Lane v Morrison & Anor

[2009] HCATrans 69

[2009] HCATrans 069

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, A MILITARY JUDGE OF THE AUSTRALIAN MILITARY COURT

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 22 APRIL 2009, AT 10.22 AM

Copyright in the High Court of Australia

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

FRENCH CJ:   There is a submitting appearance, I think, for the first defendant.

MR S.J. GAGELER, SC, (Solicitor‑General of the Commonwealth of Australia):I appear with MR S.B. LLOYD, SC and MR J.G. RENWICK for the second defendant.  (instructed by Australian Government Solicitor)

MR G.T.W. TANNIN, SC:   May it please the Court, I appear with MS J.C. PRITCHARD for the Attorney‑General for Western Australia in support of the plaintiff.  (instructed by State Solicitor’s Office (WA))

FRENCH CJ:   Mr Street, before you begin, the Court has of course had the opportunity to and has read your extensive written submissions.  We would be most assisted if you could commence with the second ground – that is, the impermissible creation of the Australian Military Court, as you head it in your submissions.

MR STREET: If the Court pleases. Your Honours, in relation to the second ground, the thrust of it is that Part VII, Division 3, creating the Australian Military Court, offends section 71 and the principles in Chapter III of the Constitution.

Your Honour, the first part of the argument in relation in to ground 2 that we seek to identify in support of a violation of section 71 and Chapter III obviously arises from the provisions themselves which purport to first of all create a court.  Your Honours, we say that section 71, in words which confer a power to create, imply the negative prohibition insofar as any other type of creation of a court by the Federal Parliament and to the extent relevant we say that accords with the doctrine identified in Boilermakers and that the language found in section 71 must carry that negative implication and to that extent Parliament can only create a court within Chapter III and that the lawmaking power to create a court is so confined.

Your Honours, in our respectful submission, when one looks at the entity that is being created, it is a court impermissibly created contrary to section 71 and not in compliance with Chapter III.  The entity created is described as a court of record.  Your Honours will have already identified that the significance of the court of record.  It has been touched on in an article that was picked up in K‑Generation that your Honours referred to in a judgment delivered by this Court and there was an article there, which I will hand up to your Honours, if it is convenient, dealing with courts of record.  It is an article by Sir Isaac Isaacs Professor of Law of Monash University, Professor Campbell.  If I could hand up to your Honours a copy of that article.

Your Honours, that article identifies a court of record relevantly as carrying with it ordinarily two consequences.  The first consequence is an inherent power of contempt, the second consequence that the record is intended to be binding and conclusive for that court.

GUMMOW J:   But contempt in the face of the court, is it not?

MR STREET:   I am sorry, your Honour?

GUMMOW J:   Is it not a limited form of contempt?

MR STREET:   I am sorry, your Honour, I did not hear your Honour?

GUMMOW J:   Contempt in the face of the court?

MR STREET:   Yes, your Honour.  Your Honour, in that regard the decision of this Court in the R v Taylor also supports a court of record having such a significance in terms of the power of contempt and identifying that such a court, described as a court of record, would be a court ‑ ‑ ‑

GUMMOW J:   What is the citation of Taylor?

MR STREET: Your Honour, it is in (1951) 82 CLR 587 and the discussion in the joint judgment that we would refer your Honours to specifically is at page 599. But what your Honours advance is that the significance of the description of this Australian Military Court as being a court of record carries with it the clear characterisation that it is a court, and a court having an impact of a binding nature well beyond – if I can put it this way – the scope of power within section 51(vi), that the binding and conclusive nature of the record is not confined to the power to make laws in respect of defence found in 51(vi). It is, of its very nature, a binding consequence at large in the community in respect of all persons, all entities and has a significance which we say gives rise to identifying this entity as an entity impermissibly created outside Chapter III.

Your Honours, there are other indicia that flow.  One of the submissions we would put in relation to characterising this Court as a court within Chapter III impermissibly created is the reverse of the chameleon doctrine in terms of identifying an entity as the nature of that entity being material as to whether the power vested is the judicial power of the Commonwealth or not the judicial power of the Commonwealth.  Here Parliament has carefully identified and created a court.  The significance of that, we would have said, to the extent of the chameleon doctrine that operates, is that it is clear this was intended to operate in a way in which it must be exercising the judicial power of the Commonwealth.

Your Honours, in relation to that issue of whether it is exercising a judicial power of the Commonwealth, we respectfully submit, it is clear that it is judicial power.  It identifies a jurisdiction to make binding decisions on disputes as to rights arising form the operation of law upon past facts; classically within Brandy 183 CLR 245, 268, picked up in K‑Generation by this Court relevantly at paragraph 132.  Your Honours, the consequence of the creation of a court which is exercising judicial power created by the Parliament is one, we say, that must bring it within Chapter III.

FRENCH CJ:   A military tribunal which exercises judicial power in the sense contemplated and described in the joint judgment in Tracey is invalid, notwithstanding what was said there.  Is that your proposition?

MR STREET:   No, your Honour, that is a service tribunal created by command and it is a tribunal constituted by command.

FRENCH CJ:   But it exercises a judicial power.

MR STREET:   An exercise in judicial power and to the extent relevant ‑ ‑ ‑

FRENCH CJ: So you do not say that one cannot have a military court which exercises a judicial power conferred on it pursuant to section 51(vi) of the Constitution?

MR STREET:   No.  Can I change your Honour’s language to a service tribunal which is, in essence, a tribunal that reflects a tribunal of command?  To the extent that one has a command tribunal, it can be vested with judicial power.

FRENCH CJ:   I am not sure that that label helps very much.  I understand you are sort of drifting into the first ground here, but I am just asking whether you accept that a service tribunal can validly exercise judicial power outside the framework of Chapter III?

MR STREET:   In relation to that proposition, your Honour, if it is a service tribunal of command, the answer must be yes, in respect of the subject matter of military duty and to the extent that the subject matter is one of military duty, yes, it can be the subject of a judicial power to determine breaches of military duty.

GUMMOW J:   But, you say, this is different because this a court not a tribunal?

MR STREET:   Yes, your Honour.

