implementing treaties under the

external affairs power. We accept that Your Honour

Justice Dawson would not concur in that analogy, but as we understand Your Honour's judgment in the

RICHARDSON casP.. Your Honour would accept the purposive

test so far as defence power is concerned. So ·

that if we could with that qualification emorace

Your Honour in the submission that to consider the purposivE

application with respect to the defence power,

one can have regard to articulation of such an

approach as has been expressed by recent judgments of

that court in relation to the external affairs power.

And in expressing that approach, could we accept what

Your Honour Justice Brennan said in the TASMANIAN DAM's

case, in 158 CLR, in particular at page 232. There

Your Honour made the point of the relationship that

the test was purposive in each case and said towards

the bottom of page 232 that:

the validity of law -

there you are referring to external affairs:

depends upon whether "the law can fairly

be regarded as providing a way of doing what

the Commonwealth has undertaken to do; the

choice of ways and means being a matter

essentially for the Parliament".

A little higher in the page, Your Honour said:

The court's function is not to determine

what is appropriate or necessary for

implementing the Convention ..... but to say

whether the law or any part of it cannot

reasonably be considered conducive to the

performance of the obligation impos€d by

the Convention.

Then Your Honour refers to RV BURGESS, picking

up a statement of Justice Dixon that:

No doubt the power includes the doing of anything reasonably incidental to the execution of the purpose.

Your Honour also made the observation towards the foot

of page 232 that:

Such a legislative power -

the external affairs power -

may be said to be purposive in the same

way as the defence power is said to be purposive.

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Where the amibt of the defence power is

in question, the facts which may reveal a

connexion between the law and the power are

ordinarily the subject of judicial notice.

And on the top of page 233, Your Honour then referred

also to Justice Dixon's statement in STENHOUSE V COLEMAN

that:

The purpose of the laws ..... is to be

collected ...... "from the instrument in

question, the facts to which it applies and

the circumstances which called it forth."

So, in our submission, it is sufficient to apply by

analogy the most recent decision of the Court on this

aspect of external powers dealing with the question

of the purposive approach to construction, we would

say here, of the defence power. And if we could take

the Court then briefly to the RICHARDSON V THE

FORESTRY COMMISSION, 164 CLR 261. At page 292,

Your Honour the Chief Justice and Justice Brennan

acknowledged that some acts prohibited might: be so trivial that they do not present a

significant risk ..... to the world heritage .... .

None the less the class of acts prohibited .... . are generally speaking acts involving a

potential risk of injury.

Now, we would submit the question here is somewhat

similar. It is not an issue, we suggest, that whether

one can think of an example such as a soldier on

leave committing murder in a hotel in Surfers Paradise

and assert that that does not have much connection

with defence.

(Continued on page 193)

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MR GRIFFITH (continuing):  We submit the question is whether

the impugned law, and whether it is section 190

or section 61, or those two sections in relation,

is whether one can say that the provision is

of itself a kind which has a connection with

defence. So the test is, we would submit, whether

throwing the net is within the defence power, rather

than whetherevery fish that one catches when one

throws the net should on its own be regarded as

being, as it were, a defence fish. So our emphasis

is on the throwing process, the definition of the

ambit, rather than looking in every case at the

content, and,as mentioned a short while ago,

we would submit that where one has cases of most

obvious no-service relationship one would expect

in the ordinary course, most obviously then one

would expect that the civil courts would in the

ordinary way exercise their jurisdiction. I will

give some statistics later on as to the extent

to which sections such as section 61 have formed

the basis of military proceedings in the last

few years, but it is not to a great extent.

At page 295, particularly the top of page 296,

in the joint judgment of Your Honours, the important
proposition is made that the purposive legislation

is upheld by the Court unless - and this is the

top of page 296 - the legislative judgment cannot

reasonably be supported. We would submit that

that is an approach which is apt to apply in the

case of the consideration of this legislation.

If I could then refer briefly to the judgment

of Justice Wilson at page 303. That expressed the

relevant approach in a way which is reflected

indeed in the words of our first proposition. There

Your Honour said, at page 301 point 3:

The TASMANIAN DAM case is authority for

a somewhat expanded statement of the test,

namely, that provided a law is capable of

being reasonably considered to be appropriate

and a~pted to carrying out or giving

effect to an object that impresses it with

the character of a law with respect to
external affairs, the choice of legislative
means for achieving that object is for
the Parliament and not for the Court.

At page 308, Your Honour Justice Deane also acknowledged the analogy between defence and external affairs, and

at page 312 Your Honour stressed that:

it is not necessary for this Court to be

persuaded that the particular provisions

are, in fact, appropriate and adapted to

the designated purpose or object.

That, Your Honour thought, was a matter for Parliament.

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Your Honour said, about half-way down page

312:

In my view, it is not necessary for this

Court tobe persuaded that the particular

provisions are, in fact, appropriate and

adapted to the designated purpose or

object. That is a matter for the

Parliament. Obviously, the relevant

requirement will be satisfied if the Court

is so persuaded. As I have indicated

hcwever, it will, in my view, suffice if it

appears to the Court that the relevant

provisions are capable of being reasonably considered to be so appropriate and adapted.

In our submission, that Your Honour's remarks are there

being said by reference to a law which had a
prima facie operation on a domestic matter sought

to be justified under the external affairs power,

one is, we would suggest, dealing with a stronger

case dealing with the issue in respect of the

defence power here.

As I have mentioned, Your Honour Justice Dawson,

at page 326, would not accept the analogy between
defence and external affairs power, but, if we
may suggest to Your Honour, your reference to the

scope of the power at page 326 would seem, we would

hope, Your Honour, to be consistent with accepting

the statements which we have referred to you from
the other Justices and those which I will refer
to now as being of some relevance in respect of

the question of the operation of the defence power.

(Continued on page 195)

CIT21/2/JM 194 16/11/88

Ryan
MR GRIFFITH (continuing): At page 336, Justice Toohey

referred to approval, we would submit, with this

objective approach and Your Honour said, at about

point 8 of the page, having referred to the

judgment of Chief Justice Barwick in the AIRLINES

OF NSW case, said:

It is, in the language of Barwick CJ .....
"appropriate and adapted" to the implementation
of the Convention. Certainly it is seen by

the Parliament to be so; viewed objectively

it is capable of being reasonably considered

to be so and that is enough to support the

means chosen by Parliament to give effect to

the Convention.

And you referred to the TASMANIAN DAM case.	We
would refer, also, to several passages in
Justice Gaudron's judgment which we would suggest	are to the same effect, including page 342 point 9,
343 point 3 and, in particular, at page 344 point 7. Your Honour said:

It is established by the TASMANIAN DAM case

that where Parliament en~cts legislation in

implementation of a treaty it is for the

Parliament to choose the methc,.: by which that

object is achieved, provided c ~ method chosen

Parliament enacts legislation for the purpose of bringing about a state of affairs conducive to the purpose of a treaty, it is for the Parliament to choose the method by which that object is to be achieved. However, I do not think that it states the position with

is appropriate and adapted to :hat object.

sufficient accuracy to say that a law which

is enacted for the purpose of bringing about

a state of affairs conducive to the purpose of

a treaty must be appropriate and adapted to

that object.

And then, after reference to various of Their Honours'
judgments in the TASMANIAN DAM case, Your Honour,

then, said:

The need for legislation which is

enacted in discharge of a treaty obligation

to conform to, or to be reasonably capable

of being regarded as appropriate or adapted

to, the treaty obligation derives not from

any particular feature attaching to a treaty

or treaty obligation, but rather, from the

fact that the treaty obligation~

et cetera, and then Your Honour said further down the page:

ClT22/l/SH	195	16/11/88
Ryan

"the law must be seen, with 'reasonable

clearness', upon consideration of its

operation, to be 'really, and not fancifully, colourably, or ostensibly, referable' to and explicable by the purpose or object which is said to provide its character" -

and there referred to the judgment of Justice Deane.

We would submit that the approach there, as

we have said, by reference to external affairs

power, is one which is apt to express the relevant

point of inquiry so far as the validity of this

Act is to be concerned.

Yesterday, I handed up during the course of

my learned friend Mr Berkeley's submissions, the

volume of military discipline statutes and also a

copy of the explanatory memorandum and the McDonald

article which we referred to. We see that there is

a problem of rank in this case in that, although,

I think, two members of the Court have at some

time - at least two members - had commissioned rank,

I find, looking up the bar table, that the prosecutor

has the advantage of a captain as part of the counsel

there. I have a greater advantage in that I have the

assistance of Lieutenant-Colonel Callaway but what

concerns me, in the order of batting, is that

Group Captain Parker is going next after and, perhaps,

will be able to claim privileges of rank. However,

in the context of those representations at the bar

table, it does seem to us that it is peculiarly

appropriate that this military materials should be

explained to the Court by someone of a stronger

military background than the present Solicitor-General

of the Commonwealth and what I propose is that

Mr Callaway should take the Court quickly through

this material. It is submitted it is relevant,

firstly, to establish that section 61 and section 190

are capable of being reasonably considered to be

appropriate and adapted to provide for an effective

and just system of service discipline and, also,

will give a view of the history in relation to the

military character of tribunals which, we would

submit, goes to the characterization in respect of
chapter III so that we would expect our propositions
on that issue to be very short, after the survey of
the military material.

My learned friend assures me that he has the capacity to make this material interesting to the

Court and he will also, whilst dealing with it,

cover the issue of section 61, covered by proposition

2 of our materials and also some of the other issues

which have been raised, for example, the historic

references in paragraph 8 of the prosecutor's contentions

and also the question raised by my learned friend,

Mr Berkeley as to the question of the application of the

American -constitutional positions, if the Court pleases.

ClT22/2/SH	196	16/11/88
Ryan

MASON CJ:	Yes, Mr Solicitor. Well, Mr Callaway, I hope you can live up to the assurances that you have
given the Solicitor.
MR CALLAWAY:	Your Honour, I will do my best, but may I

disclaim any implication that I appear as an

expert witness rather than as counsel in this

case and to substantiate that possible

impression, might I begin by making a barrister-like

submission rather than an expert witness-like

statement about my learned friend, Mr Woinarski's,

historical argument which was found in paragraph 8

of his contentions. I hasten to assure the Court

that I do not propose to go through my learned

friend's cases but simply to make this submission

about that paragraph.

In our respectful submission,Australian service tribunals are entirely statutory and therefore

very little, if any, assistance can be derived by

the Court in the present case from a consideration

of the medieval law or the prerogative courts.

Secondly, in our submission, the place occupied

by courts martial in the English scheme of courts

and tribunals is again of little assistance to the

Court in determining whether a defence force

magistrate under this modern Australian legislation

is exercising the judicial power of the Connnonwealth

within the meaning of section 71. And as a footnote

to that second submission we would simply say that

in the Australian constitutional context any

submission to the effect that courts martial, or

defence force magistrates, form part of the judicature,

whatever its relevance might be in England,is

directly contrary to what Mr Justice Dixon said

in COX's case, at page 23 point 8, and we would

respectfully adopt what His Honour said and
respectfully ask the Court to continue to apply

that doctrine.

Your Honours, the volume of materials, the

military discipline statutes, to which I will turn

in a few minutes, show three things relevant to

this case. Let me outline what those three things

are and perhaps slip in one or two brief

submissions in the course of the outline before

going to the materials. First, the volume shows

that in 1900 the framers of our CONSTITUTION were

confronted with a familiar system of naval and

military tribunals trying persons subject to naval

and military law for service offences. It is not

to be supposed, in our respectful submission,

that the framers of the CONSTITUTION intended

to do away with all that and to replace a well known

system of military tribunals with judges appointed

for life. May I interpolate something there

before going on to the second matter that is shown

by this material. Yesterday my learned friend,

ClT23/l/MB	197
Ryan

Mr Woinarski, made what we say, with respect, was

a very revealing submission at page 95 of the

transcript. My learned friend said that the

appointment of specialist judges:

would, if anything, be more likely to lead

to better administration rather than worse

because you would not have the requirement

for cormnanders and various senior officers

to be involved in carrying out courts

martial or anything like that, you would

simply have a person appointed pursuant

to chapter III who could do the job for them and they could get on with the job of being defence officers.

Now, Your Honours, with respect, that shows the

fundamental vice in the prosecutor's submission

about judicial power. Military discipline is

not a disparate function performed as an unwelcome

additional chore by military cormnanders. Military
discipline, military justice, are integral parts

of being a military cormnander, are integral parts of the role of the officers of the defence force.

Cormnanding a ship's company, training a regiment,

leading a squadron, involves the administration of justice in a military context. That is why, in our submission, it is not part of the judicial

power of the Cormnonwealth and has never been so

regarded.

The second thing which these materials show,

again in 1900, but for years before 1900 also,

was that the service offences dealt with by naval

and military tribunals included ordinary crimes
cormnitted by persons subject to naval or military

law.

(Continued on page 199)

ClT23/2/MB	198
Ryan

MR CALLAWAY (continuing): They already included service

offences where the only nexus was being subject

to naval or military law. Section 61 has

respectable antecedents that go back to the time

of the adoption of our CONSTITUTION.and the materials

further show that the trend of military law has

been towards statutes that fasten on being subject

to military law as the sole appropriate and

sufficient nexus, a position to which the Supreme

Court of the United States has now returned.

Your Honours, I would simply slip in the

respectful observation that it is many years,

if ever, that a view as narrow as that contended

for by my learned friend, Mr Cooper, has been
the usual view in British and Australian

jurisprudence. Right back in the 19th century

one finds not only service offences where the

only connection is membership of the defence force but all sorts of crimes that have only

one or two connecting elements. My learned friend's

suggested narrow range of permissible service

offences would take us back a very long way indeed.

That can be illustrated by the passage from

Lord Loughborough's judgment in GRANT's case

to which reference has been made from time to

time.

That, of course, is a decision in 1792 and

one of the things Lord Loughborough said in that

case was that in 1792 disciplinary offences were
so narrowly understood that not even giving

information to the enemy would be a disciplinary

offence. Your Honours, I do it from memory

but I think my memory is right that in the English

reports of that case, which is volume 126 at 434,

that part is not from memory, the part that is

from memory is that His Lordship says that at

page 450 but I do not desire to read it to the Court, simply to give it as an illustration of the way the concept was once exceedingly narrow

but has broadened out and had broadened out by

the time the CONSTITUTION was adopted.

Your Honours, that also illustrates that

one's idea of a disciplinary offence may change
with time which makes it hard to draw the

distinction that some of my learned friends have

contended for. The third thing that these materials

show is a further trend in service law in the

common law world. Modern service discipline

statutes protect service personnel against double

jeopardy. That is a change from the 19th century

attitude to things, that modern statutes protect

service personnel against double jeopardy.

If I might take up something arising from a question that Your Honour Justice Deane asked

ClT24/l/ND	199	16/11/88
Ryan

one of my learned friends, concerned with

section 144(3). Your Honour, in our submission,

what that section shows is that in the circumstances

there referred to the Parliament puts the

requirements of fairness above the requirements

of discipline and that if a person has been tried

by a civil court it is more important that the

person should not be exposed to double jeopardy

in a military court than that the additional

disciplinary interest should be pursued.

And, Your Honours, most significantly, perhaps, in this area, is that the Royal Australian Navy

already had a modern double jeopardy provision

before the DEFENCE FORCE DISCIPLINE ACT came

into force. As I will show to the Court shortly,

the navy already had the equivalent of

section 190(5). As Your Honours will have seen

there are many statutes in the folder of materials

and one way of working out which are relevant and really need to be referred to is first to be aware of the position before the DEFENCE FORCE

DISCIPLINE ACT came into force. It is a labyrinth

but if one goes through the labyrinth, and it

may be done very briefly, one then knows what

statutes are directly relevant and what statutes

are more by way of background.

Before the present Act came into force, there were, in this country, effectively, four

systems of service law: the army had two, the

air force had one and the navy had one.

(Continuing on page 201)

ClT24/2/ND	200	16/11/88
Ryan

MR CALLAWAY (continuing): In the army, the

position was this: · if a member were on war service

or were outside Australia, including cocktails in

the High Commission in London, being outside Australia

was deemed to be war service, if a member were on

war service or outside Australia, the imperial ARMY ACT

applied subject to modifications made by regulation.

And that meant that the ARMY ACT of 1881, as amended
down to 1956, it did not mean the British Act of 1955.

And that emerges from sections 54 and 55 of the

DEFENCE ACT. read in conjunction with the definition	of 1Army Act'' at the beginning of the DEFENCE ACT. In
the case of members who were not on war service and
who were not overseas, the offence-creating provisions
and the punishment-creating provisions were largely
to be found in the Australian military regulations. But matters such as the composition, procedure,
powers of courts martial, were again to be found in
the ARMY ACT because what might be called the procedural provisions of the ARMY ACT were applied even in
peace-time in Australia and that emerged from section 88
of the DEFENCE ACT.

The airforce was more fortunate. Section 5 of

our AIRFORCE ACT 1923, provided that the imperial

AIRFORCE ACT applied at all times, in Australia, out

of Australia, war service or not and that meant

the old British AIRFORCE ACT, that first saw the light

of day in about 1917 amended down to 1939. As I

think I mentioned, that came from section 5 of the

definition of''Airforce Act"in the AIRFORCE ACT 1923,
again subject to modifications by regulations to make

it appropriate for Australian circumstances.

