Lane v Morrison

[2008] HCATrans 414

[2008] HCATrans 414

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  No C3 of 2008

B e t w e e n -

BRIAN GEORGE LANE

Plaintiff

and

COLONEL PETER JOHN MORRISON

Defendant

Application for order to show cause

FRENCH CJ

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 DECEMBER 2008, AT 10.17 AM

Copyright in the High Court of Australia

MR M.J. DUNCAN:   May it please the Court, I appear with my learned friend, MS K.S. COCHRANE, for the plaintiff.  (instructed by Provest Law)

HIS HONOUR:   There is a submitting appearance, I think, for the first defendant.

MR S.J. GAGELER, SC, (Solicitor‑General of the Commonwealth of Australia):   May it please your Honour, I appear with MR N.M. WOOD for the Commonwealth.  (instructed by Australian Government Solicitor)

HIS HONOUR:   Thank you.

MR GAGELER:   Your Honour, there is a substantial measure of agreement between the parties and the proposed party.  I hand your Honour a document that is in the form of some submissions.  If your Honour were to turn to the second page where we have the proposed orders, it is, I think, now a matter of consent that your Honour would make an order of the nature of 8.1 and 8.2.  The counsel for the plaintiff have indicated that they wish to amend the application for an order to show cause in a fairly minor respect and have indicated that they could do that today.  We would be therefore asking your Honour to grant them leave to amend that application.

So far as evidence is concerned, the grounds upon which the plaintiff currently relies and proposes to rely appear not to raise the somewhat vexed and fact‑rich question of Service connection which has been raised in some earlier cases.  On that basis and on the basis that the plaintiff be confined to those grounds, as the Rules seem to provide, the facts that the Court would need to be seized of to deal with the issues that the plaintiff seeks to raise are within a very narrow compass.

HIS HONOUR:   Would they be agreed?

MR GAGELER:   Sometimes it is just easier to prove things than to agree them, but we will attempt to agree them, your Honour, yes.  It is really just the procedural stuff.

HIS HONOUR:   There is a charge.

MR GAGELER:   There is a charge.

HIS HONOUR:   There is an officer comprising the Australian Military Court who has been or who is to hear the charge.  There are matters going to his appointment and the constitution of the court, I suppose, which are all reflected in the subpoena documents.  I cannot imagine that those things could not be agreed and the relevant documents attached.  I just do not want to have any possibility of factual uncertainty in this, so that we have all the facts that we need to hear the debate.

MR GAGELER:   Yes.  Neither of us see any problem in agreeing the facts, your Honour.  Just because I do not see a problem now, your Honour, does not say that a problem will not arise.

HIS HONOUR:   It might be that what I could do is bring the matter back briefly for mention perhaps in late January or early February, for that matter, just to make sure that we are all on the same track.

MR GAGELER:   Yes.  My learned friend had a different suggestion, costs being a consideration, particularly in his case.  He says that he could reformulate his grounds this morning.

HIS HONOUR:   I am happy to deal with the – the amendment you mean?

MR GAGELER:   The amendment.

HIS HONOUR:   I see.  All right.

MR GAGELER:   So far as the facts are concerned, your Honour, we have got to the point of a draft agreed statement of facts that was either going to be turned into an actual agreed statement or an affidavit.  If that could be agreed during the course of the day, then ‑ ‑ ‑

HIS HONOUR:   You want to avoid another appearance, if you can.

MR GAGELER:   My learned friend particularly does, yes.

HIS HONOUR:   Yes.

MR GAGELER:   So there is a distinct possibility that all of that could be taken care of today, your Honour.

HIS HONOUR:   I might provide for either liberty to apply or, alternatively, that the Court might relist it for further directions if it thought it necessary to do.  The other thing is, of course, this is a pending prosecution and it is a constitutional case which would require seven Justices to sit.  We do not know whether we are going to have seven Justices in February.  That depends upon when the government appoints a successor to Justice Kirby.  So the question of the actual timing of the hearing will be something that I cannot give any guarantees about right at the moment.  One would expect that it will be no later than March.  The list

has been for the moment settled for February.  Yes, all right.  Thank you.  Yes, Mr Duncan.

