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

[1988] HCATrans 224

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IN THE H¾GH 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 THURSDAY, 6 OCTOBER 1988, AT 10.19AM

Copyright in the High Court of Australia

ClTl/1/AC 1 6/10/88

MR W.B. WOINARSKI 1 QC: May it please the Court, 1 appear

with my learned friend, MR D.H. DENTON, on behalf

of the prosecutor. (instructed by Cornwall Stodart)

MR G.F. GRIFFITH, QC, Solicitor-General for the Commonwealth:

If the Court please~ I appear with my learned

~-- friends, MR F.H. CALLAWAY, QC and MR S.J. GAGELER,

--- for the Commonwealth of Australia. (instructed

by Australian Government Solicitor).

MASON CJ:  Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases, the Commonwealth is

named as a respondent. It does seem to us that

that is perhaps not quite in conformity with

Order 55 rule 8 because we would contend that

prohibition could not run against the Commonwealth

itself and we are content, if the Court pleases,

to appear pursuant to rule 12 as a "person who

has been served" and in that way become a party

with an appearance on that basis.

but not a respondent to whom the writ may be directed. content

MASON CJ:  Yes, very well. By consent the Commonwealth

will be deleted as a respondent to the proceedings.

Yes, Mr Woinarski.

MR WOINARSKI: 

Perhaps I may hand up an outline of our

submissions to Your Honours. If Your Honours please
this is the return ofan order nisi for a writ

of prohibition against Major Tracey which was

granted by Your Honour Mr Justice Dawson on
15 August.

Very briefly, if I may, Major Tracey is

sitting as a Defence Force Magistrate hearing
charges against the prosecutor Desmond James Ryan

who is a Defence member of the Australian Regular

Army holding the rank of Staff Sergeant. On

22. April the prosecutor was charged with one

offence contrary to section 55(l)(b) of the

DEFENCE FORCE DISCIPLINE ACT which can simply be put as, falsification of a service document

and two offences against section 24(1) of the

same Act which is an offence of being absent

without leave and those offences appear at

page 16 of the application book. They are set

out at page 16 of the application book being

exhibited to the affidavit of the prosecutor.

(Continued on page 3)

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MR WOINARSKI (continuing):	On 13 May of this year the

hearing of the charges commenced before the

respondent Major Tracey who, as I say, was sitting as a Defence Force Magistrate. At that time objection was taken to the jurisdiction

of Major 'Iracey to hear and determine the charges

and, briefly, that argument was on the grounds
that Major 'Jrax:=ey was exercising the judicial

power of the Commonwealth and he was not

appointed in pursuance with Chapter · III of the

CONSTITUTION and, therefore, he was not able to

hear the charges.

Maj or '.Jracey adjourned to consider his decision

and on 30 May 1988 he ruled that he was entitled to

hear the charges and that he was not exercising the

judicial power of the Commonwealth. His reasons appear at page 18 to page 26 of the application book. In essence, those reasons are to the effect

that the offences that he was dealing with were

disciplinary offences and that the earlier decisions

of this Court in RV BEVAN; EX PARTE ELIAS AND

GORDON, (1942) 66 CLR 452 and a case which followed

BEVAN's case, again a decision of this Court in

RV COX; EX PARTE SMITH, (1945) 71 CLR 1, were to

the effect that a court martial was not exercising the judicial power of the Commonwealth and, as the

power that the Defence Force Magistrate has is

akin to the power of a court martial, he also was

not exercising the judicial power of the Commonwealth.

Accordingly, an application was made before

Justice Dawson on 15 August of this year -

MASON CJ: Well, we are familiar with the history of the

matter.

MR WOINARSKI:  - - - and I will not take it any further than

that.

Simply put, if I may, Your Honour, it is our submission that the respondent, in sitting as a

Defence Force Magistrate, is exercising the

judicial power of the Commonwealth and is not

appointed pursuant to Chapter III of the

CONSTITUTION, particularly section 72. We say

that on two basic grounds. Firstly, that the

DEFENCE FORCE DISCIPLINE ACT of 1982 from which

he derives his powers has effectively set up

a federal court which is a federal military

court and that in exercising the powers under

the DEFENCE FORCE DISCIPLINE ACT, persons who

do sit in that court, if I can put it that way,

are required to be appointed in accordance with

Chapter III of the CONSTITUTION.

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MR WOINARSKI (continuing): Alternatively, we say, even if

that is not the case, we say that traditionally,

historically, courts martial have always exercised

the iudicial power of the Commonwealth and that

that· can be seen from an historical analysis

of some of the old English cases, or looking

~-at some of the English cases and some of the

old English text~ and that the decisions that
are relied on of BEVAN and COX, we say, firstly

can be distinguished and that the statements

that are relied upon by Major Tracey in his decision,

those statements at the very best are obiter

dicta, that the decisions in those cases really

are no longer applicable because of the DEFENCE

FORCE DISCIPLINE ACT and, finally, if forced

to, we would be submitting to this Court. that

those decisions are wrong.

Alternatively, it is our submission, simply

on a question of statutory interpretation, that

by reason of section 80 of the CONSTITUTION and

section 42 of the ACTS INTERPRETATION ACT that

the offences with which the prosecutor has been

charged are indictable offences and must be heard

by indictment. And, of course, that is not happening.

There is no doubt that the Commonwealth,

in our submision, can create federal courts to

exercise the judicial power of the Commonwealth

and there does not seem to be any reason to take

the Court's time with that but the only thing we point to is that it is within the power of the Commonwealth under Chapter III of the

CONSTITUTION, particularly section 76(ii) of

the CONSTITUTION whereby:

The Parliament may make laws conferring

original jurisdiction on the High Court

in any matter -

(ii) Arising under any laws made by the

Parliament -

and then, by referring to section 77(i) of the

CONSTITUTION, with respect to any of the matters mentioned in the last two sections:

the Parliament may make laws -

(i) Defining the jurisdiction of any federal

court other than the High Court -

It is submitted that it is quite within power
of the Parliament to create in accordance with

section 71 of the CONSTITUTION a federal court

ClTJ/1/ND	4
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which, for simplistic terms at the moment we would

call the federal military court, and for that

court to exercise judicial power with respect

to a law made under Parliament, namely laws relating
to defence which, of course, Parliament has power
to make laws with respects to under section Sl(vi)

of the CONSTITUTION.

(Continued on page 6)

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MR WOINARSKI (continuing):	Now if I may take the Court

initially to the appointment of a Defence Force Magistrate and then take the Court through some of the powers and the procedures that a defence force magistrate has. And this requires us, if

Your Honours please, to turn to the DEFENCE FORCE

:-. DISCIPLINE ACT 1982, which came into force, I

- - think, on 3 July, but some ti.ma in July of 1985.

Section 179 of that Act provides that:

There shall be a Judge Advocate

General, who shall be appointed by

the Governor-General -

and he is to hold his office for a term:

not exceeding 7 years.

That is to be found in section 183(1). And the

qualification for the Judge Advocate General is

to be found in section 180(1) that he must have

been a justice or:

Judge of a federal court or of a

Supreme Court of a State or Territory.

We then move to what is known as the "judge

advocates' panel" and section 196 provides that:

There shall be a panel of officers

to be known as the judge advocates' panel.

And they are appointed pursuant to section 196(2):

A chief of staff may, by writing

signed by him, appoint officers nominated

by the Judge Advocate General to be

members of the judge advocates' panel.

(Continued on page 7 )

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MR WOINARSKI (continuing):  So that you have a situation

where the Judge Advocate General nominates officers

and they are then appointed by a chief of staff,
and subsection (3) sets out the qualifications for

a person who becomes a member of the judge advocates'

panel:

An officer is not eligible for appointment to the judge advocates' panel unless he

is enrolled as a legal practitioner and

has been so enrolled for not less
than 5 years.

The Judge Advocate General is then entitled to appoint people to be defence force magistrates, and that is to

be found in section 127 of the Act. Section 127(1)

provides that:

The Judge Advocate General may, by instrument

in writing, appoint officers to be

Defence Force magistrates -

and -

(2) An officer is not eligible to be a

Defence Force magistrate unless he is

a member of the judge advocates' panel.

So that it is quite clear, in our submission, that

if the respondent is exercising the judicial power of
the Commonwealth he has not been appointed in

accordance with Chapter III of the CONSTITUTION.

The jurisdiction and powers of the Defence Force

Magistrate are referred to in section 129(1) which

provides that:

A Defence Force magistrate has the same

jurisdiction and powers as a restricted

court martial (including the powers of

the judge advocate of a restricted

court martial).

