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

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M56 of 1988
In the matter of -
An application for a writ
of prohibition against THE
COMMONWEALTH OF AUSTRALIA
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

Ryan

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 15 NOVEMBER 1988, AT 10. 19 AM

(Continued from 6/10/88)

ClT2/ 1 / AC

15/11/88

MR W.B. WOINARSKI, QC: If the Court pleases, I appear with
my learned friend, MR. D.H. DENTON, on behalf of the
prosecutor. (instructed by Cornwall Stodart)

MR G. GRIFFITH, QC, Solicitor-General for the Commonwealth:
If the Court pleases, I again appear with my learned
friends, MR F.H. CALLAWAY and MR S.J. GAGELER, for the

Commonwealth of Australia. (instructed by
Australian Government Solicitor)

MR K.H. PARKER, QC, Solicitor-General for Western Australia:
If it please the Court, I appear with my learned friend,
MISS C.A. WHEELER, on behalf of the Attorney-General
for the State of Western Australia intervening.
(instructed by Crown Solicitor for Western Australia)

I should indicate that the submissions of the State of Western Australia will in this case be in support of the Commonwealth and not in support of the
prosecutor, although we will contend for some limited
invalidity in section 190 of the Act.

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If
the Court pleases, I appear with my learned friend,
MR S.G. O'BRYAN, to intervene on behalf of the
Attorney-General for the State of Victoria.
(instructed by Crown Solicitor for Victoria)
I think by and large we intervene in the interests of the prosecutor.

MR W.C.R. BALE, QC, Solicitor-General for Tasmania: May it
please the Court, I appear with my learned friend,
MR S.R. CAREY, intervening on behalf of the
Attorney-General for the State of Tasmania.
(instructed by Crown Solicitor for Tasmania)
The intervention is limited to the support of the
argument of the prosecutor in relation to the
invalidity of section 190 of the relevant Act.
May it please.

MR J.J. DOYLE 1 QC, Solicitor-General for South Australia:

May 1t please the Court, I appear with my learned

friend, MR M.L. WALTER, to intervene for the
Attorney-General for the State of South Australia.
(instructed by Crown Solicitor for South Australia)
In this matter, if the Court pleases, although
our submission will be that the order nisi should
be discharged, we will be submitting that
sections 190 and 61 are invalid and, accordingly,
in my submission, it may be more appropriate if
we put our submissions after counsel for the
prosecutor and before counsel for the Commonwealth.

MR K. MASON, gc, Solicitor-General for New South Wales:
May 1t please the Court, I appear with my learned
friend, MR L.S. KATZ, for the Attorney General
for New South Wales intervening.
(instructed by Crown Solicitor for New South Wales)

ClT2/2/AC 51 15/11/88
Ryan
We broadly take the approach that the validity
of section 61 is not before the Court and should
not be decided; that this is not an appropriate
case to decide questions of the validity of
section 190 of the Act. If the validity of 61
is to be decided we submit it is invalid. If the
validity of 190 is to be decided we submit it is
valid.

MR R.E. COOPER, QC: If it please the Court, I appear with
my learned friend, MR T.J. RYNNE, on behalf of
the Attorney-General for the State of Queensland
intervening (instructed by Crown Solicitor for
Queensland) generally in support of the prosecutor
on the issue that section 190 of the Act is invalid
as is section 61.

MASON CJ: Yes, Mr Woinarski.

(Continued on page 53)

ClT2/3/AC 52 15/11/88
Ryan

MR WOINARSKI:

May it please the Court. Perhaps if I may

just hand up to the Court at the outset some
documents. Firstly, the Commonwealth has made
available an up to date copy of the DEFENCE
FORCE DISCIPLINE ACT for each member of the Court.
Perhaps if they could be distributed.
Secondly, on the last occasion that we were

here the Court gave us general leave to amend the
grounds for our order nisl and, perhaps, if I may
hand up the amended grounds. I have had retyped
grounds 1 and 2 and ground 3 is on page 2 of the document and, at the same time, if I may hand up an outline of additional submission on behalf of
the prosecutor.
The Court will see from the amended ground

that we seek to add ground 3 to the effect that
section 190 of the DEFENCE FORCE DISCIPLINE ACT
is invalid as being beyond the power of the
Commonwealth with the consequence that, upon the
proper construction of the DEFENCE FORCE DISCIPLINE
ACT, the second-named respondent is exercising the
judicial power of the Commonwealth and has not been
appointed pursuant to Chapter III of the CONSTITUTION.
Now, if the Court pleases, I take it the Court

does not require me to go back over ground that we
canvassed last time.

MASON CJ: There is no occasion to do that. The argument is in

the transcript and we have - - -

MR WOINARSKI: Certainly, Your Honours. Perhaps, then, if I

may, before proceeding on, deal with one matter which
Justice Dawson raised with us on the last occasion
relating to a matter that Your Honour raised at
page 22 as to whether or not there was another

party or ·whowas the other party to the proceedings
and if I may just deal with that matter before
proceeding on with.our argument in general.

MASON CJ: Yes.

(Continued on page 54)

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MR WOINARSKI (continuing): If I may take the Court

to the DEFENCE FORCE DISCIPLINE ACT and

in particular section 87. I think it is on
page 48, if the pages are correctly numbered.
Section 87 provides that:
Where an authorized member of the Defence
Force believes, on reasonable grounds,
that a person has committed a service
offence, he may -

(a) if the person is a defence member - (i) charge the defence member with the
service offence;
(ii) cause a copy of the charge to be given

to the defence member; and

(iii) order the defence member to appear before
a summary authority at a specified time
and place to be dealt with in accordance
with section 109, 110 or 111;
And then sub-sectbn (b) deals with a person who is not a defence member but would be a defence civilian.
The question then arises as to who is an

authorized member and section 87(6) provides that
answer where it defines an authorized member of
the defence forte as:
a member of the Defence Force, or a member
of the Defence Force included in a class
of members of the Defence Force, authorized,
in writing, by a commanding officer for
the purposes of this section.

So the section provides for persons to be authorized to lay charges against defence members.
What then happens is that a person would come
before a commanding officer pursuant to section 110
of the Act which is set out at page 90.

(Continued on page 55)

CIT4/l/JM	54
Ryan
MR WOINARSKI (continuing):	Section 110 provides that a

connnanding officer may do a variety of things
when the charge is before him including
subsection l(d):
refer the charge to a convening authority.

The other section that is mentioned in 87(l)(a)(iii)
is section 111 which really relates to the
subordinate sunnnary authority dealing with the
matter itself. If we may just put that aside
for the moment, going back to section ll0(l)(b),
if the matter is referred - I am sorry, I said
( 1) (b) •

DAWSON J:

It is 109(b).

MR WOINARSKI:

It is (d).

I have got (b) in my notes.

It should be (d) and I apologise to the Court.
It is ll0(d):
refer the charge to a convening authority.

If it is referred to a convening authority one
goes to section 103 of the Act which is at
page 87 and the convening authority has open to
it a variety of courses including, if we go to
subsection (2)(d):
refer the charge to a Defence Force magistrate
for trial -

and, of course, (e) relates to referring the
matter to a court martial for trial.

(Continued on page 56)

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MR WOINARSKI (continuing):	The only other thing that we

wish to say about that is that the Governor-General
is, of course, by reason of section 68 of the
CONSTITUTION, the Commander in Chief of the Defence

Forces. The DEFENCE ACT 1903, section 9(1),
provides:
The Governor-General may appoint an

officer of an arm of the Defence Force to
be Chief of Defence Force Staff and -

to be chief of the various branches and
section 10 of the DEFENCE ACT 1903 provides that:

The Governor-General may .....

(a) appoint persons to be officers
of the Army -
and, in our submission, the analysis then effectively
shows that by delegation from the Governor-General
down through officers, one gets an authorized
member who has the ability to lay the charge
effectively, we would say, in the end if one

follows it back the other way. The other party
is at least the army, in this particular case,

if not the Commonwealth. And we hope that that
does answer the matter that Your Honour
Justice Dawson raised on the last occasion.

When we were last here I had at the time

when the Court adjourned the proceedings just
taken the Court to the decision of REG V WHITE
EX PARTE BYRNES and cited a passage to the Court from that particular decision and I was about
to continue on to refer the Court to the 1973 consolidation of the DEFENCE ACT 1903 and, in particular, I wish to refer the Court to
section 108 of the Act as it was then in force.
Section 108(1) provided that:

(Continued on page 57)

ClT6/l/ND	56
Ryan
MR WOINARSKI (continuing):

The·regulations may authorize the
officer commanding a corps, ship, unit or
air force station to punish an offence
against -

the DEFENCE ACT if I may interpolate -
or the regulations committed by a member
of the Defence Force when not on war service -
(a) by a fine not exceeding $40;
(b) in the case of loss of, or damage or

destruction to, any arms, ammunition,
equipment, clothing, instruments or

regimental necessaries caused by the offence - up to a fine of $40 or $10:
(c) where the member is employed on

continuous full time naval, military or
air-force service -
(i) by forfeiture of not more than

14 days' pay; or
(ii) by confinement to barracks ..... for

a period not exceeding 21 days, 7 days of
which may be imprisonment or detention; and
(d) where the member is not employed on

continuous full time naval, military or
air-force service - by reduction in rank or
dismissal.
(2) Except when on war service, a member

of the Defence Force, before being dismissed
or reduced, may, if he so requests, be tried
by court-martial.

(3) When on war service commanding officers
shall have all the powers conferred by the
ARMY ACT, the NAVAL DISCIPLINE ACT and the
AIR FORCE ACT respectively subject to such .
modifications and adaptations as are prescribed.

Now, it is our submission that the power given to
the commanding officer in section 108 of the old
DEFENCE ACT is a true example - we would accept the
ability to impose up to 7 days imprisonment, but
accepting that we would be submitting that that is
a true example of the power to provide sanctions or
penalties for what are disciplinary offences and that
when one talks about disciplinary matters, or disciplinary
offences. as one is talking about them in the case of
REG VvIDITE;EX PARTE BYRNES, one sees the analogous type
of penal provision or sanctions in section 108.

ClT7/l/SR	57	15/11/88
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MR WOINARSKI (continuing): Now, we, of course, are dealing here with an Act which goes far beyond any of the

provisions that we are talking about in section 108
and we say one cannot say that the DEFENCE FORCE DISCIPLINE ACT is simply an Act dealing with the
discipline of defence members.
On the last occasion that we were here, we

indicated to the Court the power in the DEFENCE ACT
that nrovided - I think is was section 110 of the
old DEFENCE ACT that provided an offence against the Act or the ~egulations could be heard either
by a court of summary jurisdiction or by a court
martial and, of course, a similar provision was
also to be found, and if we may just refer to this,
in the Australian Military Rules and Orders to be
found in 324(2) which had the same nrovision that
an offence under the Act or under the .regulations
could be heard either by a civil court or by a
court martial.
The suggestion that offences are just disciplinary

is, in our submission, a fallacious one. One, in our
submission, has to look at the full range of powers
of a defence force magistrate, not only as to the
penalties which he can impose but also as to the
range of offences which he can hear and it is clear
from the analysis that we took the Court through
last time that, aubject to the consent of the
Attorney-General, a defence force magistrate can hear offences ranging from treason and murder right down to fairly minor offences.
Now, in our submission, if one just simply looks at a single offence in isolation, it may be
possible to say that is a disciplinary matter but
when one looks at the position that that particular
matter, the fact that it is situated in an Act
dealing with a whole range of offences, we say
that you cannot, in isolation, just simply say that
a matter is disciplinary. It is our submission

that what one has to do is look at the whole range
of offences and if a matter in isolation may
appear to be disciplinary, it will lose that effect
or flavour ,if I can. put it that way, if it is tied
in with a whole lot of other offences that are quite
clearly criminal or quasi-criminal offences and,
indeed, that is what we say has occurred quite
clearly in the DEFENCE FORCE DISCIPLINARY ACT, that
one has this great wide variety of offences and
they all must be looked at globally and, therefore,
they all become offences which are traditionally
and have always traditionally been regarded as being
subject to the exercise of the judicial power.

ClT8/l/SH	58	15/11/88
Ryan

MR WOINARSKI (continuing): Perhaps one way of looking

at this from a slightly different point of view
is that, in our submission, the Act looks at
the offence rather than the effect on discipline.
One, for example, sees various forms of conduct where the offence is really dealt with, rather than
the effect it may have on discipline and thus one

has the offence under section 47 of theft, which
is very, very extensive, applies a penalty of up
to five years imprisonment and does not of itself
deal-particularly and solely theft by a defence

member - with the effect that may have on the
discipline of the armed forces as such.
If we may move on to the next paragraph in

the outline, which is paragraph 7 on page 6 of our
original outline. In 1955 the Commonwealth enacted

the COURTS-MARTIAL APPEALS ACT 1955 which has now changed its name and is known as the DEFENCE FORCE DISCIPLINE APPEALS ACT. That Act provides for an
appeal to the appeals tribunal from a conviction by a court martial or a defence force magistrate.
That is to be found in section 4 of the Act. If
the Court could have that Act, the DEFENCE FORCE
DISCIPLINE APPEALS ACT 1955, the Court will see that section 4 defines an appeal as "an appeal
to this tribunal under this Act", and section 20
provides in subsection (1) that:
(Continued on page 60)

CIT9/l/JM	59
Ryan

MR WOINARSKI (continuing):

a convicted person -
if I may leave aside "prescribed acquitted person" -
may appeal to the Tribunal against his
conviction ..... but an appeal on a ground that is not a question of law may not be brought except by leave of the Tribunal.

Section 21 provides that an appeal is to be
lodged within 30 days. If one has a look at
section 21(2) an appeal is to be lodged within
30 days commencing immediately after - (a) the day on which the results of a
review under section 152 of the DEFENCE
FORCE DISCIPLINE ACT of the proceedings
are notified to the convicted person or
.....
(b) the last day of the period of 30
days after the conviction or prescribed
acquittal,
whichever is earlier.

Now, if I may just move away from that.

MASON CJ:

Mr Woinarski, the section 21(2) that I have

does not appear to reflect the provisions you
have just read out. Now, I am looking at the
1955 Act incorporating all amendments by
legislation made up to 31 October 1979.

MR WOINARSKI:

I apologize for that, Your Honour.

learned friend thankfully has come to the
rescue. Section 21 was substituted by Act No. 153
of 1982 section 23. That, of course, is the
Act immediately following the DEFENCE FORCE
DISCIPLINE ACT. There are amendments that follow

on.

MASON CJ:

Now the substitution was e.ffected by the

DEFENCE FORCE (MISCELLANEOUS PROVISIONS)ACT 1982,
No. 153 of 1982?

MR WOINARSKI:

Yes, the Act immediately after the

DEFENCE FORCE DISCIPLINE ACT. Section 23,

Your Honour. I apologize about that. Do
the members of the Court have that?

WILSON J:

No, I have not, Mr Woinarski. Could you just

take the effect of it again?

MR WOINARSKI:

Certainly, sir. The appeal period is

effectively 30 days immediately after a person
is notified of a review decision under section 152
of the DEFENCE FORCE DISCIPLINE ACT or 30 days

ClTl0/1/MB	60
Ryan

after the conviction, whichever occurs first.
I will come back to the review in a moment if
I may but that is the time for lodging an appeal. the Federal Court of Australia provided by section 52 of the Act, and the time limit for

that is 28 days. So that there is a full range
of appeals from a service tribunal through the
appeals tribunal to the Federal Court of Australia.
Now, if I can just briefly take the Court

to some of the provisions of the appeals tribunal.
Section 6 sets up the Defence Force Discipline
Appeal Tribunal. Section 7 provides for its
constitution or the members of it and subsection (2)
provides that the:
members ..... shall be appointed by the
Governor-General by commission -

although they are appointed, as can be seen from
subsection (3):
for such period as the Governor-General
determines, but shall be eligible for
re-appointment.

Subsection (3)(a), which perhaps, again, is not
in the copy of the Act that Your Honours have.

MASON CJ:

No.

MR WOINARSKI:

No.

Perhaps if I can just very briefly

mention it. That provides that a member of
the tribunal who has attained 70 years of age
shall not be appointed a member of the tribunal
and one is not allowed to be appointed for
a period that extends beyond the date on-which

one attains the 70th birthday. Section 8
provides the qualification of the President

or Deputy President to be:
a justice or judge of a federal court or
of the Supreme Court of a State or
Territory -

and subject to that the members are to be a
judge of a district court of a State or of a county court of a State, so that it provides for judicial persons to be the members of the
tribunal.
(Continued on page 62)

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MR WOINARSKI (continuing):	The members of the tribunal

can be removed pursuant to section 11, very similar

to the members of any court, by an address
subsection (1):
The Governor-General may remove a member from office upon an address praying for
the removal of the member being presented
to the Governor-General by each House of
the Parliament in the same session of the
Parliament.

(2) A member may be suspended from office
by the Governor-General.

And the only other provision which I just wish
to draw the Court's attention to is that again
the prerogative of mercy is retained as is seen
in section 58(1) of the Act.
What we say about this appeals tribunal is that again there has been the setting up of
something which is quite akin and quite in accordance
with the normal judicial processes and, again,
we say it is an indication that the power which
a defence force magistrate is exercising is the
judicial power of the Commonwealth. Before we
move on, perhaps we should just very briefly
take the Court to the provision relating to the
review under section 152 of the DEFENCE FORCE

DISCIPLINE ACT. So if I may just take the Court
to 152 of the DEFENCE FORCE DISCIPLINE ACT; it is
page 114 of the material handed up to the Court.
Section 152 provides:
(1) As soon as practicable after a service

tribunal (other than a subordinate summary
authority) convicts a person of a service

office or gives a direction in relation
to a person under sub-section 145(2) -
that is a prescribed acquittal on the grounds

of insanity, effectively -
the service tribunal shall transmit the
record of the proceedings to a reviewing
authority.
(2) A reviewing authority shall, as soon as practicable after receiving a record
of proceedings under sub-section (1) or
sub-section 151(5), review the proceedings
in accordance with this Part.

So that what the DEFENCE FORCE DISCIPLINE ACT
does is to provide for an automatic review resulting
in a confirmation or otherwise of a decision
of the court martial or a defence force magistrate.

ClTll/1/ND	62
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This only applies if a person is convicted

by a service -tribunal. However, if the service

member appeals or applies for leave to appeal
to the appeals tribunal the reviewing authority
is to immediately cease and his powers that he
then has are very limited; and I refer the Court
to section 156 of the DEFENCE FORCE DISCIPLINE
ACT, of which subsection (1) provides that:
Subject to sub-section (2), where,

at any time before or after a reviewing
authority commences to review proceedings
of a service tribunal that have resulted
in a conviction or a prescribed acquittal,
the convicted person or the prescribed
acquitted person, as the case may be, lodges
an appeal, or an application for leave to
appeal, to the Defence Force Discipline
Appeal Tribunal, the reviewing authority shall
not exercise any of his powers under
Division 3 or 4 in relation to that review.
(Continued on page 64)

ClTll/2/ND 63
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MR WOINARSKI (continuing): And subsection (2) provides that:
Where the Defence Force Discipline Appeal
Tribunal dismisses the appeal, or the application
for leave to appeal, the reviewing authority
may proceed with a review, not being a review
under section 153, but shall not exercise
any of his powers under Division 3 or 4 other
than his powers under section 162.

And section 162 simply relates to the power of
the reviewing authority to alter or change the
punishment; not the conviction only the punishment.
So that if one appeals to the Defence Force Appeals
Tribunal the affect of section 156 is to really
remove much, if not all, of the sting of the reviewing
authority.
Now, we next submit that courts martial

historically were, and still are, exercising the
judicial power of the Commonwealth and are courts

in the true meaning of the word. And it is our
submission that this Court is entitled to consider
the historical or traditional classification of
courts martial an4 with respect to that, we say
that there are authorities of this Court that say
that one is entitled to take into account the
historical or traditional classification of a body
to see, in fact, what it is and to see, in fact,
whether or not it is exercising the judicial power
of the Commonwealth. And in this regard we are
desirous of taking the Court to two authorities

at least. The first is REG V DAVISON, 90 CLR 353,
and the passage we are particularly desirous of
referring the Court to, at this stage, is a very
brief passage at page 365 in the judgment of
Chief Justice Dixon and Justice McTiernan. Page 365 -
the last paragraph on the page, Their Honours said:
In the now long history of the English
law of bankruptcy the process by which a

compulsory sequestration has been brought
about has always been of a description which
may properly be called judicial: see Holdsworth,
History of English Law, vol. 8, pp.238 et seqq.
It is unnecessary to trace the history of
voluntary sequestration but for a very long
time it has been the subject of judicial
order. There is nothing, however, inherent
in the nature of voluntary sequestrations
to make it impossible for the legislature
to provide some other means than a judicial
order for the purpose.

And a similar statement appears later on in the
judgment of Justice Kitto at page 381, I think

it is. I just seem to have lost the passage and
I apologize to the Court for that.