MR DUNCAN:   Yes, your Honour.  My friend and I have discussed the issue of the application and there are some minor amendments we would seek to make to the application, so we seek leave to amend the application, Form 12 notice of constitutional matter.  We believe that that can be done this morning and there is an issue in respect of our client with costs, so we would seek the indulgence of the Court to, say, have the matter adjourned for 25 minutes or so, or a time convenient to your Honour, such that that amendment can be made, spoken to the Commonwealth and the amended document filed in this Court.  So that from the plaintiff’s perspective, then that would deal with the ‑ ‑ ‑

HIS HONOUR:   What is the proposed amendment?

MR DUNCAN:   The proposed amendments go to the issue of whether this Court or this jurisdiction, as it now exists, constitutes a domestic military criminal jurisdiction.  There were certain amendments to the Act in 2001 that pick up the Criminal Code (Cth) in respect of criminal responsibilities and, in fact, criminal guilt. We say in the application that the Service offences were sui generis offences. They may have been of criminal character but not criminal offences giving criminal guilt. That leads then to the issues that were raised in this honourable Court in the matter of Wakim. It leads to, we say, section 109 issues that Justices Toohey and Brennan dealt with in the matter of Nolan that the reason this jurisdiction exists is that it is subordinate to the ordinary criminal jurisdiction.  So they go to those matters. 

They also go to the issue of if this is a criminal jurisdiction, it has the effect of making the offences offences against the laws of the Commonwealth rather than offences of a disciplinary character that were to deal with Service members and the Commonwealth. So the purported effect of section 3(15) of the Defence Force Discipline Act that had these offences not being offences against laws of the Commonwealth, we say, in our respectful submission, cannot be made out any more as a declaratory provision in the Act.  What then flows from there are the issues in respect of Chapter III, the issues in respect of the fact that this Court as constituted is exercising the judicial power of the Commonwealth in dealing with these offences and from that flows the issues in Boilermakers’ Case.

HIS HONOUR: This seems to take a slightly different direction from the grounds that you have formulated. As I understand the principal ground on which relief is claimed, you are asserting that the character of the Australian Military Court is one that takes it out of, if you like, the line of command vested in the Governor‑General under section 68 of the Constitution.

MR DUNCAN:   Yes, your Honour.

HIS HONOUR: On that basis it is not an exercise of the defence power under section 51(vi) of the Constitution. In other words, there has to be a linkage between those two things if you are going to set up a military judicial system.

MR DUNCAN:   Yes, equivalent to the old courts martial.

HIS HONOUR:   Yes.

MR DUNCAN:   The Executive acting judicially or the Executive exercising a judicial power.

HIS HONOUR:   So you are saying that the constitution of the Australian Military Court, its independence and so forth, effects a disconnect between that court and what you call Command, which I presume you mean ultimately the Governor‑General as Commander‑in‑Chief.

MR DUNCAN:   Commander‑in‑Chief, yes, and then as vested through section 9(2) of the Defence Act to the Chief of the Defence Force, the Chief of Navy, Chief of Army and Air Force.  That was the primary submission raised in the Form 12.  Subsequent to that there was a further Form 1 notice of constitutional matter, 78B notice, that went to each of the Attorneys‑General which raised these further matters and then they were dealt with in the further amended outline of submissions.  Now, it is the case that the plaintiff ought reasonably and we ought reasonably have amended our application to pick up those matters.

We are not saying that the Australian Military Court should be a Chapter III court. We are not saying that you cannot have this discipline jurisdiction. We simply say, in respect of this Australian Military Court, that as constituted it cannot be constituted the way it is, but we also say in that further notice of constitutional matter that there are other amendments to the legislation, the amendments that create the criminality which have further, broader constitutional effect in respect of this legislation and particularly in respect of this Court because now members who are charged with, as Mr Lane was in this case, a domestic criminal offence under the laws of the Australian Capital Territory, as picked up under section 61 of the Defence Force Discipline Act, it has a consequence of having a criminal conviction, criminal guilt and that has different flow‑on effects than what the legislation was traditionally meant to do.