GUMMOW J:   And there is a distinction between creating a court and between somebody, whatever it is, exercising judicial power?

MR STREET:   Yes, your Honour.

HAYNE J:   There is a different intersection between this body and the courts generally?

MR STREET:   Yes, your Honour.

HAYNE J:   The intersection is now to be defined apparently, is it, by notions of autrefois acquit and convict?

MR STREET: Your Honour, we would say, if I can, in response to your Honour that it sits outside the integrated court system identified by the Constitution and, relevantly, Chapter III.

HAYNE J:   Yes, I understand that, that is why I am directing your attention to the intersection, whereas service tribunals, if you wish to adopt that description, set up under the Naval Discipline Act and under the Army Act dealt with service personnel and the fact of their dealing presented no bar to those persons later being dealt with in the courts.

MR STREET:   Yes, your Honour.

HAYNE J:   The intersection is now different, I think.

MR STREET:   Yes, your Honour, and we do seek to put that difference is material and it now creates the very conflict that was identified by, I think it was, Justice Brennan and Justice Toohey in Tracey and in Nolan in relation to the consequence for a determination of this Court will create a direct conflict with the criminal jurisdiction of the States and the consequence of an acquittal or a conviction by this Court must have an impact where it is no longer supplementary, or a system supplementary or parallel to and subordinate to the State criminal jurisdictions.  It must be a system that is prevailing over the State general criminal jurisdiction and that, for the reasons identified by Justice Brennan and Justice Toohey, is impermissible.

CRENNAN J:   Do you regard the power to fine and imprison as an important characteristic of a court of record?

MR STREET:   Your Honour, without doubt the power to have an enforcement of the orders that are made in terms of imprisonment is material to its characterisation.  This is given legislative enforcement in respect of those orders that are made imprisoning, fining, and to that extent, yes, your Honour, classically the finding of guilt is clearly something of a kind touched on in Lim and Vasiljkovic as being something of a judicial nature and would be a judicial power and now we have a court exercising that judicial power and that gives rise, we say, to the very same problems that were identified in Tracey, which gave rise to the striking down of section 190.

It is the same issue that now arises as a result of creating a court that would make, as his Honour Justice Hayne has identified, a decision giving rise to an acquittal which would have to have an impact on an integrated court system and the institutions of the State being the criminal courts of the State in a way which would be impermissible, given the recognised existence of the States under section 106 and the consequence of section 109 in terms of the Commonwealth law.

Your Honours, for those reasons we say what one has in relation to the creation of this military court is a court that is impermissibly created.  It clearly is not one created within Chapter III.  That is conceded by the Commonwealth.  I do not need to take your Honours to the provisions which identify the structure and terms of appointment of the judges, but they are not judges appointed under section 72.  They do not have the independence and impartiality of judges appointed under Chapter III.  Those are material matters, not least of which because the obligation on the Parliament to sustain the judiciary is a real one in that regard, ensuring that independence.

Your Honours, to the extent relevant we say that the significance of the repository being a court was touched on in Thomas v Mowbray by this Court, relevantly at paragraph 59 in supporting the nature of the power being one of a judicial power of a court.  Your Honour, we rely upon Taylor’s Case, as we have identified in our written submissions, as well as Alexander v Waterside Workers’, which we say ‑ ‑ ‑

FRENCH CJ:   I am trying to understand the relationship between your approach to ground 2 and ground 3.  It seemed to me in answer to Justice Hayne’s question you were rolling into ground 3.

MR STREET:   Yes, your Honour.

FRENCH CJ:   Just confining it for a moment to your submissions on ground 2, part of it seems to be an argument that this is in effect a Chapter III court, although it does not purport to be so, because it has the trappings of a Chapter III court, and you make references to seals, stamps, nomenclature and so forth, and application of rules of evidence.  Is that really the gravamen of the point, the statutory independence that is given to the court, the designation of it as a court of record and the other, what you call indicia – what perhaps one might call trappings – these mark it as a court of a kind which can only be created under Chapter III?  Is that really the point in ground 2?

MR STREET:   It is, your Honours.  Your Honours, I actually did summarise the attributes.  If I could hand them up to your Honours.

FRENCH CJ:   I am looking at paragraph 39 of your submissions when I make this remark.

MR STREET:   Your Honours, I did actually summarise the indicia or attributes or trappings, as your Honour the Chief Justice has described them, on page 3 of the summary that I have handed up to your Honours.  One sees what we say are the attributes that reflect it being a Federal Court.  Your Honours, the trappings, if I could use that language, embrace creating judges, describing them as a jury, giving it the status of a court, the jurisdiction it is exercising with the capacity to make those binding declarations and, your Honours, we say that the matters that we have summarised there on that page 3 all support this, in essence, as being the court impermissibly created within a Chapter III. 

Your Honours, the exclusive and exhaustive nature of Chapter III has been touched on by this Court on a large number of occasions in relation to Boilermakers and the principle identified in that case, most recently in Thomas v Mowbray in the context of the defence power ‑ ‑ ‑

GUMMOW J:  The question you have to address may not be difficult, but the question is, what powers are given to the Parliament to create courts in the text of the Constitution? No one ever wants to talk about the text. Where is the text in the Constitution that talks about creating courts?

MR STREET:       Yes, your Honour, and we do ‑ ‑ ‑

GUMMOW J:   Blind Freddie can see that this is intended to be a court at common law, forget about Chapter III.

MR STREET:   Well, your Honour, we say to the extent relevant ‑ ‑ ‑

GUMMOW J:   If this was a piece of State legislation, this would be a court of a State within the meaning of 77(iii) surely to goodness.  Some bodies created in the States are not called courts, but they may nevertheless be courts for the purposes of 77(iii).  That is not this case.  The question then is you have got to start with the constitutional text.

MR STREET:   Quite, your Honour, and the whole structure ‑ ‑ ‑

GUMMOW J:   If we start with the text, what do we see?

MR STREET:    Well, your Honour, we see that there is only one power to create a court and that is the power in section 71 and the power in section 71 consistent with a system of integrated courts where this Court is the ultimate appellate Court of all courts exercising judicial power within the Commonwealth of Australia for the united people of Australia.  If I can take your Honours to section 71.