ClT12/l/AC 64/65
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MR WOINARSKI (continuing): But certainly, His Honour

Justice Kitto makes a similar comment at page 382, the
first paragraph:
For this reason it seems to me that

where the Parliament makes a general law
which needs specified action to be taken to
bring about its application in particular
cases, and the question arises whether the
CONSTITUTION requires that the power to take
that action shall be committed to the
judiciary to the exclusion of the executive,
or to the executive to the exclusion of the
judiciary, the answer may often be found
by considering how similar or comparable
powers were in fact treated in this country
at the time when the CONSTITUTION was

prepared. Where the action to be taken is of
a kind which had come by 1900 to be so
consistently regarded as peculiarly appropriate
for judicial performance that it then occupied
an acknowledged place in the structure of the
judicial system, the conclusion, it seems to
me, is inevitable that the power to take that
action is within the concept of judicial
power as the framers of the CONSTITUTION must
be taken to have understood it.

Now the other authority in this regard is the decision is the decision of REG V HEGARTY; EX. PARTE
CITY OF SALISBURY, (1981) 147 CLR 617 and I just
seem to have misplaced my copy and I apologize for that.

MASON CJ:	The passage you want is at page 627.
MR WOINARSKI:	627, yes, Your Honour, and it is the decision

of Your Honour, where Your Honour said at the
last paragraph on page 627:
It is acknowledged that 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 (REG V DAVISON (31);
COMINOS V COMINOS (32)).

Now, that being so, we say that this Court is entitled
to look at the historical basis for courts martial

and where they came from. Now we provided to the
Court some copies of a number of historical texts in
this regard, and it is our submission that those
historical texts indicate that courts martial are in
fact derived from a court, namely the Court of
Constable and Marshal which was a court forming part of
the Aula Regis which was set up by William the
Conqueror shortly after the time he invaded England in 1066:

ClT13/l/SR	66	15/11/88
Ryan

And if we may firstly, just briefly, take the Court
to some of those passages, initially to Holdsworth History of English Law and the passage ~ the parts
the Court has is from volume 1 and I refer specifically
to page 573, the Court of the Constable and Marshall
where it starts:
The court of the Constable and the

Marshall was concerned primarily with the
discipline of the army, and matters related
thereto. It was concerned also with two
matters which were closely connected with an
army commanded by the nobility and their
relations - heraldry, and slanders upon men

of noble blood. The first of these two
branches of its jurisdiction is by far the
most important; but the second has had a
longer life, and a somewhat different history.

(Continued on page 68)

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MR WOINARSKI (continuing):

(1) The discipline of the army.
At all periods armies need to be governed by laws other than those which govern the
rest of the community. These laws were
administered in the Middle Ages by the
Constable and Marshal's court.
"Always," says Hale, "preparatory to an
actual war, the kings of the realm, by
advice of the Constable and Marshal, were
used to compose a book of rules and orders
for the due order and discipline of their
officers and soldiers, together with certain
penalties on the offenders; and this was

called martial law. We have extant in the
Black Book of the Admiralty and elsewhere
several examples of such military laws."
The maintenance, then, of the rules to be
observed in the army was the main part of the
jurisdiction of the court; and it possessed
also certain other allied branches of

contracts relating to "deeds of arms," and jurisdiction. It took cognizance of all
all things "that touch war within the realm."
Instances of such matters were agreements to
hire soldiers, or questions of prisoners or

prize. It would seem from the case of
THE PARSON OF LANGAR V CONYNGSBY in 1361 that
error lay from this court to the Council.
1t is clear from statutes of Richard II,

and Henry IV's reign that the legislature
desired to prevent the court from encroaching
upon the province of the common law. A statute
of 1384 enacted that pleas concerning the
common law should not for the future be
'tlrawn before" the Constable and Marshall.
But this enactment left it uncertain what

suits properly concerned the common law, and
what concerned Constable and Marshal.· To
solve this question it was declared in
1389-1390 that, "to the Constable it
pertaineth to have cognizance of contracts
touching deeds of arms and cf war out of the
realm, and also of things that touch war
within the realm, which cannot be determined
nor discussed by the common law, with other
usages and customs to the same matters
pertaining." It was further provided that
every plaintiff in the Constable and Marshal's
court should declare his cause of action;
and that, if any complained that the cause
of action was not there cognizable, he should

ClT14/l/SH	68	15/11/88
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be able to get a writ of Privy Seal to stop the proceedings of the court till the question of jurisdiction had been
determined. In 1399 it was declared that
criminal appeals for matters done out of
the realm should be determined in the
Constable and Marshal's court, but the appeals for matters done within the realm should be tried at common law.
So, it is quite clear from that passage, in our
submision, that the court of Constable and Marshal
was truly a court as we would recognize them.
Holdsworth continues on at page 577, in a

brief passage, if I can just take the Court to
it, at the bottom of page 577 in the last paragraph
on that page, about three or four lines into it:
(Continued on page 70)

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MR WOINARSKI (continuing):

Since 1689 jurisdiction over the
army has passed to these courts martial
which have been legalized and extended
by the successive Mutiny Acts of the
eighteenth and nineteenth centures.
Thus the military jurisdiction of the
court of the Constable and Marshal ceased
to exist because it was not needed; and, together with its military jurisdiction,

all memory of its jurisdiction over such
connected matters as prisoners of war and
prize disappeared so completely that even
Lord Mansfield was ignorant of it.

MASON CJ:

Why do we need to worry about what preceded

the establishment of the new regime in 1689?

MR WOINARSKI:

Your Honour, if historically the body that

had control over the members of the armed forces
was a court and what followed through from that -
in our submission, one is entitled to look at
that to see what followed through from that as
to whether or not a court martial itself was
intended to be exercising judicial power or not.
Now, of course, there are some complications about
this to a degree, and I must concede that, in that
in England there is not a written constitution with
a tripartite system of powers, or the division of
powers that we have here in Australia with our

CONSTITUTION. The English experience certainly
played some part in the CONSTITUTION that was created
both for the United States of America and for our
own CONSTITUTION in so far that although they were
not separate powers by reason of written document,
one could see a division of those powers even in

the constitutional history of England. So that
if one wants to see really what the court martial
was, one is entitled, in our submission, to look and

see what it took over from to try and ascertain
whether or not when court martials came into
existence they were truly to be regarded at that time as courts exercising judicial power, or somebody that
was outside the exercise of judicial power, which,
of cou~se, is the argument that our learned friends,
the Commonwealth,will be arguing and, of course,
to some degree is the attitude - more than some
degree, of course - that was adopted by the members in this
Court in both BEVAN's case and cox•s case, which we are
going to come to.

MASON CJ: Yes.

MR WOINARSKI:

That is the reason why we do it, Your Honour.

Perhaps I can also say this: there seems to have been a failure in the past to look at the historical

CITlS/1/JM	70
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basis upon which courts martial came into
existence and what they were succeeding. It
does not seem to have been done in either
BEVAN's case or COX's case as such.

The next one we wish to refer to is

Adye on A Treatise on Courts Martial.
(Continued on page 72)

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MASON CJ: Mr Woinarski, perhaps you can refer to these

briefly, otherwise, going through these historical
periods~~ likely to take a little time.

MR WOINARSKI:

Your Honour, perhaps I can do that.

Adye

again sets out the historical basis of courts martial and very similarly covers some of the
ground that is covered by Holdsworth but in a
much greater detail. But there is one passage

Court to and that appears at pagffi 35 through
to 38 of the material which we have provided to the

in particular we are desirous of referring the paragraph on page 35. The author refers to the
proper distinction between martial law and military
law, effectively, and in the last sentence he
says:
Courts martial are at present held by the
same authority as the other courts of

judicature of the kingdom, and the king,
(or his generals when empowered to appoint
them) has the same prerogative of moderating
the rigour of law; and pardoning and remitting
punishment; but he can no more add to, nor
alter the sentence of a court martial, than
he can a judgment given in the courts of
law. The king has an undoubted right to

dismiss an officer or soldier from his
service without a trial, but this power
cannot bias a court martial ..... Martial
law is now exercised within its proper limits,
by the advice and concurrence of parliament,
whose jurisdiction, says Sir Edward Coke,
is so transcendent and absolute, that it
cannot be confined either to causes or persons,
within any bounds. It hath sovereign and
uncontrolable authority in making, confirming,
enlarging, restraining, abrogating; repealing,
reviving and expounding of laws, concerning

matters of all denominations, ecclesiastical or temporal, civil, military, maritime,
or criminal; this being the place where
that absolute despotic power, which must
in all governments reside somewhere, is
intrusted by the constitution of these
kingdoms ..... Courts martial still act by

particular appointment of the crown, for the king being the supreme magistrate of the kingdom, and intrusted with the whole
executive power of the law, no court whatsoever
can have any jurisdiction, unless it some
way or other derive it from the crown; but
their authority originates from, and they
are empowered to punish with death or
otherwise in peace as well as war, within

ClT16/l/ND	72
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the kingdom, as well as on foreign service,
by an act of this high tribunal of

pa r 1 i am e.n t , ma d e f o r t he s am e p u r po s e s a s
MAGNA CHARTA and every other subsequent
statute, viz to alter, amend, and remedy,
the defects of the common law, and prior
statutes, and supersede them by the

established maxim in law, that when the
common law and statute law differ, the common
law gives place to the statute, and an old
statute gives place to a new one;
It is quite clear that Adye, when he was writing
in 1810, which is subsequent, almost two centuries,
to the establishment of courts martial, was taking
the view that a court martial was an exercise
of the creation of a court. It was a court of
judicature created by Parliament, the power
descending from the king, just as any other court
of judicature, in fact, was.
(Continuing on page 74)

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BRENNAN J: I take it that the courts martial thus created
were constituted by members who were not entitled
to the judicial security provided by the
ACT OF SETTLEMENT.

MR WOINARSKI: That would be so, Your Honour. Yes.

BRENNAN J: And the problems we have in our CONSTITUTION,
of course, echoes the provisions of the
ACT OF SETTLEMENT - in relation to the constitution
of members exercising judicial power.

MR WOINARSKI: Yes. I follow that, Your Honour.
BRENNAN J: Well, where does this get us then?

MR WOINARSKI: The question that you raise, Your Honour,
may well be not as important as it seems at first.
We are talking about - if I may, with respect,
our submission is based to the nature of the body
itself as to whether or not it is a court of
judicature or it is not a court of judicature.
Whether there has been some misapprehension as
to those people who could or could not have been
appointed to it really will not affect, in our
submission, whether or not it is a court of judicature

which is what Adye seems to be saying. And if
there has been some misconception in the English position that may well be a problem they have to
face but if it strictly was to be historically
regarded as a court of judicature then the fact
that the appointments have been wrong or incorrect,
in our submission, cannot affect that matter.

BRENNAN J: Your argument then takes it to the extent that
a court martial constituted otherwise than as a
Chapter III court is in excess of the powers of the Parliament.

MR WOINARSKI: In so far, Your Honour, as it purports to

deal with the range of offences that we have been

discussing on the last occasion and briefly again this morning that is the effect of our submission,

yes, Your Honour. One could envisage a range of
what I would describe as proper disciplinary matters
which could be heard by a court martial or even
a defence force magistrate where there would not
be an exercise of the judicial power because the
range of offences would be truly disciplinary as

one can see from the example of REG V WHITE. And
we are thinking, Your Honour, particularly of offences
such as being insulting to a superior officer, failing
to be properly attired and things like that.

WILSON J: Absent without leave.

ClT17/l/AC 74
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MR WOINARSKI:

Your Honour, the problem with absent without leave is that in isolation it is a very attractive
thing to say that it is purely a disciplinary offence
but one cannot look at this Ac~ or various offences
or matters in the Act, in isolation because they
are all part of one whole regime or range of offences.

And the other thing, of course, we say is that when one raises absent without leave one could
well imagine that it would be disciplinary if,
for example, one could simply be confined to barracks
or, perhaps, detained in barracks for a period

of time. But here we have a penalty of imprisonment

for up to 12 months. Now, we have cast our eyes
around for other disciplinary-type proceedings
and the ones that seem most akin to the
DEFENCE FORCE DISCIPLINE ACT are Acts relating
to the discipline of police force~ such as the
VICTORIAN POLICE REGULATIONS AC~ and we have looked
at a number of those and, in particular, the
federal Act relating to the discipline of Federal

police and the Victorian Act. And it seems that
the most severe penalty that can be imposed on
any police officer by way of discipline is dismissal

from the police force. And, indeed, we are not
aware of any legislative provision that provides,
by way of discipline anything more serious than
dismissal or removal from your job.

But here we have an Act that provides not only dismissal but provides for imprisonment for

a period of up to 12 months. And, of course, dismissal
can only come about, as we indicated last time,
if in fact not only - you have got to be dismissed

and then you are imprisoned. So we say this is

going far beyond just simply discipline. And that
is why, what we say, if you just look at absent
without leave of itself it may seem to be the very
sort of thing that one would regard as disciplinary
but when one looks at the consequences that follow
from it and the context in which it is to be found
with a whole lot of other offences, including murder,

assault~ theft and things like that, it is far
more than just simply a matter of discipline, in
our submission.
(Continued on page 76)

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MR WOINARSKI (continuing): The only other historical matter

that we were going to refer to at this stage was the Manual of Military Law, published by the War Office. It is the second volume in 1887 and,
in particular, if I may just very briefly refer
the Court to paragraph numbers it may save some

of the Court's time. We would refer particularly
to paragraphs 7, 8, 9, 11, 14 and 15, in Chapter II.
It is quite clear, if I may just very briefly
refer the Court to paragraph 9 that even the War Office took the view that the historical
sequence that led to courts martial commences
with:
The Court of Chivalry formed part of the Aula Regia, or Supreme Court established
in England by William the Conqueror.

Now, the Court, I am sure, can understand the way in which we put this matter and the texts are there for the Court. There is one other
text that we should, in fairness, refer to, and
that is the Administration of Justice Under
Military and Martial Law by Charles Clode, which

was published in 1872. I believe the Court has
it. It is a very brief passage. It is our view
that we should refer the Court to this because
there is a brief passage in it that is contrary
to some of the matters which we have been putting.
I refer to paragraph 6 on page 66 where the Court
will see in paragraph 6 the opening words:
In all the ordinary Courts of the Realm, the Crown has delegated to the Judges its
whole Judicial Power; but this is precisely
what the Crown has not done, or ever yet
been advised to do, in the case of Military
Tribunals.

Now, there seems to be an acknowledgement there

that a military tribunal is an ordinary Court of
the Realm but certainly a view that the Crown has
not given the whole of its judicial power to
military tribunals so far as that author is
concerned, although that seems to be contrary
to some degree to the historical analysis that
comes from the Court of Chivalry.
Now, we submit that there is further support

for the current propositions that we are putting
to the Court in a number of observations by judges

of England over a very long period of time. Perhaps
if we can, initially in this regard, refer the
Court to GRANT V SIR CHARLES GOULD.

MASON CJ:	Do you need to go through all these, Mr Woinarski?
ClT18/l/MB	76
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MR WOINARSKI:	Well, perhaps, Your Honour, there are one or

two that I will.

MASON CJ:	Yes.
MR WOINARSKI:	In relation to GRANT V SIR CHARLES GOULD,

Your Honours, we refer to the judgment of

Lord Loughborough at pages 450 :to 451. Then
there is the case of RV ARMY COUNCIL; EX PARTE
SANDFORD, (1940) 1 KB 719 where at page 725
Lord Justice Goddard described a court martial
as a "judicial tribunal".

(Continued on page 77)

ClT18/2/MB	77
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MR WOINARSKI (continuing):	The next case is RV GOVERNOR

OF LEWIS PRISONS EX PARTE DOYLE, (1917) 2 KB 254
and I can, perhaps, summarize this fairly simply
but that was a case concerning whether or not a
court martial hearing should have been in public
and the court said at page 271 that it had the same
power as any court.
The next case, Your Honours, is REG V LINZEE

AND O'DRISCOLL, (1956) 40 Cr App R 177 and, at
page 185 a court martial is described by the court
as being a court sui generis, a decision of and Ormerod. And the final case that we refer
to is the ATTORNEY-GENERAL V BRITISH BROADCASTING
CORPORATION, (1981) AC 303 and if we could just
very briefly take the Court to three passages there.
The first is the judgment of the Master of the Rolls
Lord Denning in the Court of Appeal at page 313F.
This was a case dealing with innnunity relating to
whether or not a body was a judicial body and at
point F, Lord Denning said:
But the principles - which confer

innnunity and protection - have hitherto
been confined to the well-recognised courts,
in which I include, of course, not only the
High Court, but also the Crown Court, the
county courts, tl::emagistrates' courts, the
consistory courts and courts-martial.

Now, that case went on appeal to the House of Lords.

MASON CJ:

Now, the strongest statement is at page 360 by

Lord Scarman, is it not?

MR WOINARSKI:

Pages 359-360, yes, Your Honour and, to a

lesser degree, at page 342 by Lord Salmon. At
point E, Lord Salmon had to say - this is on
page 342:

Indeed, in my opinion, public policy requires
that most of the principles relating to
contempt of court which have for ages
necessarily applied to the long-established
inferior courts such as county courts,
magistrates courts, courts-martial,
coroners' courts and consistory courts shall
not apply to valuation courts and the host
of other modern tribunals -

And then there is the passage that Your Honour
the Chief Justice has referred to by Lord Scarman
at page 359 through to 360 where His Honour points
out that:

ClT19/l/SH 78 15/11/88
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The United Kingdom has no written
constitution -

talks about judicial and legislative powers and,
on page 360:
I would add that the judicial system is not
limited to the courts of the civil power.
Courts-martial and consistory courts (the
latter since 1540) are as truly entrusted
with the exercise of the judicial power
of the state as are civil courts.
(Continued on page 80)

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MR WOINARSKI (continuing):

So that there is a long

line of authority where there are observations
certainly of a fairly strong nature, in our submission,
by learned English judges over some 200-odd years
pointing to the fact that a court martial is a
judicial court.
That then takes us, if the Court pleases,

to the earlier decisions of this Court in
RV BEVAN EX PARTE ELIAS AND GORDON and
RV COX EX PARTE SMITH, which are reported
respectively in (1942) 66 CLR 452 and
(1945) 71 CLR 1. Perhaps before I turn to those
in some detail, may I just make some general
observations that those decisions really are to the current discussion are really, in our
to do with a quite different piece of legislation.
submission, nothing more than obiter dicta and
not binding authority. Indeed, it would be our
submission that the parts which have been relied
on in the past, or are relied on today by the
Conunonwealth, are not necessary for the decision
at all that was made in either of those cases.
It is important also, in our submission, to note
that in BEVAN's case the matter was not argued by
counsel at all and accordingly the judges had no
assistance by way of submission or argument.
In COX it was sought to distinguish BEVAN on the
ground that the prosecutor was no longer a serving

member of the forces and the justices who considered

the matter really just relied on BEVAN. And if

necessary it is our submission,if we have to
go as far as that for the purposes of our argument,
that the two decisions are in fact wrong.

BRENNAN J: Is it part of your submission that the constitution

of courts martial to deal with crimes committed
during times of war by Australian personnel in the
defence force serving overseas is beyond the power
of the Commonwealth unless the members of the

court martial are appointed under chapter III?

MR WOINARSKI:

Yes, Your Honour, we would say that it is

unconstitutional to create such a body and
indeed we would point to the fact that placitum (vi)
of section 51, like all the other placita in
section 51, is expressed to be subject to the
CONSTITUTION itself, in particular we would say
chapter III.

BRENNAN J: Yes.

MR WOINARSKI:

If I may take the Court firstly to RV BEVAN, as

I have indicated there was no argument directed by counsel to whether or not a court martial was
exercising judicial power.

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DEANE J:	Why would you give that answer to Mr Justice Brennan when you say that disiplinary offences can be dealt with by a court martial? Surely what is a
disciplinary offence will vary according to
location, state of war, or what have you?
MR WOINARSKI:	Your Honour, I must say that in giving that

answer I was really considering the very question
that arose in BEVAN, which was a case of murder,
to be quite honest.

DEANE J:	But in time of war in a foreign country, may it
not be that murder by somebody serving in the
armed forces could be properly seen as a
disciplinary offence?
MR WOINARSKI:	Your Honour, in our submission, that could

not follow. It has traditionally and always
been, in our submission, the sort of offence that
is the subject to the judicial power, that to say
that even in the greatest exigencies of war it
can be removed from the judicial power and just
exercised under the defence power with no
qualification by the judicial power, in our
submission, just is not a proper exercise of the
defence power.
(Continued on page 82)

CIT20/2/JM	81
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MR WOINARSKI (continuing): It comes back, really, in many ways

because of the nature of the offence and the penalty
that can flow from it and the fact that the defence
power is at all times subject to chapter III of the
CONSTITUTION.

DEANE J:

I see the force of that.

What about, though, in

the days when desertion in the face of the enemy could
be summarily dealt with to encourage the others?