HIS HONOUR:   Anyway, what you are proposing to do is to formulate an additional ground?

MR DUNCAN:   Yes, your Honour.

HIS HONOUR:   You can give me a typed‑up version of that within a short time.  Is that right?

MR DUNCAN:   Very swiftly, your Honour, yes.

HIS HONOUR:   All right.  Mr Solicitor, you are content to go along with that?

MR GAGELER:   Yes, your Honour.  We understand that the new ground will be within the compass of the existing section 78B notice.

HIS HONOUR:   All right.  I think then what I will do is I will just adjourn it for a short time to give you adequate time to do all those things.  Twenty five minutes might be a bit short.  I will adjourn it for an hour and I will have my associate come back at the end of that time and if you are ready to proceed, then I will come down and if you are not, then I will come down later.  All right.  We will just adjourn pro tempore.

AT 10.30 AM SHORT ADJOURNMENT

UPON RESUMING AT 2.15 PM:

HIS HONOUR:   Yes, Mr Duncan.

MR DUNCAN:   Thank you, your Honour.  We have had the opportunity to prepare an amended application, an order to show cause, and I seek leave to file a copy of that.

HIS HONOUR: I was just looking at the grounds. Some parts of the grounds seem to be more in the line of argument than in the line of stating concisely the ground. Just for a moment going through ground 1, you have a statement about section 68 of the Constitution – that is the second sentence – “is the legal source” and then Command involves discipline and then you talk about double helixes.

MR DUNCAN:   Yes, your Honour.

HIS HONOUR:   Is any of that necessary?  It seems to me if you take the first sentence and then the sentence which begins “The Australian Military Court and the Director of Military Prosecutions”, does that not say what you want to say?

MR DUNCAN:   Ultimately, yes, your Honour.

HIS HONOUR:   I mean, the rest of it just seems to me to be legal propositions.

MR DUNCAN:   Well, expression of the proposition that flows therefrom.

HIS HONOUR:   The other thing is, I think the inclusion of authorities in the grounds is not usual either.  At least I have not seen it before.

MR DUNCAN:   I take your word for that, your Honour.

HIS HONOUR:   Yes, I think we can probably deal with those.  Mr Solicitor, would you have any difficulty with the precision of the ground if the second and third sentences were deleted from it?

MR GAGELER:   No, your Honour.  It would be an improvement.  We see ground 2 as not being separate from ground 1, but rather the consequence of ground 1.

HIS HONOUR:   Yes, that is what I thought as well.  Yes, all right.  Thank you for that.  Just coming back to you for a moment, Mr Duncan.  Does ground 2 say anything that ground 1 does not say or is it just a sort of argumentative statement in support of ground 1?

MR DUNCAN: Not quite, your Honour. Ground 2, if the Court were to take the view on the extant jurisprudence that the source of this power is in section 51(vi) and, in fact, judicial power flows from 51(vi), we still say that the Australian Military Court is fraught with the same problems because it is not a court that flows from Command and was as known in Cox and Nolan and a series of those cases.

HIS HONOUR:   Yes.  It is just the term “recognised by jurisprudence of this Court” really does not tell us very much.  You are saying the Australian Military Court is not a Service tribunal and ‑ ‑ ‑

MR DUNCAN:   It is not a Service tribunal in the form that courts martials were.

HIS HONOUR:   Yes, and that is because it is not connected to Command.  Is that not your ‑ ‑ ‑

MR DUNCAN:   That is our primary proposition, your Honour.

HIS HONOUR:   Yes.  What else do you say about it in relation ‑ ‑ ‑

MR DUNCAN: In the alternative, if it were found that section 68 was not the source of the grant of that power but the power, in fact, was a judicial power that flowed from section 51(vi), that this court, the Australian Military Court is not a Service tribunal as contemplated in the cases Cox, Tracey ‑ ‑ ‑

HIS HONOUR: I am not sure, as I say, the grounds which refer to cases are really not grounds which tell us what your argument is about. As I understand the position, I thought your position in ground 1 was along the lines that to be a valid exercise of the Defence power under section 51(vi) the statutory creation of a military court which exercises judicial power that is validly not a Chapter III judicial power, the court must be, as it were, part of the Command structure and, that is to say, that is a kind of condition imposed when you read 51(vi) along with section 68. That I thought was more or less what you were saying.