The navy was even more fortunate. Section 34

of the NAVAL DEFENCE ACT 1910, read in conjunction with

the definition of"Naval Discipline Act",applied the

new British NAVAL DISCIPLINE ACT of 1957 to the

members of the Australian Navy at all times, in Australia,

out of Australia, war service or otherwise, taking

the new British Act with amendments down to 1964, again
modified and adapted by regulations.	Your Honours, as

we shall see, that Act included a section 129, which

is substantially our subsection (5) of section 190.

If I then might ask Your Honours to refer to the

folder of materials, and it may be that use of a

separate index my learned leader handed up yesterday

is also helpful. Might I identify for the Court what
the most relevant provisions, in our respectful submission,

arer beginning, however, with the correction of a typographical error. In the table of contents, at point 3 of the page under the heading "Army", the

FIRST MUTINY ACT is, of course, an Act of 1689, not

1688. The same correction needs to be made in the

ClT25/l/SR	201	16/11/88
Ryan

precis on page 2 at point 6. It is the same typographical error. Turning to the precis,

Your Honours, in the interests of time one can simply

notice the precis of the provisions of the 1661 and

1749 legislation and go straight to the NAVAL DISCIPLINE

ACT of 1866 because that was the NAVAL DISCIPLINE ACT

in force throughout the British Empire in 1900, so

that the framers, if they had been asked what they
understood by "naval law",-;vould have gone to the

NAVAL DISCIPLINE ACT 1866- as the paradigm for naval

law.

(Continued on page 203)

ClT25/2/SR	202	16/11/88
Ryan

MR CALLAWAY (continuing):  And Your Honours will notice

that, of course, there was an offence of absence
without leave and, of course, there was an offence

for making or signing false records and offical

documents. I mention in passing, Your Honours,

that section 35 of the old NAVAL DISCIPLINE ACT

was very widely expressed. It is arguable that

section 55(l)(b), one of the sections with which

the present prosecutor is being charged, is even

narrower than the old NAVAL DISCIPLINE ACT which

spoke, materially, simply of making or signing

a false official document - at least the prosecutor

is being charged with falsification of a service

document.

Over the page Your Honours will see that there

was a section 45 which made "offences punishable under the

ordinary law" triable by naval courts and a

section 46 described in the precis as "offences,

when punishable" and then three lines later sections

identifying the "persons subject to this Act" and

section 101 providing that the Act was "not to

supersede authority of ordinary courts.

Now, Your Honours, working backwards - I do

not desire to take the Court to section 101 - the
19th century approach was to preserve the jurisdiction
of the civil courts at the expense of fairness

to the individual. We will see that change but

section 101 is the old approach of saying this

Act does not detract from the powers of the civil

courts. There is no need to go to sections 87 to 90

but I mention in passing that civilians have always been persons subject to military law, the reference to defence civilians in the Act is not a radical

innovation. Civilians were covered in sections 89

and 90 of the old NAVAL DISCIPLINE ACT. But might I

ask Your Honours to refer briefly to the actual

text of sections 45 and 46 of the old

NAVAL DISCIPLINE ACT which are at page 33 of the

volume. These are one of the predecessors of

sections 61 and 63. Your Honours will see that

section 45 says, in substance,that a:

Person subject to this Act who shall be

guilty of Murder shall suffer Death.

It then deals with manslaughter and other specific

offences and then provides:

If he shall be guilty of any other Criminal Offence which if committed in England would

be punishable by the Law of England, he shall,

whether the Offence be or be not committed

in England, be punished either in pursuance

of the First Part of this Act as for an Act
to the Prejudice of good Order and Naval

Discipline not otherwise specified, or the

ClT26/l/AC	203	16/11/88
Ryan

Offender shall be subject to the same

Punishment as might for the Time being be

awarded by any ordinary Criminal Tribunal

competent to try the Offender if the

Offence had been committed in England.

Your Honours, that did not apply at all times and

places and circumstances. One of our submissions

will be that one of the reasons why it is not

appropriate to insist on a service nexus other

tha~ relevantly, membership of the defence force,

is that there is an infinite variety of possible

service connections and whilst my learned friend

the Solicitor for Victoria says that it is not

beyond the wit of man to draft the legislation,

it is exceedingly difficulty, and section 46

illustrates it. Section 46 is a case of the

mid-19th century draftsmen trying to identify the

various ways in which the interests of the service

might be effected - and I do not read it, Your Honours,

but it is a sort of shotgun approach to trying

to list the various nexus that might be relevant.

It has been found to be unworkable and we submit

it has been found to be unnecessary in legal

principle but it is a neat early example, in our

respectful submission.

Going back to the precis, the next Act dealt

with is the NAVAL DISCIPLINE ACT of 1957. Unfortunately,

the copy that we have in the folder has amendments

through to 1982. The amendments adopted by Australia

stopped in 1964 but we think that there is nothing

misleading. It is simply inconvenient. We do

apologize for the inconvenience.

(Continued on page 205)

ClT26/2/AC	204	16/11/88
Ryan

MR CALLAWAY (continuing):  Your Honours will note that

section 42 has a provision that offences against

the law of England are triable by naval court
martial, but in 48(2) that there is to be no

trial by court martial of treason, murder,

manslaughter and certain other offences coomittee on shore

within the United Kingdom. But all other civil

offences, whether committed within the United

Kingdom or outside the United Kingdom are triable

by court martial. I do not ask Your Honours to

read that section at the moment. The next section is 129, which is the

equivalent of 190(5) and which the Australian

navy already had before the DEFENCE FORCE DISCIPLINE
ACT came into force. If Your Honours turn to page

56, which in my copy is a little page that has

been pasted in over page 57. I say that in case

the same is true of any of Your Honours' copies.

WILSON J: Yes, it is.

MR CALLAWAY:  Your Honours will see that subsection (1)

provides - and I will try to leave out the words

that have been put in since the cut-off point in

1964:

Where a person subject to this Act is

acquitted or convicted of an offence on

trial by a court-martial or disciplinary

court, or on summary trial a civil court

shall be debarred from trying him subsequently - and I suspect that the pre '64 language said

"for the same offence" rather than "for the same,

or substantially" -

but except as aforesaid nothing in this Act

shall be construed as restricting the

jurisdiction of any civil court to try a

person subject to this Act for any offence.

So that the last three lines are our 190(2) and

the first part is our 190(5). Section 190(3) just, of

course, reflects the modern approach that a

person may confess ·to another offence and be

dealt with at the same time and the double jeopardy
provisions then protect him against the offence

for which he is dealt with at the same time.

Without reading it, I simply mention to the

Court that 129(2) is the analogue of section 144(3)

of the DEFENCE FORCE DISCIPLINE ACT.

The precis then turns to the military materials,

and again one can save time by not referring in detail

to the MUTINY ACT, although Your Honours will see

that absence without leave and false returns have

CIT27/l/JM	205	16/11/88
Ryan

a respectable antiquity going back at least

to the MUTINY ACT of 1872.

In 1878 the military law in England was

largely modernized and put together in the

ARMY DISCIPLINE AND REGULATION ACT, which
itself was consolidated and became the

ARMY ACT 1881, in the precis page 3.5, and

that is the ARMY ACT that confronted the

framers of the CONSTITUTION. If they had

asked what is a paradigm for army law in

Australia and other parts of the British

Empire, they would have unhesitatingly have

referred to this Act and most of the colonial

statutes referred to either this Act or the

equivalent Act of 1879. Of course, this is

the Act that continued to apply to the Australian

army, subject to the qualifications I mentioned,

until recently.

The provision for trial of civil offences

was dealt with in section 41 to which several of my learned friends have referred and which I do not desire to read to the Court. Section 41

did contain restrictions on trial in the United

Kingdom or overseas where a civil court was available.

Section 162 reflected the 19th century approach	-
to double jeopardy that if you were tried by a

civil court you could not be tried by a court martial,

but if you were tried by a court martial you could

be dealt with again in a civil court.

If Your Honours would just briefly turn to

page 146, Your Honours will see a section that

encapsulates the 19th century,approach to

these things.

(Continued on page 207)

CIT27/2/JM 206 16/11/88

Ryan
MR CALLA~AY (continuing): Subsection (1) says that you

may be tried again by a civil court. All the

civil court has to do is to take into account

the punishment and subsection (6) says that where you have been tried by a civil court, you may not be tried by a military court.

At the top of page 4 of the precis, again,

we have identified the sections which explain
what was meant by a person subject to military

law. Again, it included what we would now call

defence civilians. The civilians were mentioned

in section 175(7) and (8) and, again, in section 176(9)

and (10).

The relevant provisions of the ARMY ACT, in

other words section 41, were revised in 1932. In

our submission, there is little material difference

between the sections 41 and 41A referred to at page 4

point 2 and the section 41 in the 1881 Act and

section 162, at page 177 is substantially the same

as the section to which I have already taken the

Court.

Now, Your Honours, we set out next the new

British ARMY ACT, not because it ever applied in

Australia - the .army was not so fortunate as to
get a modern system of law until the DEFENCE FORCE

DISCIPLINE ACT came along - but because it illustrates two things: first, section 70 shows the continuation of the modern approach that, by and large, a civil

offence if triable by court martial if the person

who committed it was subject to military law. The	exception is simply in favour of certain specified
crimes committed in England. We have achieved the
same result by what we submit is the permissible method of section 63.

Your Honours, one of my learned friends referred

to COX and the ARMY COUNCIL but, of course, that

was a case about a soldier in Germany and references

to the operation of section 70 of the British Act

outside the United Kingdom are natural in that case

be·c·ause COX' case, as I recall, was a case of a

soldier trying to read down section 70 because he,

the soldier, had been in Germany at the time of the offence. Section 70 says expressly that it applies

whether the offence is committed in England or outside

England unless it is treason, murder, et cetera.

The second reason we refer to the new British

Act, though it never applied in Australia, is that

in section 133, precised at the top of page 5, one

sees the modern rule on double jeopardy finally being

adopted by the British army. Your Honours have already

seen that the navy had the modern rule in that

section 129 that I read to the Court. The army

ClT28/l/SH	207	16/11/88
Ryan

and the air force were slower to adopt it but,

finally adopted the modern rule that, if you

are tried by a military court, you cannot be tried

in a civil court, in section 133. So that that

section may be regarded in substance as the army
equivalent of section 129(1) of the new NAVAL

DISCIPLINE ACT and the select committee,reporting on the amendment in 1966, said in substance, "The

only exception to double jeopardy seems to be that

soldiers and airmen are exposed to double jeopardy".

That seems unprincipled; they should be protected

just as sailors are and the rest of the community

and my learned leader, yesterday, handed up copies

of the relevant extract from the select committee

report. It occurred to us overnight that they were

rather hard to read and, although I do not desire

to read anything to the Court, we have enlarged

some photocopies so that if Your Honours were to refer to them, Your Honours would have a legible

copy of the select committee report or rather, of

the relevant page, if I might hand that up to the

Court.

MASON CJ:	Yes, thank you, Mr Callaway.
MR CALLAWAY:	Your Honours, when one turns to the air force,

it is easy. It always has been easy, both in

Britain and Australia. Air force law has always

tracked army law so that the AIR FORCE ACT has

always been largely the .ARMY ACT with "soldier"

crossed out and "airman" put in and the section

numbers have always: been the same. In the old

AIR FORCE ACT that applied in Australia with

amendments down to 1939, the civil offences
section was section 41, the old-fa·shioned double

jeopardy provision is section 162. In the new

British statute, the civil offences section is,

of course, section 70. The new approach to double

jeopardy is, of course, section 133.

Your Honours, the colonial statutes are in the

beok, not for the purpose of making exhaustive and

exhausting reference to them. It is simply to show

that if the framers had turned to the colonial

materials.instead of to the British materials, they

again would have seen a well-established system of

service tribunals dealing with service personnel
for service offences and they would also have seen
copious references to the imperial ARMY ACT of 1881

or its 1879 equivalent.

-~-.·------:--· ..

ClT28/2/SH	208	16/11/88
Ryan

MR CALLAWAY (continuing):  So that, in our submission,

substantiates both the submission that the framers

would not have intended to replace the tried

and true system and also that they would have

regarded the ARMY ACT as a paradigm. Of course,

we admit there is both good and bad in that.

They would have regarded it as typical of a

military statute to provide, as section 41 did,

that civil offences are triable by court martial,

the only nexus being that the accused was subject

to military law when he allegedly committed them.

It is also true, of course, that the ARMY

ACT in 1900 contained the usual 19th century approach to double jeopardy but we submit that

it is entirely within the defence power and the
other relevant provisions of the CONSTITUTION

for the Parliament to decide to protect service personnel against double jeopardy and to depart

from the 19th century approach.

Your Honours, in the Commonwealth statutes,

the precis of which begins at page 8 point 6,

we only desire to say two things. The first

is this:  my learned friend, Mr Woinarski,

frequently referred, and correctly, to the fact

that a member not on war service and in Australia

committing an offence against the Australian

Military Regulations could have been tried by a civil court or by a court martial.and it is true that that is provided for in section 102

of the DEFENCE ACT but we invite the Court to

read that section, if it is relevant to this

case, in conjunction with section 110 which,

in our submission, largely gave the army control over the bringing of prosecutions, even in civil

courts. Section 110 is referred to at the top

of page 9 of the precis.

The other matter was simply - perhaps two

other matters, solely so as not to misinform
the Court.	We have printed the regulations - - -

BRENNAN J: Is that quite right? When I look at 110 it

is for the prosecution "for an offence against

this Act".

MR CALLAWAY:	Yes, I will read it, Your Honour.
BRENNAN J:	And 102 is likewise.
MR CALLAWAY:	Your Honour, of course, it is necessary to

go to the DEFENCE ACT prior to the amendment

so it pays to have old copies. In the 1973

consolidation, section 102 provided:

ClT29/l/ND	209	16/11/88
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Any member of the Defence Force charged with any offence against this Act -

there is a definition of "this Act" which says it

includes the regulations in the DEFENCE ACT - may be tried and punished either by court-

martial or by a civil court.

But section 110 says, in subsection (2):

A civil prosecution against an officer of

the Military Forces shall be brought by

or by the authority of the District

Commandant.

And then subsection (3) is similar for the navy.

Subsection (3)(a) for the air force and

subsection (5) deals with members who are not

officers. And again, it say:

may be brought by the Commanding Officer

or Adjutant of the unit, vessel or Air Force

unit.

I t does not , in terms , say th a t i t may not be

brought by anyone else although the history of the section suggests that that may well be its

true effect. My concern, Your Honour, is simply
to put section 102 in perspective and to show that

it was not as if Parliament contemplated a civilian

controlled prosecution for offences against the

Australian Military Regulations in civil courts.

WILSON J: Is there any significance in section 110 being

limited to courts of summary jurisdiction?

MR CALLAWAY:  In our respectful submission, not, Your Honour.

The maximum punishment under the regulations, from memory, was three months' imprisonment.

That was AMR215 so it is not altogether surprising

to find that section 110 starts off with a provision

for summary trial. Your Honours, I was concerned

simply not accidentally to misinform the Court.

We have printed the old regulations because,

in some respects, we thought the nearer 1900

the better. Of course, at least in the army

and no doubt in the navy the regulations were

replaced from time to time. The regulations

in force in the army before this Act were regulations

of 1927 but nothing turns on it.

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MR CALLAWAY (continuing):  Referring to page 9 point 8 of the precis

where there is a reference to a naval regulation	-
modifying section 45 of the NAVAL DISCIPLINE ACT
by substituting law of Australia for law of England,
that continued in force until the end of 1958
and then the law of England came into force again on adoption of the new British Act. That
continued until 1968 and another modification
was made which said that the civil offence had to be a civil offence either against the law of
England or against a law of the Commonwealth. Of course, the new section, thankfully, identifies
the law of the Australian Capital Territory.

Your Honours, passing now to the overseas

material. It is relevant in two ways. It shows

again civil offences being tried by service

tribunals, and that is apparent from the precis.

But we refer to it perhaps more importantly to

substantiate our submission that modern service

statutes have a double jeopardy provision

protecting service personnel against trial in

the civil courts if they had been dealt with

in service tribunals. The position in the

United States and Canada is unfortunately complicated but I will deal with it first because

it is in the precis first.

The position in the United Kingdom we have

already dealt with. The position in New Zealand

is virtually the same as in Australia. In the

United States the position on double jeopardy is,

in substance, this: if a service person is

tried by a federal civil court he or she cannot

be tried again by a service tribunal. Now, that

is achieved by the rule 907(b)(2)(c) referred to at

~a_ge 10 point 5 and page 350. The other way round:

if you are tried by a service court you cannot

then be tried by a federal civil court, but that

is because of the 5th amendment as interpreted

in cases such as GRAFTON V UNITED STATES, 206 US 333,

especially at page 352.

Your Honours, as one of my learned friends

also referred to that case we do have photocopies,
and whilst we do not desire to read to the Court

from it it might assist the Court if we hand them

up. My learned friend, the Solicitor for Victoria,

pointed out yesterday that nothing so far has been

said about the State courts. Your Honours, the

reason for that, as one of my learned friends said

this morning, is the doctrine of dual sovereignty.

Under United States law if you are proceeded against

for an offence against federal law that bars further

proceedings in the federal and territorial courts.