GUMMOW J:   If that were not so, one could have an immigration court, I suppose, created under 51(xxvii), a bankruptcy court created under 51(xvii), a tax court created under 51(ii), a patent court and so on and so forth.

MR STREET:   Your Honour, we do embrace the proposition that it is clear from the affirmative language as to the power to create courts found in section 71 that it carries with it the content of the implied prohibition against the creation of a court by Parliament outside Chapter III.  In our respectful submission, that implied prohibition is something that I think your Honours touched on.  It was picked up, your Honours, in relation to the Work Choices Case 229 CLR 1. If I can take your Honours very briefly to that. One has, in essence, the start of the principle that we would have said is of considerable significance in construing section 51 and that is first at paragraph 201. One sees the passage at page 122:

In the course of their treatment of the exhaustive operation of Ch III of the Constitution in the Boilermakers’ Case, Dixon CJ, McTiernan, Fullagar and Kitto JJ remarked that:  “affirmative words appointing or limiting an order or form of things may have also a negative force and forbid the doing of the thing otherwise.”

Your Honours in that case and your Honour Justice Hayne, I think, in another case pointed out that the need to identify what is the order or form of things, which is said to be the subject of the negative implication or operation, is the creation of courts and the creation of courts, we say, in that regard is one which gives rise to the kind of prohibition identified in Boilermakers’ Case on the power to create courts outside Chapter III. 

Your Honours, to the extent that it is suggested that there is some exception referable to section 122, we respectfully submit that there is no such exception, that to the extent relevant, section 122 is subject to Chapter III and that for the reasons that have been touched on by his Honour Justice Gummow in Kruger and then picked up, I think, and touched on briefly in, I think it is, Thomas v Mowbray – I will give your Honours a reference to it in a moment – there is in essence here a position where the notion that section 122 sits outside Chapter III runs contrary to the reasoning that was recently adopted by this Court in Wurridjal. 

Wurridjal, in our respectful submission, flies in the face of the reasoning of the Privy Council in Porter and to the extent relevant contrary to the reasoning on Bernasconi, and it would follow that there are fact no exceptions to Chapter III.  Chapter III is exhaustive in relation to the creation of courts and to that extent one cannot find a qualification arising from section 122. 

Your Honours, the submissions on the second ground are the ones which we have summarised in ‑ ‑ ‑

KIEFEL J:   Mr Street, could I please take you back to the question of contempt.  I understand you to say that the Court has an enlarged jurisdiction with respect to contempt from that which was given by statute to the service tribunal.  Could you explain to me how you say it has been enlarged and by what means?

MR STREET:   Your Honours, can I go to the provision that has created the contempt within the Defence Force Discipline Act which is in section 53.

KIEFEL J:   That is in terms similar to the service tribunal provision, is it not?

MR STREET:   Your Honours, it is materially different because it is, in essence, dealing with the Australian Military Court and the service tribunal says – I sought to be put before – were command and we now have an entity which one refers to and engages in any conduct in the case of the Australian Military Court constitutes a contempt of that court.  Your Honours, we would have said that the creation of it as a court of record – adopting what his Honour Justice Gummow has referred to – ensures that it is capable of having an inherent power to deal with a contempt in the face of the court as it ‑ ‑ ‑

KIEFEL J:   Do you say then that it extends beyond the persons identified in section 53 and extends to any person?

MR STREET:   Yes, your Honour.

KIEFEL J:   How do you read the notion of the inherent power arising out of it being stated as a court of record with the express provision of section 53 which is limited in its terms?

MR STREET:   Your Honour, to the extent that one has a position that has identified the scope of application confined to defence members and defence civilians, it was not seeking to deal with the consequences, we submit, of it being a court of record.

KIEFEL J:   What I am really asking, I suppose, Mr Street, is whether or not it is possible that section 53, because it is a statutory court, intended to cut down what might otherwise be thought to be an inherent jurisdiction?

MR STREET:   Your Honour, subsection (4)(d)(ii) would fly in the face of that, your Honour, because there is there a reference to service tribunals and the significance of the power of contempt if they were a court of record.  So it is clear that the significance of a court of record has not been pared back in relation to the Australian Military Court by subsection (d).

GUMMOW J:   I think that section has to be read perhaps having in mind what was said in Taylor 82 CLR 587 at 598, which you took us to, namely, that contempt is also, in the middle of the page, “a misdemeanour at common law . . . punishable on indictment”. Now, 53(4) may be a putting of that common law offence into a statute. Do you see what I mean?

MR STREET:   Your Honours, we focus on the language of ‑ ‑ ‑

GUMMOW J:   Non‑constat, but there still was not the contempt of court.

MR STREET:   Your Honour, it may be that that might have assisted the position so far as a service tribunal other than the Australian Military Court was concerned, but what we have so far as the Australian Military Court is concerned is language that deals solely with, we say in (d)(i), the defence member or civilian member and does not in any way detract from the court of record powers that would flow as a result of the very express reference to “court of record” in (ii).

KIEFEL J:   Does the question of the inherent jurisdiction also have to be read – not necessarily read with but does one need to bear in mind provisions of the Defence Act in relation to contempt of service tribunals as well?

MR STREET:   Your Honours, there is an equivalent provision.

KIEFEL J: Section 89, I think, is ‑ ‑ ‑

MR STREET:   Yes, your Honour, we referred to it in our submissions, in the Defence Act and I think ‑ ‑ ‑

KIEFEL J:   Yes.  That extends to any person, does it not?

MR STREET:   Yes, your Honour, although there, clearly, one has – that is not an offence that of itself is within the scope of jurisdiction vested in the Australian Military Court in respect of the Defence Act.  Your Honours, we have identified in relation to the ground 2 a second argument which is this, that even if it were not a Chapter III court impermissibly created, it must fly in the face of undermining the institutions which are Chapter III courts and the institutions which are Chapter III juries.  The creation of an entity which is so described as a court by Commonwealth power and which is, in fact, not and the creation of a jury which is not a federal jury under section 80 but by the Commonwealth law, must ultimately undermine public confidence in the institutions which are genuine Chapter III institutions, be it the judiciary in terms of federal courts, or federal juries.