MR DUNCAN:   That is our primary proposition in that they must be convened by Command and that power to convene by Command comes through 68.

HIS HONOUR: Section 68 read with 51(vi) makes it a necessary condition of the validity of such a court outside Chapter III that it be, as you would put it, convened by Command.

MR DUNCAN:   Yes, your Honour.  That is our primary ground.

HIS HONOUR:   And that reflects the fact that on the existing jurisprudence that 51(vi) presupposes a disciplined force and that measures necessary for that discipline can include the creation of things like courts martial and so forth.

MR DUNCAN: Yes, your Honour. But what we say in respect of the second ground is this, that simply were it not to be the case that section 68 had any relevance to this, that the Australian Military Court in itself is not a Service tribunal.

HIS HONOUR:   What does that mean?  What does that mean that is not said in 1?  Forget about quoting cases at me.  Just give me the proposition, the words.  You say it is not a Service tribunal.  What does it mean to say something is a Service tribunal?

MR DUNCAN: A Service tribunal is – it is not convened, but if there is an exercise – if there is a judicial power that flows from 51(vi) that allows for tribunals such as court martials or Defence Force magistrates to be convened, the Australian Military Court is not a tribunal of that nature, a Service tribunal that, in fact, is convened and confined at source in section 51(vi) alone, as had been suggested by some of the Justices of this honourable Court.

HIS HONOUR: I am trying to get this to a proposition that does not involve referring to jurisprudence or cases but to meaningful terms. You say that if your primary proposition be incorrect, that is to say, that section 68 conditions the exercise of the power to create courts under section 51(vi), if it does not condition the exercise of that power, then in any event this is not a court of the kind that can be created under section 51(vi), is that right?

MR DUNCAN:   Yes, your Honour, that is right.

HIS HONOUR: Why is not a court of the kind that can be created under section 51(vi)?

MR DUNCAN:   Because it is statutory creation and it is permanent.  It is not ad hoc and the jurisdiction had always been for the creation by Command of ad hoc courts to deal with discipline matters as and when required.

HIS HONOUR: Well, all you are saying then really in 2 is that the provisions of the Act creating the Australian Military Court are not a valid exercise of the Defence power under section 51(vi)?

MR DUNCAN:   Yes, your Honour.

HIS HONOUR: It is as simple as that, and it has nothing to do with section 68?

MR DUNCAN: No, ergo, should it not have anything to do with section 68.

HIS HONOUR:   I think you should think about reformulating that because I think at the moment 2 is really too imprecise.  What I will allow you to do is to – I will give you some time to file a further amended application to try and tighten that up so we know precisely what you are talking about.

MR DUNCAN:   Thank you, your Honour.

HIS HONOUR:   I have already indicated the changes which you need to make to 1, to take out argumentative statements.  What about 3?  This does seem again to be rather imprecise argument.

MR DUNCAN: Your Honour, 3 simply seeks to say that the jurisdiction that the Australian Military Court now operates under – sorry. The amendments to the legislation that occurred in 2001 have created a jurisdiction that is a federal criminal military jurisdiction that is no longer then subordinate to the general criminal court and criminal laws of States and Territories and that has the effect of enlivening section 109 of the Constitution.

HIS HONOUR:   Yes. 

MR DUNCAN:   Because the amendments to the Act under section 10 which cause criminal responsibility to be applied ‑ ‑ ‑

HIS HONOUR:   You are saying – does that reduce to this proposition – again I want to make clear what it is because you have mixed up here, it seems, the jurisdiction and the statutory creation of offences and I had a look at the passage from the joint judgment of Justices Brennan and Toohey to which you referred, but is this another way of saying that the nature of the offences now created by the Act is such that they can only be dealt with by a Chapter III court?

MR DUNCAN:   Effectively, yes, because they are now criminal.  Yes, it is, because they now become ‑ ‑ ‑

HIS HONOUR:   Because they do not have some disciplinary character about them or ‑ ‑ ‑

MR DUNCAN:   They cease to be of a disciplinary character.  They provide for criminal guilt and therefore they are an exercise of the judicial power of the Commonwealth.