MR WOINARSKI:

Your Honour, that of itself, subject, of course, to the penalty that may or may not be able to be

imposed, could be a borderline case.

One can see

strong argument for saying in the time of war in the
face of the enemy that is very much a matter which

relates to the proper carrying out of the object of

defence. But one would also, in our submission, have

to give some consideration to the potential penalty

that may be imposed before one could come to a firm

conclusion as to whether it was an exercise or was
not an exercise of judicial power in hearing that

particular matter.

As we say, to go back a little bit,

it is not simply a matter of being able to look at

the particular offence, one has to also look at the

consequences that follow from it. And that we say

one gathers from the decision of WHITE; EX: PARTE BYRNE
that if one were to ignore the penalty, one may come

to a lot of views about various things, but one has
to take into account the penalty, in our submission, to

determine whether or not it is an exercise of

judicial power and indeed, we say, that is one of
the things that does come out from some of the decisions

on judicial power.

Now, BEVAN was a case where the accused persons had become subject to the English law because of the

provisions of our then DEFENCE ACT.

And the real

question in BEVAN's case, in our submission, was a
question of statutory interpretation and ·inconsistencies,
the question being whether they should be sentenced

pursuant to the English law relating to courts martial

or whether they could be sentenced pursuant to the
Australian Act relating to courts martial and, of

course, the AUSTRALIAN DEFENCE ACT.

Now, of course,

the real problem about that and what followed from it

was whether or not they were going to suffer capital

punishment or they were not going to suffer capital

punishment. And, in essence, we say that what that

case was really about was that the High Court was

required to determine whether the Commonwealth or the imperial law applied so far as punishment was

concerned.

Now at the time the case was decided, the

events that had occurred on 12 March 1942, the

court martial having been heard on 15 April 1942 about that not being assented to until 9 October 1942,

ClT21/l/SR	82	15/11/88
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although at that time retrospectively to the
commencement of. the war. And really what the Court
decided in BEVAN's case, in our submission, and the
whole basis of the case was that imperial law
and Australian law being inconsistent because
Statute of Westminster had not been assented to at that stage by the Australian government, the mperial

law overrode the Australian law if ~
there was in fact an inconsistency,and the matter
so far as penalty was concerned was to be governed

by imperial law. Now not all the judges dealt with
the matter. Justice Rich did not deal with the matter
at all. Justice Starke dealt with the matter,
commencing at page 466 and going through to page 467.
And the way in which he came to deal with the matter was really to decide whether or not an exercise of
judicial power had arisen so that the High Court itself
had the jurisdiction to hear the application for the
writ of habeas corpus or alternatively prohibition
and that, of course, involved interpretation of the
CONSTITUTION, and therefore the High Court had

jurisdiction to hear the case generally. Now at page
466, at the commencement of the first paragraph on
that page, His Honour starts by saying:

(Continued on page 84)

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MR WOINARSKI (continuing):

No~ this case involves the interpretation
of the CONSTITUTION, because the position
of courts-martial in relation to the judicial
power of the Commonwealth comes in question.
This Court has held that the judicial power of the Commonwealth can only be vested in
courts and that if any such court be created
by Parliament the tenure of office of the
justices of such court, by whatever name
they may be called, must be for life, subject
to the power of removal contained in sec. 72 -
He then describes judicial power and refers to
HUDDART, PARKER and SHELL and goes on to say -
this is at the middle of the page:
Naval courts-martial are set up (NAVAL DEFENCE
ACT 1910-1934 of the Commonwalth, which
incorporates the DEFENCE ACT 1903-1941 of
the Commonwealth, and Imperial NAVAL DISCIPLINE
ACT 1866, and they exercise judicial power
in the sense already mentioned. But do they exercise the judicial power of the
Commonwealth? If so the proceedings of
such courts are unwarranted in point of

law. The question depends upon the
interpretation of the CONSTITUTION and
whether such courts stand outside the
judicial system established under the

CONSTITUTION. The Parliament has power,
subject to the CONSTITUTION, to make laws
for the peace, order and good government
of the Commonwealth with respect to the
naval and military defence of the Commonwealth
and of the several States and the control
of the forces to execute and maintain the

laws of the Commonwealth. And by sec 68
of the CONSTITUTION the command in chief

of the naval and military forces of the
as the King's representative.
Commonwealth is vested in the Governor-General
Under the CONS1ITUTION of the United

States of America the judicial power of
the United States is vested in the Supreme
Court and in such inferior courts as Congress may from time to time ordain and establish:
Cf the Australian CONSTITUTION, sec 71.
And the judges hold office during good

behaviour (art III, sec 1). Power is conferred
upon Congress to provide and maintain a
navy and to make rules for the government
and regulation of the land and naval forces
(art I, sec 8, clauses 13, 14). The President
is Commander-in-Chief of the army and navy

ClT22/l/ND	84
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of the United States (art II, sec 2,

clause 1). And the Fifth Amendment provides
that no person shall be held to answer for

capital or other infamous crime unless on
a presentment or indictment of a grand jury
except in cases arising in the land or naval
forces, whereas the Australian CONSTITUTION
(sec 80) provides that the trial on
indictment of any offence against any law
of the Commonwealth shall be by jury but
there is no exception in cases arising in
the land or naval forces as in the American

CONSTITUTION. But the frame of the two
Constitutions and their provisions, though

not identical, are not unlike. The Supreme
Court of the United States has resolved
that courts-martial established under the
laws of the United States form no part of
the judicial system of the United States
and that their proceedings within the limits
of their jurisdiction cannot be controlled or revised by civil courts. Thus in DYNES

opinion of the Court, said:- "These provisions 11 V HOOVER Mr Justice Wayne, delivering the
(that is, the provisions already mentioned)
"show that Congress has the power to provide
for the trial and punishment of military
and naval offences in the manner then and
now practised by civilized nations; and
that the power to do so is given without
any connection between it and the 3rd article
of the CONSTITUTION defining the judicial
power of the United States; indeed, that
the two powers are entirely independent
of each other" -

And refers to some other American authorities.

(Continuing on page 86)

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MR WOINARSKI (continuing): His Honour then concludes:

In my opinion the same construction
should be given to the constitutional power
contained in sec. Sl(vi) of the Australian

CONSTITUTION. The scope of the defence
power is extensive, as is suggested by the decisions of this Court (JOSEPH V COLONIAL
TREASURER (NSW); FAREY V BURVETT), and
though the power contained in sec. Sl(vi) is subject to the CONSTITUTION, still the
words "naval and military defence of the
Connnonwealth and the control of the forces
to execute and maintain the laws of the
Connnonwealth," coupled with sec. 69 and
the incidental power (sec. 51 (xxxix)),
indicate legislative provisions special
and peculiar to those forces in the way
of discipline and otherwise, and indeed the
Court should incline towards a construction
that is necessary, not only from a practical,

but also from an administrative point of view.
So that His Honour really looked, we say, at

the American position as he understood it and took
the view that in America the military courts martial
were quite outside the judicial power and, therefore,
a similar thing should flow in Australia.
Now, if I may just deal with some comments that

we wish to make about the decision of Justice Starke.
We say that there are some significant differences
with resnect to the two Constitutions. The first
is that:under article 1 which deals with the
legislative department of the CONSTITUTION, the
Congress shall have power - clause 12:
To raise and support Armies.

Clause 13:

To provide and maintain a Navy.
And clause 14:
To make Rules for the Government and Regulation
of the land and naval forces.

And, of course, there is also what we would say is
very similar to our own incidental power to be found
in section Sl(xxxix). Clause 18 of article 1 of the
American CONSTITUTION provides that Congress shall
have power:
To make all Laws which shall be necessary and
proper for carrying into Execution the foregoing
Powers, and all other Powers vested by this
CONSTITUTION in the Government of the United
States or in any Department of Officer thereof.

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So that there is one significant difference
to start off with in the American CONSTITUTION as
against the Australian CONSTITUTION anct that is that
Congress is given specific power to make rules for
the government and regulation of the land and naval
forces.
The next this is this: that what is now referred

to as the 5th amendment in the American CONSTITUTION
and, of course, referred to by His Honour Justice Starke
provides, so far as trial by jury is concerned, a specific exemption with respect to members of the
land or naval forces:
No person shall be held to answer for

a capital, or otherwise infamous crime,
unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces -

so that the American CONSTITUTION has specifically
excluded land or naval forces from the jury
provision which, again, is quite different or
significantly different we would say, from
section 80 of our CONSTITUTION.
Now, in DYNES V HOOVER, (1857) 61 US 65, at

page 78 to 79, the court made it clear that it was

a combination of the provisions that we have just gone over in the American CONSTITUTION that indicated

court martials in the United States were not an
exercise of the judicial power.
(Continued on page 88)

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MR WOINARSKI (continuing):

At the bottom of page 78, about

10 lines up fro'm the bottom, the decision reads:

Among the powers conferred upon Congress
by the 8th section of the first article of
the CONSTITUTION, are the following: "to
provide and maintain a navy;" "to make rules
for the government of the land and naval forces."
And the 8th amendment -
and perhaps if I can just stop the Court there
for a moment, the 8th amendment is the 5th amendment.
Apparently at various stages it has had a different
number given to it but it is quite clear the
8th amendment is the 5th amendment as it is now
known.
And the 8th amendment, which requires a
presentment of a grand jury in cases of
capital or otherwise infamous crime,
expressly excepts from its operation
"cases arising in the land or naval forces."
And by the 2d section of the 2d article
of the CONSTITUTION it is declared that
"The President shall be commander-in-chief
of the army and navy of the United States, and
of the militia of the several States when
called into the actual service of the
United States.
These provisions show that Congress has

the power to provide for the trial and punishment
of military and naval offences in the manner
then and now practiced by civilized nations;
and that the power to do so is given without any connection between it and the 3d article
of the CONSTITUTION defining the judicial
power of the United States; indeed, that the
two powers are entirely independent of each

other.

Now, since that decision the United States Supreme
Court has made a significant statement,we say, in
that it is pointed out that the original CONSTITUTION
and the first 10 amendments are to be read as one
document. That is to be found in the decision of
PATTON V UNITED STATES, (1929) 281 US 276, and the
passage we wish to refer to is at page 298. It is
the first full paragraph really on that page. The
case is actually dealing with the right to speedy
trial but the comment it makes is general.
This provision, which deals with trial by
jury clearly in terms of privilege, although
occurring later than that in respect of jury
trials contained in the original CONSTITUTION

ClT24/l/MB	88
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is not to be regarded as modifying or
altering the earlier provision; and there
is no reason for thinking such was within

its purpose. The first ten amendments and
the original CONSTITUTION was substantially
contemporaneous and should be construed in
pari materia.
Now, the effect of that is that at the end of the
18th century the United States CONSTITUTION, so
far as the military and naval power was concerned,
was in the form that we now see it, and despite
that fact when the framers of our CONSTITUTION
came to create the Australian CONSTITUTION towards
the end of the 19th century they, of course, had

the American model in front of them. One only has
to be found in the United States CONSTITUTION.
to look at the CONSTITUTION debates to see that.
Indeed, they specifically did not enact the power
that I have already referred to given by Congress
to make laws for the government -specifically for
the government of the armed forces.

MASON CJ:

But surely that is comprehended within the defence

powers?

(Continued on page 90)

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MR WOINARSKI: Your Honour, of course it is one thing to
say that it is incidental to the defence power
or it is part of the defence power but how far
does it go, with respect, is the point that we
are seeking to make - that it may well be that
the American CONSTITUTION because of its specific

prov1s1on:
To make Rules for the Government and Regulation
of the land and naval forces;

has got a far wider power than has the Australian
provision in either section 5l(vi) or together
with the incidental power contained in 39. Because
section 5l(vi) is a:
power to make laws for the peace, order and good
government of the Commonwealth with respect to .....
(vi) The naval and military defence of the

Commonwealth and of the several States, and
the control of the forces to execute and
maintain the laws of the Commonwealth.

So the power with respect to courts martial must, in our submission, fall somewher~ if it is going
to fall at all, either in the incidental power
or somewhere within the -
power to make laws for the peace, order and good
government of the Commonwealth with respect
to .....
(vi) The naval and military defence of the

Commonwealth and of the several States.

Now, that object, in our submission, is primarily
aimed - and of course it has been described as
purposive or an object power that is granted there -
but that is aimed primarily at the defence of the

Commonwealth. Now the power that is given to
Congress, in our submission, is a wider and greater
power than that particular provision contained
in our CONSTITUTION because it is also given the
power:
To make Rules for the Government and Regulation
of the land and naval forces -

and in the circumstances of the American CONSTITUTION,
in our submission, it is clear, particularly when
one takes into account the fact that trial by jury
for members of the naval and military forces is
expressly excluded by the 5th amendment - - -

DAWSON J: It is not excluded by article 3(2)(cl 2).

ClT25/l/AC 90
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MR WOINARSKI: No, Your Honour, but the amendment is there
and it is to be read as part and parcel of the
whole CONSTITUTION - the original CONSTITUTION,
in our submission.

DAWSON J:

That deals with a speedy trial and the other deals with the right to trial by jury.

However,
I will not detain you.

MR WOINARSKI:

The comments in PATTON's case are of general application though, Your Honour, so that the
5th amendment which was one of the original amendments
to the CONSTITUTION is really part and parcel of
the original document. The comments in PATTON's

case, which I referred the Court to, are of general application - it does not only apply, with respect,

to the 6th .amendment. The passage in - - -

DAWSON J: I will not detain you but PATTON's case may not
carry you as far as you want to be carried. That
is all I was saying.

MR WOINARSKI: Your Honour, all that we say is that the
first 10 amendments in the original CONSTITUTION
were substantially contemporaneous and should be -

DAWSON J: And they are to be read together.

MR WOINARSKI: Yes, Your Honour. And certainly the
5th amendment is one of the first 10 amendments, be
it called the fifth or the eighth amendment.

BRENNAN J: Is this your proposition: the power under the
American CONSTITUTION is a power to make laws for
the regulation of the naval and military forces
whether or not the law is one which under our
CONSTITUTION would be classified as a law with
respect to defence?

MR WOINARSKI: I think to a large degree that is a fair

way of putting it, Your Honour. What we are saying,

I think, if I may put it slightly different, is
that the power under the American CONSTITUTION with respect to making laws for the control of
the armed force~ so. far as offences and things like that are concerned, are far wider and far
greater than our provisions and that whereas the
Congress has got very wide powers in those
circumstances and the right to trial by jury is specifically excluded our.CONSTITUTION does not
have the width of the American CONSTITUTION so
that a law passed in America which may be within
the defence power need not necessarily be a law
that would be valid in Australia.

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MR WOINARSKI (continuing): Indeed, we say that very thing

occurs here when one looks at courts martial,
that when one looks at the American situation
as against our own, because of the lesser extent
of our power one cannot exclude the judicial
power of the Commonwealth from courts martial if one is truly dealing with an offence, or a
series of offences, or an offence that because
it falls within a group of offences really
requires an exercise of judicial power.

BRENNAN J:

I nust say I wonder whether this line of argunent does

not come back to the __ question which Justice Deane
asked you a short time ago and that is whether
your argument would necessarily exclude the
prospect of the judicial component of our defence
power, to use an inartistic phra$e, might wax and
wane as the defence power generally does.

MR WOINARSKI:

Your Honour, I think in answer to that we

would say that true it is there is elasticity
in the extent of the defence power but one
cannot remove from the defence power the fact
that it is subject to chapter _ III of the CONSTITUTION.

Now, one of the cases on the defence power, and
I cannot off the top of my head recall the particular

case, talks about the Governor-General being authorized by regulations to create judicial bodies within chapter III of the CONSTITUTION.
Now, of course, that is an exercise of the defence
power to permit the Governor-General to do that
but it is still being done in a fashion where
acknowledgement is being given to the power of
chapter III of the CONSTITUTION.

GAUDRON J:

On that issue, Mr Woinarski, can I ask this:

is it clear that the armed forces are to be
regarded as separate from the departmen~s of

state of naval and military defence, because

in respect of the departments of state of

naval and military defence section 69 of

the CONSTITUTION provides that they are "on

the formation of the Commonwealth to be

transferred to the Commonwealth" and section 52

gives the Commonwealth exclusive power with
respect to those departments?

MR WOINARSKI:

Your Honour, that then raises comments by Chief Justice Latham, I think it was, in

the CARTER V THE EGG & EGG PULP cases relating

to the effect of section 109 and in particular

section 52(ii) of the CONSTITUTION.

His Honour

was of the view that section 52(ii) was an

enabling power for the Commonwealth to gain
control over State public servants at the time
the Commonwealth was formed and for the

Commonwealth there to have powers over them.

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MR WOINARSKI (continuing):

His Honour then expressed the

view that section 5l(vi) was a power then for
the Commonwealth to create its own Department
of Defence and the power then flowed from

section 51(vi) rather than section 52(ii). I
must say that there is a contrary view that has
been expressed by the Court of Appeal in New
South Wales in DAO's case, I think it is,
63 ALR 1, and that was a case concerning - this
was an area that I was not intending to get into,
I must say, if the Court pleases, and that is
why it is not on our list of authorities. But
that was a case concerning the New South Wales
DISCRIMINATION ACT and whether or not its provisions
could apply to the Department of Posts, Telegraphs
and Telephones.

GAUDRON J: It is perhaps not necessary to go to it. I

really meant only to ask this: when you look
at 5l(vi) and 52(ii), can it really be said
that the powers of the Commonwealth in relation
to the defence forces are any different in degree
from those of the powers of the Congress?

MR WOINARSKI:

That, really, comes back to this, if I may

say in answer: if 52(ii) has the effect that
Chief Justice Latham said it did in CARTER V
THE EGG AND EGG case, then it would appear that section 52(ii) has no relevance for our current
purposes because it was a limited enabling power
at the time of Federation. But if, on the other
hand, the view expressed by the Court of Appeal
in New South Wales in DAO's case is correct,
then one would have the question of what - to
put it another way, the Parliament of the Commonwealth
would appear subject to the CONSTITUTION to have
exclusive pwoer with respect to the Defence
Department, for example. That may raise an
interesting problem so far as the various
interveners are concerned here today as to whether
or not, because the Parliament is to have exclusive
power with respect to members of that department,

it may well be that ,·some :. of the arguments
the interveners wish to put to this Court will
be ruled out by reason of section 52, but
section 52 itself, as in section 51, is subject
to the CONSTITUTION and therefore euen a law
purportedly made under section 52(ii) can not
oust chapter III of the CONSTITUTION.

GAUDRON J:

Yes, thank you.

MR WOINARSKI:

So that it worries us not, for our primary purpose, as to whether the law is made correctly

under 5l(vi) or 52(ii) because both still have
this problem of the CONSTITUTION provision in

chapter Ill and both powers

are subject to the

ClT27/l/ND

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CONSTITUTION. If that answers your question,
Justice GaudrDn.

GAUDRON J:	Yes, thank you.
MASON CJ:	Are you dealing with that?

MR WOINARSKI:

Yes, Your Honour.

Part of what His Honour

Justice Starke said in BEVAN's case, at the
bottom of page 467 and page 468, he takes the
view that his interpretation should:
incline towards a construction that is
necessary, not only from a practical, but
also from an administrative point of view.

(Continuing on page 95)

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MR WOINARSKI (continuing):	We say that our submission that

a defence force magistrate is exercising the judicial
power of the Commonwealth does not interfere with

that proposition. We are not suggesting that
Parliament cannot create a court which requires a
person, not only to be qualified to be a judge, but
can also add another qualification such as knowledge
or having served or being a serving member of the

defence force. So that you have, perhaps, what could
be described as a more specialist judge. And,
indeed, it would be our submission that the appointment
of such persons would, if anything, be more likely to lead to better administration rather than worse administration because you would not have the
requirement for commanders and various senior officers
to be involved in carrying out court martials 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.

BRENNAN J: In areas of discipline, as any family will say,

you need somebody who is both judge and jury,do not
you,and prosecutor?

MR WOINARSKI:

Your Honour, if it was purely discipline, that

may be so. There is some doubt as to whether there is
a need for a prosecutor even in a case of a l.ot of
what could be properly described as discipline so far

as the armed forces are concerned. The system that
has been set up, as we submitted to the Court on the
last time, really is one that can only be described
as the creation of a court.

BRENNAN J: Taking it at its extreme, it seems an extraordinary

proposition to think that in order to admonish a
serving solider for insubordination, that the
superior officer must invoke the assistance of a
chapter III judge?

MR WOINARSKI:

The problem with it, Your Honour, is what
Parliament has provided, and what Parliament has provided

is what the Court has before it. Of course, in the
example that Your Honour just gave to me, that could
well be a matter that under section 110 the
commanding officer took the view it was right and
proper for him to hear himself and just deal with it
accordingly.
(Continued on page 96)

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BRENNAN J:

Exercising judicial power?