If we then go to see what powers a court martial

has 0ne goes to section 114 and section 115.

Section 114(1) provides that:

A court martial shall be either a general

court martial or a restricted court martial. If one then goes to section 115(1) one sees the powers

of the combined term court martial, referring to both

general and restricted:

A court martial has, subject to section 63 -

and to subsection (l)(a) of this section -

jurisdiction to try any charge against any

person.

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So that the jurisdiction and power of a defence force magistrate is really the same as - - -

MASON CJ:  Where is that reference to subject to ( 1) (a) of th is section? Where do we find that?

MR WOINAASKI:  I am sorry. Yes, my learned friend

has just pointed out, that has been introduced, which says:

A court martial does not have jurisdiction to try a charge of a custodial offence -

and "a custodial offence" is now defined in section 3

and in simple terms I do not think that we really need

to worry the Court too much with this - a custodial

offence is one that is an offence that occurs while

a member of the armed forces is being detained for

some reason or other, perhaps as punishment, but

it is like a prison offence, if I may put it that

way, Your Honour.

MASON CJ:	Yes.
MR WOINARSKI:	Section 63 relates to the fact that the

Commonwealth Attorney-General's consent is required

for certain offences which are set out in

section 63(1)(a). In particular one can see

there that they require consent for:

treason, murder, manslaughter,

rape or bigamy.

(Continued on page 8)

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MR WOINARSKI (continuing):  So that in reality the jurisdiction

of the Defence Force Magistrate is no different

to that of the combined term "court martiial"

being both general and restricted. The real limitation

that comes on his powers, if I may put it that

way, is contained in Schedule 2 section 67 but

:- · more particularly Schedule 2 to_the Act which

-- has the effect of limiting by clause 2 of Schedule 2:

A restricted court martial or a Defence

Force magistrate shall not impose any of the following punishments:

(a)	imprisonment for life;
(b)	imprisonment for a period exceeding

6 months;

(c) detention for a period exceeding

6 months.

So that, in reality, a Defence Force magistrate's,

as with a restricted court martiai their powers of punishment are uestricted but otherwise they

have the same powers and jurisdiction of a general

court martial.

If I may now take the Court to some of the

particular sections.

BRENNAN J: Is section 61 the section which creates the

offences which are justiciable before - - -

MR WOINARSKI:  I am sorry, Your Honour. I just missed that

because of the noise that occurPed.

BRENNAN J: Is section 61 the section which creates what

are treated as offences for the purposes of this

Act justiciable before military tribunals?

MR WOINARSKI:  They are offences against this Act, Your Honour,

importing the law of the Australian Capital T~rritory

and they are additional offences justiciable before

military tribunals. There are a series of offences

set out in the Act commencing with Part III

Division 1, section 15 and if one then runs through

the various sections from section 15 through to

section 60 there are various offences created

and then there is, if I may put it, a catch-all

section in section 61 which incorporates, or imports,

into the DEFENCE FORCE DISCIPLINE ACT the law of the Australian Capital Territory and makes those matters offences against this Act. And,

in our submission, if there is any doubt about

that it becomes perfectly clear from the fact
that section 61(2) talks clearly about what the.

punishment_for an offence again~t subsection ~l)

ClT6/l/AC	9
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is, so that it is quite clear, in our submission,

that section 61 has imported various laws of the

Australian Capital Territory into the

DEFENCE FORCE DISCIPLINE ACT series of offences.

BRENNAN J:  So that, am I right in thinking that there are

-~~-some offences which are specifically created as

military offences and other offences which become

justiciable by reason of the fact that they are

civil offences committed by a person who is within

military discipline?

MR WOINARSKI:  Yes, Your Honour. So that the totality of

the jurisdiction of a court martial or, in the
particular case we are concerned with, a Defence

Force magistrate includes all the offences created

by sections 15 through to 60 and all the offences

introduced, or imported, by section 61. Section 61

clearly says that a person being a Defence member

is guilty of an offence. So it clearly imports

the law of the Australian Capital Territory into

the Act with respect only to a Defence member

and a Defence member is defined in section 3 of

the Act.

(Continued on page 11)

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Ryan
MR WOINARSKI (continuing):	But the main purpose, really,

is, for our purposes, if I may say at this stage,

a defence member means a member of the permanent

naval forces or the Australian regular army, the

regular army supplement or the permanent air force

.::-. · and it then goes on to include people who are in

the emergency or reserve forces who are serving at

the time the conduct is alleged to have occurred.

BRENNAN J:  I will not delay you any further except to ask

you this: is it right to say that sections 15 to
60 create specific offences which are military

offences and section 61 exposes members of the

defence force and defence civilians to a jurisdiction

with respect to civil offences which is a military

jurisdiction alternative to or cumulative upon their

liability to the jurisdiction of the civil courts?

MR WOINARSKI:  Your Honour, in answer to that we would say

that we would go along with that to a degree but

that it is not as simple as saying, with respect,

that the offences created by sections 15 through

to 60 are specific military offences. We would

say they are offences, just normal offences, but

which have perhaps had added to them a particular

flavour, namely, the flavour of having occurred
in relation to military service or having occurred

because the person is a member of the defence force.

For example, if one looks at section 59, one has an

offence relating to selling or dealing or trafficking

in narcotic goods which is clearly an offence against

the normal laws of Australia be they State or

Corm:nonwealth, but the particular flavour is added

to it, if I may put it that way, Your Honour, by

inclusion of the words "A person, being a defence

member" so that the offence is -

BRENNAN J: And "while outside Australia".

MR WOINARSKI:	And "while outside Australia", yes, Yonr Honour, where one has the-offence of assaulting a superior
officer.

TOOHEY J: Well, Mr Woinarski, if you look at section 47

which is, as far as I can see, tjle straightforward offence

of stealing and receiving with no connection except

the obvious one that the person charged must be a

defence member or a defence civilian.

MR WOINARSKI:  Ye~, Your Honour. I was going to come to some

of the others and I am very grateful to Your Honour
for taking me straight to it but the one above it,
for example, also, section 46 "Possession of

property suspected of having been unlawfully

obtained", I am sure we are all familiar with

people who have been charged with unlawful

ClT7/l/SH	11	6/10/88
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possession of property suspected of being stolen
or whatever the relevant charge is in the particular

State but, again, the flavour is added to it for the

purposes of this Act by the person being a defence

member and, indeed, there are - section 40 relates

:-_· to a defence member driving a service vehicle whilst

under the influence of intoxicating liquor and

there are, as we say, many offences which are akin to ordinary offences in the ordinary civil law but

which simply are put in a slightly different

category if one can put it that way, by the additions

of the word that the person who does it is a defence

member. So that, in our submission, it is not

simply a matter of saying that the first sets of

sections set up specific offences. What they

really do is acknowledge various matters that

are generally - in quite a number of instances -

commonly against civil law but add the additional

condition, so far as jurisdiction is concerned,

that the person must be a defence member for the

provisions of this Act to apply.

MASON CJ: But I take it some of them, at least, are specific

military offences - - -

MR WOINARSKI:  Some, Your Honour, undoubtedly - - -

MASON CJ: - - - that do not have a.parallel in the civil law.

MR WOINARSKI:  Undoubtedly, Your Honour, some offences would

fall into that category and, indeed, one would have
to concede that two of the offences which the

prosecutor has been charged with could fall into

that very same category that Your Honour is talking

about, namely, being absent without leave.

MASON CJ: Yes.

(Continued on page 13)

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MR WOINARSKI:  We do not hide from that but

we say there is a simply answer to that and

perhaps if we may come to that later on in

discussion. What I was going to do was to take

the Court to some specific provisions that we

wish to draw to the Court's attention and

=~the Court should see from the outline in

-- paragraph 3 on page 2 ·that we have set out various

sections, under a number of subheadings, and

opposite each of the sections very briefly

dealt with the provision that is contained therein.

But there are one or two which we wish to draw a little bit more attention to so far as the

Court is concerned. And if I may take the

Court to section 3(15) and just draw the Court's

attention to it at this stage:

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.

Now that simply means that for some of the other

Commonwealth Acts an offence against the

DEFENCE FORCE DISCIPLINE ACT is still an offence

against the law of the Commonwealth. And if I

can just put it this way: one could therefore

be charged,pursuant to section 86 of the

COMMONWEALTH CRIMES ACT, with conspiring to

commit an offence against a law of the Commonwealth,

that law of the Commonwealth to be found in the

DEFENCE FORCE DISCIPLINE ACT. Subsection (18) which was introduced again by Act No 164 of 1984

section 24~ that is the amendment Act. That

provides that:

The provisions of this Act -

it is found on page 16 if you have the amending

Acts, Your Honours.