HIS HONOUR:   You say the only court that can deal with offences of the class to which you are referring in this ground is a Chapter III court and the Australian Military Court is not such a court?

MR DUNCAN:   Yes, your Honour.

HIS HONOUR:   So this is not really a separation of powers issue, this is simply a question of whether the jurisdiction to deal with offences of that kind can validly be vested in a court which is not a Chapter III court?

MR DUNCAN:   Yes, your Honour.

HIS HONOUR:   Yes.  At the moment I have difficulty with the expression of the grounds in 3 and 4.  I see what you are getting at, but I really do think you are going to have a lot of threshold difficulty in explaining yourself if these grounds remain in the current state that they are.  Do you have any comment, Mr Solicitor?  I know it is not your job, of course, to sort out difficulties, but on the other hand it is in everybody’s interest to have precisely stated grounds.

MR GAGELER:   Yes, your Honour.  Does your Honour have a copy of the Defence Force Discipline Act in its current form?

HIS HONOUR: I do. Sections 3(15) and 61.

MR GAGELER:   Yes, but if your Honour looks at section 10, in discussions with my learned friend it appears that section 10 is what gives rise to his grounds 3 and 4 which seem to be really attempting to say the same thing.

HIS HONOUR:   These are the general principles of criminal responsibility.

MR GAGELER:   That is right.  As we understand his argument, he accepts the outcome in White and all of the cases which preceded it and that outcome is that it is possible to have Service offences which are dealt with by Service tribunals outside Chapter III.  But he says section 10 now makes all the difference because section 10 says that “the Criminal Code applies to all service offences”, therefore the argument goes, what were Service offences are now in the nature of criminal offences, they are not simply disciplinary offences any more, so that all Service offences are now, in effect, Commonwealth criminal offences and that gives rise to the repugnancy with Chapter III.  It seems a terribly long bow to draw from section 10, but that is the argument.

HIS HONOUR:   Yes, all right.  Okay.  Thank you.  I will just ‑ ‑ ‑

MR GAGELER:   Your Honour, if it were the only point in the case, we would not be suggesting that the matter should go further.

HIS HONOUR:   Yes, all right.  Thank you, Mr Solicitor.  Yes, coming back to you, Mr Duncan, is the Solicitor‑General’s characterisation of your argument correct?

MR DUNCAN:   Yes, it is, your Honour.

HIS HONOUR:   All right.  Well, that is certainly, without prejudging anything provisionally, a difficult argument to make because it is not as though on the face of it section 10 creates a range of offences.  It just imports principles of criminal responsibility.  How do you say the invalidity works?

MR DUNCAN:   I say, your Honour, it brings in principles of criminal responsibility including criminal guilt and that the Service offences previously were not offences that gave rise to criminal guilt.  They were not criminal offences and that it then has the effect of creating a broad domestic federal criminal jurisdiction and hence the need under the Act for section 131B for matters before summary authorities the offences are to be characterised for Service purposes only and not for broader criminal purposes.

HIS HONOUR:   Well, look, Mr Duncan, that, in my opinion, simply is not disclosed by your grounds 3 and 4 and ground 2 needs to be reworked in the way that I have indicated.  So what I am prepared to do is to refer to the Full Court the matter set out in ground 1, subject to the amendments that we have already talked about, with liberty to apply to amend ground 2 and if you can cast 3 and 4 into a concise proposition, difficult as it may be, then that can be joined in.  But I am not going to allow those to go forward as they are.  It is just a bit of a porridge of argument at the moment. 

I do not wish to be disrespectful, but I really think you need to sit down and do some hard thinking about what is the core of your proposition and express it in the grounds succinctly without references to cases or jurisprudence, but just what is the actual legal proposition you are seeking to advance.  All the other stuff can go into your submissions in due course.  Now, if we do that, we have to have a look at these orders.  The other thing, I understand that you may have reached an agreed statement of facts, is that right?

MR DUNCAN:   We have, your Honour, yes.