In our respectful submission, we have a Kable consequence in relation to this court, even if it were not otherwise in violation of section 71 and Chapter III, in that it would inevitably lead to the undermining of public confidence in Chapter III courts if there were to be a parliamentary court created outside Chapter III without the protections of independence and impartiality that arise under Chapter III and if one has a jury created by Commonwealth law which does not have the inviolable features of a jury that arises under section 80.

Your Honours, we refer to some of those inviolable features.  I will not take your Honours through them in detail, but on page 8 of the handout that I handed up I summarised some of the inviolable features that would be in conflict with a federal jury, recognised by Chapter III, by the jury now created with the AMC – first of all, the representative nature of the jury.  Here we have a jury, as your Honours will well recognise, that is comprised only of a selection of particular service members with particular criteria.

FRENCH CJ:   This is taking us into ground 3, is it?

MR STREET:   No, your Honour, it is ‑ ‑ ‑

FRENCH CJ:   You have got that heading.  I do not quite see how it relates to ground 2.

MR STREET:   Yes, your Honours, I think there is part of ground 3 there, but can I identify that we do say, in looking at whether it is one that offends section 71 that we look at the question of whether it is one that has a Kable problem, and for the reasons I have sought to identify the Kable problem is not just the creation of a court, it is also the creation of a jury operating with a court that is not a Chapter III court, a jury in respect of which its members, as I have said, are not representative.

Its members are not ones that are required to have a unanimous verdict.  Its members are not equal.  There is a particular senior officer appointed, so there is not equality of the jurors.  So to that extent a particular senior officer of a particular rank is a minimum requirement for the members of that jury and that then equally undermines what we would have said would have been one of the features that would have applied if it were a section 80 jury, and one also has a limited number of juries for certain class offences which would otherwise ‑ ‑ ‑

FRENCH CJ:   I am not sure where this is taking us.  Ground 2 has to do with the characterisation of the Australian Military Court as a court exercising, impermissibly, the judicial power of the Commonwealth because its members are not appointed according to the criterion under the terms and conditions set out in Chapter III.  That is what it is all about, is it not?  There is nothing to do with Kable here.

MR STREET:   Your Honour, it is to the extent that one says – and if one were to say that this is a court that can be created outside Chapter III, we would have said to the extent that it is suggested that the defence power provides a source or ability to create a court outside Chapter III we would have said it must be a court that does not give rise to a Kable problem and this does because ‑ ‑ ‑

GUMMOW J:   You are saying, are you, that if there was a power in 51(vi) it would have this limitation in it?

MR STREET:   Yes.  So we say in the present case if in fact we are wrong in our primary submission that it is directly contrary to section 71 and violates Chapter III, and one finds that somehow it is a creature that can live, or seek to live, based on the defence power, we say it flies into the problem which we have identified in respect of Kable both in respect of the court itself and the court with the jury.

Your Honours, otherwise our submissions on ground 2 are summarised in paragraphs 38 to 42 of our submissions in‑chief and our submissions in reply in paragraph 1(g) and 1(h).  Your Honour, that is what I would seek to put in relation to ground 2.

FRENCH CJ:   That is closely connected then with ground 3 on the intersection issue that Justice Hayne put to you, is it not?

MR STREET:   It is, your Honour.

FRENCH CJ:   Perhaps it is convenient to deal with that next.

MR STREET:   If your Honours please.  In relation to ground 3 ‑ ‑ ‑

GUMMOW J:   You seem to want to reopen a whole lot of cases.

MR STREET:   Not necessarily, your Honours.  What we actually say is that one has a difference here in relation to the creation of a court from the earlier line of cases dealing with military discipline, so that the line of cases dealt with from Cox, Bevan, through to Nolan, Tracey, Tyler, Alpert, White, all dealt with a different statutory regime, all dealt with a regime in which there was not a court, all dealt with a regime where the consequence of the exercise of power was an exercise of power by command.  Now, we have an exercise of judicial power by an entity outside of command, if it ‑ ‑ ‑

HAYNE J:   Be it so, if that is the point you are making, that is a point wholly contained within ground 2, is it not?  If you failed on ground 2 how does this ground survive thus expressed?  I am not saying whether you win or lose on ground 2, but what is left of this ground if ground 2 fails?

MR STREET:   Your Honour, I did seek to make clear it is one, we submit, that if the repository of this judicial power is not one that offends Chapter III so that ground 2 ‑ ‑ ‑

HAYNE J:   But there is the point, Mr Street.  Ground 2 depends, it seems to me, upon your demonstrating that the Australian Military Court is exercising judicial power.  If it is not, then your point on ground 2 seems to me at that point to have some difficulties, and if it is exercising judicial power, we have gone far enough.  If it not exercising judicial power, how can you make ground 3 without reopening however many cases it is?

MR STREET:   Your Honour, can I indicate that perhaps the distinction I was seeking to make was this.  We say there is no doubt and there always has been a clear recognition that where one did have what I will call the old military tribunal exercising its jurisdiction it was exercising judicial power, but to the extent ‑ ‑ ‑

HAYNE J:   No.  Go to Tracey 166 CLR 572. Let us clear some decks shall we, Mr Street? I want to know whether you challenge this. Do you understand what is said at 572 of 166 CLR to embody two propositions? Let me state them so that you know what they are. One:

the imposition of punishments by service authorities as for the commission of criminal offences in order to maintain or enforce service discipline has never been regarded as an exercise of the judicial power -

Proposition 2:  observing (a):

That the functions performed by courts‑martial in England are judicial in character -

(b) that the powers exercised by a court‑martial -

are to be exercised judicially -

and (c) that -

The powers are conferred on officers of the Commonwealth by a law of the Commonwealth -

requires no different conclusion.  Now, do I read Tracey aright or do I read it wrong?

MR STREET:   Your Honour, it is here that we say the repository of the power is so material.

HAYNE J:   I understand that.  Your ground 2 is, but this is a court and this is a court which is exercising judicial power.  I understand that, but I want to know whether you accept that the first two propositions, or the two propositions I have identified, are an accurate repetition of what appears in Tracey and if they are, whether you embrace them or reject them?