But proceedings in a Federal C'Jurt do not bar

proceedings in State courts or vice versa and the

ClT30/l/MB	211
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case, HEATH V ALABAMA, to which my learned friend

the Solicitor for New South Wales referred this

morning shows also the proceedings in one State

do not bar proceedings in the other. So that the

limitation of the American double jeopardy provisions
to service tribunals and federal courts does not

reflect any policy judgment on the part of the

Congress that servicemen should be subjected to

double jeopardy, it simply reflects the limitation

on the legislative power of the Congress under

a very different CONSTITUTION which as my learned

friend, the Solicitor for New South Wales, said

this morning stands in contrast with our system of unified law rather than a system of seven or eight different systems of law. And the dual

sovereignty doctrine is also referred to in

GRAFTON's case, among other American authorties,

particularly at pages 353 to 354.

(Continued on page 213)

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MR CALLAWAY (continuing): The position in Canada, Your Honours,

is this: the trial of civil offences is dealt with

in sections 60 and 120 and represents the modern

approach. Those sections are precised, in the

interests of time I will not ask the Court to go to

them now. The issue of double jeopardy is dealt

with in section 56 of the NATIONAL DEFENCE ACT,
which is printed at page 353. Now, Your Honours,

this perhaps showed an excess of zeal on the part

of the Conunonwealth in endeavouring to inform the

Court of the position in as many comparable

jurisdictions as we could think of. The position in

Canada is complicated by a number of factors, not

least by the Canadian Bill of Rights of 1960, now
overtaken by the Charter of Rights and Freedoms.

Section 56 provides, in substanc~, that if you have been tried by a service tribunal or a civil

court or a foreign court you cannot be tried again.

Our instructions are that that had been understood

among military lawyers to mean that you could not be

tried again by any court over which the dominion

had power. So that you could not be tried by a

service tribunal and nor could you be tried by a

civil court. But we must frankly say to the Court

that that understanding must be subject to whatever

is ultimately seen to be the military significance

of the police case to which my learned friend the

Solicitor for New South Wales referred this morning.

Your Honours will recall that that was WIGGLESWORTH V REG, (1987) 45 DLR 4th 235 and what that case appears

to decide is that the charter protects a person from

double jeopardy but that in some circumstances,

at least, an offence may be dealt with by a disciplinary

tribunal and not protect against double jeopardy in

the civil courts because in the civil courts it will

be regarded as a different kind of offence from the

disciplinary offence that has already been dealt with

and therefore will not fall within the protection

of the charter.

In our respectful submission that is a warning

against the use of the Canadian materials too far.

The charter shows the principle that modern

legislation endeavours to protect people against

double jeopardy and any familiarity with equal

protection would show that it is a respectable approach

not to put service personnel on a worse footing, in
respect of double jeopardy, than other members of

the conununity and perhaps that is about as far as one can take the Canadian materials. We do also mention, only because we think the Court should know about it,

a decision of the Supreme Court of Canada dealing with a case called MACKAY V REG, (1980) 2 S Ct 370.

a narcotics charge under section 120 of the NATIONAL

ClT31/l/SR	213	16/11/88
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But, Your Honours, as to that case, we say that

the decision on the Bill of Rights is not relevant

to the issues now before this Court and that the

majority judgments are supportive of our contention

that one should not have a RELFORD-type approach

to service nexus. One should not be astute to hold

that a military disciplinary statute has to be

narrowly confined to a military disciplinary context.

DEANE J:  But why do you say that? T mean are not you losing

sight of the fact that what this case is about is the extent to

which members of the services should be deprived of

the constitutional safeguard of judicial power?

Now, once that is appreciated, why should this high,

wide and handsome approach apply to what constitutes

military discipline? And what you are in effect

putting is that somebody who happens to be a driver

in one of the services is deprived of the safeguard

of judicial power completely, in so far as punishment

for criminal offences is concerned?

(Continued on page 215)

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MR CALLAWAY:  Your Honour, of course, with respect, we would

not formulate our submission in quite those words.

DEANE J:	Why not?
MR CALLAWAY:	Your Honour, first we would say that the concepts of judicial power that are reflected in chapter III
did not see the light of day first in 1900. As
Justice Brennan said the other day,they go back
to conceptions to be found in the ACT OF SETTLEMENT.
It is true that our tradition has always included
the important notion that if you are tried for
a criminal offence you get the protection of an
independent judicial tribunal. But it has been
part and parcel of that tradition that an exception
is made for military offences and we would submit that part of that tradition is a wide exception
exemplified by section 41 of the ARMY ACT and the corresponding section of the NAVAL DISCIPLINE ACT.

Secondly, we would submit that it is not as

if the Parliament has provided for a kangaroo court

in relation to the trial of offences. So that

in so far as there is any question of legislative

power concerned it is reasonable and adapted and

I therefore take Your Honour's question to be directed

solely to the issue of judicial - - -

DEANE J:  It may well be that the defence of the Commonwealth

would be better served by a kangaroo court that

did not trouble itself with questioning the wisdom

of army officers.

MR CALLAWAY:	Your Honour, in our respectful submission, not because, in our respectful submission, the
defence forces in common law countries, in distinction to some other respected legal traditions - but
in our tradition - have never seen themselves that way. It has always been a part of service in our
forces that you do not become some kind of outlaw;
seen to be conducive to a well-disciplined and that the proper administration of justice has been
effective defence force.  So the Commonwealth would
not wish to submit that it would be better if we
were allowed to have a kangaroo court. We not only do not want it, we submit it would be bad
if we had it.  Now, Your Honours, why we say it
is sufficient that membership of the defence force is a nexus is this - we say it for three reasons
which, in our submission, are connected. First of all we say that it is part of the military duty of service personnel to obey the civil law. Secondly, we say that whether or not that be so the Commonwealth,
or if one prefers the defence force, has a legitimate
interest in service personnel complying with the
civil law and that there aie manifold reasons why
that is so.

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Ryan

I think Justice Dawson the other day gave

the example of a serviceman who commits a civil
offence and is put in prison and is therefore

not available for military service. Another

example is a member of the services who commits

an assault or, indeed, any crime in a public place -

that is liable to bring disrepute on the service

even if no substantial criminal penalty is handed

out an~ in passing,that may be relevant to the

section, I think it was 25, that one of my learned

friends referred to yesterday.

(Continued on page 217)

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MR CALLAWAY (continuing):

Thirdly, Your Honour, we submit that the

infinite variety of connections that an offence

may have with the service make it unwise and

impracticable, and we respectfully say legally

unnecessary, to try and have a list of service

connections. We say that it is practical, as

well as sound in principle, to say that if a

person is subject to military law- or so far as

this case is concerned, if the person is a

member of the regular army that is a sufficient

nexus.

DEANE J:	Why should it stop at the regular army; why not the reserve?
MR CALLAWAY:	Your Honour, it does not, it is just that that is what this case is concerned with.
DEANE J:	But the argument would apply equally to the
reserve, would it not?
MR CALLAWAY:	Yes, it does, Your Honour, certainly.

I was not trying to shy away from that. We

say that the nexus selected in the definition

of "defence member" and "defence civilian"

is entirely appropriate. I was simply resisting

the temptation to which I and all my learned

friends at the bar table are prone to go beyond

the confines of the issues. But we would say

it is legally sufficient and practical to choose

membership of the defence force, whether regular

or reserve,as an appropriate nexus and we add

the narrowly-defined defence civilians and

prisoners of war who are mentioned in section 7.

DEANE J:  So if we have universal conscription the
CONSTITUTION just goes out the window?

MR CALLAWAY:  Your Honour, in regard to conscription

our respectful submission is this: first,

if pressed, we would submit that the power of the Commonwealth extends to making conscripts subject to trial by court martial and does not

require a chapter III court. Secondly, we

would respectfully submit that if ever there

was an issue,which is not before the Court in

this case, it is the issue of conscription and

that it does raise disparate issues and it would

be possible to decide this case on any of the

views contended for by the Commonwealth, or any

of my learned friends, without prejudicing a

future decision one way or the other about

conscription, which, it it is conceded, raises

quite other issues.

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Ryan
DEANE J:	I have interrupted you too much.	I follow
that.

MR CALLAWAY:  I am grateful to Your Honour because

Your Honour has given me an opportunity to

say things in response to Your Honour that

I would have been obliged to say anyway.

Your Honours, the other overseas jurisdiction

that we extracted was New Zealand and again,

of course, one finds a provision for the trial

of civil offences. Section 74 of the New Zealand

Act, which is precised at page 11 point 5 set out

at page 380, is, in all relevant respects,

virtually the same as our sections 61 and 63

even to the extent of using the consent of the

Attorney-General as a sieve to prevent the most

serious offences going through.

(Continued on page 217)

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MR CALLAWAY (continuing): Of course, New Zealand adopts

the modern approach to double jeopardy in

section 21 which is set out at page 371.

Your Honours, I have already referred to the

United Kingdom select co1Illllittee of 1966 and

my learned friend, the Solicitor for New South

Wales, referred to the very similar view of

double jeopardy taken by the Australian working

party in 1973.

Against that historical background may I go briefly to our contentions and, in particular,

to contention number 2. Your Honour Justice Deane

has enabled me to say all that I propose to say under 2(a). So far as 2(b) is concerned we are

in agreement,in our submissions,with what was said

by my learned friends, the Solicitors for South

Australia and New South Wales, that a service

offence against section 61 is to be regarded as

quite distinct from the corresponding territory

offence. If one co1Illllits murder, say, inthe

Australian Capital Territory, one may be charged with the civil offence of murder. If one were - it

is most unlikely - but if one were proceeded

against in a court martial the offence would not

be murder, the offence would be an offence against

section 61 of the DEFENCE FORCE DISCIPLINE ACT

and the constituent elements would be the elements

to be found in the ACT plus being a defence member

or a defence civilian.

If one co1Illllitted murder in Queensland one

could be tried for murder in the Queensland courts -

that would be a State civil offence. If one were

tried by a court martial under section 61, in our

submission, it would be for a statutory offence

against section 61, the elements of which would

be, the elements taken from ACT law plus being

a defence member or a defence civilian, minus the

requirement that the offence be C01Illllitted in the

Australian Capital Territory. (Continued on page 220)

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GAUDRON J: Mr Callaway, may I put this to you: does your

submission not assume, as may be the case but

sometimes may not be the case, that the law is

going to be the same from State to State? Now,

if section 61 is valid and there is a relevant

difference either as a constituent element of
the offence or as a relevant defence between
the offence in Queensland, for example, and the

offence in the ACT, the consequence is that the

serviceman, surely, is under no obligation to

obey the law of Queensland and he cannot be

charged in Queensland because section 109 would

displace the Queensland law. He could only be

charged and he cannot be charged in the ACT,

presumably, because there is no territorial

jurisdiction and he can, therefore, only be

charged with the service offence.

MR CALLAWAY:  Your Honour, as to the last part of Your Honour's

question, in our submission, section 61 does not
exclude, pursuant to section 109 of the CONSTITUTION,
the ordinary criminal laws of the States. It is not
intended.to cover the field. It is simply intended

to create a new - - -

GAUDRON J: Well, regardless of what section 190 says, the

question is can two offences, for the same act,

stand together, the offences having different

constituent parts?

MR CALLAWAY: In our submission, Your Honour, yes. In our

submission, there is no legal principle which

prevents the laws of Queensland from saying, "There

shall be a crime called murder consisting of these

elements"and the Commonwealth creating a distinctly

service offence with different elements and different

consequences, tried in a different court in a different

way and with a different range of punishments and so

forth. ·rn our submission - that is part of our

submission that that may be done.

The first part of Your Honour's question to me

was whether we have assumed that the criminal law

throughout Australia is the same. Of course,

Your Honour we have not but we certainly have turned

our minds to that issue. The Parliament could, in

theory, have taken the view that the interest the

defence force has in members obeying the civil law

is obeying the civil law in the place where they

are from time to time so that the interest is the

person at Enoggera obeying the Queensland law, the
person at Puckapunyal obeying the Victorian law

and, no doubt, it would be -

GAUDRON J: And, at all times, obeying the law of the ACT.

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MR CALLAWAY:  Your Honour, I meant that, alternatively, one

could have not referred to the ACT and could have

said there was an offence triable by court martial

of disobeying the law of the place in which you

are stationed if you are a defence member or a

defence civilian.

(Continued on page 222)

ClT35/2/SH	16/11/88
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MR CALLAWAY (continuing):  But Parliament has chosen the

alternative simpler approach of having a uniform

system which might be said to be fairer in a service

which is constantly moving and is an Australian
non-State service and some law had to be selected

and it is submitted, it was high time it was no

longer the law of England, but it was some

Australia jurisdiction and it is clear why the ACT

was chosen.

GAUDRON J:  To say that some law had to be chosen begs the

question?

MR CALLAWAY:  My learned leader indicates that he wishes to

add something in answer to Your Honour's question

in due time, I shall not cruel his picture,if

Your Honour will permit me to leave him to do that.

Your Honours, the only other thing I was going_ to say on

this issue was that it may be that the definition of

"relevant territory offence" is supportive of our

submission that there is a separate service offence

created by section 61, because that definition

seems to be consistent with the approach for which

we contend. It says, "a relevant Territory offence"

in relation to an offence against section 61(1) means the territory offence referred to in the para~rqph d that specifies the act or o~~ssion. It is suomitte

that draws the distinction between the territory

offence, which stands on its own fee 4 and the

distinctly service offence with the elements specified

in section 61.

The third part of our second contention is also

a matter which Your Honour Justice Deane's question

has given me an opportunity to cover in part. Our submission is that membership of the defence force

is an appropriate and sufficient nexus whether one

is concerned with the scope of the legislative power under section 51(vi' or whether one is concerned with

the ability to confer jurisdiction on a service tribunal,

which is the distinction for which my learned friend,

the Solicitor for South Australia contended, in either

case, membership, we submit, is appropriate and

sufficient for the reasons I outlined to His Honour,

that military duty includes obedience to the civil law,
that the Commonwealth has a peculiar interest in

civil personnel obeying the civil law and that the

infinite variety of possible service connections points

to the wisdom of the modern approach exemplified in

section 61, that the law has progressed from section 46

of the old NAVAL DISCIPLINE ACT, trying to identify all

the possible connections, that by the time the

CONSTITUTION was adopted it had reached its modern
form in section 41 of the ARMY ACT and that the new
NAVAL DISCIPLINE ACT, which the navy already had, and

now section 61 is a desirable, and we submit, a permissible

way to approach the problem.

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MR CALLAWAY (continuing): We submit further that that

is - I do not like to use dramatic langauage

but that is dramatically illustrated by the

United States experience in SOLORIO. Might I

ask Your Honours to refer again to that case

because there are a number of passages on which

we desire to rely. The case is the case already

mentioned by my learned friend, the Solicitor

for New South Wales, SOLORIO V UNITED STATES,

(1987) 97 L Ed 364.

Your Honours are aware that in O'CALLAHAN

V PARKER the United States Supreme Court had

held that it was necessary in order for a person

to be tried under the UNIFORM CODE OF MILIARY

JUSTICE that the offence be s.ervice,. connected.

And then in RELFORD's case to which my learned

friend the Solicitor for New South Wales referred
that requirement was further elaborated.
Solorio was a member of the coast guard - in the

United States the Uniform Code applies to the navy, the marine corp, the army, the air force

and the coast guard.- and the offence he committed

was a sexual offence against the daughters of

two fellow members of the coast guard.but in a
private home when Solorio was serving in Alaska

and he contended that there was inadequate service

connection within the O'CALLAHAN/RELFORD doctrine.

The majority of the Supreme Court overruled

O'CALLAHAN and, in our submission, by implication,

RELFORD, and held that the legislative power

of the Congress extended to selecting membership

of what we would call the defence force as the

sole nexus and no other service connection was

necessary. Your Honours, at page 369 that decision

is announced in the first paragraph of the opinion of the court delivered by Chief Justice Rehnquist:

(la) This case presents -

Over the page, at paragraph (le), His Honour

says: 

(Continuing on page 224)

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MR CALLAWAY (continuing):

In an unbroken line of decisions from 1866

to 1960, this Court interpreted the

CONSTITUTION as conditioning the proper

exercise of court-martial jurisdiction over

an offense on one factor, the military status

of the accused.

His Honour then refers to a large number of cases

and continues half-way down the next colunm saying:

This view was premised on what the Court

described as the "natural meaning" of

Art I, § 8, cl 14, as well as the Fifth

Amendment's exception for "cases arising

in the land or naval forces."

Your Honours will recall that the 5th amendment

is concerned with indictment by grand jury but

its express exception has been understood as

applying by implication in the 6th amendment dealing
with trial by jury. If one then turns the page
to page 372, left-hand colunm, His Honour explains

the basis of the court's decision which, in our

submission, is equally applicable in Australia.

The constitutional grant of power to Congress

to regulate the armed forces, Art I, § 8, cl 14,
appears in the same section as do the

provisions granting Congress authority - among other things -

to regulate commerce among the several States,
to coin money, and to declare war. On its
face there is no indication that the grant
of power in clause 14 was any less plenary

than the grants of other authority to

Congress in the same section.