MR WOINARSKI: Well, Your Honour, that is one of the problems

with the Act and we see that as a very problem with the Act, but if one takes the view - I am
sorry - if one goes back and looks at what a
corrnnanding officer used to be able to do under
section 108, I think it was, that I referred the

Court to earlier this morning, one can see that
his powers are very limited although we did point
out that there was a power to imprison for up to

seven days. The powers that he had there, so
far as sanction or punishment concerned, really
were akin, we say, with the exception of the
punishment of imprisonment, but let us just put
that as.ide for the moment. Those powers really
are the types of powers one would expect to find
in true discipline of an armed forces.

DAWSON J:

You make a distinction between disciplinary

offences and other offences, do you not?

MR WOINARSKI:	Yes, Your Honour, we do.
DAWSON J:	And you say the disciplinary offences are within the defence power?

MR WOINARSKI:

May I put it this way, Your Honour.

We would

describe matters that are truly disciplinary
matters within the defence power.

DAWSON J:	And other offences are not?
MR WOINARSKI:	Yes, Your Honour.
DAWSON J:	Well, where do you draw the line?
MR WOINARSKI:	Your Honour, it is very difficult in an Act

such as the one the Court has in front of it
to draw lines anywhere, and that is one of the

problems.

DAWSON J:

But is murder a disciplinary offence, for

instance?

MR WOINARSKI:	I am sorry, Your Honour?
DAWSON J:	Is murder a disciplinary offence?
MR WOINARSKI:	No, Your Honour.
DAWSON J:	But if it occurs within the ranks it is, surely?
MR WOINARSKI:	Well, Your Honour, we would submit no.
DAWSON J:	Why not?
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MR WOINARSKI:	The fact that it occurs within the ranks

does not stop it being - I am sorry, Your Honour,

let me put it this way. The fact of murder is
not a disciplinary offence,with respect; the
effect on discipline is a disciplinary offence.
That is what we say is wrong with the Act. The
Act does not deal with the effect on discipline,
it deals simply with the offence.

DAWSON J: Well, one can see that some offences would have

an effect on discipline without it being spelt
out, cannot they?

MR WOINARSKI:

Your Honour, I do not disagree with that.

The normal way in which disciplinary matters
are dealt with, perhaps, for example, can aeain
be seen by reference to Acts regulating police
officers. There, for example, a police officer
may have been convicted in a civil court of assault and he will then be presented before a disciplinary board or some similar body and charged with an
offence which is likely to bring disrepute to the
police force,which is likely to affect the morale
of the police force,or some offence relating to
that. Now, that is the difference between dealing
with the offence as such and dealing with the

affect of the offence on discipline. We submit
that that is a very significance difference.

DAWSON J: It is one that eludes n:e. The defence forces are

established upon the basis that a person is at
all times under the connnand of his cormnanding
officers, is that not so?

MR WOINARSKI:	As I understand it, that is so, Your Honour.
DAWSON J:	He never ceases to be a member of the defence

forces and, of course, one of the things that he
is not to do is to commit any offence against
civil law, wherever he might be, and in so far as

he does,that is not only a breach of civil law but a breach of his obligations under military law, and so it could be said that it is therefore

a matter of military discipline. I imagine that
is how the argument goes anyway.

MR WOINARSKI:

I imagine that is how it goes too, Your Honour,

but one is not dealing with - Justice Starke said
in PIRRIE V McFARLANE, a defence member,or a serving
officer or a serving member, does not cease to be
a citizen. You remain a citizen and you are subject

to civilian law. Now, it may be that in certain
circumstances, in pursuance to the defence power,
one may be able to remove that subject to the civil
law, but when one looks at the example Your Honour
gives me of murder, it is still murder whether it
be cormnitted in the ranks or whether it be committed in
the street on your public holidays or the example of
Justice Deane on the last occasion, m.Jrderi.ng your wife in
Queensland on your holiday.

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MR WOINARSKI (continuing): It is true, Your Honour, that

a defence member is a defence member at all times
and part of the problem with this Act is that it
makes no distinction and we say this is a relevant
matter particularly when one comes to consider
section 190 - that it largely makes no distinction
between anything done whilst carrying out your
duties as a defence member and things done whilst
acting in a private capacity.
Now, there are some provisions of the old

DEFENCE ACT which relate to - let me put it this way -
defence-associated matters and, indeed, there is

one example in the current Act of how an offence
has been tied in to defence-associated matters and
that is the matter of driving a motor vehicle under
the influence of liquor because that provision,

which is found in section 40 of the Act, creates a
series of offences which relate to a defence member

or a defence civilian but if I may just deal with
defence member, driving a service vehicle in any
place. So that you have got a very strong connection
there with a service vehicle which is part of the
defence and then the next section is a defence
member driving a vehicle en service land so that
you have a fairly close connection with their
actual duties or their actual involvement as a
member of the defence force, firstly, with a
service vehicle or, secondly, with any vehicle on
service land and so that one could say that that does relate,to quite some degree, to discipline. But if one takes, for example, the question of
theft, under section 47, section 47 provides
that:
A person, being a defence member or a defence
civilian, who dishonestly appropriates .....
property belonging to another -

shall be -

guilty of an offence ..... imprisonment for
5 years.

Now, there is absolutely no distinction drawn between
the theft being done somehow in relation to a fellow
service member or somehow in relation to service
property or somehow in relation to the duties that
you are carrying out as a defence member.

DAWSON J:

But why should there be because it is a matter of

concern for the military as to what happens to the
man in relation to civil offences? For instance,
he might be put in gaol and he is then no longer
available to carry out his duties.

MR WOINARSKI:

Well, Your Honour

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DAWSON J: Therefore, the military says, "Well, we have to

subsume control, entire control over this" and
that is the nature of the regime.

MR WOINARSKI: Well, Your Honour, we would say that for the

government just to take over absolutely like that

is not a valid exercise of the defence power. The
civil courts, as I said, in PIRRIE V McFARLANE,
stated that defence members are still civilians
and still subject to the civil law and if the matter
of theft has nothing to do whatsoever with his service
as a member -

DAWSON J: It is hard to divorce; you see, what if the man

is put in gaol and there is a call to war?

MR WOINARSKI: Well, Your Honour, that is then a question for

the military authorities to deal with that as a
matter of discipline and that is what we come back to,
it is not -

DAWSON J: But that is what they seek to do.

MR WOINARSKI: Well, no, Your Honour, with respect. They are

seeking to deal with the offence rather than its
effect on discipline. If a matter has nothing to
do with the service, why should not the ordinary
courts have the jurisdiction to deal with the man
as they see fit and then - - -

DAWSON J: What I am saying to you is that you never can say

that it has nothing to do with the service if it
deals with a member of the service.

MR WOINARSKI:

Of course it has something to do, or it may have something to do with disci~ine, Your Honour;

it may not.

One cannot, with respec~ generalize

that much in this area because it will depend upon

the nature of the particular offence and how it was

co!Illllitted and a whole lot of other factors.

(Continued on page 100)

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DAWSON J: It may be wider than discipline; it may be that
you look at it from the point of view of saying
those in the defence forces must be controlled
by those who organize the forces and not be
subject to direction bycivil authorities, and
that is necessary for the defence of the country.

MR WOINARSKI: Your Honour, that would be a very extreme
view, in our submission, and one which this Court should not lean towards, because if that were the
view that was intended in the CONSTITUTION then,
in our submission, there would have been exclusion
of chapter III so far as defence members are
concerned. There would have been an intention to
show that defence members were not, when they
created offences, going to be given the same
privileges as citizens when it comes to the

hearing of their matter, whatever it be. But so
far as offences are concerned, and I am talking
now generally, there has been no attempt to oust the
provisions of chapter III at all.

DAWSON J: You do not suggest, for instance, that section 80

applies to all trials of offences in the army?

MR WOINARSKI:

No, Your Honour, we do not.

DAWSON J: There is no express exception there.

MR WOINARSKI:

We will be submitting, Your Honour, that

section 80 is applicable to the three matters
that are currently before this Court.

DAWSON J: But you do not say it is applicable to what you
call disciplinary offences?

MR WOINARSKI:

No, Your Honour, not to disciplinary matters,

for the very reasons that were expressed in
WHITE EX PARTE BYRNES, that true disciplinary
matters are not part of the judicial power of the

Connnonwealth. We do not seek to persuade the
Court that that case was wrongly decided, indeed,

we seek to rely on it, to the very contrary. We
seek to rely on it and we say it is correctly
decided and it does correctly draw the distinction
between a matter which may perhaps be regarded as
disciplinary and matters which are properly regarded
as offences.

DAWSON J: I am merely suggesting - I will not detain you
any longer - that that may not be the true
distinction; the true distinction may be between
matters military and matters judicial.

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MR WOINARSKI (continuing):

Your Honour, that is part of the

reason why we have made reference to historical texts
and some of the older decisions and the views of judges
over a long period of time because it is very easy
to say, why should not the military have this control
and why should not the military have that control and
do it on the bases people seemed to have assumed
that all the military are doing is simply disciplining
their own, but when one looks at that basic
assumption and sees that it is not necessarily a
correct assumption, then the whole basis upon which
one adopts the view that all the military are doing
is disciplining their own becomes quite wrong
and the basis of that assumption is no longer there

and one has to look at it quite afresh. And when
one does look at it, in that regard, one can see that,
certainly in our submission, there has been a
historical creation of a court and by that we mean
a court exercising judicial power and that that has
been a view that has been accepted for a long time when
it is properly analysed. Perhaps the problem has
arisen because those people, as Justice Brennan pointed
out, who have been appointed to administer justice
in those courts, namely courts martial, have not been

appointed properly. Now perhaps it is because of that,
I do not know, but certainly the situation in England, to some degree, is complicated by the fact that we
do not have, as I have said, the divisions - the
separation of powers that we certainly do have in our
CONSTITUTION and this Court has got to accept that as
a fact, we say, and it is quite clear that section 51
is expressed to be subject to the CONSTITUTION.

DAWSON J:

Why cannot you have an exercise of military

judicial power as opposed to an exercise of chapter III
judicial.power?

MR WOINARSKI:

Your Honour, if one is going to isolate that

to proper discipline, we would probably not be able to
argue with that, but this goes beyond just merely
discipline, this goes far beyond a question of confining

somebody to barracks for days or removing their leave
or something like that. This actually involves the
liberty of the subject to a very large degree,entitled
to be penalized for up to life imprisonment.
(Continued on page 102)

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DAWSON J:

I will stop but you sacrifice your liberty to

a considerable extent whenever you join or become
a member of the armed forces.

MR WOINARSKI:

Your Honour, that is no doubt true but why

should one have to sacrifice to such an extent
and to such a degree that you actually also
sacrifice your liberty and the right to have
that liberty determined by an exercise of judicial
power?

DAWSON J: You do not want me to answer that, do you?

MR WOINARSKI:

I perhaps ask it rhetorically, Your Honour.

May I just say this also, Your Honour: it is
very dangerous, we say, also, to simply look -
perhaps to take the view that Your Honour has
been expressing to me, I am not suggesting what

Your Honour's decided view is but to take that
view that Your Honour has been expressing, one
has to consider that there has been a development
in society, quite drastically, from 400 or 500

years ago, the way things have changed dramatically
and the responsibility of the individual, the
freedom of the individual as against the freedoms
that he had 400 or 500 years ago and the way

in which armies are raised. But that is moving

away, perhaps, to a completely different matter.

I was dealing with Justice Starke in BEVAN's make about BEVAN's case are these:

case.

The other points that we just wish to
His Honour

did not consider the position of courts martial
in English law, either generally or particularly,
in the historical sense and we submit that had he done so perhaps the error of the conclusion which he reached would have been seen by him
and that His Honour would have recognized, as
we have been submitting to this Court, that a
court martial, albeit a very specialist court,

is a court of law and not simply an administrative
tribunal.
We say that, effectively, His Honour's decision is really based on the conclusion that the imperial

Act applied and tha·t can be seen at pages 471
and 472 of His Honour's judgment.

(Continuing on page 103)

ClT33/l/ND	102
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MR WOINARSKI (continuing): Justice McTiernan dealt very

briefly with the matter at page 479, in the
very last paragraph, where he said:
The question whether the sections of the Acts providing for the trial and
sentence of members of the Forces by
court-martial are intra vires the Commonwealth
Parliament was not argued. I see no reason to
doubt that those provisions are a valid
exercise of the powers vested in the Parliament
by section 51 (vi) and (xxxix).

The other judge who dealt with the matter was
Justice Williams. At page 481, about 10 lines up
from the bottom, His Honour said:
As the establishment of courts-martial is
necessary to assist the Governor-General, as
Connnander-in-Chief of the Naval and Military
Forces of the Commonwealth, to control the forces and thereby maintain discipline, I think it must follow that the Commonwealth Parliament, like Congress, can legislate for such courts, although constitutional questions could arise as to the extent of the jurisdiction in the case of ordinary criminal as opposed to offences against
discipline and duty which could be conferred
upon them, but, as it would usually be
impossible to separate such offences, a
generous view would have to be taken on such
questions.

Of course, Your Honour Justice Dawson that
echoes in some ways some of the matters that
Your Honour discussed with me.

His Honour then also took the view, at

page 486, that the :mperial Act was to apply
rather than the Commonwealth Act so far as the

and, as we indicated, the Court was not assisted question of penalty was concerned. That was the first decision by this Court
by any argument by counsel and indeed, the other
matter that we also wish to raise, or point out
at this stage is, of course,it was a decision
based on the defence power during times of war.
(Continued on page 104)

CIT34/l/JM	103
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MR WOINARSKI (continuing): The next time the court considered

the matter was·· in R V COX; EX PARTE SMITH,
(1945) 71 CLR 1. This was a case of a soldier
who had been convicted by a court martial, discharged
by that court martial and sentenced to undergo
detention for a period of time. He, and a number
of other people who were in a similar position,
namely that they had been discharged and were
sentenced to detention, were charged with rioting,
or something to that· effect, and the offence with
which he had been charged, it was argued, could
not have been committed as neither the prosecutor
nor his co-accused were members of the armed forces
at the relevant time.
Now, the case did involve some argument in relation to the judicial power of the Commonwealth
but in particular the argLim=nt seemed to be seeking
to exempt BEVAN's case on the basis that BEVAN's
case was no longer - I am sorry, BEVAN's case
did not apply in the case of SMITH because he was
no longer a member of the army at the time the

offence was alleged to have occurred. Now, in the
eventual outcome the majority of the Court took the view that prohibition should be granted to the prosecutor on the basis that the offence could
not be made out because he and those with whom he
was alleged to have committed the offence were
not members of the armed forces at the time
they committed it, and they had to be, and therefore
the offence could not be made out.
The questions for the Court's consideration are set out by Chief Justice Latham on pages 8 and 9
of the judgment and, in particular, question (3)
which is at the bottom of page 8 - when I say
questions, the contentions that the Court had
to consider. Contention (3) was, according to the
judgment of Chief Justice Latham, that:

(Continued on page 105)

ClT35/l/MB	104
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MR WOINARSKI (continuing):

that the conferring of jurisdiction
upon courts-martial to deal in any way
with persons who were not members of the
military forces involved an exercise of
judicial power in relation to those persons,
that such power could be exercised only by
courts created, or invested with jurisdiction,
under the Commonwealth CONSTITUTION, section 71,
that the court-martial was obviously not such
a court, and that the decision in R. V BEVAN .....
which upheld the constitutionality of
courts-martial, did not apply to authorize the
prosecution before a court-martial of a
person not a member of the forces.
His Honour answered that particular contention at
pages 13 and 14 of the judgment. At the bottom of
page 13, the last paragraph, His Honour:
it is contended that, although it was decided

in R. V BEVAN ..... that the p~ovisions of the
Judicature Chapter of the Commonwealth
CONSTITUTION do not prevent the establishment
and operation of courts-martial, that decision
was based upon the nature of the defence
power, the necessity of preserving discipline
in the armed forces, and the functions of a
court-martial as what might be called part
of the appartus of discipline. It is argued
that the principle upon which the decision is
based does not apply so as to make it possible
to try by court-martial persons who are no
longer members of the forces.
In my opinion, this argument should not

be accepted. A soldier who has bee_n convicted
of an offence and sentenced to detention without
discharge is liable to trial by court-martial
for a new offence, and a provision to this
effect is within the defence power.

that other soliders, convicted of an offence A provision
and sentenced to detention, but because of
disgraceful circumstances also sentenced to be discharged from the army, should be subject to equivalent disciplinary measures, is equally
within the defence power. The necessities of maintaining discipline are, in my opinion, as pressing and urgent in the case of military
prisoners who have been discharged from the
forces as in the case of continuing members of
the forces, and the principle of the decision
in R. V BEVAN ..... and therefore applies so as
to authorize the jurisdiction claimed for the
court-martial in the present case.

Perhaps before I deal with that if I can just deal with
sone of the other members of the Court first of all.

ClT36/l/SR	105	15/11/88
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MR WOINARSKI (continuing): Justice Rich had nothing to

say about the matter. Justice Starke, although
he had given the decision in BEVAN's case, again
had nothing to say about the matter and
Justice Dixon at page 23 accepted BEVAN. At page 23,
it is the first paragraph that starts on page 23,
His Honour said:
It is desirable to notice a further objection that was urged on the part of the
prisoner to the jurisdiction of the court-

martial over him. The objection is that,
because he is now a civilian, to allow a
court-martial to exercise jurisdiction over
him would be contrary to the principles of
Chapter III. of the Commonwealth CONSTITUTION which confides the judicial power of the
Commonwealth exclusively to courts of justice.
In the case of the armed forces, an

apparent exception is admitted and the
administration of military justice by
courts-martial is considered constitutional
(RV BEVAN). The exception is not real. To
ensure that discipline is just, tribunals
acting judicially are essential to the
organization of an army or navy or air force.
But they do not form part of the judicial system administering the law of the land.
It is not uniformly true that the authority
of courts-martial is restricted to members
of the Royal forces.

And His Honour Justice Williams at page 27 continued
the same view that he had expressed in BEVAN's case - the paragraph marked (4). His Honour in the second sentence:

(Continued on page 107)

ClT37/l/AC 106
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MR WOINARSKI (continuing):

In RV BEVAN it was held that legislation
providing for the trial by court-martial
of members of the defence force is a valid
exercise of the defence power.

And he adheres to that view. And later on extends
that so far - towards the bottom of the page:
But the decision in RV BEVAN was not
intended to limit the power of the Commonwealth
Parliament to legislate under the defence
power for the trial of persons by court-
martial to persons who are members of the

defence force. There are many occasions
in which civilians are placed in such a
position that it is necessary in the interests
of defence, including the maintenance of
discipline, to subject them to military
law and to trial by court-martial for offences

under that law. One instance would be where,
as here, men who had been punished by being
sentenced and discharged at the same time
were serving their sentence in a military

detention camp. But it was submitted that
s 158 -

did not apply but he took it no further.
The first thing we want to say about that decision is that there seems to have been, with
respect, just an acceptance of BEVAN's case without

any proper analysis of it again. And, of course,
the problem has come about, we submit, because
nobody every really argued the matter when BEVAN
was first heard. But, secondly, it is quite
clear that the decision is really, at best, obiter
because the decision of the majority of the Court
did not require them to even determine whether
or not the prosecutor could be the subject of

a court martial hearing because the Court's decision
was that because of the circumstances in that
case no offence could be made out under the
particular provision of the Act and therefore
the prosecutor could not, in law, ever be guilty
of the offence and therefore there was no offence
that he had committed.
(Continuing on page 108)

ClT38/l/ND	107
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MR WOINARSKI (continuing): So that, in our submission,
one does not gain much comfort from SMITH's case,
or from COX's case either.
The only other comment we wish to make is

in relation to what His Honour Justice Dixon
said at page 23, where His Honour referred to the
fact that courts marti~ls:
do not form part of the judicial system
administering the law of the land.

We say that that in fact is not in itself accurate
either, because there are many exercises of the
powers given to the Commonwealth under section 51
which are themselves then contrplled by an
exercise of the judicial power pursuant to

chapter III of the CONSTITUTION. One only has
to think of bankruptcy, or family law, or various
other matters like that and there is no reason,
in our submission, given, or proffered by
Justice Dixon as to why one,with respect,simply
to defence matters can say that they are not part
of the judicial system administering the law of
the land. All these matters are subject to
chapter III of the CONSTITUTION and they are,
we submit, similar in nature to various other
judicial bodies that are created as part and
parcel of an exercise of the power under section 51.
For those reasons it is our submission

that this Court is not bound in any way by the
decisions in those two cases and that this Court
should look at this Act afresh and take the view
that indeed what has been created here is, as
we submitted on the last occasion, effectively
a military court which is in reality an exercise
of the judicial power, and that requires that those
persons who are to administer the law under the Act
need to be appointed pursuant to chapter III of

the CONSTITUTION. (Continued on page 109)

CIT39/l/JM 108
Ryan

MR WOINARSKI (continuing):

Now, if I may now move on to

section 80 of the CONSTITUTION and the argument
we wish to address to the Court in relation to
that. Section 80 requires that:
the trial of indictment of any offence
against any law of the Commonwealth
shall be by jury.