MR STREET:   Your Honours, to the extent that one has a recognition that service tribunals can exist exercising a power to deal with breaches of military duty which are service tribunals of command, I accept that they can exercise a power which is in its nature judicial.  To the extent that one has, though, a purported service tribunal which now has the characterisation of a court, even if it is not exercising the judicial power of the Commonwealth, no, one cannot confer on that entity, which is in the character of a court even if it is not the judicial power of the Commonwealth, a power to deal with and impose punishments upon service members.

Your Honours, I think I have in part addressed your Honour Justice Hayne’s question in the sense that what we say is we seek to distinguish Tracey because Tracey was not dealing with a repository of a power in the nature of judicial power that was called a court.  It was not dealing with an entity that was outside of command.  If one has an entity outside of command that is purporting to exercise a judicial power, even if it is not the judicial power of the Commonwealth, to the extent that Tracey suggests that that is permissible, it is wrong.  To the extent that any of the earlier cases suggest that one could have a court vested with such a power to be exercised in that nature, we would maintain, it is wrong.

Your Honours, what we say is that there is a material difference between Tracey in those earlier decisions and what is now done.  The significance of a court exercising jurisdiction, even if it is not the judicial power of the Commonwealth, to make binding findings as a court of record must be one in relation to which it is no longer simply exercising a command power in respect of command discipline.  It has two significant consequences.  It means that the determination that is being made by that entity, the Australia Military Court as a court of record, is a determination of a law of the Commonwealth that creates an offence which must now be an offence against the law of the Commonwealth.  We say that the character that permitted a service offence to be treated as a service offence outside section 80 and being dealt with by an entity outside Chapter III, was that it was an exercise of control by command.

So, your Honour, in answer to your Honour Justice Hayne’s question what we say is, if it were a command entity that were exercising a power in the nature of judicial power in respect of a service offence, there is no suggestion that that cannot be done and I am not seeking to open up that line of country simply to explore the issues that are touched on in White.

FRENCH CJ:   Can I just take you back to Tracey for a moment, to 540 in the joint judgment of Chief Justice Mason and Justices Wilson and Dawson.  What they describe as the real question in that case is the question that is raised by your ground 2 in part, that is:

not whether a court-martial in performing its functions under the Act is exercising judicial power. There has never been any real dispute about that. The question is whether it is exercising the judicial power of the Commonwealth under Ch. III of the Constitution.

Is that the question which you are raising in respect of the Australian Military Court?

MR STREET:   That is the question we have raised in ground 2.  I accept that.  But what I was seeking to put in relation to ground 3 is that ‑ ‑ ‑

GUMMOW J:   I thought your ground 2 was different.  We had better be clear about this.

MR STREET:   I am sorry, your Honours, I may have too quickly agreed with the Chief Justice in relation to ‑ ‑ ‑

GUMMOW J:   You seem to agree with each of us.

MR STREET:   I am seeking to be agreeable, your Honours.

GUMMOW J:   But that has diminishing returns.

MR STREET:   Yes, your Honours, to the extent relevant ‑ ‑ ‑

GUMMOW J:   It avoids the immediate cyclone, but it does not avoid total disaster.

MR STREET:   Yes.  Well, your Honours, I think, in answer to the Chief Justice, the question formulated at page 540 does not reflect our ground 2 and I maintain what I have said in relation to ground 2.  To the extent that there is a ‑ ‑ ‑

FRENCH CJ:   What are you saying?  How would you formulate the real question?

MR STREET:   Your Honour, in relation to ground 2, the question is whether the Australian Military Court, created under Part VII, Division 3, is a court that offends section 71 and Chapter III.

GUMMOW J:   What do you mean by “offends”?  You talk about violation and offence.  Why do you not just talk about the text?

MR STREET:   Your Honour, it is created outside and not in compliance with section 71.  Can I just deal with what your Honour the Chief Justice and Justice Hayne have raised in relation to Tracey.  We do submit that the decisions that have touched upon military tribunals exercising a power that in its nature has been judicial power are distinguishable from what is now being created, even if I am wrong in respect of ground 2.

We say that they are distinguishable because in those cases the entity reposed with that power was not described as a court and was not a court which was a court of record, which has a binding impact and has a binding impact Australia wide.  That carries with it, in our respectful submission, a consequence that this is a very different jurisdiction that is being exercised, even if it is not within our ground 2 submission.

CRENNAN J:   Each of the passages from Justice Brennan and also the joint judgment do raise an issue about whether or not there is some historical recognition of a power to create a court outside Chapter III.

MR STREET:   Your Honour, we respectfully submit that what was said by Justice Dixon in Cox is correct. There is no real exception and there was no power to create a court outside Chapter III at the time of the creation of this Constitution. The Naval Discipline Act and the Army Act did not permit creation of courts.  They were not courts; they were bodies of command that could exercise command power and they were reviewable by command.  There was still a prerogative in the commander‑in‑chief, the Queen, to review the outcome of the courts martial and punishment imposed.  They were classically an exercise of power by command.

What we submit in relation to the third ground is this, that the function that is now being performed by this entity, if it is outside the submission we have put in relation to ground 2, if it in fact is an entity that is exercising a power that is not in violation of section 71 and in violation of Chapter III in the way we have sought to put, we respectfully submit that the independent entity, being the Australian Military Court, which is not subject to command in respect of its jurisdiction that it is then exercising where it makes convictions and findings or imposes penalties or acquits, is doing so as a court of record that must have a binding consequence Australia wide and that has a massive impact on its distinction from the earlier cases which characterise the power as being one which was in fact not a real exception to Chapter III.

So, your Honours, what one then has is an entity, in our respectful submission, whether or not within Chapter III that is no longer subordinate to the State jurisdiction in the manner which we have sought earlier to identify.  It was at the kernel of the existence of the service tribunals that they would be subordinate and supplementary and not in conflict with the State criminal jurisdiction.

FRENCH CJ:   Does paragraph 48 of your submissions set out what one might call the core proposition for the ground 3?  Do not agree with me too quickly just in case you run into trouble with Justices Gummow and Hayne.