Your Honours, we submit that nothing turns on the	absence in the Australian CONSTITUTION of express
words about government and regulation. In our
respectful submission section Sl(vi) is wide enough
to include what the Americans refer to as government and regulation laws, what we have been referring
to in this case as disciplinary laws, laws for
military justice. And, Your Honours, it would be odd if it were not so because section 114 after all
denies to the States the power to raise naval and
military forces. That, we submit, is yet another
reason for giving an interpretation to section Sl(vi)
that includes the same powers that the Congress
has been given by more of a shopping list of
particular military topics. Then turning the page again - two pages - to page 375, Chief Justice Rehnquist
refers to the English history of the 18th and 17th

ClT38/l/MB	224
Ryan

centuries and explains, again, in language which

we submit is applicable by analogy in Australia,

that the 17th and 18th century concern about the

relative powers of the Parliament and the Crown

are no longer important when you have a CONSTITUTION
which expressly gives to the Congress,or to our case,

the Parliament,an adequate power with respect to

defence.

(Continued on page 226)

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MR CALLAWAY (continuing):  And in the right-hand column,

His Honour says that perceptions in the reign of

William and Mary can hardly prove that the framers intended to freeze court marital usage at any

particular time. And, with respect, we adopt that

with the necessary modifications and adaptations

too and we submit that the power of the Australian

Parliament should not be limited to the kind of
offences which were at some past time regarded

as specifically service offences. But, of course,

that is a very minor part of our case because in

1900 the paradigms were that offences against the

law of England committed by persons subject to

military law were service offences. But at least

it supports our submission that one should not

go back to 1792 or adopt the narrow view for which

my learned friend, Mr Cooper, contends on behalf

of the Attorney-General for the State of Queensland.

On the next page, paragraph (le), His Honour

refers to Justice Harlan's dissenting judgment

in O'CALLAHAN which:

forecasted that the "infinite permutations

of possibly relevant factors are bound to

create confusion and proliferate litigation -

and His Honour then says that that prophecy has
been amply fulfilled.

My learned friend, the Solicitor for Victoria, mentioned drug offences; the Chief Justice expressly instances drug offences as one of the areas where

the most trouble has been caused in the United States

by the RELFORD factors. Your Honours, the

Supreme Court has now returned to its own doctrine

prior to O'CALLAHAN and has brought American law

into line with what British and Australian law

have virtually always been and indeed New Zealand

law. And, in our submission, that is the right

way to go and we invite the Court to reject the	submission that it should prefer the minority
opinions in SOLORIO. Those opinions are very largely
based on provisions of the Bill of Rights that
have no counterpart in our CONSTITUTION and the
same may be said of the minority views expressed
in MACKAY's case, to which I have already referred.

BRENNAN J:	What did the court say in SOLORIO about double jeopardy?
MR CALLAWAY:	From recollection the topic is not covered,

Your Honour. It is a case on the necessary nexus.

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Ryan

BRENNAN J: Has it arisen, in any case, subsequent to the

SOLORIO decision?

MR CALLAWAY:  Not to my knowledge, Your Honour, but I have

not looked.	SOLORIO is a very recent decision,
of course.	I am very grateful to my learned

friend, the Solicitor for New South Wales, who

has looked and who says that it has not.

Your Honours, there is only one other -

it would be apparent, I think, to the Court from

what I have said that our submission, in a nutshell,

to the extent that any such submission can be

so compressed, is that the CONSTITUTION does

not require the Parliament to go back to what

we would describe as an 18th century conception

or a RELFORD conception of service connection

and the CONSTITUTION does not deny the Parliament
the power to protect service personnel against

double jeopardy, thus depriving the navy of the

position that at least it believed it enjoyed

before the Act came into force and taking
Australian law back to the attitude exemplified

in the Victorian - that is to say, 19th century -

statutes.

TOOHEY J: Mr Callaway, do you posit any connection other

than the status of the offender as a member of

the forces in order to bring this type of

legislation within the defence power?

MR CALLAWAY:  Your Honours, of course, many of the sections

do have other connections but we do submit that

membership of the defence force is sufficient

so that we support the validity of section 61

and any other section of which it may be said

that the only connection is being a defence member,

a defence civilian o~ because of section 7, a

prisoner of war. We do make that submission.

TOOHEY J:  Does that mean that the defence power would

warrant the enactment of legislation outside
the field of criminal law so long as it selected
the status of service personnel as a sufficient

connection?

MR CALLAWAY:  No, Your Honour. Our submission is restricted

to disciplinary matters under criminal law to
the extent that it is part of disciplinary concerns.

Our submission is not made in relation to the

civil law and we submit that when the history

is taken into account that is a legitimate

distinction to draw.

Cl T40/l /ND 227 16/11/88

Ryan (Continuing on page 227A)

MR CALLAWAY (continuing): There may be quite different

considerations in relation to the civil law

and, of course, the law must always be

reasonable and adapted and capable of being

considered reasonably adapted. The parliamentary

judgment must not be such that it could not

reasonably be supported. So, it may be that

if the Parliament, fixing on membership of the

defence force, enacted some provision of a

totally uncharacteristic kind, although it might

have a criminal flavour, that might not be a

law that could reasonably be regarded as

adapted, but we certainly submit that section 61
is within the test in RICHARDSON's case as applied

to the defence power.

TOOHEY J:  But you do equate the commission of any

offence as expressed, for instance, in section 61

with discipline?

MR CALLAWAY:  When it is committed by a defence member or

a defence civilian, Your Honour, yes. But,

Your Honour, we, of course, unlike some of

my learned friends, do not seek to draw a rigid

distinction between discipline and military

justice. In the end, we say, it is a law

with respect to defence. We also say that it

is the kind of law, the enforcement of which

can be confided to a non-chapter III tribunal.

But, of course, if it were confided to a

non-chapter III tribunal of the "kangaroo court"

variety, questions of reasonable adapatation would

arise, but we submit that they do not arise in
the statute and that the Court's decision would

not foreclose them at some future time in

unhappier circumstances.

MASON CJ:  Mr Callaway, on that note we may adjourn until

2 .15.

MR CALLAWAY: If the Court pleases.

AT 12.54 PM LUNCHEON ADJOURNMENT

CIT41/l/JM	227A	16/11/88
Ryan
UPON RESUMING AT 2.17 PM:

MASON CJ:  Yes, Mr Callaway.

MR CALLAWAY: If the Court pleases, Your Honours, there are

only two brief matters still left in my share of

the Commonwealth's case. The first was just to

gi.ve Your Honours a reference. This morning I

summarized the position in Australia immediately

before the coming into force of the DEFENCE FORCE

DISCIPLINE ACT, the four codes of law that we had.

That is conveniently set out and summarized in
the extracts from the explanatory memorandum that

my learned leader handed up yesterday and the

summary is to be found in paragraphs 42 to 59 of

the explanatory memorandum to the Defence Force

Discipline Bill.

The other matter was a somewhat disparate

topic. From time to time a question has arisen

in this case as to who, if anyone, is on the other

side of the record in proceedings before a court

martial or a defence force magistrate. Our primary

submission is that there is no one on the other

side of the record in the sense that there is
in ordinary criminal or civil proceedings. Part

of our submission, a subsidiary part of our

submission on judicial power, is that the proceedings

are disciplinary and there is no person on the other
side of the record in that sense.

Now, if that be wrong, it does not vitiate our submission but if it be right, it is a further straw

blowing in the wind in the direction of saying that

this is not an exercise of the judicial .power because

one of the indicia of judicial power is that there is

another person on the side of the record. A statement

to that effect may be found in RV KIDMAN, (1915)

20 CLR 425 in the judgment of the Chief Justice at
page 438. But, putting that to one side in case it
be wrong, one asks rhetorically who would be the

person on the other side of the record and that is

not altogether an easy question to answer in the

defence force context. There is the person who

prefers the charge, the authorized service member

referred to in section 87, in this case, a warrant

officer Oustermeyer but the person who prefers the

charge very largely drops out of the picture in

proceedings before a court martial or a defence force

magistrate. The matter is taken up, first, by a

commanding officer, then by the convening authority.

The convening authority ultimately determines what

the charge is on which the accused is tried.

ClT42/l/SH	228	16/11/88
Ryan

MR CALLAWAY (continuing):  As we understand it, the person

originally preferring the charge could not drop it

and has no control over the proceedings; the convening

authority could alter the charge and then, the

convening authority does not become functus officio;

the convening authority has some limited functions

thereafter. But the conduct of the prosecution is

taken over by an officer appointed to conduct it and

the Act, therefore, leaves one without any clear
guidance as to who the person on the other side
of the record would be if there is, in the traditional

sense, any such person.

The only other guidance that we have been able to

find might be in the DEFENCE FORCE DISCIPLINE APPEALS

ACT 1955 to which my learned friend, Mr Woinarski,
has already referred. Section 42 of that Act provides
that a chief of staff is to arrange the undertaking

of what is called:

the defence of the appeal.

But we would submit that that is not.the Commonwealth,

that is simply a designated officer. It is true that

section 37 provides that costs on an appeal may be
awarded against the Commonwealth or in its favour
but we submit that that is not an indication either way

because it is understandable why Parliament would not

have wanted the chief of staff either to be personally

costs. Again, if there is a reference of a question of law to the Federal Court or if there is an appeal on a question of law from the appeal tribunal to the	liable for the costs or the personal recipient of the Act to apply for the reference or bring the appeal,
and those provisions are in sections 51 and 52 of the
DEFENCE FORCE DISCIPLINE APPEALS ACT.

In the end, if the Court pleases, it ·is our

respectful submission that none of the issues in this

case would be much affected if the Commonwealth were

the party on the other side of the record in the

traditional sense of that phrase.

(Continued on page 230)

ClT43/l/VH	229	16/11/88
Ryan

MR CALLAWAY (continuing):  We make that submissions for two

reasons. The f1rst is it is only a minor footnote to

our submission on judicial power. So if one puts it

aside in that way, the only other issue to which it

could be relevant is the section 42 of the ACTS

INTERPRETATION ACT issue. And if the Commonwealth

were the party on the other side of the record that

would not, in our submission, in any way displace the contrary intention to be found in the various sections of the Act providing for how a service offence

is to be tried beginning with section 87, to which

Your Honour Justice Deane referred, and the subsequent

sections of the Act. And the reason we submit that that

would not be an indication that section 42 of the
ACTS INTERPRETATION ACT was to apply after all is based

on the decision of the Court in JOHN L ~TY LTD V

THE ATTORNEY-GENERAL FOR THE STATE OF NEW SOUTH WALES

which the Court decided last year. It is reported in

163 CLR 508. It is referred to in paragraph 8(d) of

our contentions and the pages on which we rely are

there referred to. It is sufficient, Your Honours, for present purposes, for me to say that we rely on

that case as showing two things: first, that the

Crown is not a party simply because proceedings for

an offence may be taken and prosecuted only by a

person acting with some statutory authority; and,

secondly, that even where the Crown is a party, what

in Australia are commonly called "Crown prosecutions"

are still summary proceedings. So that even if

contrary to our primary submission the Commonwealth were to be regarded as a party on the other side of

the record,that would come nowhere near disclosing an

intention that there be a trial on indictment.

(Continued on page 231)

ClT44/l/SR	230	16/11/88
Ryan

MR CALLAWAY (continuing):  One would still have all the

sections of the Act which, in our submission,
manifest a clear contrary intention displacing

section 42 of the ACTS INTERPRETATION ACT

if indeed that section is capable of application

in relation to tribunals like a defence force
magistrate whose powers of punishment are limited

to imprisonment for six months.

Your Honours, unless there is something

that I could add that would assist the Court

on the part of the case that my learned leader

has entrusted to me, I will let him pick up the

thread of our remaining argument.	May it please
the Court.

MASON CJ: Thank you, Mr Callaway. Yes, Mr Solicitor.

MR GRIFFITH: I turn to paragraph 3 of our contentions

dealing with section 190. It is our submission
that with respect to civil offences the

overriding principle is contained in subsection (2),

which provides that:

Subject to sub-sections (3), (4) and

(5) -

of course -

the jurisdiction of a civil court to try

a charge of a civil court offence is not

affected by this Act.

So that is the basic - - -

DAWSON J: Without that provision there, would it be?

MR GRIFFITH:  No, Your Honour. would not, Your Honour. That would be a matter We would submit that it

of necessary construction of the Act. Perhaps,

Your Honour, this is an example of the sort of

provision that was referred to by His Honour

the present Chief Justice in REG V THE CREDIT

TRIBUNAL EX PARTE GENERAL MOTORS ACCEPTANCE

CORPORATION, (1977) 137 CLR 455, in particular at page 562. It was this reference that I was

tugging my learned friend Mr Callaway's gown

in respect of when he was answering the question
of Justice Gaudron as to, we would see, the

statement there going to the capacity of

a Commonwealth statute to indicate whether or

not it is intended in the Commonwealth statute

to make exhaustive provision. Of course,

Your Honour, if there is direct inconsistency

that is a separate matter but, here, Your Honour,

we would submit, on absent this provision the

same result would follow, but it is a positive

statement of what the position is.

CIT45/l/JM	231	16/11/88
Ryan

The expression "civil court" offence, of course, is defined in 3(1) and the Court have

been sufficiently taken to that, but it is

defined to include Conunonwealth offences other than service offences. So that this provision is not directed at the States, but covers all

civil courts.

Subsection· (4) does cause some difficulties.

It is concerned with ancillary defences which,

of course, are defined by section 3(13) to mean offences
referable to the Conunonwealth CRlMES ACT dealing

with accessaries after the fact, attempts,

inciting, aiding, encouraging and conspiracy. It provides that

a civil court lacks jurisdiction to try a

charge of a civil court offence that is an

ancillary offence in relation to an offence against

the Act conunitted by a defence member or a

defence civilian, but it creates an exception -
and that is the words in parenthesis - in the
case of an ancillary offence in relation to an

offence against section 61(1) and the regulations.

Now, on one view, we would submit that read

literally subsection (4) is otiose,that any

ancillary offence meeting the requirement of
subsection (4), we would submit, has created a
service offence and would come within paragraph (b)
of the definition of "service offence" in

subsection (3)(1) and would be already excluded

from civil court jurisdiction by 190(1). This

exception for ancillary offences in relation to offences against section 61(1) in the regulations.

construction might be thought to frustrate

There is annexed to my learned friend's,

the Solicitor-General for New South Wales,

contentions an extract from the explanatory

memorandum paragraph 1231,which seems to contain

the parliamentary counsel's explanation of what

is intended by this provision, but, with respect,

we have some difficulty in giving that effect to

it and we tend to suggest to the Court that a more

satisfactory solution is to read subsection (1)

itself as being subject to subsection (4) in
so expressing a contrary intention for the
purpose of the definition of "service offence" in

section 3(1).

(Continued on page 233)

CIT45/2/JM	232	16/11/88
Ryan

MR GRIFFITH (continuing):  So that we would submit that

a service offence in subsection (1) does not

include the ancillary offences referred to in

paragraph (b) of the definition of "service

offence" and in that way subsection (4) would

have some effect and, in particular, would reserve

to the civil court jurisdiction in respect of

ancillary offences created by the Act in relation

to offences under 61(1) and the regulations.

That is a somewhat strained reading but the alternative to us seems to be to conclude

that it is otiose in etfect and has no effect

at all. So that we would submit that a more

reasonable reading is to seek to give it some

extensive effect rather than a withdrawing effect

so far as jurisdiction of civil courts is

concerned.

Subsections (3) and (5) are then, in our

submission, the double jeopardy provisions and,

of course, subsection (5) applies generally where

there has been a conviction or acquittal by a

service tribunal. Subsection (3) applies in

particular circumstances and where a defence force

magistrate has taken service offences into account

for determining punishment.

In both cases, the civil court is prevented

from trying a civil court offence that is

substantially the same and as has been seen, this

is the separate part of the equation to provide
against double jeopardy which is enacted in

subsection (3) of section 144 which has been

already referred to. Looking at these provisions

together, our submission is that they reflect

a legislative determination of an issue where

there is a choice between two conflicting aspects

of the rule of law.

On one hand there is the principle of equality

before the law which normally requires that there

should be indiscriminate application of the ordinary

criminal law to persons within its jurisdiction.

(Continuing on page 234)

ClT46/l/ND	233	16/11/88
Ryan

MR GRIFFITH (continuing):  The countervailing consideration

is to recognize the basic principle of fairness
to the individual which, as has been indicated by the
historical materials referred to by my learned

friend, Mr Callaway, has emerged as a general

characteristic of modern military disciplinary

laws. So that there there is a mitigation in favour

of ensuring, so far as it is possible, an individual

should not be subject to double punishment. We

submit that this is something which is weighed

with the legislature; it is referred to in the

other annexure to my learned friend the Solicitor-

General for New South Wales' submissions and is

also referred to, of course, in the select committee's

report to which reference has already been made.

Inasmuch as obviously there is scope for tension

between those considerations, it is submitted that

it is within the permissible area of legislative

choice available to Parliament enacting a scheme

for the just and efficient prescription of

discipline in the forces to adopt an appropriate

solution and one which includes not merely

subsections (3) and (5) but also section 144. In

this respect we submit that these provisions in

section 190 are merely incidental and ancillary

to the substantive provisions of the Act defining

service offences and providing for their trial

and punishment by service tribunals.