HIS HONOUR:   Yes.  Perhaps I could just have a look at that.  Just bear with me for a moment.  Just take a seat and I will have a look.  What is the present status of the proceedings in the Australian Military Court?

MR DUNCAN:   The current status is that we understand the court has undertaken through the Registrar of Military Justice not to proceed any further until this Court has come to a conclusion in respect of this matter.  We understand those instructions have been given through Defence legal to the Commonwealth.  We spoke with the ‑ ‑ ‑

HIS HONOUR:   It might be useful to have that as a further agreed fact, I suppose.  All right.  Just take a seat for a second.  By the way, which amendments are you seeking to have declared invalid?  Which provisions of the Defence Force Discipline Act as amended by the 2006 and 2008 – you would want to specify the provisions, I would think, that you seek to have declared invalid.

MR DUNCAN:   Certainly the provisions to create the Australian Military Court, a statutory independent Australian Military Court.

HIS HONOUR:   I think we need to know precisely which sections are being attacked, do we not?

MR DUNCAN:   The sections commence at about section 103 of the Act.

HIS HONOUR:   Again, this is not a thing you are going to do on the run.  I think it has to be done properly.

MR DUNCAN:   Sections 114 and 188, your Honour. 

HIS HONOUR:   I think, Mr Duncan, that I would not be prepared to tie this all up now until I have a proper application in front of me.  I really think there is too much work to be done on it.  I want to minimise the expense that is involved from your point of view.  You are based in Queensland, are you, in Brisbane?

MR DUNCAN:   In Brisbane, yes, your Honour.

HIS HONOUR:   Yes.  So what I am proposing is to give you directed leave to amend your application.  I will read out the proposed order in a moment.  Then a date by which you file and serve that amended application.  Then I would propose to relist the matter for 13 January 2009 at 9.30 am unless before that time consent orders, acceptable to the Court, have been filed.

MR DUNCAN:   Yes, your Honour.

HIS HONOUR:   Now, if I am happy with the state of the application and if you are agreed as to the programs, those consent orders can be filed at any time prior to 13 January.  If we have to go to a hearing on 13 January, we will set up a video link, so you do not have to travel down to Canberra.

MR DUNCAN:   Yes, your Honour.  There is one matter I need to correct, if possible.  My friend has provided me with instructions he has received from the Registrar of Military Justice and, that is, in respect of a matter like

this it is the practice of the court not to list the matter until it has been resolved in this Court.

HIS HONOUR:   I will give you liberty to apply in case there is a problem.  Mr Solicitor, can you live with that process?

MR GAGELER:   Yes, your Honour.  It is probably something we could have agreed to at 10 o’clock this morning.

HIS HONOUR:   Indeed.  I think we really need to tie these grounds down.

MR GAGELER:   Yes, your Honour.

HIS HONOUR:   The order will be as follows:

1.The Commonwealth be joined as the second defendant to the plaintiff’s application to show cause filed 30 May 2008.

2.The plaintiff has leave to file and serve an amended application specifying with particularity:

(i)the provisions of the Defence Force Discipline Act 1982 in respect of which a declaration of invalidity is sought;

(ii)incorporating ground 1 less the second and third sentences and the reference to “authorities”;

(iii)the precise grounds, other than ground 1, upon which relief is sought.

3.The amended application to be filed and served by 19 December 2008.

4.The matter be relisted for Tuesday, 13 January 2009 at 9.30 am unless the parties have previously filed proposed consent orders in terms acceptable to the Court.

5.Costs of today reserved.

6.Liberty to apply.

If you get your amended application to the Commonwealth by the 19th so they have an opportunity to consider it and I will also have an opportunity to consider it, and if I am satisfied that it is expressed with sufficient precision, then if you are agreed on a program much along the lines of the one that you have actually set out in the minute, then that can be done without a further appearance. 

MR DUNCAN:   Thank you, your Honour.

HIS HONOUR:   It is really a mechanism for just getting you to think hard about the actual legal grounds and forgetting about inserting argument in your grounds and references to authorities in precise terms.

MR DUNCAN:   Thank you, your Honour.

HIS HONOUR:   We will adjourn now.

AT 2.49 PM THE MATTER WAS ADJOURNED