MR STREET:   Your Honour, to the extent relevant, I do not think that does fully articulate ‑ ‑ ‑

FRENCH CJ: The Bill is saying that the jurisdiction, in effect, the range of offences which can be dealt with by this body, is beyond that which would be authorised by section 51(vi).

MR STREET:   Yes, your Honour.

FRENCH CJ:   That is it, is it not?  And that it is confined by that category identified in 48 in the quotation from Tracey from Justices Brennan and Toohey?

MR STREET:   I am too quickly agreeing with your Honour.

FRENCH CJ:   Is there anything more in it than that?

MR STREET:   Yes, there is, your Honour, because that was just dealing with serious crimes and there are, in relation to service offences, three kinds of offences that are, in essence, identified with the Defence Force Discipline Act.  I do not want to be taken to be confining the argument simply to the most serious crimes so far as the service offences are concerned.  Our submission in relation to ground 3 is not focused solely on the fact that we have a court that is dealing ‑ ‑ ‑

GUMMOW J:   But that view of Justices Brennan and Toohey was a minority view, was it not, in Tracey, with respect to section 61?

MR STREET:   When your Honour says in relation to section 61 ‑ ‑ ‑

GUMMOW J:   Of the statute, yes.  The question was whether that was valid.

MR STREET:   Your Honour, to the extent that they sought to identify a theory that one, in essence, has a parallel system that is subordinate and supplementary to the criminal law, we would have said that was subsequently embraced in Nolan and that is the proposition that I am seeking to identify, that in ground 3 it is at the core of the existence of a service tribunal that lives outside Chapter III that it must, in essence, be one that is supplementary to the State criminal jurisdiction. 

The submission we are seeking to advance in ground 3 is, in essence, picking up the proposition that his Honour Justice Hayne touched on that the consequence of the exercise of this jurisdiction by a court which is created as a court of record and has a binding significance Australia wide in respect of its convictions is that you no longer have it simply determining a matter that was within the service, if I can put it in that way.  It is now making a conviction which has an impact or an acquittal that has an impact Australia wide. 

Even if it were not exercising the judicial power of the Commonwealth, it is no longer capable of being said to be subordinate and supplementary because the power that it is exercising is one in respect of which it is determining criminal guilt.  The Defence Force Discipline Act picks up through section 10 Chapter 2 of the Criminal Code. Chapter 2 of the Criminal Code identifies the elements that are to be applied in determining the guilt in respect of the offence.

So that what now is happening is not a command decision being made by command in respect of a breach of military duty, there is a determination being made by a non‑Chapter III court for the purpose of ground 3 that is binding Australia wide in respect of guilt and we say that cannot sit as a parallel and subordinate system with the State jurisdictions in respect of the State criminal jurisdiction.  For that reason, your Honours, we would respectfully submit that the very same problem that was identified in Tracey in respect of Melbourne Corporation rears its head.

BELL J:   Mr Street, I am just trying to see the distinction that arises by virtue of the nomenclature of Australian Military Court and the significance of it being created as a court of record.  You emphasise repeatedly the binding nature of its decisions and I understand that to be in support of a view that notwithstanding the provisions of section 144 of the Discipline Act, because it is created as a court of record, a conviction before the Australian Military Court would give rise to autrefois convict?

MR STREET:   Yes.

BELL J:   And you say that by contrast under the system of service tribunals a conviction, as used to be the description, was not a matter of which a State court would have noticed as a court of competent jurisdiction for the purpose of autrefois convict?

MR STREET:   Yes.  What your Honour raises is a material matter.  Servicemen and women that come before summary authorities, for example, everyday are dealt with by summary authorities which are command, an exercise of command power by command.  That exercise of command power where they are found guilty of having engaged in some inappropriate behaviour is one which creates no consequence outside the military.  It has no record outside the military.  It has no impact for them if they seek to leave the defence service and are seeking either to engage in migration activities or some other activity.  Whereas a conviction by the AMC is now a conviction at large, binding across the country and a conviction that will have an impact on the servicemen and women of the Australian Defence Force.  That is a material and significant consequence of this entity that is created.

So, picking up what your Honour Justice Bell has said, its impact is quite significant in relation to the consequences of it being described as a court of record and it exercising this power as a court, even if it were not within ground 2.  In our respectful submission, that consequence is one in respect of which, because the character of the power was judicial in nature, because the repository is the court, one can no longer characterise the service offence as being a military duty offence which was outside section 80.  Your Honours, we would put that as a final submission in relation to the operation of the third ground.

BELL J:   One thing against that, Mr Street, might be that the majority in Tracey seemed to have contemplated that under the former system a conviction before a court martial might give rise to autrefois and it was an open issue.

MR STREET:   Yes, your Honours, they identify that this was a topic that was not addressed, and it appears that for that purpose there was no development of any argument beyond the argument limited to section 190 and the particular provisions that were said to be invalid.

Your Honours, an exercise of command power and the consequence of an exercise of command power within command is a matter that we would have said is, of its nature, not capable of being effect to as a conviction that would have an Australian‑wide impact, whereas this Court now has such a consequence with its convictions and acquittals, and that difference is one which, if it were – if I can go back to an old service tribunal – a court‑martial that had dealt with an offence of assault, and if it made a finding adverse, it had no impact beyond the immediate service.

The consequence of that was this, in relation to enhancing discipline, just so that your Honours are alive to it, when one looks at creating a coherent and effective team in relation to the various military units that we have, those military units are ones in respect of which loyalty and respect for authority and integrity are core elements in the discharge of the relationship of command and those under command, and there is obviously a significant impact where it is the commanding officer who is seeking to bring forward a charge in respect of someone being late for returning to duty and having let down the rest of the team and the inclination to turn around and say “Well, I did it.  Yes, I am going to plead guilty”, and the impact of the loyalty and respect within command that is built up by command exercising disciplinary powers is lost by this external entity.

The Australian Military Court is exercising its own authority.  It is not part of command, it is not by command.  It is not going to enhance morale and discipline.  What it is is, in essence, to the extent of military duty, imposing a significant and much harsher regime upon the servicemen and women of our defence forces.