Previously, of course, the legislative choice with respect to at least the army and the air force
was not to exclude double jeopardy. This has been

noted by my learned friend, Mr Callaway. The solution

for the navy was to the contrary but, in our submission,
it is a matter of choice between alternatives and

for the legislature to reflect in its decision

in this balancing process the choice against providing

for the possibility of double jeopardy or, in fact,

positively to provide that there should be no double

jeopardy is something which is equally within power

as were the previous absence of specific provision. (Continuing on page 235)

ClT47/l/AC	234	16/11/88
Ryan

MR GRIFFITH (continuing): Of course, it is put against us that,

when combined with the broadening ambit of service

offences, particularly section 61, the provision for

double jeopardy is more stringent than is strictly

necessary to achieve the object of the legislation to provide for a comprehensive scheme for military

offences and discipline which is both efficient and

just. But we submit that there is an obvious and

direct connection between the object to provide

fairly for the regulation of military justice and

discipline, a matter clearly within power, and this

provision operating tc protect the individual against

double jeopardy and double punishment.

It might be said that the previous provisions, or

some lesser modification, could have been adapted so

as to deal with the issue and, for example, to exclude

serious offences. That is the solution adopted in the

United Kingdom. However, the legislative choice is

to make a provision in respect of serious offences of

the sort provided in section 63. This reflects the

sort of issue which is referred to in the select

committee report in England, the extract of which we

have handed to the Court, of indicating that one would

expect an obvious practical mechanism, so that there

is a workable provision which does not have the effect
of excluding civil court jurisdiction; certainly it
does not have the effect of excluding it at the price

of substituting some form of mechanism of military

discipline with penalties measured more by the touch

of a feather, than the equivalent penalty of the

civil offence.

We would refer to what the majority of this

Court said in ALEXANDRA PRIVATE GERIATRIC HOSPITAL

PTY LTD V THE COMMONWEALTH, (1986) 162 CLR 271, in

particular at page 283, where it is says:

But it is not for the Court to determine that

argument or to pass upon the wisdom or the

suitability of the particular scheme that the

legislature has chosen to institute, so long

as the Court is unable to say that it lacks

a sufficient connexion to the head of power.

We say the answer here, when one looks at the issue,

is that it can be said; indeed, we would submit, it

must be said that there is a sufficient connection and,

at that stage, we would submit that the matter must be

regarded, as we would suggest, within power.

The annexure to our contentions summarizes the extent to which analogous military laws have come to

provide for the relationship between military and

civil courts in the context of a wide definition

of service offence by reference to civil offences

committed by persons subject to military law. That

is the last sheet of our contentions and, if the

Court could turn the sheet on its side, there is an

ClT48/l/VH	235	16/11/88
Ryan

abbreviated listing there by reference to the

materials to which Mr Callaway referred to, listing

the various current and, we would say, analogous

military laws, referring to the particular sections

roughly equivalent to section 61, excepting, of course,

the differences as to serious crimes provided for

under the United Kingdom legislation. As my learned

friend indicated, so far as New Zealand law is concerned,

it is directly analogous to our provisions, including

the provision for Attorney-General's consent in

respect of serious crimes.

In each of those legislations there are now

provisions for double jeopardy and, indeed, again

referring back to the select corrnnittee report one

has a reference that it was only in respect of army

and air force discipline that there was no double

jeopardyprovisions so far as the inquiries of that

corrnnittee were concerned. My learned friend,

Mr Callaway, has dealt sufficiently with the issue

of the relationship between the federal provisions

under the United States CONSTITUTION, particularly

the 5th amendment and the application of the provision

against double jeopardy which, for the reasons stated,

does not go into the area of dealing with the question

of jeopardy under State laws.

(Continued on page 237)

ClT48/2/VH	236	16/11/88
Ryan

MR GRIFFITH (continuing):  But we would submit that this

table reflects a drift of legislative choice which

in essence is all one way, its all one way on two
issues. Firstly, on the broadening of the definition

of service offence to define generally by reference

to civil offences with the additional ingredient

in respect of the issue of service connection.	And
as to that, could I refer to a passage that my

learned friend, Mr Callaway did not refer to in the

SOLORIO decision, 97 L Ed 2d 364. At

page 376, in the opinion of the Chief Justice,

paragraph (ld) the judgment reads:

Decisions of this Court -

this is the left-hand column on that page - middle

after O'CALLAHAN have also emphasized that

Congress has primary responsibility for

the decliate task of balancing the rights

of servicemen against the needs of the

military. As we recently reiterated,

"judicial deference ..... is at its apogee

when legislative action under the

congressional authority to raise and support
armies and make rules and regulations for

their governance is challenged".

And we would submit that that represents a fair

articulation as to an appropriate approach to be

adopted by this Court in its consideration of the

issue in respect to this Act. We then would say that

for the reasons stated by this Court in RICHARDSON,

to which I have already referred to earlier in my

submissions, the determination of this issue should

be regarded as a matter within power as being one

capable of being reasonably considered to be

appropriate and adapted for carrying out the object

and for the same reason that we submit that in

respect of section 61,adopting the approach of the

Supreme Court in SOLORIO, we would submit that

similarly the provisions against double jeopardy,

and there we have regard to section 144(3) as well

as section 190(5) in particular, are directed to the

object of providing for a just and also, of course,

efficient scheme of military discipline. And we

would submit should be characterized as a solution

or choice which is a matter for Parliament and not for

the Court.

Justice Wayne in DYNES V HOOVER is quoted by

Justice Starke in RV BEVAN, and this has already been

referred to the Court, in 66 CLR 452, where

Justice Starke extracted this part of Justice Wayne's

judgment. But what His Honour said is:

ClT49/l/SR	237	16/11/88
Ryan

Congress has power to provide for the

trial and punishment of military and naval

offences in the manner then and now

practised by civilised nations.

We would submit that this Act does no more than reflect the meaning on which contemporary modern military

laws of civilised nations provide for an extended

definition of service offence by reference to civil

offences and in fairness to service members now

provide for the ordinary application of principles

to avoid double jeopardy. And, of course, that goes

both ways. It goes so far as disposition first

in civil courts dealing with the issue of - then

the application of the military provisions. And,

we would submit that having regard to this issue of

reasonableness, section 63, dealing with the Attorney-General's

consent,may be referred to as enhancing the prospects

of characterization of reasonableness, an attempt

to make a workable provision, having regard to what

are obvious issues as to the desirability of civil

courts dealing with civil offences, particularly

one might say serious civil offences with no obvious

service connection of the sort postulated by

Justice Deane.

(Continued on page 239)

ClT49/2/SR	238	16/11/88
Ryan

MR GRIFFITH (continuing):  One would expect in that

situation one would say as of course that it

would be the civil court that would come to

exercise jurisdiction and one would think absent

wartime and absent the event occurring overseas

one would expect that there would not be an

unseemly race to exercise jurisdiction. The

penalties are the same; there are analogous

mechanisms for trial but one would expect, in

that case, in the ordinary course, the Attorney-

General's consent would not be forthcoming; indeed, one would doubt whether it would even be sought and that the matter would proceed in the civil courts in the normal way.

There is in the mechanism which one, we

would submit, should regard as one intended to work in a proper way, having regard to many of

the issues which have been argued before this

Court. We would submit that it may well be that

section 144(3) and section 190(5) are merely

confirmatory of the common law. That is something

that has not been determined but, for example,

His Honour Justice Gibbs in the ADMINISTRATION

OF PAPUA AND NEW GUINEA V DAERA GUBA,

(1973) 130 CLR 353, at 453, His Honour said:

The use of the phrase "judicial tribunal"

in this context is convenient as indicating

that an estoppel of this kind does not result

from a mere administrative decision, but

the question whether such an estoppel is

raised is not answered by inquiring to what

extent the tribunal exercises judicial functions,

or whether its status is judicial or

administrative. A fairly obvious example

is the case of a court-martial, whose sentence

might in some circumstances be pleaded as

an estoppel although not made in the exercise

of judicial power.

And His Honour there referred to BEVAN and to
COX.	But it would seem to indicate that at least

His Honour there was of, one might say, at least

preliminary view that a determination by a court

martial could operate - he used the expression

estoppel, but we would submit that it must be

regarded as extending to issues relevant to the

principles of double jeopardy.

Turning to another point that was raised

in argument, we would submit that the variable

denotation of the defence power in peace and

war is not important in considering the issue

of the validity of these provisions. Defence

forces . justice and i ts disc i p 1 in e are a 1 ways a direct concern of the power, in our ·

ClT50/l/ND	239	16/11/88
Ryan

submission. The constant object of the defence force is the defence of country in time of war and, in our submission, the content of this aspect

of provision for a just and efficient provision

of military justice and discipline is a constant,

not something that waxes and wanes so far as

the content of the power is concerned.

Referring to another point raised by my

learned friend, the Solicitor-General for Victoria,

we would submit that the STATE BANKING case is
not in point. There is no element of discrimination

in our submission. Section 190 applies to all

civil courts, Stat~ territory and federal, and

we would submit, secondly, that there is no

interference with State court functions. The

reference to civil court jurisdiction is merely

the technique of the drafting which is intended

to create a provision which merely operates as

a substantive plea in bar in criminal proceedings.

That is the essence of the provision to provide

the plea in bar. In our submission it is incapable

thereby of being characterized as a provision

which might conflict the MELBOURNE CORPORATION

principle.

So that, we would submit that the examination

of historical material and contemporary legislation
demonstrates that the denotation of a just and

efficient scheme commonly includes provisions

such as section 61 and commonly includes containing

provisions against double jeopardy such as

section 144(3) and 190(3) and (5). In the area
of differentiation exists in the extent and manner
in which serious crimes are excluded from the

ambit of service jurisdiction; the contrast,

we would say, the choice is between New Zealand

and Australian solutions, and the United Kingdom
and Canadian solutions and this is an area, we

would submit, either solution is a provision

for effectuating in a desired end within power

and one which is within the capacity of the

Parliament to make a choice.

Parliament has made a legislative judgment

directed to executing the purpose of the power.

In our submission, that is sufficient, it being seen that they are capable of being reasonably appropriate and adapted to carry out and give

effect to the object.

(Continuing on page 241)

ClTS0/2/ND	240	16/11/88
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MR GRIFFITH (continuing): In that context, it is probably

unnecessary to refer again to the particular expressions in RICHARDSON's case and tie the general submission we make to the various

formulations of the Court. Our general

submission is, however formulated, this

provision is regarded as being within the ambit
of a matter reasonably adapted for the purpose
of the power and within the area of legislative
choice; certainly not to be disabled on the
basis that it can be said that it is outside the

area of legislative choice.

In paragraph 4 we make a more particular

submission dealing with the particular offences

at issue in this case. We would submit, as an

alternative submission, that the particular

offences here dealing with falsification and

absent without leave are clearly service-related

and that section 90 is capable of operating as

Parliament intended in relation to those offences

and we would submit that there would be no difficulty

in giving the Act an operation to those provisions.

Of course, I suppose there are different possibilities.
It would be possible to give the Act an operation in

respect of overseas occurrences. It would be possible to give an Act an operation arguably subject to any implication, intention of Parliament

in areas of the territories but, perhaps, that is

a matter of hypothetical possibility. Clearly, the

Act is intended to operate generally and our

submissions are directed to that area of general
operation.

As a last submission on this issue, if there are any difficulties as to these subsections, and

they are regarded as being wholly or partially

beyond power, we would submit that they are

severable in their entirety and we include in

paragraph 5 a reference to Justice Dixon's statement

in AUSTRALIAN NATIONAL AIRWAYS V THE COMMONWEALTH,

(1945) 71 CLR 29 at page 93 which is sufficient,

we would submit, to make out that contention.

If we may turn, then, to the question of

judicial power, we, of course, postulate that the
question whether the power is described as judicial

power is not a question of having regard to whether

it is at issue of judicial power as a matter of

abstract conceptual analysis but whether it is an

issue of judicial power of the Connnonwealth within section 71 of the CONSTITUTION and we, of course - and we referred to this in our short interjection

on the last occasion - we would refer to what

Justice Aickin said in REG V QUINN EX PARTE

CONSOLIDATED FOOD CORPORATION, (1977) 132 CLR 1 at

page 15 where Justice Aickin listed:

ClT51/l/SH	241	16/11/88
Ryan

A formidable list of factors which if viewed alone would point only in

the direction of judicial power.

But then His Honour said:

It has proved impossible, at least so

far, for any court to define judicial

power and in substance all that the

courts have been able to say towards

a definition has been the formulation

of negative propositions by which it

has been said that no one of a list of

factors is itself conclusive and perhaps

the presence of all is not conclusive.

(Continued on page 243)

ClTSl/2/SH	242	16/11/88
Ryan

MR GRIFFITH (continuing):  So we would submit that the

factors listed in the prosecutor's contentions

are no more decisive than the list of factors

which Justice Aickin there referred to.

Your Honour, the present Chief Justice, as my learned

friend Mr Woinarski pointed out, in HEGARTY,

147 CLR at page 627, referred to:

the historical or traditional classification

of a function is a significant factor to be

taken into account in deciding whether there

is an exercise of judicial power involved.

And Your Honour referred to DAVISON and COMINOS.

If we could make a brief reference to the judgment

of Justice Kitto in DAVISON. My learned friend

read at volume 90 CLR at page 382 beginning with

the first full paragraph. We would desire to refer

to the sentence immediately before that - that

is the paragraph at the foot of page 381, and

His Honour said:

It may accordingly be said that when

the CONSTITUTION of the Commonwealth prescribes
as a safeguard of individual liberty a

distribution of the functions of government

amongst separate bodies, and does so by requiring

a distinction to be maintained between powers

described as legislative, executive and judicial,

it is using terms which refer, not to fundamental

functional differences between powers, but

to distinctions generally accepted at the

time when the CONSTITUTION was framed between

classes of powers requiring different "skills

and professional habits" in the authorities

entrusted to their exercise.

And on that issue, the Chief Justice and

Justice McTiernan also referred to historical considerations at pages 365 and 369 respectively.

Also Justice Fullagar at pages 375, 376, and
Justice Webb, in dissent, at page 374.	As

Your Honour the Chief Justice referred to in

HEGARTY, in COMINOS, 127 CLR 588, three members

of the Court referred to historical factors as

supporting the validity of provisions of the

MATRIMONIAL CAUSES ACT conferring property settlement

powers on courts.	Your Honour the present Chief Justice
regarded historical considerations as decisive	at
page 608 and there are similar expressions of
Justice Gibbs at page 600 and Justice Stephen at
page 605.

Your Honour, also in HEGARTY, referred to

REG V WHITE EX PARTE BYRNES, 109 CLR 665 and we

would accept, as Your Honour did, that this is

ClT52/l/AC	243	16/11/88
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illustrative of functions which may in a different

context have been classified as judicial in

character but which have been accepted in a

particular historical and practical context as

merely internal disciplinary matters. And, again,

because it is convenient to do so, Your Honour
the present Chief Justice in HEGART~ at page 628,

made the statement which has often been made in

this Court:

that there are functions which may be

classified as either judicial or administrative,

according to the way in which they are to

be exercised. A function may take its character

from that of the tribunal in which it is reposed.

In our submission, there is no difficulty whatsoever, having regard to the historical and legislative

considerations my learned frien~ Mr Callawa½ directed

the Court to, in applying that difference in that

situation here.

In paragraph 6(c) of our contentions we refer

to particular statutory provisions which we rely

upon as establishing the character and also the

context which points towards this characterization.

As the statutory provisions are there set out it

is probably sufficient for the Court if we indicate

that we rely upon those provisions as confirming

a statutory context including that provision in

Part IX which provides for an administrative review

of all service tribunals and provisions having

regard to the mechanisms for punishments and also,

in particular, section 70(l)(b) provides, in

addition to "principles of sentencing applied by

civil courts", the service tribunal must have regard

to:

need to maintain discipline in the Defence

Force -

1n respect of sentences. (Continued on page 245)

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MR GRIFFITH (continuing):  Those various provisions, we would

submit, go to confirm the categorization that it is

not an exercise of chapter III power. We

understand my learned friend, Mr Woinarski, to have
submitted to the Court that offences against the

DEFENCE ACT and the Australian Military Regulations

could have been tried in a civil court and a military

court and as the civil court would have been

exercising judicial power of the Commonwealth, so too

must the military court. We would submit that the

mere fact that the same matter may be dealt with

by a chapter III court and a non-chapter III court

does not mean that the latter exercises judicial

power of the Commonwealth; this was sufficiently

settled by this Court in the SHELL COMPANY OF

AUSTRALIA LIMITED V FEDERAL COMMISSIONER OF TAXATION,

(1930) 44 CLR 530, in particular page 544 to page 545

and it is a matter Your Honour the present

Chief Justice also referred to in HEGARTY at page 628.

Under the DEFENCE FORCE DISCIPLINE ACT, as under

the former regime established by the DEFENCE ACT and

the Australian Military Regulations, the processes

before a,, service tribunal are not the same as those

before a civil court. They ·are initiated in a

different way; they are conducted in a different kind

of tribunal in a different way and have, in many

aspects, a different object.	The disciplinary
objection of section 70(l)(b)is not new;	it has always

been an imporcant part of military justice and

as, indeed, words to that effect, are in the Australian

Military Regulations No 321.