It is quite clear, in our submission, that the
offences which the prosecutor has been charged are offences against a law of the Commonwealth.
If there is any doubt about that we would simply
refer the Court to section 3(15) of the DEFENCE
FORCE DISCIPLINE ACT, which makes it quite clear that the Act is a law of the Commonwealth.
Section 42 of the ACTS INTERPRETATION ACT, which was in force at the relevant time, provides
that:
Offences against any Act which are punishable by imprisonment for a period
exceeding 6 months shall, unless the
contrary intention appears, be indictable
offences.

Section 43 provides that:
Offences against any Act which -
(a) are punishable by imprisonment, but
not for a period exceeding 6 months; or
(b) not being punishable by imprisonment,
are not declared to be indictable offences,
shall, unless the contrary intention
appears, be punishable on summary
conviction.

Now, what we have to say about section 80 is not
an attempt to reopen old decisions. We are well
aware that it has been attempted on many occasions,
particularly some occasions of recent time to

reopen the meaning of section 80 of the CONSTITUTION
and, in particular, as to whether it provides a
substantive right or simply a procedural matter.
Given the attitude of this Court, particularly
of recent times, and the decisions of this Court,
we do not seek to reargue the meaning of section 80.
(Continued on page 110)

ClT40/l/MB	109
Ryan
MR WOINARSKI (continuing):	But what we do submit is this:

it is submitted that there is nothing in the
DEFENCE FORCE DISCIPLINE ACT which can, in
accordance with the AC'ISINTERPRETATION ACT be
said to be to the contrary and, accordingly,
both offences with which the prosecutor have
been charged are required to be charged on
indictment.
Now, the ACTS INTERPRETATION ACT is talking

about an intention for a matter to be either heard
- I will put that slightly differently - section 42
and section 43 of the ACTS INTERPRETATION ACT talk
about either trial on indictment or trial on summary
conviction, so that you either have an offence
against any act of the Commonwealth heard on

indictment or heard by summary conviction. Now,
both those matters are, in our submission - and
it is quite clear from sections 42 and 43, both
are intended to be the trial of the offence by
a court exercising judicial power, be it a Federal
Court or be it a State court, superior or inferior,
invested with the Commonwealth judicial power.

BRENNAN J:

So I ask, how do you invoke sections 42 and 43 of

the ACTS INTERPRETATION ACT in the light of the
provisions of section 3(15) of the DEFENCE FORCE

DISCIPLINE ACT?

MR WOINARSKI:

Your Honour, section 3(15) makes it clear that

the DEFENCE FORCE DISCIPLINE ACT - an offence against
the Act, I should say, is:
To be an offence against a law of the

Commonwealth.

BRENNAN J: .....

MR WOINARSKI: Generally apart from the Act itself.

BRENNAN J:

I must be reading it

the wrong way.

MR WOINARSKI:

I think, Your Honour, one of the "nots"

confuses one. Can .I just read the section to you?
For the purposes of any law of the Commonwealth
other than this Act, an offence against this
Act or the regulations shall not be taken not to be an offence against a law of the
Commonwealth by reason that it forms part of
the law regulating the relationship between the Commonwealth and members of the Defence
Force and other persons.

ClT41/l/SH	110	15/11/88
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MR WOINARSKI (continuing): So that you have two "nots"
there, Your Honour, which has - - -

BRENNAN J: I am sorry, yes.
MR WOINARSKI: - - - the effect of saying that for the purposes of any law of the Commonwealth apart
from this Act, an offence against this Act shall

be an offence against a law of the Commonwealth.
That is the effect of it as I understand it and
I think, with respect Your Honour, it may be the two "nots" that caused the problem.

BRENNAN J: I am not sure what causes the problem. All I know

is that I have one. Thank you, Mr Woinarski.

MR WOINARSKI: I hope that Your Honour still does not have

that problem.

BRENNAN J: It is not your problem at all.
MR WOINARSKI: No. But, Your Honour, it is our submission
that what section 3(15) does is to make it quite clear that an offence against this Act is to be,
for all other Acts of the Commonwealth anyhow,
an offence against a law of the Commonwealth and
that being so sections 42 and 43 of the

ACTS INTERPRETATION ACT would apply. Now, as I
was submitting to the Court, those sections provide
for trial either on indictment or by a summary
court but they only talk about trial of a matter
before a body exercising judicial power of the

Commonwealth. Now it could be either a Federal
court, as I was indicating to the Court, or it
could be a State court invested with federal
jurisdiction. But whatever court it is, it is
certainly a court exercising the judicial power
of the Commonwealth.
Now, the ACTS INTERPRETATION ACT does not, in our submission, talk about or make allowance

offence being able to be heard by a body that is for a contrary intention to be fulfilled by the
not a court, in other words, a body that is not
exercising the judicial power of the Commonwealth.
So that what we are saying is that even if the
Court were to take the view that a defence force
magistrate is not exercising the judicial power
of the Commonwealth that is not the end of the
problem so far as the respondents are concerned
because in accordance with sections 42 and 43 of
the ACTS INTERPRETATION ACT there has not been
a contrary intention for the matter to be heard
by a summary court.

ClT42/l/AC 111
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MR WOINARSKI (continuing):

That being so then the

requirement would be for the matter to be heard
in accordance with section 42 upon indictment
and that would have to be done, in our submission,
offence, as defined, then in the absence of any
to accord with the provisions of the CONSTITUTION.
provision for summary procedure it must be heard
before a judge and jury, and we would simply refer
by comparison to the decision of this Court in
BROWN VREG,(1986) 160 CLR 171 where there was
an attempt to waive the right to trial by jury,
and the Court was of the view that section 80
could not be waived by either party -the provisions

of section 80 could not be waived. We say, that
by comparison, that once you have an offence which is by definition an indictable offence
then that is the way it must be heard and it
must be heard upon indictment.

DEANE J:	You have lost me somewhere.
MR WOINARSKI:	I am sorry, Your Honour.
DEANE J:	Why do not the provisions for summons arrest

in the DEFENCE FORCE DISCIPLINE ACT evince
a contrary intention? I mean, if it says all
offences can be dealt with on charge and summons
and summarily, why is that not a contrary intention?

MR WOINARSKI:

Well, Your Honour, the point is that what

is being expressed by the DEFENCE FORCE DISCIPLINE
ACT - I am sorry, let me put it this way, Your Honour,
I might have lost the Court to a degree and I am
grateful for Your Honour's question. If we
are correct and it is an exercise of the judicial
power then what Your Honour says to me is absolutely
correct, there would be a contrary intention and
the matter could be heard on summary conviction -

before a summary court I should say. (Continued on page 113)

ClT43/l/MB	112
Ryan

MR WOINARSKI (continuing): So that if it is an exercise

of the judicial power, the Def~nce Force Magistrate
is exercising judicial power, then there would
be a contrary intention for the purposes of
section 42 and 43 of the ACTS INTERPRETATION
ACT and it would be heard summarily, before a summary court exercising the judicial power of
the Commonwealth. If, on the other hand, our
first argument that a defence force magistrate
is exercising the judicial power fails, the court
would then be of the view that a defence force
magistrate is not exercising the judicial power
of the Commonwealth.
What would follow then, we would submit,

is that, looking at sections 42 and 43, there
would be no contrary intention under section 42
because there would be no contrary intention
for a court exercising the judicial power to
hear the matter and we say that sections 42 and
43, whatever one can make of them, it is quite
clear that they are talking about the matter,
the offence, being heard by a court exercising
judicial power.

DEANE J:

I am still lost in following your argument.
Can I take you to section 87 of the DEFENCE FORCE

DISCIPLINE ACT?

What if one reads section 87

as carrying a clear implication that there is

no need for an indictment? Why would not that

constitute a contrary intention for the purposes

of section 42 of the ACTS INTERPRETATION ACT?

That is, if you do not have to have an indictment

it is not an indictable offence.

MR WOINARSKI:

Because, Your Honour, the purpose of that

procedure to charge and order the defence member
to appear before a summary authority would, if there is no exercise of the judicial power, be authorizing process to take place before a body
which is not a court, it would be some other

body. But sections 42 and 43 are only talking

about bodies which are courts exercising the
judicial power.

(Continuing on page 114)

ClT44/l/ND	113
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MR WOINARSKI (continuing):	He talks about a trial on indictment

which must be.~n exercise of the judicial power,
in our submission, it talks about section 43, talks
about summary conviction as against indictable and
that must again, in our submission, be summary
conviction and exercised by a summary court an
exercise of judicial power.

DEANE J:

But so far as this argument is concerned what if

section 87 said, "In relation to these offences there
will be no indictment and there will not even be a

trial. The commanding officer can say, guilty".
You might have a lot of other arguments but I have
trouble seeing why you have not got a contrary

intention to section 42? I am just wondering if I am
missing something?

MR WOINARSKI:

Your Honour, maybe we are not being very clear.

We would concede, Your Honour, if I may say it again,
that if the defence force magistrate is exercising
the judicial power then there would be a contrary
intention for the purposes of section 42 of the

ACTS INTERPRETATION ACT. We would have no argument
about that. But if, on the other hand, the court
is of the view that the defence force magistrate is
not exercising judicial power, then we say there is
not a contrary intention, in accordance with the
ACTS INTERPRETATION ACT, because the only contrary
intention one can rely on is an intention that some
body that is not a court exercising judicial power
will hear the matter and that is not the type of
contrary intention we say section 42 is talking about.
We say sections 42 and 43 are quite clearly talking about
the hearing of offences by a court exercising judicial
power.

WILSON J: That is where you put a particular construction

on those sections. All that section 42 says for

its subject-matter is offences against any Act. Now
we know that the DEFENCE FORCE DISCIPLINE ACT is a

law of the Commonwealth and it creates offences so that you have offences against any Act and that law
clearly shows an intention not to provide for trial
by indictment?
(Continued on page 115)

ClT45/l/SR	114	15/11/88
Ryan

MR WOINARSKI:

Your Honour, that is one way

of looking at it but we say that that is not the
correct way to look at it, particularly when one
takes into account the whole scheme of things.

MASON CJ:

Mr Woinarski, I see it is now one o'clo9k,

perhaps you might give consideration to it over
lunch time and come back with a succinct summary
of what you are trying to convey on this point.
Before we adjourn, how long will the balance of your argument take?

MR WOINARSKI:

I would hope, Your Honour, to go not more

than about half an hour.

MASON CJ:

Mr Solicitor for Victoria, I take it that there

has been consultation. between the interveners.

That being so, assuming the correctness of
my assumption, how long will the interveners take?

MR BERKELEY: Approximately three hours.

MASON CJ:	Mr Solicitor for the Commonwealth?
MR GRIFFITH:	Your Honour, we expect to be under two hours

and we would hurry along, so it might be a bit

less. It might depend a bit on order, Your Honour,
because of the juxtaposition of the other
interveners.

MASON CJ: Yes, that may be difficult to work out the order,

having regard to the divergences.

MR GRIFFITH:

Your Honour, frankly, we thought the interventions

were basically to deal with section 190.

MASON CJ: Yes.

MR GRIFFITH:

And by and large, with the exception of

New South Wales, the interventions were against us.

MASON CJ: Yes.

MR GRIFFITH: But, Your Honour, as to whether the Court

would prefer us to deal with that in anticipation
with a r~ght of reply, or to wait until we hear the case against us, is a matter for the Court.
At the moment we have not heard anything on 190
at all, Your Honour, so perhaps it is a bit premature
to consider.

MASON CJ:

But would it not be convenient for you to hear

the argument against section 190 and then deal
with it in the course of your argument?

MR GRIFFITH:

We think that is a natural order, yes,

Your Honour.

MASON CJ: Very well.

We will adjourn until 2.15.

AT 1.03 PM LUNCHEON ADJOURNMENT

CIT46/l/JM	115
Ryan

UPON RESUMING AT 2.18 PM:

MASON CJ:

Yes, Mr Woinarski.

MR WOINARSKI: If the Court pleases. At the luncheon

adjournment I was submitting to the Court that
sections 42 and 43 of the ACTS INTERPRETATION
ACT related to a court or a body which is exercising the judicial power of the Commonwealth
and if I may just briefly, before I conclude
this argument, refer the Court to what was said
in RV ARCHDALL AND ROSKRUGE: EX PARTE CARRIGAN

AND BROWN, (1921) 41 CLR 128.
That was a case involving whether or not

a matter under the Commonwealth CRIMES ACT needed
to be required to be heard by indictment or not

and sections 4 and 5 of the ACTS INTERPRETATION
ACT as they then were are similar in form, if
not identical - in fact, I believe they are

identical to sections 42 and 43 of the ACTS
INTERPRETATION ACT that we have been discussing

and the Court had to consider there the meanings
of sections 4 and 5, now sections 42 and
43. And at page 135 the Court had a brief statement

to say about those sections which I desire to take the Court to. At page 135, the decision
of the Court, excluding Justice Starke, I think
it was - in the middle of the page, they refer

to the ACTS INTERPRETATION ACT and go on to say:
The scheme of secs 4 and 5 of the ACTS
INTERPRETATION ACT is to divide all offences not declared by an Act to be indictable
into three distinct categories: those are
offences punishable by imprisonment
exceeding six months, those punishable by
imprisonment not exceeding six months, and

those punishable otherwise than by

imprisonment. The first category is declared
by sec 4 to be indictable, and the other
two are by sec 5 declared to be punishable
on summary conviction.

And we say that quite clearly summary conviction must mean a court of summary jurisdiction which

is defined in the ACTS INTERPRETATION ACT

at that time in section 26(d) - defined a court
of summary jurisdiction.

(Continuing on page 117)

ClT47 /1/ND	116
Ryan
MR WOINARSKI (continuing):	Accordingly, we say, it is

quite clear that the ACTS INTERPRETATION ACT
in sections 42 and 43 was talking about offences
that had to be heard before a court, be it a
court of summary jurisdiction or be it before
a superior court on indictment. We say it is
not sufficient to try and set up such an offence
to be heard by something which is not a court
and therefore section 80 of the CONSTITUTION
applies.
Now, if the Court pleases, that then leads

us to what we wish to put to the Court about
section 190 of the DEFENCE FORCE DISCIPLINE ACT.
Australia has, of course, been at peace for many
years and, in our submission, it is in the light
of that fact that the purported exercise of the
defence power by the Parliament in enacting
section 190 has to be considered. It is quite
clear on the authorities, and particularly we
would refer to a number of decisions of former
Chief Justice Dixon that the defence power is
an objective one or a purposive one and the
legislative power is given, with respect, to an
object rather than a subject-matter.

That line of authority appears to start

with the judgment of Justice Dixon in ANDREWS V HOWELL,
65 CLR, which I will not refer the Court to, but
it is better taken up in cases that follow such
as STENHOUSE V COLEMAN, RV FORSTER, and the
AUSTRALIAN COMMUNIST PARTY case. Now, I do not
know whether the Court is desirous of us taking
them through those various passages.

MASON CJ:	No, there is no occasion to do that, Mr Woinarski.
MR WOINARSKI:	I think we have referred to the various

passages in the outline and the Court will see them.
But perhaps the one thing that we have already
said that does come out is that it is a power

course, is the defence of the Commonwealth and that is given to an object and the object, of
the States and because the exigencies of peace
or war or preparation for war or coming back
from war towards peace differ, therefore, the
object or the extent of what is required will
vary.
(Continued on page 118)

ClT48/l/MB	117
Ryan

MR WOINARSKI (continuing): Many of the authorities, not that
we have referred to them, but most of the authorities
appear to really relate to wartime situations and
indeed it seems that there are fairly extensive powers
that the Conunonwealth has in relation to wartime
but even those are limited to some degree as was
pointed out in RV FOSTER because if they were not
one would have a situation where, by use of the
defence power, the Conunonwealth would effectively
achieve unilateral government of Australia and put
an end, effectively, to the States and the Conunonwealth.
So it is quite clear that there is a limit, even in

wartime. Now, we would submit that - it is conceded,
I should say, that the Conunonwealth has power to create
offences with respect to defence and to create

offences with respect to defence members. However,
we submit the Conunonwealth does not have power to
completely exclude the jurisdiction of the civil courts
over defence members, nor to exclude or limit the
application of the civil law to defence members as such.

DAWSON J:

Do I understand you to make a distinction between

peace-time and wartime?

MR WOINARSKI:

We would submit, Your Honour, that there is

a necessity to make that distinction, yes.

DAWSON J:

Then the defence forces are always geared to war,

are not they?

MR WOINARSKI:

Your Honour, the defence forces are always

there for the purposes of defending the Conunonwealth if
and when the need arises. But how far one needs to go when war is actually occurring, as against when one is
only, shall we say, in a state where one would be
prepared if a war were to break out, is a different
matter. If one takes the view, perhaps to the extreme
that Your Honour seems to be indicating to me, that
the defence forces are always ready for war, then the
Conunonwealth would be able to use the defence power

to a very very wide extent to oust the legislative
power and the jurisdiction of the States.

(Continued on page 119)

ClT49/l/SR	118	15/11/88
Ryan

MR WOINARSKI (continuing): Indeed, tha~ in one way,is

a corollary of what was said in FOSTER's case;
that even in wartime there were limits upon what
the Commonwealth could do and that being so, in
our submission, it must follow that if there are

limits even in wartime, there must be far
greater limits on what the Commonwealth can do
in times of peace.
Now, the system that is set up in Australia,

with respect, or is purported to be set up in
Australia, is quite different from the way we
understand the system to be in America where the
system is one of concurrent jurisdiction, both
civil courts and courts martial, and the system
is such that in the time of peace the civil courts
take priority over courts martial and in the times
of war, the courts martial take priority over the
civil courts but, even in the time of war, the
civil courts do not have their jurisdiction ousted
completely by courts martial and, indeed, there are
some American authorities which, if necessary, we
will refer the Court to which indicate that even
in a time of war a soldier who commits murder can
be tried by civil authority rather than a court
martial. There is no obligation - put it another
way: the court martial is not the only place that
has jurisdiction over a soldier even in times of
war.
Now, the problem as we see it with section 190

and, indeed, so far as the DEFENCE FORCE DISCIPLINE ACT is concerned, to some·degree, is that there has been no attempt to limit the jurisdiction over defence
members by reference to carrying out any of their
duties and, indeed, there was the example that
Your Honour Mr Justice Deane put to us on the last
occasion about murder during the holidays in
Queensland; the Act does not, in any way, distinguish
between acts done in one's private capacity and having

no causal relationship at all with defence and acts
done whilst carrying out or, in some way, causally
connected with one's duties as a defence member.
Now, if we may take, for example, a very extreme

case, one could, as a result of the effect of the
DEFENCE FORCE DISCIPLINE ACT and, for example,
section 61, where it imports territory offences into
the defence force and makes those service offences,
one could have a charge of culpable driving conrrnitted by a defence member whilst taking his child to Sunday
school during his annual holidays which, in no way, is
connected at all with defence nor, we would submit,
anything to do with the exercise of the defence power,
and that matter could be heard by a defence force

ClTS0/1/SH	119	15/11/88
Ryan

magistrate and a maximum imprisonment of six
months imposed and then, by reason of the other
provisions of section 190, the State concerned
would not be able to try the matter and have the
person convicted.

(Continued on page 121)

120

ClTS0/2/SH

15/11/88

Ryan

MR WOINARSKI (continuing): Now that, in our submission,
is a very goo~ example of what we were saying before
lunch - is that the Act tends to deal with the
offence rather than the effect on discipline of

the offence which has been committed. And, of
course, whilst the plea and bar section is there
the States can do nothing about it particularly
if the person is initially dealt with by the
service tribunal.
Now, we would say that an example such as

that that we have give~ or that which was given
by Your Honour Justice Deane on the last occasion,
does show and indicate that the extent to which
this Act has gone, particularly by reason of
section 190, is beyond the defence power of the
Commonwealth particularly given the time at which
it was enacted. It is interesting to note, also,
that the DEFENCE FORCE DISCIPLINE ACT not only
has no limitation as to whether an offence has
a relationship to the person carrying out his duties,
it is also intended to apply at all times to defence
members wherever they are either in or out of

Australia. And there is absolutely no distinction
made again in that regard as to whether or not
it is something done actually in the course of
his duties as a defence or causally connected or
whether it is something simply done in a private

nature. So that again, to take an extreme example,
a defence member could on his annual leave go for
his holidays in Germany and steal something there
and he would be subject to a service tribunal in
circumstances where it reallyhas absolutely nothing at all
to do with the exercise of the defence power.
The Act seems to, and in our submission does have,
extraterritorial jurisdiction. There seems to
be absolutely no limitation on it.
Now, the Parliament has in the past, and even

today as I have indicated, shown the need to tie
provisions or legislation made under the defence

power to some aspect of the duty of a defence member
and, indeed, I drew the Court's attention to
section·40 of the DEFENCE FORCE DISCIPLINE ACT
this morning relating to being under the influence
whilst driving a service vehicle or whilst driving
a vehicle on service land.