MASON CJ:	Yes, half-way down page 16.
MR WOINARSKI:	Yes:

The provisions of this Act in so

far as they protect the individual are

in addition to, and not in derogation

of, any rights and freedoms of the

individual, whether under the law of

the Commonwealth or of a State or

ClT8/l/SR	13
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Territory, and this Act is not

intended to exclude or limit the
operation of any law of the Commonwealth
or of a State or Territory providing

for those rights and freedoms in so

far as it is capable of operating

concurrently with this Act.

Now it is a section which we say is one which

provides protection for the individual, particularly

the defence member individual and that if there

is any ambiguity that can result at the end of

the day, so far as this argument is concerned, it

would be our submission that that really would mean,

perhaps in accordance with any criminal or quasi
criminal ambiguity, that it should be resolved in
favour of the person who gets affected by the

adverse result and resolved in our favour. But

there may be some other reasons for coming back

to that section also.

Then if we run down the list, the Court will

see that section 10 provides that:

the principles of the common law with

respect to criminal liability apply

in relation to service offences.

And just very briefly, if I may, because I have

omitted to take the Court to what a service offence

is , but a service offence means "an offence against' -

it is in section 3(1). A 'service offence means
an offence against this Act or regulations." It is
also wider than that. It includes ancillary

offences and some other offences, but for our

purposes, the important thing is that it is"an

offence against this Act or the regulations."

(Continued on page 15)

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MR WOINARSKI (continuing):	So that section 10 applies the

principles of common law with respect to criminal

liability for service offences. Section 12 sets

out the onus and standard of proof being on the

prosecution and beyond reasonable doubt and
subsection (2), that were there is an onus of

--· proving a defence then it is on the balance of

probabilities - again, the same as in ordinary

criminal proceedings.

Section 53 provides for contempt of a service tribunal which a Defence Force magistrate is

and, if we could just point out here, section 53

relates to a defence member so that there is

a specific provision for contempt relating to

a defence member. There is, also, another provision

relating to contempt which I should just very
briefly refer the Court to and that is contained

in what is now section 69 of the DEFENCE ACT 1903.

And I apologize to the Court for this - I am

sorry, Your Honours, there is another provision

relating to contempt and I just cannot put my

hands on the exact Act but it is contained in

section 89 and it is of very similar forms to
section 53(3) but it relates to just a person

and it is in what is now section 89 of the DEFENCE

ACT - I will have that checked out and the exact

section which introduced it brought to the Court's

attention.

MASON CJ:	What court or tribunal has jurisdiction with
respect to the contempts that are mentioned in
section 53(1), (2) and (3)?
MR WOINARSKI:	Your Honour, that would be a service tribunal

which would be a court martial of either general

or restricted or a Defence Force magistrate because

it is an offence against this Act.

Section 193 provides for the immunity of

members of service tribunals and people appearing

before them -

DEANE J: Mr Woinarski, while you are on those sections, is

section 190(4)(b) as wide as it appears at first

sight or is there something that cuts it down?

MR WOINARSKI:  I am sorry, Your Honour, I missed the

section.

DEANE J: 190(4)(b).

MR WOINARSKI: 190(4)(b), I was going to come to that section

later, Your Honour.

DEANE J: Well, do it 1n your own way.

Cl T9 /1 /ND	15
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MR WOINARSKI:  Section 190 - there is a section - - -

DEANE J: If you are coming to it, put it to one side.

MR WOINARSKI:  I am coming to it later, Your Honour, if

I may. Some time, I fear, though. Section 193,

~: - as I said, provides immunity for those persons

appearing before service tribunals and then,
in general terms, Part X provides for execution

and enforcement of punishments and orders.

(Continued on page 17)

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MR WOINARSKI (continuing): If one then turns - it is fairly

general and I will not take the Court's time with it

too much, but the one section I would refer the

Court to at this stage is section 174. Just briefly,

if one looks at section 174(l)(b):

Any fine imposed on a person under this Act

or the DEFENCE FORCE DISCIPLINE APPEALS ACT 1955

may be -

(a) ..... recovered by action in a civil court

of competent jurisdiction as a debt due to the

Corrnnonwealth.

So there is a general ability to recover fines as a

debt due to the Corrnnonwealth in a civil court. Now,

one then turns to the procedure which is set out in

Part VIII Division 2 and one goes to section 135

which sets out the procedure for trial by a Defence

Force magistrate, one can see that it is very similar,

if not identical, to a normal criminal court hearing.
He is asked how he pleads, whether he pleads guilty and
the normal procedure follows through and, indeed,

the rules or the regulations that have been made -

Defence Force discipline rules that have been made

under the Act actually also have some provisions

relating to this in that they set that there is to

be opening addresses on behalf - an opening address

on behalf of the prosecution, the leading of evidence,

then the defence counsel has the opportunity to make

an opening address. The accused person has the right

to give evidence either on oath or not on oath and

to make an unsworn statement and there are provisions

for the closing address by both counsel. So that again

one sees something which is absolutely similar to a

criminal proceeding in a civil court. Section 136

0rovides that persons who:

represent a party before a court martial

or a Defence Force magistrate -

must be legal practitioners.

MASON CJ: Or a member of the Defence Force.

MR WOINARSKI:  Or a member of the Defence Force. It certainly

makes provisions for legal practioners.

MASON CJ:	Oh yes.
MR WOINARSKI:	Section 138 permits evidence to be taken on oath

or affirmation. We understand that the practice has

always been for it to be on oath. It reads 138 twice.

The second 138 should really be 139.	The hearing is
to be:

in the presence of the accused person.

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Section 140 provides that the hearings are to be public.

Section 145A is perhaps an interesting sign of how

these courts are to be regarded, or these bodies are to

be regarded in that they introduce provisions relating to

a notice of alibi which are really identical to the

____ provisions one sees in criminal statutes in Australia.

(continued on page 19)

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MR WOINARSKI (continuing): Section 146 provides for:

the rules of evidence in force in the

Australian Capital Territory apply in
relation to proceedings before a service

tribunal as if the tribunal were a court

of that Territory and as if those proceedings

were criminal proceedings in a court of

that Territory.

And section 148 provides that a record of the

proceedings are to be kept.

DAWSON J:  Mr Woinarski, how is a prosecution launched and

a court convened?

MR WOINARSKI:  Your Honour, there are a number of ways that

can come about but briefly what happens, Your Honour,

is that a matter on investigation can be referred

to a commanding officer who can himself decide
to deal with the matter if he desires or refer

it to a convening authority and then the convening

authority then decides which way it goes. Now, perhaps, if I can just in relation to that take the Court initially to section 107.

DAWSON J: If you are going to deal with this later on then

do not let me take you out of your course.

MR WOINARSKI: It is probably just as convenient to do it

at this stage, Your Honour. Section 107 permits:

A commanding officer ..... to deal with any charge against any person -

and then sets out certain limitations on it so

far as rank is concerned. When a matter comes

before a commanding officer under section 110

the commanding officer has a number of alternatives

which he can do. Section 110 permits him, if it

is within his jurisdiction to make a decision to "try the charge" - that is (a). If it is:	not within his jurisdiction ..... and he is
of the opinion that there is insufficient evidence to support the charge - direct
that the charge be not proceeded with.

If it is within the jurisdiction of "a superior

summary authority" and a superior summary authority

is a general or a restricted court martial or

a Defence Force magistrate as defined in the

section. A superior summary authority is a person

appointed under section 105(1) - but he may refer

it to a superior summary authority.

ClTll/1/AC	19
Ryan

(d) refer the charge to a convening

authority; or

for the "interests of justice" have it "dealt

with by another commanding officer". Now, if
he refers the charge to a convening authority,

-~-the convening authority has various powers given

to it under section 103 of the Act and one can
see from subsection (1) that the convening authority

may:

(a) direct that the charge be not proceeded
with;

(b) ..... refer the charge to the superior

summary authority or the commanding officer

for trial;

(c) refer the charge to a Defence Force

magistrate for trial, or

(d) convene a general court martial or

a restricted court martial to try the charge.

(Continued on page 21)

ClTll/2/AC	20
Ryan
MR WOINARSKI (continuing):	So that the charge basically

comes before a cotmnanding officer. He, then,
makes a decision and it may be referred to a

convening authority and if it is referred to

a convening authority, the convening authority

then decides whether or not it should go before

a Defence Force magistrate or one of the two
forms of court martial.