We submit that the supplementary materials show

a long-standing, unbroken history of naval and military
discipline being maintained by the trial in the

sentencing of service personnel by naval and military

officers for offences including, of course, offences

similar to those to which the prosecutor has been

charged. The framers of our CONSTITUTION had before

them those well-established systems of naval and

military discipline exemplified by the disciplinary

codes that have been referred to, and we would submit
that they did not, in Chapter III	intend to replace

that established mechanism with trial by civil courts

of military judges 3,ppointed for life, and we have

supported that historical position by reference to

United States materials.

We submit, of course, that Article 1 section 8

has no direct counterpart in the Australian CONSTITUTION.

It is significant that courts martial consistently

and clearly have been held to lie beyond the scope

of article 3. A clear statement to that effect

appears in DYNES V HOOVER as we have seen referred

concerned, in a similar summary fashion, in

to by Justice Starke in RV BEVAN, 66 CLR 452 at 467.

EX PARTE QUIRIN, (1942) 317 US 1 at page 39, where

ClT53/l/VH	245	16/11/88
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it is simply stated that:

military tribunals ..... are not courts in

the sense of the Judiciary Article.

PARKER V LEVY, (1974) 417 US 733 is also instructive and, at page 743 to page 749, the Supreme Court sets

out considerations of policy and history for

treating military law as exclusively a matter of

internal military discipline.

(Continued on page 247)

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MR GRIFFITH (continuing):  We would submit that it cannot be

contended, as my learned friend Mr Woinarski did,

that the courts martial came to form part of the

Australian judicial system when the COURTS MARTIAL

APPEALS ACT 1955, now the DEFENCE FORCE DISCIPLINE

APPEALS ACT 1955 gave an ultimate right of appeal

on a question of law from courts martial to the

Justices of the High Court or the Federal Court.

In the argument that as an appeal to the Court is

a valid decision of an appeal tribunal, then the

appeal tribunal or the court martial from which

the appeal tribunal was hearing an appeal must also

be exercising judicial power is, in our submission,

also covered by the judgment of the judicial committee

in the SHELL case we referred to and we would refer

also again to the REG V QUINN: EX PARTE CONSOLIDATED

FOODS CORPORATION, 138 CLR, and in particular at

page 10 of the judgment of Justice Jacobs.

So, for those reasons, we submit that

Justice Dixon was correct in RV COX; EX PARTE SMITH,

71 CLR 1, at page 23, when he said that military

tribunals are only an apparent exception to the

principles of chapter III. His Honour said:

The exception is not real. To ensure

that discipline is just, tribunals acting

judicially are essential to the organization

of an army or navy or air force. But they

do not form part of the judicial system

administering the law of the land.

And, we submit that the purpose of the elaborate

structures of this Act is to ensure that discipline

is efficient and just. And, of course, military

justice is not the only apparent exception of the operation of chapter III or the only illustration of a power that may appear prima facie to be judicial

that is regarded as properly belonging to a different

chapter of the CONSTITUTION and we would refer, as to

that, for example, to the territories power and the

decision of this Court in SPRATT V HERMES,

(1965) 114 CLR 226.

The Act therefore, in our submission, continues

in a modernized form the traditional system of
military justice considered by the High Court in

BEVAN and COX in relation to the DEFENCE ACT. We

submit that BEVAN and COX are recent decisions of these

Courts which have stood for more than 40 years. Although

the statements in BEVAN might be regarded as obiter,

COX was a decision of this Court. The correctness of

the decision has never been doubted. As I referred to

Justice Gibbs in DAERA GUBA, 130 CLR 453, referred to

it with apparent approval and in that case

Justice Menzies at page 405, Justice Stephen at page 459,

agree with Justice Gibbs on the relevant issue.

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There is also a passing reference to BEVAN in the

judgment of Your Honour Justice Brennan in

REG V BOLTON; EX PARTE BEANE, (1987) 70 ALR 225, at

page 233:

To overturn now the settled position would

be to disturb the justifiable assumption

of Parliament in enacting the DEFENCE FORCE

DISCIPLINE ACT after its long gestation

period and to introduce serious inconvenience

to the administration of military justice.

If I could lastly on this aspect give the Court some

brief statistics as to proceedings before courts martial

and defence force magistrates under the Act. If I

could indicate that in 1986 there were 14 courts martial

and 35 defence force magistrate proceedings and of

that some 30 offences and 11 trials involved section 61

offences. Actually, that might not be exactly

right because I think those last figures for 1985 and

1986, there were 11 trials for section 61 offences.

(Continued on page 249)

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MR GRIFFITH (continuing): In 1987, there were 56 courts martial

and 35 defence force magistrates' proceedings,

including 28 offences and 10 trials under section 61.

In 1988, to 30 June, there were 11 courts martial,

13 defence force magistrates' proceedings. I am

not sure whether this proceeding is counted as one

of them; it is incomplete, and that involved 10

offences and 10 trials of section 61 offences.

But, of course, if the prosecutor's argument was successful, it could have ramifications for

military discipline beyond many courts martial and

defence force magistrates. It might apply at all

levels. Indeed, as has been canvassed, there might

be a possibility of the whole mechanism of the Act

falling but we would submit that the decisions of

BEVAN and COX merely in accord with the long and

unbroken tradition of a system of military justice

existing separately from that which applies in the
civil courts and, it has been mentioned the decisions

accord with the approach of the United States.

We make, in our contentions in Part C,

detailed - - -

BRENNAN J:  Mr Solicitor, before you proceed, could I ask vou,

in relation to section 61, is it right that "territory offence"

does not, in truth, include any regulatory offences -

what would ordinarily be regarded as regulatory

offences?

MR GRIFFITH: Well, it depends how one regards a regulatory

offence. Is Your Honour thinking of a parking

offence or something of that sort?

BRENNAN J:	Yes.
MR GRIFFITH:	Yes. Well, Your Honour, one would expect it to

be construed in this manner: there is a mechanism

in section 61(1) which seems to have a stepped

approach. There is the paragraph (a) which covers

acts in the Australian Capital Territory. Well,

that would include, one would suppose, generally

provisions here, Your Honour, possibly

in a circumstance, parking a tank outside Grace Bros

might be within - - -

BRENNAN J: Well, I do not know. "Territory offence"is defined,

I see, by reference to certain statutes - - -

MR GRIFFITH:  Yes.

BRENNAN J: - - - and the one that attracted my attention was

the POLICE OFFENCES ORDINANCE, 1930 of the Australian

Capital Territory where it would be a curious notion

that the net fell so widely that it was an offence

ClT55/l/SH 249 16/11/88

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against section 61 for a member of the defence forces to go busking in a public place without the consent of the ACT Department of Capital

Territories.

MR GRIFFITH:  Yes, I follow Your Honour's point. One, I

suppose, could adopt the view that that would not

be within the definition. Alternatively, Your Honour,

the view that it would not form the subject-matter of

any proceedings but -

BRENNAN J: Well, on the latter of those, your proposition

really comes to this, does it not, that by this

legislation, by an executive decision of those

in whom the prosecuting power is reposed, the members

of the defence forces can be taken out of both the

protection and the risk of the civil court's

jurisdiction in criminal matters.

MR GRIFFITH: Well, Your Honour, I suppose it is double .....

with the Australian Capital Territory, Your Honour,

because so far as persons in the Australian Capital

Territory are concerned, they can be put in the same

position so far as protection of chapter III is

concerned but it does become, I suppose to some

extent, a question of what is an appropriate

mechanism. We have the historical analogies

from other legislations. We would submit it is

normal to have a general definition. It is a

question framing the definition. In America,

Your Honour, rather than adopting the solution,

as we understand it, of having a reference, for

example, to the law of Washington or some such

thing, it is a reference to the law of all the States which one ,could see possibly could lead to greater complications.

Inasmuch as it is necessary to adopt a

reasonable mechanism, Your Honour, one could see

there would be - one solution could be to refer
to the law of all the States.	One can see
difficulties about that.	One could look at the

law of one State, there could be difficulties about

that.

(Continued on page 251)

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MR GRIFFITH (continuing): It is a question of something

which one can say is: is this reasonably adapted

to the situation? Perhaps, Your Honour, to take

your anxiety a step further, if there were a

difficulty in the definition by reason of

offence 11 , I suppose there could	paragraph (c~, of the definition of "territory
be no real problem about severing that out.
But we would submit, Your Honour, it becomes
a question of reasonableness of provision so far as the legislature is concerned.

It is appropriate, in our submission, generally

to have a provision to apply civil offences.

The English mechanism, Your Honour, is to define

it broadly.	The Canadian and the New Zealand
is similar.	The American is broader. We would

submit, Your Honour, it is not a question of

postulating the busking example· and say, 11 Well,

that seems to be an odd fish''. It remains back,

as we would say, the general approach is, well,

is the cast of the net for the purpose, and the

fact that it might seem to get an odd fish by

application of a theoretical example of that
sort of one which has difficulties of the sort

that are raised by His Honour Justice Deane, a murder unrelated to military matters, is a

matter of working through the application of

the Act, in our submission, rather than to postulate

that as a reason to say that it goes too far,

that it represents a legislative choice that

cannot be supported.

TOOHEY J:  But the solution adopted here, Mr Solicitor,

at least in the case of an act or omission in
the Australian Capital Territory, is to say that

any act or omission in the Capital Territory

which constitutes an offence, a civil offence,

is automatically equated with a service offence.

MR GRIFFITH: It has to be a territory offence, Your Honour,

but it is made then, we would submit, a service

offence because the additional ingredient is

that it is made by a service member or civilian,

Your Honour, and we would submit it becomes a

different offence. It is not the civil offence,

it becomes a service offence.

TOOHEY J: Yes, I appreciate that but it becomes a service

offence because it is a civil offence committed

by somebody who is a defence member.but the solution

adopted is simply to fasten on to any conduct

within the territory that would constitute an

offence according to territory law - and I am

using that term very broadly - and say it is

committed by a defence member then that constitutes

a service whatever the seriousness or otherwise

C1T56/1/ND	251	16/11/88
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of the conduct, whether committed in public or

in private, whatever the circumstances of the

offence.

MR GRIFFITH:  Yes, Your Honour, and there is a mechanism to pick up in subsection (2) penalties.

TOOHEY J: Just on that question of severance, if you look

at section 61(1), is there anything in

paragraph (b) that is not subsumed in

paragraph (c)?

MR GRIFFITH:  No, Your Honour, there is not. One reason,

Your Honour, to (b) is one might have thought

that the draftsman might have been a bit hesitant

and thought that there must be a fairly obvious

or reasonable service connection in acts in a

public place because that is something which,

more obviously, ex facie might be said to involve

a reflection back on the appropriate discipline

of the forces but, Your Honour, another

explanation - and I have sought one - is that
apparently there was some ACT. laws dealing

particularly with acts of indecency and things

like that that were thought to give rise to some

difficulty and it was thought better to express

it that way but for practical purposes paragraph (b)

could be ignored because everying in paragraph (b)

would seem to be covered by paragraph (c).

TOOHEY J:  Apart from practical purposes, there 1s a

matter of language. There is nothing in

paragraph (b), as I read it, that is not contained

in paragraph (c).

MR GRIFFITH:  Your Honour, I think, to put it crudely, if

paragraph (c) were to fall paragraph (b) would

then have some work to do.

TOOHEY J:  I can see that. (Continuing on page 253)

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MR GRIFFITH:  That is probably the best way

of giving it some effect, but one is not entirely

sure what the parliamentary counsel did have in

mind in havirgthat stepped approach, but there are

two explanations, and there may be another.

I have not been able to find an authority of one,

Your Honour.

Turning to the issue of trial by jury, our

contentions, part C	on page 4, make our
propositions as to that.	I am not too sure

that we have a particular proposition to cover

the final formulation of my learned friend

Mr Woinarski's proposition on it, but then

I am not quite sure what the final formulation

was. If I could make a general observation,

looking to the American position, the right to

trial by jury guaranteed by article III,

section 2 of the United States CONSTITUTION
on which section 80 was in part modelled has

never been thought to apply to military trials.

The same is true of the guarantee of trial

by jury contained in the 6th amendment.

In KAHN V ANDERSON, 255 US 1, 8-9 in 1920

the opinion of the Court approved the statement,
"The constitutionality of the Acts of Congress

touching army and navy courts martial in this

country is no longer open to question in this

court." Similary, in WHELCHEL V McDONALD,

(1950) 340 US 122 at 127, it was bluntly said

by the court:

The right to trial by jury guaranteed
by the Sixth Amendment is not applicable

to trials by courts-martial or military

colillllissions.

So, having referred to those parts, we

would by and large rely upon the contentions

and the propositions which we make. If we could

make a couple of additional colillllents, we would

submit that section 3(18) referred to by my learned

friend Mr Woinarski is not relevant. Section 41

of the ACTS INTERPRETATION ACT prescribes a

mode of criminal procedure and not a right

or freedom of the individual and,we submit, in
any event section 42 is not capable of operating

concurrently with the Act and, contrary to the

prosecutor's argument, we would submit that

section 3(18) does not mean that here there is

any ambiguity to be resolved in favour of the

accused.

Could we make a short reference to

REG V PARKER, referred to paragraph 8(c), the

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decision of the Full Court of Victoria,

(1977) VR 22. There the judgment of the court

is a useful statement of the proposition, which

we submit is correct, that the process of
indictment, we would submit, can only take place

in a court and that appears from discussion

particularly of the Chief Justice in particular

at page 26 and 27, and also is picked up in

historical examination by Justice Murphy at

pages 37 to 41.

I think we can sufficiently make our

proposition so far as trial by jury is concerned

by reference to the contentions. We submit that

section 42 does not apply to trial of a service

offence by a defence force magistrate and

we submit that section 80 requires only the

proceedings actually brought on indictment

be determined by trial by jury. This is clear

enough from RV ARCHDALL AND ROSKRUGE, referred

to by my learned friend Mr Woinarski,

(1928) 41 CLR 128, and also the more recent

judgment of this Court in KINGSWELL, (1985)

159 CLR 264.

Of course, finally on this point, we would

submit that however much RV BERNASCONI, 19 CLR 629

may be regarded as subjected to criticism, the proposition extracted by Justice Isaacs in the

STATE OF NEW SOUTH WALES V THE COMMONWEALTH,

20 CLR 54, at 90 still stands. In that His Honour

said:

It is, as I have recently said in

BERNASCONI's case, a limitation on

the other provisions of Chapter III.

In other words, it is a limitation applicable only to the judicial power vested in Courts
of Justice by Chapter III.

And we submit that that remains the case. (Continued on page 255)

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MR GRIFFITH (continuing): For those reasons we would submit

that the order nisi should be discharged. We would

concur with the submissions already made by the

Court that in the event of any difficulty so far
as the validity of the subsections of section 190 are

concerned, firstly, that they are capable of being

relevantly read down or made severable and, secondly,

however affected, we would submit that no issue as to

section 190 would obtain for the benefit of the prosecutor in this case and, on any view, as to section 190, our submission is that the prosecutor's

grounds should be held not to be made out, the order

nisi should be discharged. Of course, we say that on

the basis of our submission that we submit that

the proposition as to chapter III is not sustained.

If the Court pleases.

MASON CJ: Yes, thank you, Mr Solicitor. Yes, Mr Solicitor

from WestemAustralia.

MR PARKER:  I pass up, if it please Your Honours, an outline

of our submissions.

MASON CJ:	Thank you.	Yes.
MR PARKER:	May it please Your Honours.	There appear to be

a number of distinct issues to be considered in this

case because, at times, some of the considerations

are relevant to rrore than one issue there is a tendency

to merge them. As we see it, the issues are,

firstly, can the Commonwealth Parliament, under

section 5l(vi) establish a system of internal

discipline for the defence force? As to which, in

our submission, the answer is yes. Secondly, the

issue is, is the DEFENCE FORCE DISCIPLINE ACT doing

that, or, is it doing something of a different

character; something that may be described as

establishing a code of criminal conduct or criminal

law, as part of the ordinary public law of the

country; a code which is to apply to defence members?

In our submission, on its proper analysis, the

Act in question is establishing a disciplinary

system. The third question, it appears to us, is

what are the implications of chapter III in each of

those cases? In our submission, because it is a

disciplinary system, an internal system of military

justice, chapter III has no implications. Fourthly,

if the Act is establishing a system of internal

discipline, has the ParJiament strayed beyond power

in any respect? What, relevantly, are the limits of

power? Now, that issue may not - and it appears to

us does not - fall for exhaustive consideration in this case, although undoubtedly some consideration of it is informative to some of the other questions.

To that question, our preliminary attitude is

that it is in its general terms probably not in

excess of power except when we turn to section 190

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and there, in particularly with respect to
subsections (3) and (5) and also with respect to

subsection (4) on some of the possible constructions

of what it does, we would say there has been an

excess.

(Continued on page 257)

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MR PARKER (continuing): The Act is dealing with defence

members and defence civilians. May I leave

defence civilians to another day as that, in

itself, may raise different questions. Pursuant

to the defence power, the Parliament has established

the defence force and the comments I now make

are in support of our first four propositions.

A body of men and women serving in the forces -

or the three arms of what is the defence force - the ultimate object of that force, as an entity, the reason for its existence, the purpose of

its training and activities, the role which it

must be prepared to perform at any time is the

defence of the nation.

MASON CJ: ls not this repetitive of many of the submissions

that have already been made, Mr Solicitor?