(Continued on page 122)

ClTSl/1/AC 121 MR·WOINARSKI, QC 15/11/88
Ryan
MR WOINARSKI (continuing): Indeed, Parliament has, on
other occasions, seen fit to draw a similar
distinction in the past, and if I can just briefly
give the Court two examples under the DEFENCE ACT 1903,
and I am referring now to the 1973 consolidation.
Section 66 of the old Act provided that:
Members of the Defence Force when on duty
in uniform or carrying a rifle shall, subject
to the Regulations, be conveyed over the
railways and tramways of the Commonwealth or
of any State for the purpose of attending
musters, parades, and rifle practices, and
returning therefrom, on production of a pass
signed by a District Commandant or
commanding officer, or other officer deputed
by either of them.

So it is quite clear that Parliament has, in the
past, seen the necessity to tie it into somehow
the performance of their duties as defence members.
And similarly, section 70 of the same Act provided
that:
No toll or due, whether demandable by virtue
of any Act or State Act or otherwise, at any
wharf, landing place, aerodrome, bridge gate,
or bar on a public road shall be demanded or
taken in respect of -
(a) Any member of the Defence Force on march
or duty or any prisoner under his charge -

and there are other provisions relating to that.
So, it is quite clear that Parliament has in the past seen the necessity to make such a distinction.
Indeed, there are decisions of this Court

which have been based on the very fact that what
was purported to be done by the Commonwealth

Parliament had no real bearing on defence, or

the carrying out of the defence duties. I refer
there to the SHIPPING BOARD case relating to the
power of the Commonwealth to set up a business
for the purpose of making ship engines which
could at a future time, if war broke out, be used

for the purposes of defence. VICTORIA V THE COMMONWEALTH
is another example, when the Commonwealth attempted to
do away with the show day and cup day holidays, but
it was held it had nothing to do with the proper
carrying out of defence, so there are limitations.

(Continued on page 123)

CIT9/l/JM 122
Ryan

MR WOINARSKI (continuing): We just briefly wish to refer
the Court to PIRRIE V McFARLANE, 36 CLR 170,
which was a.case involving a defence member who
drove a motor vehicle on a public highway in
Victoria without being licensed for that purpose
and he was charged with being unlicensed before
a Court of Petty Sessions in Melbourne and his
defence was that he was carrying out the lawful
command of his superior officer for him in the
course of his duties to go and pick up a certain
Flight Lieutenant and the magistrate held that
serviceman was, in fact, subject to the Victorian road laws.
the law did not apply to him and it came to this

At page 184 of the decision of the

Chief Justice - can I just say this: it was argued on behalf of the Commonwealth that - that
is not correct. It was not argued by the Victorian
appellant in this case as such because Victoria
chose not to appear but it was argued by the
respondent that unless Victorian law is intended
to apply by reason of Commonwealth statement
to that effect in legislature the State laws
did not apply.
At page 184 the Chief Justice Knox had this

to say, about the middle of the page - I will
start at the top of that paragraph, if I may,
just a little bit below it:

(Continuing on page 124)

ClT53/l/ND	123
Ryan
MR WOINARSKI (continuing):

The finding by the Police Magistrate that sec. 6
of the MOTOR CAR ACT, if it were held to apply
to men carrying out their duties as servants
of the Defence Department, would be a fettering
of or interference with the executive powers of
that Department appears to me to be wholly
irrelevant, having regard to the decision in

the ENGINEERS' CASE. The Connnonwealth has
exclusive power to make laws with respect to
matters relating to naval and military defence.

And if I may just stop there. That, of course, has since been shown to not be so, it is not exclusive
powers, it is a concurrent power, and I refer to
CARTER V EGG BOARD case there.
If the prohibition against driving a motor-car
without being licensed under State law is
reasonably capable of interfering with the
naval or military defence of the Connnonwealth
or of the States, the Commonwealth Parliament
has ample power by legislation to confer on
members of the Defence Force the right to
drive a motor-car in the performance of their
duty without being licensed under State law.

Now, what we wish to emphasis is those words of
His Honour the Chief Justice, "in the performance

of their duty". He is not suggesting that generally
the Commonwealth can remove that he is just saying,

"in the performance of their duty". Now, the
other decision that we desire to refer the Court to is the decision of Justice Starke at page 226

and thereafter. In the middle of the page
His Honour says:
The Commonwealth power of defence cannot exempt
soldiers from the obligation of all State law,
nor can the power of the States to regulate

the use of motor-cars within their territories
be used so as to destroy or abrogate or derogate
from the Commonwealth power of defence.

He then refers to a number of cases and continues.
Now, the MOTOR CAR ACT regulates the use of motor-cars in Victoria, and is designed to
preserve the public safety and security. That

is a subject matter wholly within the domain of the States and prima facie one in which they have
plenary power to make laws for the peace, order
and good government of the States and to bind
all persons within their respective territories.
The argument denying the power of the States to
affect Conunonwealth officers based upon some

ClT54/l/MB	124
Ryan

prohibition expressed or implied in the

CONSTITUTION can no longer be sustained - and reference again is made to the ENGINEERS' case.
So the irrnnunity claimed in this case must rest upon some law enacted by the Parliament
coupled with sec. 109 of the CONSTITUTION,
which provides that "when a law of a State is
inconsistent with a law of the Corrnnonwealth,
the latter shall prevail, and the former shall, to
the extent of the inconsistency, be invalid." How,
then, is the MOTOR CAR ACT, and particularly
sec. 6 thereof, inconsistent with any law of the
Corrnnonwealth?
A soldier or a member of the Air Force does

not cease to be a citizen: if he comm.its an
offence against the ordinary criminal law, he
can be tried and punished as if he were a civilian.

He then goes on to discuss the CONSTITUTION and

section 51(ri). And at page 228 just at the end

of the citations His Honour says at the top of
the page:
An Air Force is organized under the Defence
and Air Force Acts with all necessary arms
and equipment for training in peace and
service in war. And its government, discipline,
and military duty are provided for on much the
same lines as in Great Britain. These Acts
restrict to some extent the civil rights and duties
of soldiers, but nowhere do they exempt them from
obedience to the civil law.

And, of course, without taking up the Court's time

we would also refer to the dissenting judgment of Justice Isaacs who said a similar thing at page 205,
at least so far as England was concerned, that in

has this result, he must obey the law of the country England the fact that a soldier is also a citizen as to citizenship. Now, His Honour then goes on
to come to the view that a different situation

applies in Australia. We would submit that that
is not correct. Now, CROUCH V THE COMMONWEALTH,
(1948) 77 CLR 339, is another example - and tf we

may just very briefly refer to it - of a regulation purportedly made under the defence power being held
to be ultra vires the power of the Commonwealth in
that it did not have sufficient connection with the
defence power.

ClT54/2/MB	125
Ryan

MR WOINARSKI (continuing): This was a regulation that
purported to provide:
a person should not, without a permit,
dispose of or acquire a motor car which
had not, prior to the original date of the discretion issue or refuse to issue a permit.
order, been registered under Australian law
relating to the registration of motor vehicles.

And an action was commenced against the Commonwealth
for a declaration that the provisions were invalid.
Now the Court considered the matter, really, so
far as the defence power is concerned -
Chief Justice Latham at pages 350 and 351. And if
I may just take the Court to a summary of his reasoning which he himself gives just very briefly.
At page 350, in the second-last paragraph, His Honour
points out that:
The order contains no provision which determines the number of cars which will be
available for disposition by sale or otherwise.
It does not limit either the importation or the production of cars. It is concerned only with the distribution of existing cars among
people who want them: it does not prescribe any order of priority and purports to give a
complete discretion to officers to give the
right to individual persons to acquire motor cars.

Then on page 351, His Honour says at the last full
paragraph on that page:
The order now challenged was valid when made because clause 5 of the regulations
associated it with the subject of defence,
and the existing conditions, namely the
actual existence and prosecution of a war,
established a clear connection between the order

and considerations of defence. In the case of
some war controls the nature of the subject
matter to which they related might be such as to require a.gradual process of resumption of
more normal conditions. But even if such a
consideration is relevant in the case of the
control of disposition of motor cars, it is
difficult to suggest any reason for retaining
federal control by reason of circumstances
connected with the subject of defence as late
as April 1947. It is notorious that there was
a shortage of cars after the war and doubtless
that shortage has continued - i.e. in the sense
that there are persons who want to buy motor cars
and they cannot get them. But, if it can be

ClT55/l/SR 126 15/11/88
Ryan
assumed that the shortage is due to the
war and if this fact is said to be sufficient
to support the order, an effective answer to
such an argument is to be found in the facts
that the order does nothing to relieve any
such shortage and that it makes no provision
for allocation of available cars upon any
principle which is related to considerations
of defence.

And Justice Dixon had similar things to say at page 357.
He points out at the bottom of page 356:
The validity of the order ..... is

supported on the -

basis of the defence power. And at page 357 he says,
about four lines from the top of the page:
This ground might call for serious
consideration if it were not for the combined

effect of two factors. The first is that
on the face of the order there is nothing to
require the transport authorities to attend
to any of the foregoing matters in exercising
their discretion to give or withhold a permit,
nothing even to indicate that they are expected
to advert to them. There is no priority list
set out and no reference to the need of one.
There is no direction to take the volume of
supply into account and compare it with
specific classes of demand for cars or to
direct the judgment of the authorities to
particular needs of the connnunity or of industry

or the like. As to time it is obvious that as
the date of the cessation of hostilities recedes
the more difficult it becomes to find in the
defence power a justification for measures
which otherwise fall within the exclusive
province of the States. It consequently becomes
increasingly necessary, before the Court decides
such a law to be within the defence power, that

the law shall disclose on its face the real
connection which it has with the defence power
and that it shall not be capable of
administration in a way that is not relevant to
that power.
(Continued on page 128)

ClT55/2/SR	127	15/11/88
Ryan

MR WOINARSKI (continuing): We would submit that those
closing words of His Honour Justice Dixon, as
he then was, are fairly strong and that one
in looking at an Act such as the Court is currently
being required to consider really would have
to see a very strong connection between the defence
power before one could permit a section such
as section 190 to stand and it simply does come
back to this very point that there is nothing
done in any way in this Act which tries to make
sure that a service offence is limited to something
that is being done by a defence member connected
with his service as a defence member.
If we are correct and that section 190,

because particularly of the effect of subsection (5)
which is the one that provides that:
Where a person has been acquitted or

convicted of a service offence, the person
is not liable to be tried by a civil court
for a civil court offence -

Now, if we are right that section 190 is beyond
the power of the Commonwealth we would say that
the following would occur and we give an example,
if we can. It would follow that a defence member,
living in Victoria, char~ed with a prohibited
import, for example heroin, such importation
would be contrary to the Commonwealth CUSTOMS
ACT, could be tried ei~her before a civil court
in Victoria, such civil court being invested
with the Commonwealth judicial power pursuant
to the provisions of the JUDICIARY ACT, and similarly
the person could be charged under the DEFENCE
FORCE DISCIPLINE ACT with a service offence, namely, a territorial offence being an offence
against the law of the Commonwealth, applicable
to the Territory, namely, to the Australian Capital
Territory.
If that is right and if our submission is

correct, then one would have the situation where
the same offence could be heard, firstly, in
Victoria by a Victorian court, clearly exercising
the judicial power of the Commonwealth and,
alternatively, the same offence could be heard
by a service tribunal, namely a defence force
magistrate or a courts martial, to hear exactly
the same offence against exactly the same Act.

GAUDRON J: What effect then does section 190(4)(b) have?

MR WOINARSKI: Your Honour, that only relates to a very
limited, as I understand it, category of offences.

ClT56/l/ND 128
Ryan

GAUDRON J:

Yes, only the ancillary offence.

MR WOINARSKI:

Yes, only the ancillary offences.

I would

like to say something more about 190(4), if I

may just come back to it in a moment. But we
would have the situation where the Victorian
court clearly exercising Commonwealth jurisdiction
can hear a case of importation contrary to the

Commonwealth CUSTOMS ACT. At the same time you
would have a service tribunal being able to hear
the same offence, being a service offence under
section 61, a territory offence as defined in
the Act.
And one asks, "Well what sort of power is it

exercising?" And we would submit that it must
follow, it is exercising exactly the same power
as the Victorian court must be exercising, namely
the Commonwealth judicial power. That, in our
submission, is the effect of the removal of
section 190. Justice Gaudron, you asked about
section 190(4). We say that it can have a strange
effect and I think we referred to this on the
last occasio~ but the effect of section 190(4)

would be that if a defence member conspired with
a non-defence member, purely a civilian, to commit
an offence against the DEFENCE FORCE DISCIPLINE
ACT and we, for example, will make sure it is
not a section 61 offence, it could be an offence
such as conspiring to achieve the release of
a person whose - conspiring to achieve an escape which is an offence - if I can just pick it up - under the Act.

(Continuing on page 130)

ClT56/2/ND	129
Ryan

MR WOINARSKI (continuing): Section 51, for example,
"Escape from custody" will do; it is not quite
the one I was thinking of. It is an offence
for a defence member to escape from custody,
for which he can be imprisoned for two years.
Now, the situation could follow that I conspire with the defence member, and let us say another
defence member - there are three persons: the
person in custody, a defence member who is not in
custody and myself, and I am not a defence member.
I could conspire to achieve the escape of that
person. What would then happen is that the
civil court would not have jurisdiction at all -
would have no jurisdiction at all to hear the offence against the two defence members. They
would have to be heard by the service tribunal
and my offence would have to be heard by a civil
court exercising the Commonwealth judicial power.
Again we ask, perhaps rhetorically, but again we ask if the power that is being exercised in respect of myself is the judicial power of the
Commonwealth to hear a charge of conspiracy
in those circumstances, then it would be
ridiculous, we suggest, that it is not the same
judicial power that is being exercised by the

service tribunal to hear the identical offence
in relation to identical circumstances.
If the Court does accept this submission,

then, in our submission, there is a very good
reason for this Court concluding that a defence
force magistrate is exercising the judicial power
of the Commonwealth and, of course, in the
circumstances that we have shown to this Court
the respondent defence force magistrate is not
appointed pursuant to chapter III of the
CONSTITUTION. If the Court pleases.

MASON CJ: Thank you, Mr Woinarski.

Mr Solicitor for

Western Australia, I understood you to say
that in substance your argument supported the

Commonwealth, though you did have a submission
to the effect that section 190 was invalid.

MR PARKER:

Yes.

MASON CJ: That being so, it may be convenient for you

to follow the Commonwealth, otherwise you are
placed in a situation where you have to, as it
were, speak in advance of the principal argument
for validity.

MR PARKER:

It would certainly shorten my submission

and no doubt do less damage to my learned friends
who follow me.

MASON CJ:

I am not so sure about the latter, but we will

wait and see. If need be, the Solicitor for

CIT57/l/JM 130

Ryan (Continued on page 130A)
the Commonwealth can have the opportunity of
responding to _your later submissions concerning
the invalidity of section 190.

MR PARKER: May it please the Court.
MASON CJ: Yes, Mr Solicitor for Victoria?

MR BERKELEY: I hand up the outline of our submissions,
if Your Honour pleases.

(Continued on page 131)

CIT57/l/JM

130A

15/11/88

Ryan	(Continued on page 131)

MASON CJ: Yes, Mr Berkeley.
MR BERKELEY: If the Court pleases, I want to start off
by saying something about this word "purposive"
because it has been said from time to time that
defence power is purposive and it is said in
such a way as to perhaps indicate that the defence
power is different from all the other powers in
section 51. In our submission that is not so and
defence is an activity just like banking or trade
and commerce and all the word "purposive" means
is that, it is said in the reports, the nature
of an activity is defined by the end to which it
is directed. That is, if somebody is doing something
you do not know whether he is doing it for the
purpose of defence or banking until you find out
why he is doing it.
So that if I see a man pushing a wheelbarrow

down Collins Street and I look inside the wheelbarrow,
if it is full of ammunition he is subject to the
DEFENCE ACT, if it is full of bills of exchange
he is subject to the BANKING ACT and if it is full
of second-hand clothes he is, undoubtedly, subject

to the IMMIGRATION ACT. But that does not distinguish
defence, that could be said - that is the nature
of an activity is defined by the end to which it
is directed - about half the heads of powe~ or
perhaps more than half, that are contained in
section 51 and it does not serve to mark out defence
as something special from the other powers.
Now, a law about discipline is not a law about

the activity itself, that is the activity of defence,
but it is a law about the way or the circumstances
in which that activity is carried on. It is not
about defence but it is with respect to defence.
It may be a law about the character and qualities
of the persons engaged in the activity but a law
which makes a service offence out of non-military offences, in our submission, can only be relevant

to the activity in this way: that is, if it says
something about the fitness of a person to be a
soldier or about the reputation of the army or
something of that sor~ One could understand a
Commonwealth law which said that any breach of
the civil law is relevant to the fitness of a
person to be a soldier or it is relevant to the
reputation of the army or in some way relevant

to the activity of defence. But if one looks
at section 61 of the DEFENCE ACT it does not do
anything of the sort.

ClT58/l/AC 131 15/11/88
Ryan

MR BERKELEY (continuing): It does not say that any breach

of the law is relevant. For instance, there is
undoubtedly - without having looked at it, there
must undoubtedly be matters which are offences
in the Australian Capital Territory which are not offences in the State of Victoria and vice versa. For instance, in the State of Victoria there is
an offence which is described as rape in marriage.
That may or may not be an offence in Canberra but
assume it is. That is a serious criminal offence
but it would not be a service offence and there
could be service offences, as defined by the
incorporation of the Australian Capital Territory
Code, there could be service offences constituted by conduct in Victoria or anywhere else in·
Australia which were not breaches of the law at
the place where the conduct was entered into.
So that one does not have a situation where

the Connnonwealth is saying, "Well, a soldier is -
it is in the interests of the army that a soldier
should not break the law" and if one looks at the
history of the matter, it becomes very quickly
obvious how this came about because formerly, under
sections 54 and 55 of the DEFENCE ACT 1903, the English ARMY ACT was made applicable to service
anybody who was serving in time of war and anybody
who was serving outside Australia. If one looks
at the ARMY ACT itself, 1955, the United Kingdom
Act, one sees in section 70:
Any person subject to military law who
connnits a civil offence, whether in the
United Kingdom or elsewhere, shall be
guilty of an offence against this
section.

Now, that is a perfectly good law in England where
they are not troubled by the division of power between
the e~ecutive and the judiciary and they are not

troubled by a federal system but that provision has
been incorporated when it was decided to modernize
defence discipline, that section of the ARMY ACT,
section 70, was imported holus-bolus by making it a r:eference to the Australian Capital Territory Code
and apparently without any regard for the constraints
imposed by the CONSTITUTION.

DAWSON J:

Why can you not say that it is in the interests of

defence that the army or whatever branch of the
military is concerned, to keep control over its
own personnel, over the person, its member?

MR BERKELEY:

Your Honour, one can say that but one then has

to ask the question is giving legislative effect for
that consideration - does that demonstrate a sufficient

ClT59/l/SH	132	15/11/88
Ryan

connection with the activity known as the military
and naval defence of the Connnonwealth because what
Your Honour put to me could be equally said about
the Connnonwealth Public Service. There is a law
which relates to the discipline of the public
service.

(Continued on page 134)

ClT59/2/SH 133 15/11/88
Ryan

MR BERKELEY (continuing): It could be said about the conduct

of lighthouse keepers; there is a Commonwealth
head of power lighthouse; there is a Connnonwealth

head of power bankers. Now, it might well be in
the interest of banking and people who deposit
their money in banks to control the .•.•. banking
activities of bankers, but in a federal system
where the Commonwealth is given specific powers one always has to come back to the question, is
there a sufficiently substantial connection between
the grant of power and the prescribed activity.
Now, where the grant of power takes the form

of a person, a corporation or an alien, of course,
there is a wider area of permissible legislation
but where it takes the form of an activity like
defence, or trade,or bankinglaws about the activity are
within power and laws about persons who carry on
that activity, in relation to the activity, that

is, are within power. But when you start legislating
about the non-military or non-banking or non-lighthouse
activity of persons engaging in - it gets too remote,
Your Honour, generally.

DAWSON J:

I do not make myself clear.

It is not a law

with respect to rape within marriage or what

other offence you might be talking about. Why
cannot you view it as a law with respect to the
control of defence personnel army man with
the army keeping control over him and not giving
up control to the civil authorities?

MR BERKELEY:

The answer to Your Honour is probably this,

and it comes from what I have said in paragraph 5 -
it takes me ahead a bit. But what Your Honour puts to me really involves the proposition that the line is not to be drawn anywhere. For the purposes of
defence the Commonwealth can control the whole of
the behaviour of any person who happens to be a
soldier whether that behaviour is related to defence

or not. They could control, for instance, his
capacity - - -

DAWSON J:

You say whether that behaviour is related to

defence or not. It may be that it is not a question
of his behaviour,it is a question of keeping control
over the person, for example, someone who is in a
civil gaol is not much good as a member of the
defence force?