DAWSON J: And the convening authority then goes out of existence. That was why the Cotmnonwealth was added in the first instance, here.

MR WOINARSKI:  Yes, Your Honour, and can I just - - -

DAWSON J: Although it does not matter now, the Commonwealth

is here so - - -

MR WOINARSKI:  I should say this, Your Honour: subsequent

to Your Honour having added the Connnonwealth and
for very good reasons, I found that I had omitted

a section which I was just going to draw to the

Court's attention. I was not aware of it,

Your Honour, and I apologize for that stage at the time we made the application before you, but section 129A which was introduced by the DEFENCE

LEGISLATION AMENDMENT ACT of 1984, that is, the

amending Act 164 of 1984 - if the members of the

Court have that, if they were to go to page 53.

GAUDRON J: What section of the amending Act?

MR WOINARSKI: Section 55, Your Honour.

GAUDRON J:	Thank you.
MR WOINARSKI:	I am sorry, Your Honour, I did not realize

Your Honour had a bound volume. It is section 55

of the amending Act which introduces section 129A

into the Act and that provides that:

Where a case has been referred to a	Defence Force magistrate under
section 103 -

WILSON J: Page 53?

MR WOINARSKI:  Page 53 of the amending Act, yes, Your Honour.

That:

Where a case has been referred to a

Defence Force magistrate under -

by the convening authority and:

ClT12/l/SH	21	6/10/88
Ryan

It appears to a convening authority -

(i) at a time before the Defence Force

magistrate connnences to try the charge
or hear the case, that by reason of the
exigencies of service, or for any other

reason, it is desirable to do so;

And this is perhaps the most ~mportant part,

Your Honour Mr Justice Dawson -

(ii) at a time after the Defence Force

magistrate connnences to try the charge or hear the case, that it would not be

Defence Force magistrate to continue,	in the interests of justice for the
the convening authority shall terminate the reference.

So, it does appear that the convening authority

still has an interest in the matter once it is

referred to the Defence Force magistrate.

DAWSON J: Well, who is on the other side of the record to

the accused?

MR WOINARSKI:  As I understand it, the charges are preferred

by somebody but to technically say that there is

anyone on the record other than the Connnonwealth

or the general body of the particular armed force

concerned representing - - -

DAWSON J: Well, is ~t the Crown?

MR WOINARSKI:  The Crown, it would seem to me, must be the

answer. It must be the Crown.

DAWSON J: Does that appear anywhere?

MR WOINARSKI:  They do not appear but there is somebody there to prosecute the matter so far as counsel is

concerned. I must say, Your Honour, that it is

something that I have some difficulties grasping

exactly who is the other side but it appears to

be the Army, if I may put it that way or the

particular defence force that is concerned.

DAWSON J: Well, that may be of some significance, may it not?

MR WOINARSKI:  I realize that, Your Honour, but certainly there

is a party which is the convening authority which

can bring these matters before a Defence FJrce
magistrate or a court martial and can call for them

to be heard and determined and that any fine, for

example, that is payable is recoverable to the

Connnonwealth as a civil debt and that if

ClT12/2/SH 22 6/10/88

Ryan (Continued on page 22A)

imprisonment is awarded, then the person is
imprisoned in a prison, pursuant to the

COMMONWEALTH PRISONERS ACT.

DEANE J:	But you are sounding very convincing as to why
the Cormnonwealth should be a respondent. I
thought you agreed to it disappearing as a respondent for reasons which esca9ed me at the time I must confess.

(Continued on page 23)

ClT12/3/SH	22A	6/10/88
Ryan

MR WOINARSKI:  Well, Your Honour, to be honest, the reason -

it seemed to me at the time that it is not - I could
be very wrong about this, and forgive me if I am

wrong - it did not seem to me at the time to be of

great import, given what the Solicitor was saying.

MASON Gr:- And there is this to be said, too, that if the end

result that you are seeking is to invalidate a

statute of the Commonwealth, it seems appropriate

the Commonwealth ought to be a party.

MR WOINARSKI:	Yes, Your Honour, I follow that.
DEANE J:	Are you going to ask for an order against the

magistrate personally for your costs at the end of

the story?

MR WOINARSKI:  Your Honour, I had not thought about that. I

must be quite honest about it, and I apologize for that.

Perhaps that is a matter that I could have some

discussion with my learned friend about, if the

occasion arises. It is something that - - -

MASON CJ; It may be that you ought to seek to reinstate

the Commonwealth as a respondent, as it originally was.

MR WOINARSKI:	Yes, it may well - - -
DAWSON J:	Have you finished what you want to say about

that?

MR WOINARSKI:	Yes, I have, Your Honour.
DAWSON J:	Just one further question ar1s1ng out of what you said. When a person is in prison pursuant to
an order of one of the tribunals here, is it in
a military prison or in a civil prison, or can it be both?
MR WOINARSKI:	It is in a civil prison, Your Honour.

DAWSON J:	Always?
MR WOINARSKI:	Yes.	It is in a civil prison under

section 72.	It is one of the sections that
I think we have referred the Court to.	Section 72
provides that:

The COMMONWEALTH PRISONERS ACT 1967

(other than sub-section 4(3)) applies

in relation to a service tribunal that

imposes a punishment of imprisonment for

a specific period on a convicted person

as if -

(a) the service tribunal were a court of,

and the person was convicted in, the

Australian Capital Territory -

ClT13/1/HS	23
Ryan

And, as I understand it, what follows is that he

is imprisoned in a civil prison.

DAWSON J:	There are no military prisons any longer?
MR WOINARSKI:	I am told that there is a military correction

· establishment at Holdsworthy where persons who are

sentenced to a term of detention are detained, but
that is not what happens to people who are sentenced

to imprisonment.

WILSON J:  What if this defence member is at sea on a naval

ship?

MR WOINARSKI:  Your Honour, I assume, without having checked

it out, that they would be put in irons and kept

wherever people who are put in irons are kept, and

eventually they would be placed in a prison.

WILSON·J:	Yes. Anyway, I am only being distracting.
MR WOINARSKI:	Certainly what happened many centuries ago

apparently does not happen. One of the references

we found indicated that if you were convicted of

murder on one of His Majesty's ships back many

centuries ago, having been convicted of murder you

were then tied to the body of the person you had

killed and you were thrown overboard, but it seems

that justice has improved slightly since then.

DEANE J:	That is a bit unfair for the person you killed, is not it?
WILSON J:	Both either go to heaven.
MR WOINARSKI:	But as I understand it, Your Honour, that is

what would happen, but I really am just saying that is what seems to me would have to happen. I think we had finished procedure and I have

actually just got on to sentencing. Section 70

sets out various sentencing principles, and we will

not bother taking the Court through them, but we

would say this, that they are the sort of principles

that one would expect a civil court to apply in

sentencing any person.	They are quite clearly very
similar to a civil court.

(Continued on page 25)

C1Tl3/2/HS	24	6/10/88
Ryan

MR WOINARSKI (continuing): Section 72, we have dealt with

so far as imprisonment is concerned in a civil

prison. Section 77 makes a provision very similar

to that found in some jurisdictions, certainly

in Victoria and, I believe, some of the other States

so far as criminal proceedings are concerned, t~at a

__ . court is entitled to take into account other offences, although they have not actually been

on the presentment or on the charge sheet and

convictions have not been recorded as such.

Sections 83 and 84 make provision for

restitution and reparation so far as convicted

persons are concerned. Section 61, we have already

dealt with - that discussion I had with

Justice Brennan earlier, where it imports the law of the Australian Capital Territory. And

section 189, which we just draw the Court's

attention to provides that:

Nothing in this Act limits or affects the

royal prerogative of mercy.

We submit that the meaning of judicial power
of the Commonwealth - it is quite clearly not
defined anywhere in the CONSTITUTION and the

elements of that power have been considered in

many cases as I am sure this Court is well aware.

And it is our submission that those cases establish that the following attributes, at least, are indicative

of an exercise of the judicial power of the Ccmnonwealth:

a power to decide a controversy or dispute between

the Crown and subject; a power to give a binding

decision, whether subject to appeal or not; a
decision based on existing law~ a right to have

evidence heard on oath; the fact that the body

concerned.is bound by rules of evidence; a right

of appeal; the fact that the decisions of the

body are enforceable but not necessarily by the
body exercising the judicial power; a power to

impose penalties; the availability of punishment

for contempt; the immunity of those participating

in ~he·proceedings and the fact fines are recoverable

at law in hearings before a Defence Force -

the fact that the fines are recoverable. And

I think I omitted, in reading those, to read

out a power to convict for offences.