MR PARKER:  In some limited degrees it is, Your Honour,

but I expect that I will be very limited in

repetition and go beyond what has been said in

some respects. 1 am very conscious of time.

MASON CJ:	Very well.
MR PARKER:	Two things are important, in our submission,

to keep in mind. Firstly, the universal experience
of modern times is the signifance of discipline
to the effectiveness of a defence force, to be
able to fight and, secondly, a defence force

must be ready, it must be trained and practised in its capacities. And that must be so in time

of peace as in time of war. To say that is not to deny that the defence power may wax and wane but if we would adopt the submissions of my learned

friend for the Commonwealth that in respect of

discipline that waxing and waning may have a

much more limited effect than in other aspects

of the operation of the defence power.

The bringing together of such a body of

men and women requires the shaping of that body

by training, experience and mental attitude to

be a coherent, effective force fit to perform

its defence function. In our submission, a body

of internal disciplinary rules or law is a natural,

virtually an inherent and necessary concomitant

of the creation of such a force for such a purpose.

The nature and purpose of the force in many

respects unique requires or justifies an internal

disciplinary system markedly different in content

from what we would expect in other areas of

governmental activity, such as the public service,

civilian police forces, et cetera. In our submission,

the existence of the force justifies a system

of internal discipline to regulate the activities

ClT59/l/ND	257	16/11/88
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of the individuals who compose it; the purpose

for which the force must be fitted to perform

justifies further and unusual measures.

Why Western Australia's~position differs

from the other interveners is that for a variety

of reasons we are inclined to accept that the

needs of internal discipline may properly have

been seen by the Parliament to warrant measures

equivalent to and as extensive as an ordinary

public law complete criminal system.	There are
a few quick illustrations af that.	The defence

force may be required to operate in Australia

in circumstances where there has been a complete

failure of civil order, whether by reason of

invasion, civil unrest or a variety of other

circumstances.

The need to provide for an immediate body

of law and discipline to maintain order and to
curb excesses by service members can be seen

in that theoretically hopefully example to be

important:  In a time of civil unrest which could

happen, of course, tomorrow, the force called

out in aid of civil power under section 119 of
the CONSTITUTION, if defence members are refusing

to obey orders, perhaps improperly assaulting

civilians, looting, et cetera, the force must

be able to be got into its order immediately

without waiting for the ordinary and long

delayed processes of public law to deal with

misbehaviour by its members.

(Continuing on page 259)

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MR PARKER (continuing): Outside Australia, there may be

no civil order at all or none prevailing over

our armed forces and they are, of course,

operating outside Australia today in areas

where this Act applies to the members.

Even if there is, there may be strong and

valid defence reasons for wanting to avoid the

subjection of our personnel to local civil order
in those foreign countries but there are deeper
reasons, in our submission, than those why an

extensive discipline system may be seen to be

valid as a measure of internal discipline.

In many circumstances, members of the defence

force must be prepared, when ordered, to act in a

particular way to face the likelihood, perhaps

even the certainty of death. The discipline of

the force and to which those members respond and

which they accept has to be so strong that they

will do so. At a much more mundane level, it

involves an acceptance of orders, no matter how

objectionable it may be personally, how unpleasant,

how unfair, how unreasonable.

That form of discipline is certainly not

achieved, in our submission, by the existence of

the ordinary body of civil criminal law administered by the civil authorities plus a body of minor rules, small fines and other insignificant disciplinary

penalties of the type that might be found in what

has been referred to as the ordinary or proper

disciplinary-type structure.

As an example, the ultimate sanction in an

ordinary disciplinary structure of dismissal may

be the very thing that any defence member searches

for at that moment as a way of avoiding having to face the responsibility that is being placed upon

him. In our submission, the system of discipline	appropriate for a defence force involves an
intermix of a number of features central in which is the interplay and re-enforcement of command, orders, the notion of obedience to rules and orders regardless of personal consequences, the
interplay with those of a legal discipline system supporting that command structure. A legal system
seen to be part of the command structure.

(Continued on page 260)

ClT60/l/SH	259	16/11/88
Ryan

MR PARKER (continuing): It further involves the development

of a mental acceptance of discipline out of a

continuous subjection to rules or orders to be

obeyed regardless. But it is not just a matter

of obeying orders; in a defence force a large body
of people are required to train, work and live
together to a degree not found in any ordinary
institutions in our community. Their purpose of
defence requires that they train, work and live

in circumstances of interdependent responsibility,

a situation that can be very critical in

performing their defence function. Because they

must be in close and constant contact and must

be able to rely on each other,mutual trust in all

matters becomes important. So it is that personal

misbehaviour in almost all matters, theft, fraud,

drunkenness, assault, what-have-you, can be quite

destructive of the harmony and the mutual trust

that is required. They can be destroyed equally

by conduct within the defence force or conduct

outside on leave or in a personal activity.

And in a system dependent so much on command,

respect of and acceptance of, superiors is critical.

An officer who offends, whether in a private or a

defence capacity, may lose the respect of those

he leads and the trust of those who must rely on

him or her. As two quick examples: no one

in a defence force would be happy to share

quarters with a person convicted in a personal

capacity of theft from dwellings or, no one would

be prepared to be led by such a person or rarely

would that occur. Women service members could

hardly accept the leadership of an officer who

had been convicted of serious sex offences in a

private capacity. So, in our submission, even

conduct in a personal capacity on leave from the

defence force may call in questio~ at the very

least, the suitability of the person to be a member

of the defence force or to be a non-commissioned

unacceptable to the defence force by disciplinary	or commissioned officer or it may require that conduct in his personal capacity to be marked as
means either directed particularly to that individual
or as an example to others.

(Continued on page 261)

ClT61/l/AC	260	16/11/88
Ryan

MR PARKER· (continuing):  Again, as mentioned by my learned

friend for the Commonwealth, there is the significance

of morale, self-respect. That can be destroyed if

members have a low regard of each other because of

personal misbehaviour, or if their conduct brings

the defence force generally into disrespect. Now,

they are glimpses, in our submission, of what may be

thought by Parliament to justify the sorts of measures

that have concerned Your Honours and that have

concerned so many of my learned friends as to why the discipline of the defence force may properly require provisions as wide and as extensive as are to

be found in this Act, and especially in section 61(1).

I will not repeat what has been said about the

expectation of our founding fathers in these matters

because of the systems of law and discipline that they

were used to except to point out, perhaps, what has

not been precisely pointed out yet, that in some of the colonies before Federation offences exactly the

equivalent of the present section 61(1) were applied

as a standing part of the provision of the different

colonial defence Acts to the standing forces.

South Australia and New South Wales did that without

reservation to their military forces and to their

naval defence forces. The others did it whenever they

wers called out or called to drill, or to do something

else. So that (a), military disciplinary systems as

broad and extensive as those that include a provision

the equivalent of section 61(1) were in existence

and were accepted as a standard form of proper military

discipline at the time of Federation.

What has changed is that instead of the law of

England which prevailed in each of the three armed

forces until 1982, there is now the law of the

Australian Capital Territory. The Act, in our

submission, establishes a distinct body of offences

applicable only to members of the defence force.

It provides for those offences to be dealt with

only in accordance with the Act, whilst by virtue of

legislation, by convenient reference in section 61(1),

the elements of many of the offences may in most

respects be the same as offences of the criminal law

in the ACT, there is the additional element of

membership of the defence force but, importantly

and critically, despite the similarity in subject-matter

produced by this legislation by reference they are

constituted as distinct and s~parate offences from

the public law offence established under the law of
the ACT, and we submit that distinction is maintained
throughout the Act and that distinction is related to
the separate and different purposes of the two forms

of legislation.

Your Honours will be aware that proceedings in

respect of service offences can only be instituted by

C1T62/l/HS	261	16/11/88
Ryan

authorized members because of section 79, members

of the defence force. The tribunals are interlinked

at all points with the command structure, the

commencing linchpin is the commanding officer of any

defence force member, or his subordinate

sub-commander, above that are superior summary

authorities higher in the chain of command,

convening authorities who, by rank and office,

command major elements of the defence force.

Serving officers who are service magistrates or

serving officers form the courts martial that administer the system of justice established.

Judge advocates who are members of the defence force advise on law and the judge advocate general of the defence force makes rules of procedure, et cetera.

Reviewing authorities who administratively review the

decisions that are reached are, as with convening

officers, commanders of major elements of the defence

force. Even where a charge is referred to a

convening authority with a view to court martial or

trail by defence force magistrate, under section 103(l)(a)

there is an unfettered discretion in that authority to

direct that the charge not be proceeded with.

(Continued on page 263)

•

C1T62/2/HS	262	16/11/88
Ryan

MR PARKER (continuing): That, in our submission, is

significant in revealing the disciplinary rather than

the judicial nature of the legislative scheme that

is so closely a part of the command structure. Now

the existence of procedural safeguards as a protection

to defence force members is a feature that has been

pointed to as suggesting that this is not discipline.

In our respectful submission, no doubt because of

the serious nature of some of the disciplinary offences

and their consequences it was thought proper to

provide what are pretty familiar and long accepted

safeguards that are appropriately taken from the

criminal law. Fairness, in our submission, a just

system,should not be seen as an indication that the

system is not disciplinary. A just system of internal

discipline is surely a desirable quality. It, in itself,

can facilitate moral and efficiency.

Likewise, the availability of appeals to redress

abuses of the discipline system should be seen as

ensuring, by outside supervision, a just system of

discipline within the force. And, in our respectful

submission, there is not an opposite party readily

found for the reason that it is the defence force

disciplining its own members from within and it is

entirely within its structure,the function and activity

of the defence force to administer that system,until
the point is reached where there is imposed above,

out of a sense of justice and fairness, an opportunity

of appellace review and then it is left to a

chief of staff to represent the defence force before

that appellate judicial procedure, to justify the

actions of the defence force in the way it has dealt

with its members.

In our respectful submission the DEFENCE FORCE

DISCIPLINE ACT is not establishing a general body of criminal law binding on members of the community. It

has a limited objective of maintaining the discipline

and order of the defence force to the extent that it

creates service offences akin to offences of the

criminal law. It is not doing so as part of the general

system for enforcement and preservation of public

law and order but to maintain the internal domestic

discipline of the defence force.

(Continued on page 264)

ClT63/l/SR	263	16/11/88
Ryan

MR PARKER (continuing):  I will not rehearse again the

submissions 5 and 6. I believe Your Honours

have seen enough of those already but, in our

submission, they are important, both as indicating

what the framers of the CONSTITUTION would have in
mind in terms of the scope of the judicial power
in chapter III and the scope of what would be a

proper, reasonable and appropriate disciplinary

system in fulfilment of the defence power or in

exercise of it.

For those reasons, in our submission, chapter III

is not infringed by the system established by the Act

because it is maintaining the internal discipline of

the defence force and, further, although in our

submission it does not directly arise, the Act - with an exception that I will turn to now - would

appear to be a valid exercise of the defence power.

That brings me, Your Honours, to section 190,

in our submission 7 and following. In dealing

with this provision in relation to the defence

power, I deal with it in its application to the

States. I will not deal with its application to

the territories where different considerations
may arise and which are not relevant to this case.

In our submission, subsection (1) is confined to trials of service offences being,as a matter of

precise and careful legal distinction, different

from ordinary civil court offences or the ordinary public law of the country, even though for many of

them, their elements may be the same. In respect

of subsections (3)- my submissions have included

(4) - I will simply mention that so much depends

on what can be made of (4). I will deal primarily

with subsections (3) and (5). If, on its true

reading, subsection (4) is also purporting to oust

the capacity of State courts to try State offences, (Continued on page 265)

then our submissions will equally apply to subsection (4).

ClT64/l/SH	264	16/11/88
Ryan

MR PARKER (continuing): Those subsections, in our

submission, suffer from the problem that they

purport to say that a person who is being

dealt with under the Act is not liable to be

tried by the State civil court for a civil

court offence that is substantially the same

as the service offence.

In our submission, it is one thing to say that the defence of Australia requires

a defence force and a defence force that is

disciplined and therefore to provide a system

of internal discipline, even a system as extensive
and intrusive into the lives of defence personnel

as the one here provided, but it is another thing

altogether to say because there is a need of

an internal discipline system to ensure that

the defence force functions properly, it is
necessary as a consequence to prevent those who
are being disciplined for the internal reasons

of the defence force from also being dealt with

for the same conduct where that conduct is

also an offence against the ordinary public law of the land. The needs of the defence force as

a whole for discipline and order may justify the

disciplinary system but we as~ how is it for
the defence of the nation to exclude the operation

of the civil criminal law?

Provisions like sections 190(3) and 190(5) which

seek to affect the relationship of the liability

of members of the defence force to the ordinary

law of the land immediately and necessarily
assume a bigger and different purpose, in our

submission, from the mere internal discipline

of the defence force because they reach outside
the defence force to affect the operation of the

ordinary law on members of the force. For that

reason, the question must be asked: what is

the defence purpose?

We accept, very quickly, that there may

well be circumstances where the defence of the

nation would be served by such a law. My examples

will cast wider than the scope of subsections(3)

and (5). Members on active service in Australia

at a time, say, of invasion, when the defence

of the nation requires them to act in areas where there are already civilians and civilian property

and their having to defend in the presence of

civilian and civilian property,may well find

that their capacity to execute their defence

responsibility is inhibited by the obligations

imposed by the civil law on their use of firearms,

dangerous equipment, et cetera.

CIT65/l/JM	265	16/11/88
Ryan

MR PARKER (continuing): Likewise, members of the defence force

called out in aid of the civil authority might be

thought to be hampered improperly by the operation of

the ordinary criminal law. That is a proposition that

requires, though, much more careful consideration if

ever it should arise. The need to simulate warlike

conditions during training might in itself justify,

for the purposes of that particular training, the

suspension of the ordinary civil law.	A member of
the defence force charged with	a civil offence may

be needed for important service with his unit, whether

it is to meet an immediate defence emergency, or

perhaps some other proper purpose.

If that happened, a law suspending the operation of the ordinary criminal law would probably be justified;

whether it would entirely preclude properly the

operation of that civil law once the particular

defence need, ha$ passed, is perhaps a different and

further question.

BRENNAN J:  So RV HAYDN would be a case that might fall within

this extraordinary power?

MR PARKER:  Yes.

BRENNAN J: Is that the proposition?

MR PARKER: I do not have an answer immediately to hand for

that, Your Honour, because just at this moment, HAYDN

has fled from my mind, I am sorry.

BRENNAN J:  The case of the incident in the Melbourne hotel

when the members of a paramilitary force of some kind

were engaged in a training exercise that seemed to go

rather wrong.

MR PARKER:  Yes. There, I am postulating in these examples

circumstances in which there may be seen a sufficient

defence purpose to justify the suspension of the

operation of the criminal law to particular members.

Now, I am not wanting to say that in every circumstance

where there is a training operation that civil law

may be suspended, but the circumstances may make that

appropriate, and I leave that open as an appropriate

possibility. The need to move armoured vehicles about

the roads may well justify the removing of the
drivers of such vehicles from the penalties for
driving overweight vehicles is an obvious

example where the defence need might properly intrude

upon the civil law.

ClT66/l/VH	266	16/11/88
Ryan

MR PARKER (continuing): It could not be said, however,

that the defence power would justify the exemption
of all service vehicles or all service personnel

driving them from the road traffic law in all

circumstances because in such a provision there is
lacking, in our submission, some sufficient connection

with the defence purpose, the defence power. For

those quick reasons, in our submission, subsections (3)

and (5) and, possibly subsection (4) exceed the

legislative power of the Corrrrnonwealth because there

is no attempt whatever to limit their operation to

circumstances which have a discernible defence
purpose.

Now, it is advanced that fairness to the member may, of itself, provide such a sufficient connection,

the avoidance of double trial and double punishment. needed with the defence of the Corrrrnonwealth than to

say because there is a need to discipline for service

purposes, which those purposes, of course, often

differ from the purposes of the public criminal

law and may result in very different punishment

even though under section 70(1) regard must be had,

inter alia, to the ordinary sentencing principles.

Regard must also, by that provision, be had to the

needs of discipline so the quite different results

may ensure in a service disciplinary tribunal.

WILSON J: In their actual operation, Mr Solicitor, do these

sections do any more than what section 16 of the

CRIMINAL CODE of Western Australia does?

MR PARKER:  In our provision, no, Your Honour, but I do not

know that every State has a similar provision.

WILSON J: Perhaps it depends on whether section 16 is merely

declaratory of the corrrrnon law?

MR PARKER:  Yes. Now, in our submission, simply saying because

there must be that discipline for service purposes,

even though there is a different purpose or in part,

a different purpose, the services need to discipline

when its exercise justifies exclusion of the criminal

law.

(Continued on page 268)

ClT67/l/SH	267	16/11/88
Ryan

MR PARKER (continuing):  Now that apparent hardship is,

in reality, mitigated if the subsections that we

have indicated are invalid by a number of

considerations. The first is section 63(1) for serious civil offences in Australia. Secondly,

the practical reality is the comnon sense enforcement

by State and service authorities ensures, and I

am speaking here of the experience that prevailed

in each of the services until 1982 - or perhaps

with the exception of the navy that seemed to have

snuck an advance on anybody. But the other two

services had exactly this sort of situation throughout
except that it was a reference to the law of the
United Kingdom but there would usually be found

to be some sort of parallel law to the law in the

particular location within Australia and it was

a very rare experience to find that both bodies

sought to proceed.