MR BERKELEY:

I understand that, Your Honour, but that is

not the question which arises in this case. The
question arises because if he is in a military
gaol he is not much good to the defence force.

DAWSON J:	But he is under the control of the defence force?
ClT60/l/MB	134
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MR BERKELEY:	Yes. But the answer, Your Honour, is in

peace-time and in the sort of cormnunity which
we have in Australia .are members of the
defence force to be segregated from the cormnunity
in that way,because in an understanding of the ambit

of the d~fence power we are entitled to look at the

sort of community we have. I mean, in this day
and age -

(Continued on page 136)

ClT60/l/MB

135

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DAWSON J: Well you do not organize a defence force for

peace-time, you organize it for war?

MR BERKELEY:

Your Honour, in this day and age we have

soldiers who,by and large,work from 9 to 5. They
have families that they live with. When they have

finish work they go home to their families. They

get four weeks annual leave. They get long service

leave. They get superannuation and after four years
service they can resign at any time on giving six
months notice. Now the answer really lies in - it is put in much better words than I can express, by
Sir Victor Windeyer in WICKHAM's case, that is
THE ILLAWARRA DISTRICT COUNTY COUNCIL V WICKHAM,
101 CLR 467, and the particular passage is right
at the end of the judgment at page 503. This was a

case about ex-servicemen's preference. But in
respect of the defence powers, Sir Victor said at
page 503:
the power to make laws for naval and
military defence must be considered against
a background of established principles of
British law concerning the position of the
armed forces in the connnunity - against the
rule, that is, that in time of peace members
of the services should enjoy, as far as
their duties permit, the ordinary rights of
citizens; but that (with some limited
exceptions) they should be subject to the same general law as are other subjects of
the Crown; and that disbanded soliders and
paid-off seamen should become civilians,
without any permanent legal privileges or
innnunities different from other subjects.
Thus, while it is proper to use the defence power to re-establish soldiers as civilians,
it is not, in my view, within the scope of
the power to create -

this is not directly relevant but I would like to

read it -
a privileged class among civilians. This view
of course does not mean that any employer
(including the Crown and its agencies) may
not give such preferences to men who have
served in war as he or it thinks proper.
Neither, as I have already said, do I mean to
cast any doubt on the validity of benefits
which out of the resources of the Connnonwealth
may be given to individual ex-servicemen.
So that the point I cite this passage for is the
proposition that the scope of the defence power in time
of peace n:ust be considered a backgr0tmd of established principles
of British law.

ClT61/l/SR	136	15/11/88
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MR BERKELEY (continuing): And the soldiers that we had
in this community, they are not the riotous
and licentious soldiers of the 19th century,
they are citizens, they have their place in the
community, they belong to Rotary clubs, they
have children at secondary schools and the question
is - and I am talking about peace, I am not talking
about wartime - in peace-time, is it appropriate
to say that they should be dealt with for serious
criminal offence not connected with their duties,
that they should be dealt with by military tribunals,
and if they are then they are not to be touched
by the State courts.
They are not only members of the defence

force, they are citizens of Australia and they
are also citizens of the State in which they
reside. It is not really capable of elaboration,
Your Honour, and it is true to say, as
Your Honour says, that soldiers are there for
time of war but the ambit of their obligations
and their rights and the resolution of a conflict,
if there is, between their duty as members of
the services and their duties as citizens of the State in which they reside, the place at
which that conflict is resolved differs depending
upon whether it is peace or war.
And we say, in time of peace, it is fairly

easy - one can see the line ought to be drawn
fairly close to what might be called "military
of fences','.

BRENNAN J: How does one identify what you call "military
offences" when the essential act or omission
is one which is common to what might properly
be regarded as a military offence and one which
is common to civil offences; for example, if
a serving soldier strikes his superior officer
out of a sense of frustration for the order that
he has been given, is that a civil offence of

assault or is it a military offence?

MR BERKELEY: It is both.

BRENNAN J:

How do you distinguish between the two for the purposes of power?

MR BERKELEY: The point is, Your Honour, he can be dealt

with by the army for that. But the question
then remains: can he also be dealt with by civil
cou-r ts?

BRENNAN J: I thought your argument on section 61 was that
it went too far.

ClT62/l/ND 137 15/11/88
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MR BERKELEY: That particular assault on an officer, 1
am not suggesting that that is not properly within
the defence power.

BRENNAN J: If one looks at the range of offences within
section 61, some of them may, depending upon
the nature of the particular case, have a very
close connection with the defence power and with

discipline. How does one draw the distinction?

(Continuing on page 139)

ClT62/2/ND	138	15/11/88
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MR BERKELEY: Your Honour, if one sees that there is a
substantial number of offences in section 61
which might.be committed in circumstances which
have no relevant connection with defence, or
army behaviour or service, it is really

impossible to sever it, Your Honour. One cannot
give it a severable application. What it means
is that the draftsman has gone about it in the
wrong way.

BRENNAN J: It raises the most extraordinary difficulties
for parliamentary counsel, of course. But if
one takes the classic example of murder,
which one would think - particularly after the
argument for the prosecutor here - that that is
an ordinary civil offence, but it has not
been unknown for murder to take place against
a superior officer by a serving soldier in battle
outside Australia.

MR BERKELEY: Yes, Your Honour.

BRENNAN J: I jus.t do not undertand how one comes to
grips with it.

MR BERKELEY: Actually, one should not blur the distinction

between peace-time and wartime. Now, in so far
as it is said that this - what it used to say
is that the ARMY ACT applied overseas or in time

of war. Now, we have got no quarrel with that
have murders, Your Honour, but it is not beyond
and we would not suggest that was beyond power.

the wit of draftsman. You could either have a
separate code, itemize the offences one by one.
I mean, every State has got a CRIMES ACT and several
States have Criminal Codes. You could do that for
the army, if you wanted to and itemize them one by
one and relay them to service conditions~ or
perhaps there could be some general expression in
a section like 61 which confines the operation of it

to acts and omissions taking place arising out of

service, or in relation to service land or service

personnel. I am not a draftsman, Your Honour,
although sometimes I think I can do a better job

than some of those -who are. One can see it is
not beyond the wit of man to devise a formula
and really, it does not go to the constitutional
validity of what is done, the difficulty is
doing it properly.

(Continued on page 140)

CIT63/l/JM 139 15/11/88
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MR BERKELEY (continuing): Well that takes me really to

There is a big difficulty about section 190.

paragraph 8 o~ my outline - section 190. and it is really in anticipation of what the
Commonwealth is going to put because the Solicitor
for the Commonwealth was kind enough to give me
an outline of his argument and I would just ask
the Court to make a note of it because it is said
in the Commonwealth's outline that in a number
of countrie~ including the United States, there are

provisions against double jeopardy. The Commonwealth
will handing up a bundle of documents which includes
relevant parts of the American Code and the part
I want the Court to look at in connection with

that is page 347. My learned friend is kind enough

to have offered to hand it up now. I wonder if
that might be done. The pages are numbered in
the middle of the top of the page and the page
I am referring to is page 347. The particular
passage I want to refer to is, in effect, the footnote.
At the bottom of the P.age in small type there is
a heading "Discussion', and in the left-hand column
about five lines from the bottom of the page there
is a passage which starts "Under the CONSTITUTION".
Under the CONSTITUTION, a person may

not be tried for the same misconduct by both
a court-martial and another federal court .....
Although it is constitutionally permissible
to try a person by court-martial and by a
State court for the same act, as a matter
of policy a person who is pending trial or has been tried by a State court should not
ordinarily be tried by a court-martial for
the same a·c t.

So that although the United States provides for double jeopardy in relation to federal offences
it is does not say anything about the situation

in relation to State offences. Now section 190
arises as a result of a difficulty the draftsman

faced when he drafted all this legislation we would
hypothesize because if indeed the service offences
were made criminal offences then you would not
need section 190 because you would get a case of
inconsistency of the sort that was raised in
LOWENTHAL's case and the State law would be inoperative

to that extent. But of course the draftsman could
not do that because what he was wanting to do was
to exercise the disciplinary power which the

Commonwealth has over its forces and not the judicial power.

ClT64/l/AC 140 15/11/88
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MR BERKELEY (continuing): So that although the territory
offences were imported into the DISCIPLINE
ACT they had-to be brought in as disciplinary
matters and not as criminal matters and by doing
that, that, in itself, would not prevent a State
court regarding the same conduct as an offence
under a State Act and it was to meet that situation
that section 190 was enacted.
When I first looked at this, I had the idea

1n the back of my head that somehow chapter V of the CONSTITUTION might be relevant and that
is what is referred to in our outline, although
in paragraph 11 of my outline I was wrong in
including subsection (4) because subsection (4)
only deals with offences under Commonwealth law
and, of course, the Commonwealth can vest or
withdraw jurisdiction as it pleases. But in
relation to subsection (3) and subsection (5),
what the Commonwealth is purporting to do is
to say that a State court shall not exercise jurisdiction given by a State Act in respect
of an offence against State law.
In effect, what the section is doing, it is not operating on the subject-matter within
Commonwealth power. In effect, it is operating

on a State law about that subject-matter. And
there may well be something in the submission
that conflicts between Commonwealth and State
law are to be resolved by this Court under
section 109 and the Commonwealth cannot short
circuit the process in the way in which it has

done. But listening to the argument this morning,
another and perhaps better objection to
section 190 occurred and it is for that reason
not on the outline.
It arises out of the principle enunciated in the STATE BANKING case, CITY OF MELBOURNE
V THE COMMONWEALTH, 74 CLR 31, and it is this:

because in section 190 the Commonwealth Parliament
is not saying that the conduct complained of
is not an offence under State law; it is saying,

"Yes, it is an offence under State law but
the State court is forbidden to do anything about
it." And the administration of justice is of
the essence of the government function. In
our submission, whatever the Parliament had in
mind or wanted to achieve by section 190, it
could not, in our submission, do it by interfering
with the ordinary jurisdiction of a State court
in the exercise of what it was commanded to do
by State law.
That really concludes what we want to say

1n our outline. There is some reference to

ClT65/l/ND 141 15/11/88
Ryan
whether these sections are severable or not. to us but these questions about section 61 and
section 190 have to be considered and decided
because if both the sections are ultra vires the Commonwealth and they are severable from the rest of the Act, it may well be that it is
no longer open to say that the Act confers judicial
power upon courts martial. If the Court pleases.

MASON CJ:

Thank you, Mr Solicitor.

Mr Solicitor for

Tasmania.

(Continuing on page 143)

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MR BALE: I hand up the outline of my argument, may it please
the Court.

MASON CJ: Yes.

'MR BALE: May it please the Court, may I say at the outset
that I wish to strictly limit my submission to the
sustainability of section 190 on the basis of the
defence power of the Commonwealth and, that said,
it will be immediately apparent from the outline
which is before you that much. of what I would have
intended to say has already been said and I
certainly will do my best not to retraverse that
ground.
With that in mind, may I be permitted to take Your Honours directly to point 3 in the outline of
argument and to state, for the purposes of emphasis,
what is perhaps the obvious,which is that that
section - section 190 - seeks not to confer any
jurisdiction on any tribunal, service or otherwise,
but rather it seeks to exclude in given circumstances
the jurisdiction of civil courts, State courts, to
try and punish offences against State laws over
which those courts would otherwise have jurisdiction.
For the present purposes or, at least, for the
purposes of my argument, it seeks to do so and
purports to do so in two circumstances. Firstly, where the civil offence is substantially the same as an untried but admitted service offence which
has been taken into account by the military tribunal
in determining penalty for another service offence,
that is subsection 3 of the section and, secondly,
subsection (5), where the civil offence is substantially
the same as a service offence of which the person
has either been acquitted or convicted, a typical
autrefois acquit or autrefois convict situation.
Now, the operation of the provisions of

section 190 is dependent upon the trial of a
defence member or a defence civilian for a service
offence and all of those terms are, of course, defined and I believe the Court has been taken
through those definitions and I will not take time
to do that. But, in consequence of those definitions,
on its face the section, if valid, operates to
exclude the jurisdiction of State courts in any of
those or in either of those two situations to which

only because of the coincidence of two circumstances I just referred when and because and only when and

offence is substantially the same as either any of
the offences listed in sections 15 to 60 of the Act
or any offence against the laws of the Australian

and those two circumstances are that the civilian up most of the basic criminal laws of this country
and - and this is the other element that must be

ClT66/l/SH 143 15/11/88
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coincident with the first - that the person
connnitting the offence is a member of the
permanent forces or of the emergency or reserve
forces, rendering full-time service or on duty
or in uniform and that occurs whether or not
the offence was connnitted in the course of his
acting in or about the defence of the Connnonwealth
as compared, for example, when he is acting in his
capacity as an ordinary citizen.
Now, to be valid, the exercise of the defence

power must be with respect to the defence of the
Connnonwealth or the control of the defence forces
or be incidental to either of those matters.
With respect to, of course, it has been

variously interpreted over the years, quite some
decades ago, as involving a substantial connection
with the subject-matter but, more liberally in
recent years, as requiring a sufficient or sufficiently
close or reasonable connection with the subject-matter
of the power and those of the several expressions,
sufficient or sufficiently close or reasonable, that
found favour with this Court in the decision of

GAZZO V COMPTROLLER OF STAMPS, (1981) 149 CLR 227.

(Continued on page 145)

ClT66/2/SH	144	15/11/88
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MR BALE (continuing): And the references that I make in

point 6 of the outline are incorrect on this point.
The reference to the Chief Justice is correct, but
to Justice Stephen the page reference should be 244
and Your Honour the Chief Justice the page reference

should be 248. I do not propose to take time to
expand, at this point, on those references, but to
go innnediately to point 10 in the outline in which
I submit that if section 190 had limited the
exclusion of State jurisdiction to offences having
a reasonable connection with the performance of
military duty, it would in all probability have been
beyond challenge. But the only necessary link with the defence power is that the offender is a defence
member or defence civilian and has connnitted one of
the rag-bag of offences that appear between
section 15 and section 61 of the Act. And, it is
my submission that that connection is all too tenuous
to be sustainable and therefore to sustain the
section. And by way of analogy may I turn again to
GAZZO's case because it does contain some passages
which, in my submission, are helpful iR relation to
this. Again, the reference is 149 CLR, the report of
the case starts at page 227, and I would go first
to a passage appearing in the judgment of His Honour

the then Chief Justice at page 234. And there at
about page 234, point 6, His Honour said this, about
five lines up from the bottom of the main paragraph:
However, a law is not a law with respect to
marriage simply because it has some operation
with respect to married persons.

And cases are referred to and from LAMBERT this
quotation appears:
The crucial question, however, is

whether the legislation creates, defines or
declares rights or duties that arise out of,
or have a close connexion with, the marriage
relationship. If not, the law cannot be said

question whether a law is one with respect to be one with respect to marriage ..... The to marriage is one of degree. The answer to
it depends on the closeness of the connexion
between the law and the marriage relationship.
The question in each case is whether the
connexion between the law and the marriage
relationship is sufficiently close to enable
it to be said that the law is in truth one
with respect to the relationship. It is not
enough that the law incidentally touches upon
marriage, or that the Parliament has seized
on the fact of marriage as a justification
for the enactment of a law which really deals
with some other topic.

ClT67/l/SR	145	15/11/88
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It is clear that a law that simply provided that a married person should not be
liable to a State tax would not be a law

with respect to marriage. Such a law would be
concerned with the relationship which exists
between citizens and the State, and would have
no connexion with the marriage relationship
except that it was rendered applicable to a
married person - a connexion too slight and
remote to give the law the character of a law
with respect to marriage.
And here, of course, instead of this being a law
which excludes liability to a State tax, it is a law
which excludes liability to the trial by a State
court of a State offence.

(Continued on page 147)

ClT67/2/SR	146	15/11/88
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MR BALE (continuing):

And the reference goes on:

Nor would such a law be with respect to matrimonial causes - it would have no necessary
connexion with a legal proceeding arising
out of the marriage. However, the provisions
of s. 90 with which we are now concerned
have some connexion with the marriage
and with matrimonial causes - they exempt from state duty an instrument executed in
accordance with an order made in a matrimonial
cause in which Pt VIII is applied. Again
the connexion is only a remote one, since the object of the section is to destroy a
liability that would otherwise be owed by
a person (albeit a married person) to a
State, under a law which does not take as
the criterion of the liability anything
related to the marriage or the matrimonial
cause.
Then at page 241 point 3 and 241 point 8
Justice Stephen makes conn:nents to substantially
the same effect. Perhaps I need not take time
to read them. Similarly, Your Honour the Chief Justice
at page 247 at the beginning of the only full
paragraph says this:

This submission is misconceived. I accept
the legislative power with respect to
"marriage" is not a power with respect to
"married persons" and that the Conn:nonwealth
cannot remove disabilities or impose
obligations not in any way arising out of
the marriage relationship merely by applying
laws to married persons.

It is our submission that in the same way the
Commonwealth cannot remove the operation of the
State law by imposing obligations which do not

in any way arise out of defence simply by applying

them to defence personnel. We submit that
section 190 is in fact an attempt to do precisely
that. Were it limited in the way in which I
have suggested at the beginning of note 10, as

but we contend it has no connection at all with I have said, perhaps there would be no objection
the defence power except that it relates to
the activities of defence personnel which may
not have any relationship at all to the
performance by them of their defence duties.

It attaches to them simply because the nature of their service is such that they are at all
times on all days members of the defence force,
not because of any particular activity that

they are carrying out at a given time. I believe

ClT68/l/MB	147	15/11/88
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that anything else I had intended to say,
may it please the Court, has already been
said. Those are my submissions.

MASON CJ:

Thank you, Mr Solicitor.

Mr Solicitor for

South Australia.
(Continued on page 149)

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MR DOYLE: If the Court pleases, I hand up my outline of
the submissions.

MASON CJ: Yes, Mr Solicitor.

MR DOYLE: If the Court pleases, perhaps if I can give
the Court an outline of the outline and then
I will proceed to develop the submissions as briefly as I can without unnecessarily
elaborating points already made.
In brief, the submission is,first,that subsections (3) and (5) of section 190 are
beyond power in relation to what I will call
disciplinary offences under the DEFENCE FORCE
DISCIPLINE ACT, and could I just note in
particular, with respect, I do not accept,
as my learned friend the Solicitor for Tasmania
would appear to accept, that if it were limited
to some disciplinary offence that had a closer
connection with service matters it would be

valid. My submission is it has no valid
application in relation to disciplinary offences.
However, secondly, in my submission, it is
severable and its invalidity does not invalidate
the Act. Thirdly, the submission is that the
trial of disciplinary matters - and again I
use that term - does not involve an exercise
of judicial power therefore, in this particular
case, the order nisi should be discharged because
the offences are disciplinary offences.
The final submission is that section 61 would appear to be beyond power, although I
am not sure, with respect, to what extent that
issue really is before the Court and in substance
I am content to adopt the submissions by my learned friend the Solicitor for Victoria with
one or two supplementary connnents, but it does
seem, in my submission, that to some extent the
validity of section 61 is entangled with

some of the issues which clearly are before the Your Honours, in my respectful submission,
Court. Your Honours, that is the outline of the outline.
the defence power clearly does include a power
to provide for a system of discipline and its

enforcement. However, when one looks at the
history of military discipline it does appear, in my submission, that the system of military discipline was seen as something both separate
from and cumulative upon the ordinary system of
law. At the time when the system of military
discipline was based on the prerogative that
line was perhaps more important and the sorts of
issues we face today may have arisen if, under
prerogative powers the Crown had purported to
create offences and provide for their punishment
of the wide-ranging nature which are created by

CIT69/l/JM 149 15/11/88
Ryan
statute. It is clear from the materials which
the Solicitor for the Commonwealth has provided
to the Court that by about the middle of the
last century in England, statutes relating to
military discipline had become more wide-ranging
and were starting to bring into play offences
which one would say also found their home in the
general criminal law or the law of the land. But,
in my respectful submission, it does appear that
military discipline was, as I have put it,
understood as a separate and cumulative system.

In my respectful submission, in this

particular case these matters assume a particular
significance because it is my submission that
what is outside the ambit of chapter III is
the enforcement of military discipline and it
is only that which is outside the ambit of
chapter III. In other words, under the
defence power offences may be created, the trial
of which, or the disposition of which, would
clearly involve an exercise of judicial power.
On the other hand, in my respectful submission,
in relation to what can be categorized as matters
of military discipline, the trial and disposition
of those offences stands outside chapter III and it does so for historical reasons for the simple fact that in 1900, having regard to the history
of the system of military discipline and, in my
submission, notwithstanding the blurring that
started in the latter part of the last century
as a result of statutes, military discipline,
having nothing to do with chapter III, would
have been seen as a relatively confined area
of law and cumulative upon the law of the land.
It is the enforcement of that system which stands outside chapter III.
It follows, in my respectful submission, and this is in part answer to what Your Honour
Justice Dawson put this morning, that what is

outside the ambit of chapter III are not matters
military but matters pertaining to the enforcement
of military discipline.

