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

This matter concerned an application for a writ of prohibition brought by Desmond James Ryan against Major R.R.S. Tracey, a Defence Force Magistrate. The Commonwealth of Australia was initially named as a respondent but was subsequently deleted from the proceedings by consent, appearing instead as a person served pursuant to rule 12 of Order 55. The application sought to prevent Major Tracey from hearing and determining charges laid against Mr. Ryan, a member of the Australian Regular Army, for falsification of a service document and absence without leave.

The central legal issue before the High Court was whether Major Tracey, in his capacity as a Defence Force Magistrate, was exercising the judicial power of the Commonwealth. Mr. Ryan’s argument was that if Major Tracey was exercising such power, his appointment would need to comply with Chapter III of the Constitution, and that his current appointment did not meet this requirement. Major Tracey had previously ruled that he was entitled to hear the charges, finding that he was not exercising the judicial power of the Commonwealth.

In reaching its decision, the Court considered the nature of the proceedings before the Defence Force Magistrate. The Magistrate had relied on previous High Court decisions, specifically *R v Bevan; Ex parte Elias and Gordon* (1942) 66 CLR 452 and *R v Cox; Ex parte Smith* (1945) 71 CLR 1, which held that courts martial did not exercise the judicial power of the Commonwealth. The Magistrate reasoned that the powers of a Defence Force Magistrate were analogous to those of a court martial, and therefore, he was not exercising the judicial power of the Commonwealth. Mr. Ryan’s submission, however, was that the respondent was indeed exercising the judicial power of the Commonwealth.