So that, your Honours, it has a consequence which, in our respectful submission, when we come to look at the third ground, if it is not within challenge in respect of section 71 and Chapter III, it nonetheless now has a consequence which we would respectfully submit means that it runs into the problem of Melbourne Corporation and the consequence of its acquittal or its conviction must be to exclude the State jurisdiction, something that would be impermissible.  It must be a consequence that it is no longer a subordinate and ancillary jurisdiction.  It is in conflict with and in fact dominates the ‑ ‑ ‑

FRENCH CJ:   Your Melbourne Corporation point was knocked out. That was ground 5, so I do not know that there is much point in pursuing that. You are really focusing, I would have thought, on the proper construction of 51(vi) and the limits of power conferred by it having regard to other aspects of the Constitution.

MR STREET:   Your Honours, can I just say that in that regard, we understood that the extent to which that Melbourne Corporation argument was dealt with, it was still open.

FRENCH CJ:   Ground 5 was dismissed.

MR STREET:   I am not running ground 5, I am running ground 3, and I am seeking to deal with ground 3.

FRENCH CJ:   Yes.  That has nothing about Melbourne Corporation in it, really.  These seem to be all over the page Melbourne Corporation, Kable. It would be really useful to just focus upon the core issues here which have to do, as Justice Gummow said earlier, with the text of the Constitution and the limits of the power conferred by 51(vi).

MR STREET:   Yes.  Your Honour, can I just deal with one aspect, though.  I understand what your Honour the Chief Justice did in relation to paragraph 26 of your Honour’s judgment in Lane v Morrison to identify the particular arguments were dismissed, but I think there is language that identifies except insofar as they are within the grounds that remain.  It is that issue that we say we can still focus upon in relation to ground 3 because what we are seeking to put in relation to ground 3 is that it has a consequence where you do now have a court, if it is outside of Chapter III and does not offend section 71, you have a court that is now exercising, in essence, criminal jurisdiction and if it is exercising ‑ ‑ ‑

FRENCH CJ:   Right.  Your point is, is it not, that the Commonwealth Parliament does not have a general power to legislate with respect to criminal offences, except as an incident of the powers which are conferred upon it and that to the extent that the Defence Force Discipline Act purports to extend the reach of this Court to offences which you would call civil offences goes beyond the limits of what is properly incidental to section 51(vi). That is really the point, is it not?

MR STREET:   Your Honour, I embrace that in relation to what I will call our fourth ‑ ‑ ‑

FRENCH CJ:   I am just trying to characterise your argument.

MR STREET:   I embrace it in relation to ground 4, your Honour, and our ground 4 embraces that.

FRENCH CJ:   Let us move to ground 4.

MR STREET:   Your Honour, just before we do, can I indicate that in relation to ground 3 the significance of ground 3 is that even if it were somehow held that the law made in the creation of the Australian Military Court was within the scope of power of the defence power and even if it were held that it does not violate section 71 and Chapter III, it still has a problem and that is what ground 3 was seeking to identify.  Its problem now is it is determining criminal guilt in a way which is inconsistent with the continued existence of the State criminal jurisdiction.

Your Honours, we have dealt with the submissions in our written submissions in paragraphs, I think, 43 to 59 and in reply submissions, paragraphs 1(i) to (k) and paragraph 17.  Your Honours, could I then turn to ground 4 in relation ‑ ‑ ‑

FRENCH CJ:   But that is actually ground 6, I think, in the show cause application.

MR STREET:   Yes.  I am referring to the grounds by reference, your Honour, to our written submissions, if that is convenient?

FRENCH CJ:   Yes, I understand that.

MR STREET: Your Honours, if it is convenient then to turn to the topic your Honour the Chief Justice raised and that is then the characterisation of the law that creates the Australian Military Court by Part VII, Division 3 and we say it is not a law that can be characterised as appropriate and adapted to the defence power within section 51(vi) but we say it is immediately identified as one which, at the very best for the Commonwealth, is a law in respect of more than one subject matter. If it were capable of being described as a defence subject matter, it is also one that falls within Chapter III and if it is a law falling within Chapter III in terms of the creation of such a court, in our respectful submission, the prohibition that arises from Chapter III must mean that it is not within the law‑making power in section 51(vi).

Your Honours, in our respectful submission, the proposition I think was picked up again – if I could go back to the Work Choices decision 229 CLR 127 and take your Honours to paragraph 219:

There is a further general proposition that “a law with respect to a subject matter within Commonwealth power does not cease to be valid because it affects a subject outside power or can be characterised as a law with respect to a subject matter outside power”.  That proposition, however, does not apply when, as it was put in Bourke v State Bank of New South Wales, “the second subject matter –

here, Chapter III power, creation of courts –

with respect to which the law can be characterised is not only outside power but is the subject of a positive prohibition or restriction” -

and we say that reasoning, even though I appreciate it was referring to the legislative powers within section 51, is equally applicable to the extent that we are looking at whether the defence power here can sustain what has been created under Part VII, Division 3.

In our respectful submission, this issue was flagged by your Honours in the decision of White 231 CLR as to the impact of Chapter III on the scope of the power.  Perhaps I can just give your Honours some references in that regard.  It is paragraph 5.  If your Honours go to page 581 in the judgment of the Chief Justice, there is the start of a paragraph that says “This is a topic to which it will be necessary to return”, but his Honour continues at the bottom:

The plaintiff’s primary argument is that the trial and punishment of service offences necessarily involves an exercise of the judicial power of the Commonwealth, and may occur only within the limits imposed by Ch III of the Constitution. This, it is said, is because the power conferred by s 51(vi) of the Constitution, which is the power upon which Parliament relies to create service offences and establish a system of military justice, is given “subject to [the] Constitution”, that is, subject to Ch III and to the separation of powers inherent in the structure of the Constitution.

His Honour then continued, after identifying the passage in Tracey:

Their Honours went on to say that the Convention Debates are silent on this point, by which presumably they meant on the relationship between service tribunals and Ch III.

Your Honours, it is that relationship between the service tribunal and Chapter III that now arise in this case that is also touched on, I think, in your Honour’s judgments in the joint judgment at paragraph 39 on page 592:

Finally, the system established by the Act cannot operate wholly beyond the ambit of Ch III of the Constitution.