Whilst my mind is refreshed about this matter

of contempt, section 89 of the DEFENCE ACT,

which provides for contempt of service tribunals, was introduced by Act No 153 of 1982 and it is an Act called THE DEFENCE FORCE (MISCELLANEOUS

PROVISIONS) ACT of 1982. And Act No 153, as

the Court will probably see very quickly, is the Act that immediately follows the DEFENCE

FORCE DISCIPLINE ACT. And that simply provides

ClT14/l/ND	25
Ryan

that any person can be guilty of an offence

before a service tribunal:

A person shall not -

(a) insult a member of a court martial,

a judge advocate, a Defence Force magistrate

or a summary authority in or in relation

to the exercise of his powers or functions

as such a member, judge advocate, magistrate

or authority, as the case may be;

(b) interrupt the proceedings of a service

tribunal;

(c) create a disturbance -

and the penalty for that is -

$1,000 or imprisonment for 6 months.

(Continued on page 27)

ClT14/2/ND	26
Ryan

MR WOINARSKI (continuing): It would seem, although I must

say I have not followed this right through, that

such an offence would be triable before a civil

court not a service court. Now so far as the

meaning of judicial power is concerned we are

desirous of taking the Court to some of those

__ authorities and if we may commence with those

---·well-known words of Chief Justice Griffith in

HUDDART, PARKER & CO PTY LTD V MOOREHEAD, which

is reported - - -

MASON CJ:  Mr Woinarski, is it necessary to take us to ~hese

cases. I should have thought, for my part at

any rate, that but for the military character

of these tribunals or the defence character of

them and perhaps a view of history in relation to

the function that they perform, that the function
itself would answer any acceptable definition of

the exercise of judicial power?

MR WOINARSKI:  Your Honour, if that is the view of the Court

I am only too willing to save the Court's time.

MASON CJ: Perhaps we ought to ask the Solicitor what his

response to that comment on my part is?

MR GRIFFITH:  We are substantially in agreement with it,

Your Honour.

MASON CJ:	Very well.
MR GRIFFITH:	We would point out, Your Honour, that

Mr Justice Aickin has said that you can have all

this indicia and you still do not have judicial

power. But that is another question - - -

MASON CJ: That is another question.

MR GRIFFITH:	But the fact to refer to Your Honour, are those to which we refer to as being decisive here.
MR WOINARSKI:	Your Honours, if that is the view of the Court,

as it seems to be, we are quite willing to save

the Court's time and not go through all the

authorities. They are set out in our outline of

submission and if - - -

MASON CJ:  I think you can proceed on that footing,

Mr Woinarski and if there is any matter that, as it were, is residual after you have heard the

Solicitor-General's response, then you can refer to these authorities in reply to the extent that that may be necessary.

MR WOINARSKI: Certainly, can we just say this, Your Honour,

without referring to any particular authority.

ClTlS/1/SR	27
Ryan

We say that one definite thing that is picked up in these authorities is that the power that is

being exercised when one convicts people of offences,
particularly criminal or quasi criminal offences,

is virtually always - we would say virtually without

exception, referred to and accepted as being an

__ exercise of the judicial power. Now, Your Honour -

BRENNAN J:	When you say, "the judicial power" you mean - - -
MR WOINARSKI:	As exercise of judicial power and we would

say that it follows from that, in this case,

that it must be the judicial power of the

Corrnnonwealth. Now if we can just move on

then. The Court, of course, has the authorities

there and they are well aware of what we are

referring to. We then move to paragraph 5 of the

outline. The DEFENCE FORCE DISCIPLINE ACT is

different in form and effect to the DEFENCE ACT of

1903. Under the DEFENCE ACT of 1903 the

ARMY ACT 1881 (UNITED KINGDOM) applied in times of

war and during service overseas and that is to be

seen from sections 54 and section 55 of the

DEFENCE ACT 1903.

(Continued on page 29)

ClT15/2/SR	28
Ryan
MR WOINARSKI (continuing):	I will not bother taking the Court

to it unless it is desirous to see it, but that is

what the provisions set out. That Act also provided

that regulations could be - when I say "that Act,"

I am talking about the DEFENCE ACT of 1903 - provided

that there could be regulations made under the Act

___.:.::-:··and, pursuant to that power, what were known as the

Australian Military Regulation and Orders, commonly

known as the AMR and Os, applied to army personnel

in Australia in times of peace. The DEFENCE ACT

also created offences under Part VII, and if I may
just take the Court to Part VII of the DEFENCE ACT 1903 -
yes, I actually have the 1973 consolidation, but most

of the sections are fairly old. Section 73, for example,

made it an offence a member of the Defence Force to:

claim pay on account of any drill with his

corps for any man belonging to any corps; or -

to claim -

pay for any member of the Defence Force not

present.

Section 73A related to unlawfully giving or obtaining information as to defences and one will see that there

is a similar provision to that now in the DEFENCE FORCE

DISCIPLINE ACT. Section 73 related to "falsifying

and forging parade states, orders." 73C related to

"supplying inferior food or materials and equipment."

73D related to a contractor having in his possession

things that he should not have, and then section 73E

related to bodies corporate. Section 73F then stated

that:

An offence under any of the six last preceding
sections may be prosecuted either summarily

or upon indictment -

and then set out offence punishment provisions.

Section 102 of the DEFENCE ACT permitted such an offence if committed by- a Defence member to:

be tried and punished either by court-martial

or by a civil Court.

Section 110·, which we also draw attention to,

provided that:

(continued on page 30)

ClT16/l/VH	29
Ryan
MR WOINARSKI (continuing):

A civil prosecution for an offence

against -

the DEFENCE ACT -

or the Regulations -

made under it was able to

be brought in any court of summary

jurisdiction.

And then set out who the prosecutor was to be

in the case of a - or how the'prosectuion was

to be commenced in the case of a civil prosecution.

Now the effect of all that is very interesting,

in our submission, even under the provisions of the

DEFENCE ACT because you have the ability for offences under the Australian Military Regulation and Orders

being able to be heard either before a court martial or a court of summary jurisdiction, a civil court of

summary jurisdiction,and you also have various

offences created by the DEFENCE ACT which similarly

can be heard before a civil court, either on

indictment or summarily, or could be heard before a

court martial.

Now, clearly, the offences, whether they be

against the regulations or against the Act, must be

offences against a law of the Commonwealth and, so

far as the civil courts were concerned, then there

must have been an investing of those civil courts

with federal jurisdiction an ability to exercise

the judicial power of the Commonwealth.

If one then. looks at the power that in those

days was being exercised by a court martial, one,

in our submission, comes to the inevitable conclusion

power of the Commonwealth, then, with respect to the that, if a civil court must be exercising the judicial	same offences, a court martial must also be exercising
the same power and that must be, we submit, the
judicial power of the Commonwealth. So that, in
our submission, looking at the DEFENCE ACT of 1903
is an indication that even - when that Act was
introduced, a court martial in this country was exercising the judicial power of the Commonwealth.
Now, the situation has changed to some degree. All offences are now contained in the DEFENCE FORCE
DISCIPLINE ACT either as those specific offences
sections 15 to 60, I think it is, or the imported offences pursuant to section 61 importing the

C1Tl7/l/SH	30	6/10/88
Ryan

Australian Capital Territory law into the

Act.

A civil court, though, still has a power

to hear some offences and if I may now take the Court to section 190 of the DEFENCE FORCE

DISCIPLINE ACT which I think Your Honour

Justice Deane raised with me before. Section 190

cormnences in subsection (1) by stating that:

Subject to the CONSTITUTION, a civil court of a service offence. does not have jurisdiction to try a charge

One irmnediately wonders what the words "subject

to the CONSTITUTION" may be referring to and, in

our submission, that is a very simple answer.

(Continued on page 32)

ClT17/2/SH	31	6/10/88
Ryan

MR WOINARSKI (continuing): Our submission is that the

words "subject to the CONSTITUTION" refer

specifically to section 80 of the CONSTITUTION

and the fact that a trial on indictment is to

be before a jury. But, anyhow:

Subject to the CONSTITUTION, a civil court does not have jurisdiction to try a charge of a service offence -

and a service offence, of course, is an offence

against this Act. Then subsection (2) says - - -

DAWSON J:	Does section 190(1) apply in this case?
MR WOINARSKI:	Well, it may, Your Honour, depending on the

second part of our argument so far as a trial by

jury is concerned.

DAWSON J: Yes. Will you come to that?