(Continued on page 151)

CIT69/2/JM 150 15/11/88
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MR DOYLE (continuing): And therefore, in my respectful
submission, although the line between matters
military and· the enforcement of military discipline
may be a difficult line to draw, it has to be
drawn in the context of our CONSTITUTION because
if the relevant offence can be seen as pertaining
more loosely to matters military, while it may
well be validly created under the defence power,
the trial or disposition of it will involve an
exercise of judicial power, whereas, if it is
a matter of military discipline then, for historical
reasons as I have already submitted, its trial
and disposition does stand outside chapter III.
So, in my submission, that rather difficult

line does have to be drawn and I accept that
it is a line that may be drawn in different places

in times of peace and in times of war. But I
submit that it still does have to be drawn.
And so, to go to one or two of the examples that
were raised in argument this morning, murder
within the ranks may well be, I would accept,
a matter of service discipline; that is, creating
that offence and punishing it.
But in my respectful submission, murder

at any time by a serviceman, and regardless of
when or where, is not a matter of military discipline
and, if - and I underline the "if" because I
do not concede this can be done - but if that can be
made the subject of an offence under the defence
power then the trial of that offence would be
an exercise of judicial power because it has
move outside the relatively confined sphere of
what, in my submission, constitutes the enforcement
of military discipline.

DAWSON J: Do I take you to say that you would have no
objection to section 190(5) were it not for
section 61?

MR DOYLE: No, Your Honour. I submit - and this may seem
rather contrary - that section 190 can have no
application to offences which are truly matters
of military discipline because the power, call
it control of the army, call it military discipline,
the power in relation to military discipline
is to create disciplinary offences and that particular
power does not, in any sense, embrace saying
in what way State law is to bear on those who
commit such offences. Perhaps if I could just
illustrate what I mean by developing another
short point.
It is not my submission that in a different

way the Commonwealth cannot exclude the application

ClT70/l/ND 151 15/11/88
Ryan
of State law. It could, for instance, enact
a code of la~ relating to the driving of defence
vehicles and it could provide for the circumstances
under which a licence to be held to drive them,
the speed at which they are to be driven, and
the circumstances under which they will be deemed
roadworthy or not roadworthy, and by enacting
a code like that it could, in effect, exclude
the application of State law. What I submit it cannot do is in relation to matters which
are purely d1sciplinary,say, on a perfectly general
basis, State law is not to be enforced against
a man when we have proceeded against him under
our disciplinary code.
In my submission, that just bears no relationship

to the enforcement of discipline to say, "Because
we have dealt with him,State law shall not be
enforced against him". Nor can it be justified
if one looks at the defence power more broadly.
There is simply no relationship to defence
if the Commonwealth says, "Because we have tried
a member of the defence force, the State legal
processes are not to be deployed against him."

DAWSON J: Really an argument that the provision goes to

State power - - -

MR DOYLE:

In a sense, yes, Your Honour.

DAWSON J: - - - and there is no room for section 109.

MR DOYLE:

No, but as I would submit, my example of the

driving of a defence force vehicle shows, when
the law is put in a different way, and when it
clearly has a connection with the defence power

DAWSON J:

Then a section 109 case arises.

MR DOYLE:

Yes, section 109 does the job.

And various examples

could be given: again, damaging property used

by the defence force. No doubt a code of offences
could be laid down by the Commonwealth, that

code could readily exclude the State law. But
now it excludes it because it is a code on a
matter which has a relationship to defence.
But in my submission, for the Commonwealth to
say a man who has been dealt with by the defence
disciplinary system is not to be dealt with under
State law has no relationship either to discipline
or to defence and, once again, without wanting to seem to endlessly qualify, again, it is not part of my submission that the Commonwealth
could not validly provide that if a man was required
to serve in his unit and he was facing a charge
or about to be imprisoned that on, say, a
certificate by his commanding officer that he
was required, that under those circumstances
he was not to be tried or locked up.

ClT70/2/ND	152	15/11/88
Ryan

In my respectful submission, as a general proposition
that we need to control you to the extent of excluding
State legal process, regardless of the circumstances,

that goes beyond power. But when one ties it to
circumstances that do have a relationship and a
relationship discernable to the Court to the defence
of the Connnonwealth or the control of the defence
forces, then, in my submission, the law would be
valid.

(Continued on page 156)

ClT72/2/SR 155 15/11/88
Ryan
MR DOYLE (continuing): So, it is perhaps for that reason,
as I indicated at the outset, that I do not even
make the concession made by my learned friend,
the Solicitor for Tasmania, that if one got down
to some particular type of service offence that
had a much closer connection with discipline that
section 190 would be valid. In my submission,
you have to look for the connection in the exclusion
of State law not in the nature of the particular

offence. So my submission then, drawing on those
general propositions in relation to the Act, is
that most of the offences in Part III of the
DEFENCE FORCE DISCIPLINE ACT would appear to be
genuine disciplinary offences. There are one or
two small queries which I will just mention briefly
to illustrate the nature of my submissions.
Section 33, I notice, makes it an offence

for:
A person, being a defence member or a defence
civilian ..... in a public place -

to assault another person. Now, that appears to
have no particular connection, unless it is read
down in some way, with any aspect of the performance
of his duties or with discipline or whatever and
so as to that aspect of that offence, if it is
not read down, there may be some doubt whether
that is in truth a genuine service disciplinary
offence within the terms of my submission and,
therefore, whether a charge of such an offence
can be tried by a service tribunal.

WILSON J: It must be committed "on service land".

MR DOYLE: No, Your Honour. There is alreadr, two alternatives,
"on service land, in a service ship' and the final

one "in a public place". ·

WILSON J: I beg your pardon - "or in a public place", yes.

MR DOYLE: So it seems to apply without restriction and so my respectful submission is that it may be doubtful

whether in that aspect section 33 is valid. One
other I noticed was section 36. Could I just withdraw
what I said about it being valid - it may be doubtful
whether it is a genuine service disciplinary offence.
Section 36:
A person, being a defence member or a defence civilian, who, in or in connection with -

(a) the operation, handling, servicing
or storage -
of a vehicle "behaves in a manner" that is likely
to cause death.

ClT73/l/AC 156 15/11/88
Ryan

MR DOYLE (continuing): Now, again, unless it is read in the sam: way,
it would seem to mean that if at any time of day
or night and wherever or whenever, a defence
member in the connection with the handling of
a vehicle does something likely to cause death,
he conunits an offence. Once again, because of
the lack of connection with matters relating to
the defence force, in my submission, it is very
doubtful whether that could be regarded as a
disciplinary offence and, therefore, it may be
that if it is validly created, it cannot be
tried by a defence tribunal and it may be that
those offences are validly created under the
broader aspect of the defence power but if they
are and are not disciplinary matters, then they
have to be tried by a tribunal established under
chapter III.
And then the other major reservation is

as to section 61 and it is my respectful submission
in substance for the reasons put forward by my
learned friend, the Solicitor for the Conunonwealth
that, first of all, they cannot be regarded as
disciplinary offences because the generality of
that provision is such that it would apply in
many situations that simply have no conceivable
relationship to the discipline of the defence
forces and, in my respectful submission, one
cannot say it is discipline simply because those
who command the force thing that they should have
control of their members at all times.
In my respectful submission, it really is

control for the purposes of, as it were, maintaining
or operating a defence force and one has to read
those words "control" in section 51 (vj) to some
extent limited by their context. It is not as
if section Sl(vi) says the Conunonwealth may
legislate with respect to the rights, duties and
obligations of members of the defence force. It

talks of their control and, in my respectful
submission, it must mean control, really, for the purposes of running the defence force and, if the
provision appears to have no relationship to that,
then it is beyond power.
So, I do submit that section 61 appears to

be both beyond power and also, and in any event,
to create offences which are not disciplinary
offences and so if it is within power but the
offences are disciplinary offences, then my fall -
back contention would be, as it were, "All right,
well, if they are validly created but not disciplinary,
then the trial of these offences, again, cannot be by
a service tribunal" because they have nothing to do,
in this generality, with service discipline.

ClT74/l/SH 157 15/11/88
Ryan

BRENNAN J:

Mr Solicitor, if you were dealing with a unit, a

military unit of Australian defence force overseas,
what would you say then about the generality of
section 61?

MR DOYLE:	Your Honour, without wanting to commit myself I would readily acknowledge that there may be a greater
amplitude of power in relation to members overseas
because one can well understand, it could be said
first of all, at least if they are over there in their
capacity as members of the defence force, whatever the time and circumstances, they are seen as representing the defence force. So I think perhaps,
Your Honour, my answer would be that there would be
greater play for a provision such as section 61, but
I would still submit that there would be other
respects in which still it went too far, even in
relation to defence members overseas and, perhaps, in its
application to matters between a defence member and his spouse both overseas, the spouse having accompanied
the defence member. In my submission, still there
would be some situations with defence members overseas where section 61 went too far.

BRENNAN J: Leaving aside those incidental matters such as the

spousal relationship, how does one deal with the

constitutional validity of section 61 if one were to
allow it a valid operation with respect to overseas
units?

MR DOYLE:

Does Your Honour mean, can it be read down?

BRENNAN J: Yes.

MR DOYLE:

I would submit, no, Your Honour, probably not.

So, Your Honours, in my submission, putting it very
broadly, then one first of all has to say, is the
relevant offence a true service disciplinary offence.
If it is then, in my submission, it may be tried by
a tribunal established under this Act because the
system of military discipline was seen as outside the

common law and would have been seen by the framers
of the CONSTITUTION as not caught by chapter III.
If the relevant offence is not a service disciplinary
offence it may nevertheles be a valid offence if the
creation of it is seen in some way to have a
sufficient relationship to the maintenance of the
defence forces or the defence of the Commonwealth, but
then if that is the rubric under which it is justified
the trial of it does involve the exercise of the
judicial power and the person cannot be tried for that
offence under this Act. And so going back to the earlier
examples, driving a defence vehicle, assuming a code
of laws which purported to cover that topic exhaustively,
in so far as such code bore on a defence member, it would
seem to have disciplinary aspects and therefore the offence
would seem to be triable under this Act.

ClT75/l/SR	158	15/11/88
Ryan

MR DOYLE (continuing): But if the relevant offences
also purpor_ted to apply to civilians, it may well be - I do not say definitely because it
would depend upon how the law was drawn, but
it may well be that an identical offence in
relation to civilians would not be triable
under this Act because there simply would not
be a sufficient relationship to what was
understood traditionally as the enforcement

of military discipline. So, in my submission,
where sections 190 and 61 break down is in
their undiscriminating approach to this problem.
So, in my respectful submission, for those
reasons they are invalid, but for the reasons
I have indicated, the particular offences charged
here are clearly disciplinary offences and can

be tried under this Act. They are my submissions,
if the Court pleases.

DEANE J: That really does not face up to the main problem
of severability, though, does it - it probably
is not your problem - and that is - - -

MR DOYLE: No, it does not, Your Honour. ·

DEANE J:

- - -can it be said that a provision of two years imprisonment on the basis of immunity from punishment in the State courts can stand
when the innnunity from punishment in the State
courts falls? I mean, it is a completely
different operation of the section.

MR DOYLE: Your Honour, this perhaps illustrates why it
is hard to keep away from section 61, although it is not directly raised. In relation to the
offences in Part III between sections 15 and 60,
in my submission, no real problem of severability
arises because, in my submission, it is_not
in any sense radically altering the operation of
this Act or doing something which would seem
contrary to the draftsman's intent to say that

those offences stand even though a_ person
may be tried under State law in relation to them,
because when one looks at their content, the
overlap with State_ law appears quite minimal.

DEANE J: That does not seem to me to be so. I mean, look
at section 55, most of the conduct it deals with
would be forgery under the Queensland Code, as
the Queensland Code defines forgery.

(Continued on page 160)

CIT76/l/JM 159 15/11/88
Ryan
DEANE J (continuing): Now, may it not be said it is a
completely d~fferent thing to impose a two-year
prison sentence as punishment under section 55
on the basis that the accused is made immune from
prosecution in Queensland but you are looking at
a not comparable situation if you say he is liable
for two years before a court martial and he is

also going to be liable under the Queensland GRIMINAL CODE.

MR DOYLE: Your Honour, I accept the force of what
Your Honour says without retracting my submission.
Clearly things have altered once section 190 goes
but I would still submit that, generally, looking
at the content of sections 15 through to 60 and,
perhaps, if the process of severance and invalidity
can go this far, perhaps subject to certain of
the particular provisions also becoming unenforceable
or invalid, by and large they can stand absent
section 190. However, in my submission, it is
a far more difficult task to say that with section 61
when one bears in mind that that then purports

to pick up a general criminal code. One far less
readily imagines the draftsman saying, "I will
enact, in effect by adoption, another general criminal
code knowing as I now do that I cannot have my
section 190." I accept that it is much stronger

thert And ;hat may be, Your Honour, an argument
for invalidity of section 61 simply flowing from
the invalidity of section 190. In other words
the invalidity of 190 may bring section 61 down
for no other reason than that section 61 would
not have been envisaged as having an operation

absent section 190. But I do not pretend, Your Honour,
with respect, to really have thought right through
the issue of severance in relation to the other
offences.
May it please the Court, I think I have finished
at a convenient moment with 10 seconds left and
I think that the Solicitor for the Commonwealth

would like, if acceptable to the Court, to provide
some materials for use overnight, or as may be,
to expedite things tomorrow.

MASON CJ: Yes. Thank you,Mr Solicitor for South Australia.
Yes, Mr Solicitor.

MR GRIFFITH:

If the Court pleases. We were not intending to set homework for the Court.

We do have some
materials we intended to hand up and it may suit
the convenience of the Court to have them this

evening. The first set of materials, Your Honour,
is the second reading speech for the Act - the
DEFENCE FORCE DISCIPLINE ACT - extracts, Your Honour.

ClT77/l/AC 160 15/11/88
Ryan

MR GRIFFITH (continuing): In particular,we refer to pages 11

to 17,paragraphs 42 to 65. Secondly, there is an
extract from the special report of the select
committee on the Armed Forces Bill United Kingdom

is a useful article, The Trail of Discipline: 1966 - just a one page extract. Thirdly, there
The Historical Roots of Canadian Military Law,
(1985) Canadian Forces Judge Advocate General's
Journal, volume 1, page 1. There is a very good
introduction as to the English military law
in that article. And, lastly, it may be
convenient to members of the Court if we hand
up a copy of the index and the precise which
is contained in the bound volume my learned
friend the Solicitor-General for Victoria handed
up in that it makes it easier for the Court then
to look things up in the volume with a separate
index sheet.

MASON CJ:	Thank you.
MR GRIFFITH:	If the Court pleases.
MASON CJ:	Yes, thank you, Mr Solicitor. The Court will

now adjourn.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 16 NOVEMBER 1988

ClT78/l/MB	161	15/11/88
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[1988] HCATrans 272

Key Legal Topics

Areas of Law

Administrative Law

Constitutional Law

Legal Concepts

Judicial Review

Jurisdiction

Procedural Fairness

Statutory Construction

connnanding officer	may do a variety of things
when the charge is	before him including
subsection l(d):

Court to and that appears at pagffi 35 through to 38 of the material which we have provided to the	in particular we are desirous of referring the paragraph on page 35. The author refers to the
proper distinction between martial law and military
law, effectively, and in the last sentence he
says:

matters of all denominations, ecclesiastical	or temporal, civil, military, maritime,
or criminal; this being the place where
that absolute despotic power, which must
in all governments reside somewhere, is
intrusted by the constitution of these
kingdoms ..... Courts martial still act by
particular appointment of the crown, for the king being the supreme magistrate of the kingdom, and intrusted with the whole
executive power of the law, no court whatsoever
can have any jurisdiction, unless it some
way or other derive it from the crown; but
their authority originates from, and they
are empowered to punish with death or
otherwise in peace as well as war, within

opinion of the Court, said:- "These provisions 11	V HOOVER Mr Justice Wayne, delivering the
(that is, the provisions already mentioned)
"show that Congress has the power to provide
for the trial and punishment of military and naval offences in the manner then and
now practised by civilized nations; and
that the power to do so is given without
any connection between it and the 3rd article
of the CONSTITUTION defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other" -

ClT25/l/AC	90
Ryan
MR WOINARSKI:	No, Your Honour, but the amendment is there

DAWSON J:	That deals with a speedy trial and the other deals with the right to trial by jury.	However,
I will not detain you.

way of putting it, Your Honour.	What we are saying,
I think, if I may put it slightly different, is

is not a valid exercise of the defence power.	The
civil courts, as I said, in PIRRIE V McFARLANE,
stated that defence members are still civilians

we seek to rely on it, to the very contrary.	We
seek to rely on it and we say it is correctly

and, as we indicated, the Court was not assisted	question of penalty was concerned. That was the first decision by this Court
by any argument by counsel and indeed, the other
matter that we also wish to raise, or point out at this stage is, of course,it was a decision
based on the defence power during times of war.

offence being able to be heard by a body that is	for a contrary intention to be fulfilled by the
not a court, in other words, a body that is not exercising the judicial power of the Commonwealth.
So that what we are saying is that even if the
Court were to take the view that a defence force
magistrate is not exercising the judicial power
of the Commonwealth that is not the end of the problem so far as the respondents are concerned because in accordance with sections 42 and 43 of the ACTS INTERPRETATION ACT there has not been
a contrary intention for the matter to be heard
by a summary court.

body.	But sections 42 and 43 are only talking
about bodies which are courts exercising the

intention to section 42?	I am just wondering if I am
missing something?

law of the Commonwealth and it creates offences so	that you have offences against any Act and that law
clearly shows an intention not to provide for trial
by indictment?

course, is the defence of the Commonwealth and	that is given to an object and the object, of
the States and because the exigencies of peace or war or preparation for war or coming back
from war towards peace differ, therefore, the
object or the extent of what is required will vary.

And if I may just stop there. That, of course, has	since been shown to not be so, it is not exclusive
powers, it is a concurrent power, and I refer to
CARTER V EGG BOARD case there.

is a subject matter wholly within the domain of	the States and prima facie one in which they have
plenary power to make laws for the peace, order
and good government of the States and to bind
all persons within their respective territories.
The argument denying the power of the States to
affect Conunonwealth officers based upon some

GAUDRON J:	What effect then does section 190(4)(b) have?
MR WOINARSKI:	Your Honour, that only relates to a very

service tribunal to hear the identical	offence
in relation to identical circumstances.

get four weeks annual leave.	They get long service
leave.	They get superannuation and after four years

BRENNAN J:	How do you distinguish between the two for the purposes of power?
MR BERKELEY:	The point is, Your Honour, he can be dealt

to acts and	omissions taking place arising out of
service, or in relation to service land or service
personnel.	I am not a draftsman, Your Honour,

MR BALE:	I hand up the outline of my argument, may it please
the Court.
MASON CJ:	Yes.
'MR BALE:	May it please the Court, may I say at the outset that I wish to strictly limit my submission to the sustainability of section 190 on the basis of the
defence power of the Commonwealth and, that said,
it will be immediately apparent from the outline which is before you that much. of what I would have
intended to say has already been said and I
certainly will do my best not to retraverse that
ground.
With that in mind, may I be permitted to take Your Honours directly to point 3 in the outline of
argument and to state, for the purposes of emphasis, what is perhaps the obvious,which is that that
section - section 190 - seeks not to confer any
jurisdiction on any tribunal, service or otherwise,
but rather it seeks to exclude in given circumstances the jurisdiction of civil courts, State courts, to
try and punish offences against State laws over
which those courts would otherwise have jurisdiction.

question whether a law is one with respect	to be one with respect to marriage ..... The	to marriage is one of degree. The answer to
it depends on the closeness of the connexion
between the law and the marriage relationship.
The question in each case is whether the
connexion between the law and the marriage
relationship is sufficiently close to enable
it to be said that the law is in truth one with respect to the relationship. It is not
enough that the law incidentally touches upon
marriage, or that the Parliament has seized
on the fact of marriage as a justification
for the enactment of a law which really deals with some other topic.

in any way arise out of defence simply by applying
them to defence personnel.	We submit that

be tried under this Act.	They are my submissions,
if the Court pleases.

MR DOYLE:	No, it does not, Your Honour. ·
DEANE J:	- - -can it be said that a provision of two years imprisonment on the basis of immunity from punishment in the State courts can stand
when the innnunity from punishment in the State
courts falls? I mean, it is a completely
different operation of the section.
MR DOYLE:	Your Honour, this perhaps illustrates why it

is a useful article, The Trail of Discipline:	1966 - just a one page extract. Thirdly, there
The Historical Roots of Canadian Military Law,
(1985) Canadian Forces Judge Advocate General's Journal, volume 1, page 1. There is a very good
introduction as to the English military law
in that article. And, lastly, it may be
convenient to members of the Court if we hand
up a copy of the index and the precise which
is contained in the bound volume my learned
friend the Solicitor-General for Victoria handed
up in that it makes it easier for the Court then
to look things up in the volume with a separate
index sheet.