There were circumstances where despite the

operation of the civil law the service might want

to proceed. For example, somebody convicted in

a service court of, say, an offence of armed robbery

might be sentenced to a term of years. The military

court might want to deal with that person with
a view to ordering the dismissal of that person
from the force or, at the least, the reduction
of that person to the ranks so that that person
could have no leadership capacity within the force

in view of the nature of the criminal conduct in

which he had been involved in private life.

In this respect, and I think perhaps looking

directly at Your Honour Justice Deane in some

of the matters you have put to some of my learned

friends, although it does not arise in this case,

because this case does not involve a territory

offence that has a fixed penalty. Where there

was such an offence and were sections 190(3) and (5)

invalid, as we submit, there is a possible difficulty

with section 61(2)(a) which requires the service

tribunal to also impose the fixed penalty.

(Continued on page 269)

ClT68/l/AC	268	16/11/88
Ryan

MR PARKER (continuing): In our submission, that may well,

if such a case arose, reveal that that provision was

going beyond the disciplinary purposes of the defence

force and that the remedy is simple and it is a

simple reading out of paragraph (a) and the first

three words of paragraph (b) and what you would then

have remaining is that the maximum penalty available

to the disciplinary service tribunal was then the

maximum penalty under the civil law. But if the civil law

had had its way there would then remain only the need to

deal with what remained of a discipline purpose such as

dismissal from the force, reduction in ranks or something

of that situation. But the - - -

DEANE J:	A bit more of a penalty; another six months?
MR PARKER:	In our submission,both the civil court and the military

court by the express provision of section 70 are required

to apply the ordinary principles of sentencing.	So that
if we found that for these acts or omissions the

person had already been dealt with in another tribunal and

punished in respect of what we might call the "community

public order component" that there would be no repetition

of that component in any second hearing.

DEANE J:  But surely, on your argument, it is only the added

disciplinary thing that justifies the military

jurisdiction. So could not they give him another six

months because of the disciplinary consideration?

MR PARKER:  That may arise in some circumstances if there was some

particular disciplinary quality. Say there had been an

assault by a soldier on an officer and - - -

DEANE J: Let us take this case where the charge is forgery.

Assume that he had been dealt with by the military court

and given three years imprisonment or two years imprisonment

What if the offence under the State law only carried

12 months, how does that fit in? Or here it is the

reverse of course, here the much more serious breach

of discipline carries a maximum penalty of two years
including the civil punishment.	The State law allows
for three years?

(Continued on page 270)

ClT69/l/SR	269	16/11/88
Ryan

MR PARKER: If there was to be found, in our submission,

Your Honour, no pecularity of particular relevance

to service discipline about the offence, if the

offence had been dealt with by an ordinary civil
court of the land, the ordinary principles of

sentencing that are required to be applied would,
in our submission, be unlikely then to justify

or allow the further imposition of penalty.

But if there was a particular service significance

about this particular forgery, the additional
purpose of discipline may give rise to the

possibility of some further punishment before

the service tribunal~ But that would be a relatively

rare circumstance.

DEANE J: Of course, subject to 144(3) in the case of this

particular Act.

MR PARKER:  But, Mr Solicitor, just one other thing and

that is once you reduce these to simple double

jeopardy provisions like section 16 of the

QUEENSLAND and WESTERN AUSTRALIAN CODE, do you

not then move into a difficulty in that there

is nothing really to prevent direct inconsistency

between a State Act which says the maximum penalty

for this offence is three years and a Commonwealth

Act which says the maximum penalty for the same

offence in terms of actions involved is two years?

MR PARKER:  In our submission, there can never be direct

inconsistency because the elements of the service

offence are always different because there must

always be the additional element of being a service

member.and that, as a matter of legal theory,

in our submission, is the answer to that situation.

DEANE J:	But there is no inconsistency between a State Act which says, "Anyone who does this is liable
t o a max i mum  pen a 1 t y o f two y ea r s . 1 '-; and ,_. a
Commonwealth Act which says, "A serviceman who
does that is liable to a maximum penalty of one
year ..  fl ?
MR PARKER:	No½ in our submission, and certainly not when

that is for purposes of service discipline liable

the nature and quality of the service DISCIPLINE

to this penalty.

(Continuing on page 271)

Cl T70/l /ND	27G	16/11/88
Ryan

MR PARKER (continuing):  One finds a divergence of the

nature and purpose of the DEFENCE FORCE DISCIPLINE operation of the two Acts when one looks at the in our submission, does not arise.

The second objection which I anticipated,

apart from fairness, is that the subjection of a

member the defence force to the ordinary criminal

law may interfere with his availability and

usefulness as a member of the defence force. Yes,

it might; in time of a defence emergency or important

training or operation, that might well have validity

but, as a general proposition, for all personnel in

time of peace or war, without any attempt at

focusing upon that possibility, in our submission,

it does not seem possible to make good that position.

It is simply too wide and too general and, in any

event, that does not seem to be the problem at which

the provision is aimed.

Ordinary law can operate without hindrance on

defence members so long as the service authority

does not do so first, under the Act at the moment.

There is wide scope for the ordinary law to operate

on the service personnel. There is no attempt to

limit the application of the service law, the effect

of convictions and sentences on their availability,

et cetera, so that, in our submission, that does not

appear to be what this particular provision is aimed

at. They are our submissions, if it please the Court.

MASON CJ: Yes, thank you, Mr Solicitor. Mr Woinarski?

(Continued on page 272)

ClT71/l/SH	271	16/11/88
Ryan

MR WOINARSKI:  If the Court pleases, a former cadet corporal

will attempt to reply briefly to those matters

that have been raised. May I, at the outset,

refer the Court to what His Honour Mr Justice Isaacs

said in the FEDERAL COMMISSIONER OF TAXATION V MUNRO

38 CLR 153, 178. It is a very brief passage and

if I may just read it to the Court:

Partly repeating, for emphasis, some

previous observations, I would say that

some matters so clearly and distinctively

appertain to one branch of government as

to be incapable of exer~ise by another.

An appropriation of public money, a trial

for murder, and the appointment of a

Federal Judge are instances.

Of course, that passage was picked up by

His Honour Justice Jacobs in a case which has been referred to in this Court on a number of

occasions today, REG V QUINN EX PARTE CONSOLIDATED

FOOD CORPORATIONS, 138 CLR 1. His Honour Justice Jacobs

cited that very passage at page 8 and in agreement

with His Honour's judgment on that occasion were

Justice Stephen and Your Honour the Chief Justice,

and I refer to page 7 of the judgment.

If I may say this, having listened now to

our learned friends, the various S::>licitors,

but more particularly to the arguments put on

behalf of the Commonwealth, and I refer now

specifically, if I may, _to some comments our

learned friend Mr Callaway made in relation to
comments, or submissions I put to the Court

yesterday at page 95 of the transcript, comments

he addressed to the Court shortly before lunch,

and some of the things that have recently fallen

from the learned Solicitor for Western Australia.

The Act which is currently being considered

by the Court creates numerous offences either

directly or by importing ACT law and that reason

we have been told today specifically by our

learned friend,Mr Callaway,so far as the ACT law

is concerned is that Parliament seized upon the

civil criminal law as being a proper matter to

be considered as being contrary to the good

discipline of the armed forces.

(Continued on page 273)

CIT72/l/JM	272
Ryan
MR WOINARSKI (continuing):	Now, we submit that there are two

proper ways in which disciplinary aspects can be

dealt with. The first is by a proper court, in other

words, a body exercising chapter III power, and for

that to deal with the criminal offence and then for

a disciplinary tribunal exercising a disciplinary

jurisdiction for the effect of that offence on the
discipline of the forces; in other words, the

conviction of the offence is dealt with by the

discipline tribunal so far as it has an effect on the

discipline of the forces. Indeed, we would say that

the case of WIGGLESWORTH, the police office matter,

is a very example of that sort of thing and one only

has to look at the sort of discipline that is set up

for the Australian Federal Police - it is very similar

to that type of body.

We say that, alternatively, there is one other

way that it can be done, and we say it has been done

in this particular case - when I say that, I mean

the DEFENCE FORCE DISCIPLINE ACT - that is by a body

which exercises both the judicial power - and I refer

there particularly to a chapter III body - so a body

that falls properly within chapter III, exercising

that power and the disciplinary power at the one

time, the disciplinary power merging into and

becoming part of the sentencing power. ind in that

regard we would direct the Court to look at section 68

of the DEFENCE FORCE DISCIPLINE ACT which sets out

a whole lot of things that can be done so far as

penalties are concerned, including dismissal from

the force, reduction in ranks and things like that.

Now, such a body would, in our submission, be

exercising properly the powers under chapter III of

the CONSTITUTION, because it must be remembered at

all times, which, in our submission,is something

the Connnonwealth has tended to gloss over a bit, that

the defence power is subject to - like all parts of

section 51 - is subject to this CONSTITUTION and

that includes chapter III. (Continued on page 274)

ClT73/l/VH	273	16/11/88
Ryan

MR WOINARSKI (continuing):  Now, the purely disciplinary

matters such as are covered by the decision of

this Court in WHITE EX PARTE BYRNES - and I am now

still talking about the second alternative - could

continue to be dealt with by a commanding officer or

other appropriate officer or officers by the appropriate

procedure. So the very thing that we, or I in

particular, was receiving some criticism from

Mr Callaway - we do not mind that - we say would

still be there and the very need for the commanding

officer to deal with that sort of discipline that

arises in WHITE EX PARTE BYRNES can still be dealt

with by a commanding officer.

We say that what Parliament has chosen to do

has at least, in part, been the selection of our

second alternative, namely the creation of a body which

is exercising the chapter I I I power and has merged

into it some of the disciplinary abilities when it

comes to deal with the variety of offences that are

created by the DEFENCE FORCE DISCIPLINE ACT.

We would like to very briefly make some

comments about some of the other sections that have

been referred to. Reference has been made to

section 144(3) of the DEFENCE FORCE DISCIPLINE ACT.

Again we say that really strengthens our position because if this Act was intended to deal with actual

discipline, in other words the effect of somebody's
behaviour, even if they were convicted for an offence,
the effect of that - the mere conviction - on the

discipline or the disrepute, perhaps, bring the

armed forces into disrepute - one would not have a

section such as section 144(3) because one would still

want the armed forces to be able to put some

reprimand on the particular member concerned. So,

for example, you might have a situation of somebody

being charged and convicted of an assault, assaulting

police. In Victoria he could not be brought before

a service tribunal by reason of section 144(3) and

perhaps have his rank reduced, or something like that. (Continued on page 275)

C1T74/l/HS	274	16/11/88
Ryan

MR WOINARSKI (continuing):  So that we say it is clear this is

the effect of section 144(3) and we also in this
regard refer the Court to the other part of

section 144(3) which the Court has not had its

attention drawn to namely, subsection (b) which

relates to a person having been acquitted or

convicted by an overseas court of an overseas offence.

Now we can see that if this was purely a disciplinary

Act in the pure discipline effect, if one wanted to

obtain discipline of members of the armed forces, one

could very easily concede that a commission of an

of a foreign country may have the likely effect of
bringing into disrepute, at least, the Australian
armed forces such as the theft of a national flag. offence by a defence member overseas against the law to do nothing about it at all.

Now if we may then move on to the submissions our

learned friend, Mr Callawa½ made which were picked up

to some degree by the learned Solicitor for the

Commonwealth also, with relation to the paradigm that

the framers modelled upon in 1900. And it was the

English paradigm that we were told it was based upon.

He also submitted, when I say "he" I am talking about

our lea,ll'ned friend, Mr Callaway, submitted our

references to the historical and traditional acceptance

of courts martial as part of the judicature of the

United Kingdom was irrelevant. However, his historical

journey through the various Acts, we say, must be

considered in his own model, his own paradigm. And

that, of course, was one where the body was recognized

even only as recently as 1981-and I refer simply to

Lord Scarman, that courts martial - this is, of course

in ATTORNEY GENERAL V BRITISH BROADCASTING CORPORATION

in the House of Lords, courts martial and consistory
courts are as truly entrusted with the exercise of

the judicial power of the State as are civil courts.

So that you have a paradigm where for many centuries,

as we have already submitted, even as late as 1981,

the paradigm is based

the judicial system as much as the civil courts. on a court which is part of

(Continued on page 276)

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MR WOINARSKI (continuing):  Now, if that is the paradigm

which our system is based upon, then, in our
submission, it is quite clear the framers, to

use our learned friend's own words, would not

have intended to replace the tried and true

system intended that courts martia~ and now

we would include defence force magistrates, were

part of the judicial system and,because of the

particular way in which our CONSTITUTION is drawn

up, that requires them to be appointed pursuant
to chapter III of the CONSTITUTION.

Now, if we may move on to a matter very briefly raised by Your Honour Justice Gaudron, Your Honour

was asking our learned friend, Mr Callaway, again, about why a defence member in Queensland should be

required - or perhaps I can put it this way: the

matter that you raised in relation to Queensland

law and Australian Capital Territory law - we
simply make this observation: that we can see no
reason, so far as defence power is concerned, why
a defence member, for example, in Queensland,

should be required to comply with the Australian

Capital Territory criminal law and it would seem
to us that it would be more appropriate and proper

for him to be required to comply with whatever the

State criminal law was.

Now, we have not addressed any argument in relation to section 61 so far as this matter is

concerned but we just raise it as a result of

something Justice Gaudron raised.

Again, it has been raised by both our friends

for the Con:n:nonwealth and for Western Australia whether

or not there is another party to the record. We stand

by the con:n:nents that we have already made but if we

may, just very briefly, refer the Court to section 136

of the DEFENCE FORCE DISCIPLINE ACT which provides

that:

A person shall not represent a party before

a court martial or a defence force magistrate

unless he is -

(Continued on page 277)

ClT76/l/SH	276	16/11/88
Ryan

MR WOINARSKI (continuing):  Now, it is quite clear, in our

submission, that a party there must mean more than
simply the defence force member charged, because,
if it was simply the defence force member charged,

one would simply say, a person shall not represent

a defence force member charged. The Act is quite

clearly contemplating a party on both sides of the

record and therefore, in our submission, section 136

is further support for the arguments we have

already put.

May I then briefly answer some comments the learned Solicitor-General for the Commonwealth

addressed to this Court on the question of whether or

not BEVAN' s case and COX' s case should or should not be

overturned by this Court. We would firstly draw the

Court's attention to the American case that has been cited here quite frequently today, of SOLORIO. It

seems, just very briefly, that the American Supreme Court

in 1960 overturned a line of authorities some 100 years

old and then again, last year or earlier this year,

again overturned itself some 28 years later. So that

we would submit that is a very good example of the

fact that this Court need not be worried by that fact,

simply by the example of the American Supreme Court.

Perhaps more particularly, we would refer the Court

to the comments of Their Honours Chief Justice Dixon

and Justices McTiernan, Fullagar and Kitto in

REG V KIRBY, the BOILERMAKERS' case, 94 CLR 254, and

I refer particularly to the passages -and I will not

read it to the Court, I am fully aware of the ti.nl= - but the passages that commence on page 292, commencing in the

very last paragraph and that flow through to the top

part of page 296. If I may just very briefly read

one particular passage. They refer to a large number

of matters and the Court then said this:

The accumulated weight of the foregoing

considerations is very great.

And if I can interpolate, for not overruling earlier

decisions: 

But it is necessary to stop short of treating

them as relieving this Court of its duty of

proceeding according to law in giving effect

to the CONSTITUTION which it is bound to enforce.

(Continued on page 278)

ClT77/l/VH	277	16/11/88
Ryan

MR WOINARSKI (continuing): Finally, may we just make

one other observation? There has been in the

course of argument, particularly since we sat

down yesterday, quite some discussion about the

need and the question of punishment so far as

the defence force is concerned. There seems,

with some great respect from our submission,

to have been too much emphasis simply on the

requirements of the defence force, because
the defence force is only one part, albeit an

important part of the various organs that go

up to make the Commonwealth of Australia.

We say that ultimately there must be some balancing

of requirements of the defence, the need to protect

members of the community, and when I say that I
mean one member of the community as against another

member of the community, be they defence force

members against each other or be they a defence

force member against an ordinary member of the

community, and the connnunity is entitled to ensure

that it is properly protected from not only

ordinary civilians but from defence members who

may commit a State crime and in that regard the

connnunity is entitled, we say, to be sure that

people who commit State crimes,particularly in

peace-time, should be treated by State courts

in that regard because that is the best way
for making sure the community is properly
protected.

Unless there is some other matter which the Court is desirous of raising with us, we

have no further submissions.

MASON CJ: Yes, thank you, Mr Woinarski. The Court

will consider its decision in this matter.

Mr Callaway, I had assumed that if

you wanted to reply to the submissions of

the Solicitor-General for Western Australia

on the invalidity of the subsections of
section 190, you could do so.	Do you wish
to make a reply?

MR CALLAWAY:	Your Honour, there is nothing we wish to add.
MASON CJ:	No, I had rather assumed that. The Court

will now adjourn.

AT 4.23 PM THE MATTER WAS ADJOURNED SINE DIE

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Ryan