MR WOINARSKI:  Yes. Your Honours will see that that is

the final paragraph in our outline but putting

that aside I was going to come back to that, yes,

Your Honour.

BRENNAN J: I do not quite follow your reference to "subject

to the CONSTITUTION", subsection (1).

MR WOINARSKI:  I am saying that section 190(1) says, "subject

to the CONSTITUTION", and we say that would, in our submission, be a reference to section 80 of the CONSTITUTION that trial on indictment is to

be before a jury.

BRENNAN J:  What would that have to do with the following

words of subsection (1) which is a denial of

jurisdiction?

MR WOINARSKI:  Your Honour, as the Act is presently set

up with defence tribunals the thing most akin

to a judge and jury would be a court martial but

it is different to what is commonly accepted as

being a trial by judge and jury.

DAWSON J:  And it is not on indictment either.

MR WOINARSKI:  Yes. I follow that Your Honour. It depends

whether it is on indictment or not. That would,

of course, get back to the offences which requires

the Attorney-General's consent for them to be

heard by a service tribunal - those offences of

rape, bigamy, murder.

II 1 •

BRENNAN J: But does it? If, for example, those words to the CONSITUTION 1 , refer not to section 80 suo 1 ect

ClT18/l/AC	32
Ryan

but to some other provision, then the denial of

jurisdiction to civil courts is qualified in

some way that one must discover from the CONSTITUTION.

MR WOINARSKI:	Yes, Your Honour.
BRENNA_N~J-:	Does one need to bother about that at all? I do not know. And is it a case of, are proceedings
for a service offence proceedings to which the
Commonwealth is a party, for example?
MR WOINARSKI:	I must say, Your Honour, I just need to consider

that in my own mind for a little bit because

section 190 then goes on to qualify itself and

does not completely exclude civil courts. Perhaps,

if I may just move on and just contemplate that

whilst I am addressing the Court.

Subsection (2) then provides that:

Subject to sub-sections (3), (4) and (5),

the jurisdiction of a civil court to try

a charge for a civil court offence is not

affected by this Act.

(Continued on page 34)

ClT18/2/AC	33
Ryan

MR WOINARSKI (continuing): Subsection (3) relates to a

Defence Force magistrate having taken into account

an offence:

the person is not liable to be tried by

a civil court for a civil court offence

that is substantially the same offence.

Subsection (4) provides that:

A civil court does not have jurisdiction

to try a charge of a civil court offence

that -

(a) is an ancillary offence in relation

to an offence against this Act (other than

sub-section 61(1) or the regulations; and

(b) was committed by a person at a time

when he was a defence member or a defence

civilian.

And subsection(S)relates to:

Where a person has been acquitted or convicted -

it is a plea in bar.

An ancillary offence is defined in section 3(13)

and an ancillary offence is one:

is an ancillary offence in relation to

another offence if the first-mentioned offence

is an offence against -

(a) section 6, 7 or 7A of the CRIMES ACT

1914; or

(b) sub-section 86(1) of that Act by virtue

of paragraph (a) of that sub-section -

Sections 6, 7 and 7A of the CRIMES ACT relate

to inciting, conspiring and that type of behaviour

and section 86(1) of the Commonwealth CRIMES

ACT relates to conspiring to breach a law of the Commonwealth.

So that one could have a situation where

a defence member was charged with conspiring

to breach a law of the Commonwealth and it would
seem from subsection (4) that that person could

not be tried before a civil court because of

subsection (4) and one could have his co-conspirator

not being a defence member who would be tried

before a civil court for the same offence. In
our submission the same power - it is the same

concept that is being exercised in both situations.

C1Tl9/l/ND	34
Ryan

They are both a conspiracy against the law of

the Commonwealth; one is heard by a civil court

for the civilian and the other is heard by a

military or a service tribunal for the serviceman.

In our submission, it must, -in reality be that

exactly the same power is being exercised and

that is the judicial power and it must be the

judicial power of the Commonwealth.

Even if that is wrong, what we say is this,

that the analysis that we have taken the Court

through so far as the old DEFENCE ACT is concerned

clearly showed that both civilians and - that

army personnel or force personnel could be tried

either under courts martial or under civil law

for offences against that Act and for the regulations

and, as we have already submitted, it must be

the same power that is being exercised in that

case.

The difference that has occurred, ·we would

submit, so far as the DEFENCE FORCE DISCIPLINE

ACT is concerned, is that the right of civilian

courts has been limited to some greater degree

than previously existed and that has come about

because Parliament has intended to create another

federal court which, as I have said earlier, we

will simply describe as a military court and

that it has therefore tried to limit or rule out

some of the powers of civil courts to hear and

determine matters under the DEFENCE FORCE

DISCIPLINE ACT.

(Continued on page 36)

ClT19/2/ND	35
Ryan
MR WOINARSKI (continuing):	ff we ilien move on to the next

proposition, it has been suggested in the -

DEANE J:  Should you not also be directing attention to

subsection (5)?

MR WOINAASKI:	Of section 190, Your Honour?
DEANE J:	Yes.
MR WOINARSKI:	Your Honour, I am grateful to you for that.

Yes, it clearly provides a plea in bar for a person if he has been tried before either a civil

court or a service tribunal from being presented

again for the same or similar offence in the opposing

jurisdiction, if I may put it that way.

DEANE J:  Can I ask you this, what if a serviceman on leave

and on holidays in Surfers Paradise kills his wife

in bed in a hotel? Under this Act can he be tried

before a magistrate and sentenced to imprisonment

for five months?

MR WOINARSKI:  As I understand it, Your Honour, a defence

member is on duty all the time and, therefore, this

Act would apply to him all the time.

DEANE J:  He does not have to be on duty, does he, if he is a

member of the permanent defence force?

MR WOINARSKI; That is what I was meaning by that. He is on

duty all the time. If he is a member of the

permanent army he is, for all times, a defence member

That is so, and then the situation would be this,

Your Honour, that subject to the consent of the

Attorney-General, he could be tried before a service

tribunal.

DEANE J:  A magistrate, and sentenced to five months

imprisonment. Now, if he has been sentenced to five

months imprisonment, what is the position if the

Queensland Attorney-General then institutes

proceedings against him for murder?

MR WOINARSKI:	Then under subsection (5) presumably he would have a plea in bar, Your Honour.
DEANE J:	Except that refers to a service offence.
MR WOINARSKI:	But it would be a service offence, Your Honour,

because the section 61 - the crime of murder would be

an offence against a law of the Australian Capital Territory, and therefore imported into the DEFENCE

FORCE DISCIPLINE ACT by reason of section 61, and

therefore it would be a service offence.

DEANE J:  Then, the position is that this Act excludes the

ClT20/l/HS	36	6/10/88
Ryan

jurisdiction and, for practical purposes, the
applicability of State law to members of the

Commonwealth services, provided that proceedings

against this Act can get in first, as it were?

MR WOINARSKI:  Yes, Your Honour. Can I just say this,

-~ ·Your Honour, as I understand it, the convening

authority in determing whether a person would be

presented before - in the case that Your Honour gives

me, for example, of murder in Queensland - whether a

person would be presented before a general court

martial, or a restricted court martial, or a Defence

Force magistrate, relates to its public importance,

public interest concern.

DEANE J:	If what you say is correct, that, of course, raises obvious questions of validity that have
nothing to do with judicial power?
MR WOINARSKI:	Yes, Your Honour.
DEANE J:	Are we concerned with those?
MR WOINARSKI:	Not in my argument, at least, Your Honour, and I was not proposing to raise that as a problem,
no, Your Honour.

(Continued on page 38)

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DEANE J: It seems a little difficult to isolate them, though,

does it not?

MR WOINARSKI:  Yes, it does, Your Honour, I must say that.

Indeed, I understand that there may well be a case in

the pipeline that raises that very issue, from

Queensland, relating to drunk driving, I think it is,

- "Your Honour. I understand there is a matter - it

probably has nothing to do with us for present

purposes but I understand there is a matter in

the Queensland Full Court that raises that very issue.

But what Your Honour says is right; it does raise

issues of general validity of legislation, but it

was not an issue that we were intending to raise this

morning because, quite clearly, the offences with which

the Prosecutor has been charged are not offences under

a State or Territorial law, but are offences that have

been created - if that is the right word - but offences

that are under the DEFENCE FORCE DISCIPLINE ACT itself.

DEANE J:	Yes, except if the Connnonwealth Parliament has set up a regime which removes criminal jurisdiction in
relation to service personnel generally from the
field of civil jurisdiction whenever service and other
authorities see fit, it may well be that that regime
falls completely, if it falls at all, as being beyond
the defence power.

MR WOINARSKI:  Yes. I follow exactly what Your Honour says and

I follow it through in its logic, but I must say that

we had not considered that point and we were not

intending to raise it, as such.

DEANE J: Well, you have answered my query.

MR WOINARSKI:	Yes.
BRENNAN J:	Mr Woinarski - - -
MR WOINARSKI:	Yes, Your Honour.

BRENNAN J:  - - - the instance that you have been discussing with Justice Deane was one of murder and that was

on the hypothesis, I take it, that murder is a crime

in the Australian Capital Territory and that the

offence of murder is therefore a Territory offence.

My question is, is it a Territory offence or is it

excluded by the definition because it is an offence

under the CRIMINAL INVESTIGATION ACT 1982?

MR WOINARSKI:  I have to be honest with Your Honour, I am not

aware of the particular provisions of the CRIMINAL

INVESTIGATION ACT.

BRENNAN J:  I do not what the CRIMINAL INVESTIGATION ACT provides,

it just seems to me that it may be that by this

extraordinary complex or convoluted drafting that

there is a whole area of criminal law which is kept

outside this legislation, I do not know.

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MR WOINARSKI:  I must say, to answer Your Honour's question -

before I do - I am not aware of that particular piece

of legislation and I must say I have not even turned

my mind to that. But the answer to the discussion

member did would be an offence against the law of the

I was having with Justice Deane, certainly,

_-~-:·Australian Capital Territory. May I just take that

a little bit further, if I may, Your Honour? There

is no specific provision for the crime of murder under the DEFENCE FORCE DISCIPLINE ACT, yet there is clearly the provision in section 63(1), that so far as:

Treason, murder, manslaughter, rape or

bigamy -

are concerned - indeed, none of those are specifically

set out as offences in the DEFENCE FORCE DISCIPLINE ACT.

BRENNAN J: Well, they must be Territory offences, in that case.

MR WOINARSKI:	They must, in my view.
BRENNAN J:	Yes.
MR WOINARSKI:	It would be our view they must be imported under

section 61.

BRENNAN J: Yes.

MR WOINARSKI:  And therefore they would be offences. Now, it

has been suggested in the past that the power that
we are considering that is exercised by a Defence Force
magistrate or, in the past, simply by a form of
court martial, is not the judicial power of the

Commonwealth, but rather, simply a disciplinary power.

(Continued on page 40)

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MR WOINARSKI (continuing): It is our submission that this

is not so. A D.ef ence Force magistrate may sentence

a person to imprisonment, as we have already

indicated to this Court~for a maximum period of

six months. But that really does not decide it,

in our submission, and the reason we say that is

~~that the power that he is exercising is the same power as a general court martial exercises and

the same jurisdiction that a general court martial

exercises, save and except that his power of

punishment is restricted. Now that being so, whatever

power a general court martial, for example, is

exercising in hearing and determining these charges

must, in our submission, be the same and identical

power that a Defence Force magistrate exercises

in hearing and determining charges under the

DEFENCE FORCE DISCIPLINE ACT. And if one looks

at the DEFENCE FORCE DISCIPLINE ACT, one sees that

there are offences, for example, such as aiding the

enemy under section 15, where one can be sentenced

to:

imprisonment for 15 years.

Assault on a superior officer under section 25

where the maximum term of imprisonment is two years

and various other offences - and I will not,with

respect,waste the Court's time by going through

them all, but various other offences, including

section 30, "an assault on a guard", where you may get

a maximum penalty of up to five years uncter

subsection (2). But there are various offences

where one can be sentenced to imprisonment by a

court martial for quite some periods of years.

And, of course, one would also have the provision,

coming back to treason, murder, manslaughter, rape

or bigamy, that the sentence for those offences

is by reason of section 61(2):

if the relevant Territory offence is
punishable by a fixed punishment - that

fixed punishment; or

in any other case - a punishment not

more severe than the maximum

punishment for the relevant Territory

offence.

So that one would in a case of rape or bigamy or murder get the same or no more. But the maximum

punishment would be identical . to that set out

in the Australin Capital Territory. So that, in

our submission, one cannot say, "They are

disciplinary offences", one has to look at the

consequences that flow and the consequences, in

our submission, can be and may be very, very severe.

C1T22/1/SR

40   6/10/88

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The fact that a Defence Force magistrate has

limited power to punish does not change the nature

of the power that is being exercised, it only

provides some limitation on the ultimate power to

punish. Now we would submit that the principle

=- that is set out in the REG V WHITE EX PARTE BYRNES,

(1963) 109 CLR 665 is not applicable to this

legislation, simply for the very reason that we

have pointed out that the consequences are far

more severe. Now in this case, which was an

application for a writ of- certiorari - it was

the return of an order nisi for a certiorari- the

person had been convicted of wilfully disobeying

an order by a person having authority to give

him a direction or an order and that he had been

fined the sum of three pounds and was an

application was made on the basis that in

imposing the fine of three pounds on the applicant,

the chief officer who had imposed the fine was

exercising the judicial power of the Commonwealth.

(Continued on page 42)

ClT22/2/SR 41

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MR WOINARSKI(continuing): The Court had this to say, and if I may take

the Court to it at page 669, commencing at the

last paragraph on page 669:

Such difficulty as has been discovered in this case is apparent rather than real

and arises from the choice of language in -

various paragraphs. They then set out some of the

paragraphs and, at the bottom of the - and those

paragraphs, one can see, towards the - three lines

up from the bottom, specified that a person:

"shall be guilty of an offence and shall

be liable to such punishment as is

determined upon under the provisions

of this section."

The argument had been based very much on the words

"offence" and "punishment". The Court continued:

If as a result of s. 55(1) ands. 55(3)(d)(l)

the section were construed as enabling the
tribunal to impose a fine which was recoverable

at law by any lawful means, that would explain

the view insisted upon by the applicant that

the section invades the realm of the judicial

power of the Commonwealth but we do not think

that the provisions of the Act should be so

construed. We think that the so-called fine

is nothing but a mulct to be deducted from

salary or pay and we think that the provisions

of s. 55, in spite of the heading of Div. 6,

"Offences", should be interpreted as wholly

concerned with breaches of discipline and

disciplinary measures concerned only with the

Service.

So that what they are really saying there was that

that was purely a disciplinary matter and it was

not an exercise of the judicial power but, in our

question of punishment is so much more severe,	submission, one cannot say that here, because the
including imprisonment, as we have pointed out,
for a very, very long period of time.

Now, the other thing that may be said against

us -

MASON CJ:  Now, Mr Woinarski, I should ask you, at this stage,

have notices under section 78B of tr.eJUDICIARY ACT

been given to the States?

MR WOINARSKI: _ Yes, Your Honour, they have; to all the States

and to the territories and I understand that none

were desirous of appearing but, having said that,

I must point this out: that the notices that were

given to the various Attorneys-General were based

ClT23/l/SH	42	6/10/88
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on the grounds for the prohibition which were
granted by Justice Dawson and, of course, the

problem that I foresee that has now been raised

by Justice Deane, in particular, has not been

drawn to the attention of any of the Attorneys.

MASON CJ:  Yes and, in a sense, that is part of the

substratum of the case. It may even be that

the scope of the defence power is the first step

that ones examines in coming to the arguments that

you are seeking to advance.

MR WOINARSKI:  Yes, Your Honour, and I freely admit that that

aspect of it had never occurred to me. I must

say I had not turned my mind to that aspect of

it at all and I apologize to the Court for that

but it is the fact of the matter.

Is the Court of the view that, perhaps, some

additional notice should now - this case should

perhaps be adjourned over and some additional

notice given to the - - -

MASON CJ: Well, that is obviously a course that is, as it

were, entering our mind as a possibility and that

is the reason why I raised the matter with you.

MR WOINARSKI:  Yes, certainly, Your Honours. If that were

the course that were to be adopted, it would seem

perhaps to be more appropriate for the Court to adjourn and for those notices to be given. The reason I say that is that if the argument were to

show very strongly that the defence power did not
permit this basic form of legislation or the effect

of the legislation, then much of what we are arguing

about at the present time may become irrelevant.

MASON CJ:  Yes, and I take it that your lack of desire to

argue the defence power point at the present	time
may be replaced by an enthusiastic embracing	of the

point that Justice Deane has raised. (Continued on page 44)

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MR WOINARSKI:  Given an opportunity to research it, I never

know what I might wish to do, Your Honour. But,

yes.

DEANE J:	I was not indicating any view, I was just trying
to explore the issues.
MR WOINARSKI:	I fully realize that, Your Honour, but I

must say that both that matter and the matter

raised by Justice Brennan have, as much as I can,

been going through my head and the one thing that

does, particularly with relation to the matter

that you raised, sir, concern me that it

may have implications which various States will

wish to raise, particularly so far as the applicability

of their criminal laws are concerned and various

other laws such as that.

MASON CJ:  Of course, another factor we need to bear in

mind is that it is, I think, important to deal

with and dispose of this case because I understand

quite a deal hinges on it.

MR WOINARSKI:	Yes, Your Honour.
MASON CJ:	And, indeed, its pendency may actually affect

the exercise of jurisdiction in tribunals at the

present time.

MR WOINARSKI:  Yes, Your Honour. We understand the urgency

of it for that reason. My learned junior who

is a member of the reserve tells me that it appears

that at present these tribunals are continuing

to hear cases notwithstanding this application.

MASON CJ: Yes, I see. Perhaps we should inquire from the

Solicitor and see what the Solicitor has to say

about these developments.

MR WOINARSKI: Certainly, Your Honour.

MR GRIFFITHS:  Your Honour, so far as these offences are

concerned, and that appears on page 16 of the

application book, they are both verir much service
offences under sections 24 for the 'absent without
leave" and section 55(l)(b) for "making a false

entry". It then becomes a question, Your Honour,

to the extent to which my learned friend wishes
to open up issues of power derived from the basis

of the exchange with the Bench he has today or

further reflection. We approached this case and

prepared it on the basis that there was no attack
on the validity of the legislation so far as
support of either defence power other than the

attack based on Chapter III and we do not understand

ClT24/l/AC	44
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the section 78B notices to have addressed that

wider issue. So, if my learned friend now indicates

that he desires to open that up, Your Honour,

it is a question of him amending his grounds and

then complying with the provisions of 78B.

MASON -BT:- Yes .

DEANE J:	Except if the real service offences such as 24
are viewed in isolation one's answer to judicial
power may be different to if they are viewed as
part of an overall jurisdiction dealing with both
service and non-service offences.  Now, if that
be so, it may be relevant to know whether jurisdiction
of the general type does exist in relation to -
I am using non-service offences wrongly but you get the
gist of what I am talking about.
MR GRIFFITH:	I do, Your Honour. If my learned friend desires

to pursue that possibility, Your Honour, it would

seem that presently on his order nisi and on his

compliance with section 78B he is not able to

do so.

DEANE J: It may be something that concerns you, is it not,

in that it would be one thing for you to say,

"Well now this jurisdiction is section 24 and

that is traditionally outside judicial power"

in the sense that we are talking about. But it

may be relevant to that argument if the section 24

jurisdiction is only part of a wider jurisdiction

dealing with all nature of offences.

MR GRIFFITH:  I am not sure whether Your Honour indicates

that our interest, of course, is to defend the

entire Act not just a nariow issue that might

dispose of a narrower as the point here,

Your Honour. There is a point of general principle

that it is at issue. We thought it was confined,

Your Honour, to the two questions of judicial power in section 80. (Continued on page 46)

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MR GRIFFITH (continuing): It perhaps would be unsatifactory,

Your Honour, to leave the case deciding nothing

more than the narrowest of issues but in a way

it is for my learned friend to take his position.

As far as we are concerned, we will respond as

appropriate to a popularly formulated case bearing

--· in mind the obligations of section 78B for the

State parties.

DEANE J: Thank you.

MASON CJ:	The Court will take a brief adjournment in order
to consider the course - - -

MR WOINARSKI: Just before the Court does, may I just say

one thing?

MASON CJ:  Yes, certainly, Mr Woinarski.

MR WOINARSKI: It is partly as a result of the exchange

that has just occurred between Justice Deane

and my learned friend, the Solicitor. I was

just about to address an argument to the Court

that when one came to consider perhaps service

offences in isolation one may say they are disciplinary

but one had to look at them in the overall scheme
of things and that the proper colour of whether
or not it was an exercise of the judicial power

had to be seen in that light and I just say that

because of the exchange that has occurred between

Justice Deane and the Solicitor.

MASON CJ:  Yes. Very well. We will take a short adjournment

in order to consider the course to be pursued

in the matter.

AT 12.05 PM SHORT ADJOURNMENT

Cl T25 /1 /ND	46
Ryan

UPON RESUMING AT 2. 15 PM:

MASON CJ:  The Court has come to the conclusion that,

as a question has arisen during the course of

-~~- argument as to the validity of section 190,

the Court should proceed no further with the

hearing of the case at this stage. The Court
will give the applicant leave to amend the grounds

of his motion generally, and the Court directs that

a wider notice be given under section 78B of the

JUDICIARY ACT indicating that the validity of

section 190 of the DEFENCE FORCE DISCIPLINE ACT

is a question that is now raised in the course

of argument. Now, I might ask the parties who

is going to give this notice under section 78B,

the applicant or the respondent?

MR WOINARSKI:  Unless the Solicitor particularly wants to

do it, it seems it would be appropriate for us to

do it, Your Honours.

MASON CJ:  Very well. I will direct that the applicant give

the notice.

MR WOINARSKI:  It would seem, in view of that, Your Honour,

that the Commonwealth certainly should be restored

as a respondent.

MASON CJ:  That is the next point I was going to raise.

Mr Solicitor, do you have any objection to

the Court revoking the order that it made this

morning?

MR GRIFFITH:  Your Honour, we just have a difficulty about

prohibition, because the Commonwealth is not an

officer of the Commonwealth and, Your Honour, as we
read ~rder 55 rule 8 firstly dealing with title

and then rule 12 dealing with right to be heard

and right to be heard in opposition and liability

to cost, it is sufficient, Your Honour, if the

nominal party remains Tracey, Your Honour, and we

be regarded as a party joined under rule 12

as a - - -

(Continued on page 48)

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MASON CJ: That is Order 55 rule 12?

MR GRIFFITH: Yes, Your Honour. In that we are a person

who desires to oppose the order and, Your Honour,

rule 12(2) provides that someone:

who is heard under this rule, may be ordered

to pay costs -

We would hope that there is a reciprocal of that,

Your Honour, that they be heard as to claiming

an order for costs but that would seem to be

sufficient to protect the relevant interests.

And, Your Honour, there is a difficulty and we do not seek to argue it, Your Honour, of seeing

the conceptual basis for prohibition against

the Commonwealth, as if it were a party against

whom the writ was sought.

DEANE J:	Mr Solicitor, these are proceedings, even though
in a form of prohibition, in which the appropriate form of relief might include declaratory relief
which could well be, in this case, appropriate
primarily against the Commonwealth.
MR GRIFFITH:	Your Honour, we do not seek to avoid that

consequence, it is just that we do not concede,

Your Honour, that we would come within rule 8

in the heading of being a person against whom

the writ absolute for prohibition would be

directed. We are quite happy to have an order

made making us a party to the proceedings,

Your Honour, in the fuller sense on the usual

basis. Indeed, we desire it, Your Honour, and

to show our enthusiasm to that, could I indicate
that I am instructed to ask for costs of the

adjournment.

MASON CJ:  Do you wish to say anything further,

Mr Woinarski?

MR WOINARSKI:  Not on that matter, Your Honour. I have

something to say in relation to the application

for costs, though.

MASON CJ:  Yes, but you can say that much later, can you

not?

(Continued on page 49)

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MR WOINARSKI:  I was hoping I would be in a position to

be able to to that, Your Honour.

MASON CJ: Yes. Do you wish to saying something else,

Mr Solicitor?

MR GRIFFITH: Well, Your Honour, on costs. At the moment,

we have the position that the applicants have

changed their position and desire to have an

adjournment because they have thought of another
argument. If they had thought of it earlier,

Your Honour, the matter could have proceeded so that we would suppose, Your Honour, it is

appropriate to consider an order for costs of
the adjournment or, at the very least, to order

that the prosecutor not have costs of today,

in any event.

Your Honour, we find it very hard to express

any other basis than it is appropriate for us to

have our costs of today. It is the prosecutor's

desire to pursue this point.

MASON CJ: Very well, the Court will not revoke the order

that it made in relation to the title of the

proceedings this morning but it will make an

order, in addition to this morning's order,

joining the Commonwealth as a party under

Order 55 rule 12. The Court will make no order

as to costs, at this stage, and the Court will

adjourn the matter to a date to be fixed.

MR GRIFFITH: If the Court pleases.

AT 12.21 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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