Your Honour, it is that proposition dealt with in paragraphs 39 and 40 that now arises in this case because, in our respectful submission, what we do have now is something that goes beyond the scope of the defence power because of the prohibition and restraint imposed both by Chapter III and by section 71.

Your Honour, the same proposition was touched on by the Court in Tracey.  If I can go back to Tracey 166 CLR 518 at 538 in the first paragraph at about point 1:

Of course, the end to be achieved by martial law, consistently with s 51(vi) of the Constitution, is the promotion of the efficiency, good order and discipline of the defence forces and no more.

Now, if I can just stop there for a moment.  “Good order and discipline of the defence forces and no more” does not include making decisions binding Australia wide.  It does not include making a court of record.  It does not include creating an Australian Military Court.  Your Honours, there is a further passage in the same judgment that touches on it, page 567, at the bottom of the page:

In this Court the Commonwealth embraces the approach of the majority in Solorio, though the submission is founded on the principle, stated with reference to our own Constitution, that once a provision is seen to be appropriate and adapted to the carrying out of an object or purpose within a legislative power which involves the notion of object or purpose, the choice of legislative –

Your Honours, there is ‑ ‑ ‑

FRENCH CJ:   Sorry, what do you take from that?

MR STREET:   No, I am sorry, your Honours, I should have taken your Honours to page 570 in the joint judgment of Justice Brennan and Justice Toohey at the top of the page:

To achieve these objectives, it is appropriate to repose in service authorities a broad authority, to be exercised according to the exigencies of time, place and circumstance, to impose discipline on defence members and defence civilians. The second set of objectives, dictated both by Ch III and s 106 of the Constitution and by the constitutional history we have traced, consist of recognition of the pre‑ordinate jurisdiction of the civil courts and the protection of civil rights which those courts assure alike to civilians and to defence members and defence civilians who are charged with criminal offences. To achieve these objectives, civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of maintaining or enforcing service discipline.

Your Honours, in our respectful submission, what one has now is something that is no longer enforcing service discipline.  At page 571 at about point 3 where there is a reference to decisions being reviewable under section 75(v) of the Constitution:

Section 51(vi) does not support a jurisdiction standing outside Ch III of the Constitution –

Your Honours, in our respectful submission, that directly applies in relation to what is now being created.

FRENCH CJ:   Except to the extent that – that is the big question – the jurisdiction serves “the purpose of maintaining or enforcing service discipline”.

MR STREET:   Your Honours, in our respectful submission, it cannot be characterised as one that is servicing discipline for the reasons that we have summarised in the written submission we handed up on page 1.  We have a list of features which we have said are destructive of it being appropriate and adapted to service discipline.  Your Honours, for those reasons, we respectfully submit, it falls outside the law‑making power, which is the defence power, which your Honours touched on in some length obviously recently in the Thomas v Mowbray decision dealing with the terrorist power.

Your Honours, in our respectful submission, it is one now that the consequence is not just that Part VII, Division 3 must fall, we respectfully submit that the interrelated provisions must also fall.  If I could just identify them for your Honours.  There were other interrelated provisions other than Part VII, Division 2.  You have the interrelated division of the Director of Military Prosecutions under Part VII, Division 1.  You have the trial powers of the AMC under Part VIII, Division 2.  You have the appeals to the AMC under Part IX and you have then the appointment of the CMJ, chief military judge, under Part XI, Division 2, and the military judges under Division 2A and the appointment of the DMP under XIA, all of which, we would say, would fall, if it is the case, it is beyond the defence power, as we seek to submit.

Your Honours, can I indicate there is one last aspect to ground 4 that we put and that is the proposition that in respect of these proceedings themselves it would not in any event be one in which there was an inadequate service nexus.  We have summarised on page 9 the criteria which we say takes it outside the service nexus.  We have dealt with it in our written submissions.  In relation to that ground, in paragraphs 69 to 70, we adopt what was said by the intervener in relation to those matters.

Your Honours, there are only then two housekeeping matters.  If I could just identify them, your Honours.  One is, I think the legislation that is applicable to the last issue that identified, that is, whether these proceedings, proceedings which have a sufficient service nexus, are said by the Commonwealth to be the legislation as it stood in October 2007.  Your Honours, that in part just turns upon a question of construction.  There is an agreement as to the facts, but could I just identify them, your Honours.  If your Honours have the Commonwealth material, volume 1.

GUMMOW J:   Yes.  It is intensely irritating.  It has got bits and pieces. 

MR STREET:   Your Honour, I was equally surprised, as I think was the learned Solicitor‑General.

GUMMOW J:   I realise it is not your preparation.

MR STREET:   At page 580 in volume 1 of the Commonwealth material your Honour will see there is a provision which is in the transitional provisions that says:

This item applies if, before the commencement day:

(a)a person had been charged with a service offence under the old DFDA –

That is clearly the fact.  That is correct in the present case –

(b)proceedings dealing with the charge of the offence had been commenced under the old DFDA –

Your Honours, we have an issue there.  The facts are agreed but we say “proceedings dealing with the charge of the offence” had not been commenced.  My client had not attended before the AMC.  His attendance was required under section 139.  He had not been properly subpoenaed to attend to the extent that there were military rules requiring his attendance.  He did not appear.  The issues relating to the objection to jurisdiction were raised without actually an appearance being made by the counsel that attended and we say “proceedings dealing with the charge” must mean when there has been an entering of the plea.

MR GAGELER:   I was going to refer to two other authorities.

FRENCH CJ:   Perhaps you can do that.

MR GAGELER:   I can do that, and I do not need to read from them.  Falconer’s Case 125 CLR 591, if your Honours look at page 603, which is a summary of what one gets from the Boilermakers’ Case – of course, another case that dealt with ‑ ‑ ‑

GUMMOW J:   That is in a Territory context, is it?

MR GAGELER:   Yes, in the Territory context, but a very useful summary by Justice Menzies of what one gets from the Boilermakers’ Case.  He says, by reference to the Boilermakers’ Case:

The decision whether or not a court has been created as a federal court under s. 71 depends upon the legislative intention to be derived from the whole of the law establishing the court.

He sees the Boilermakers’ Case as illustrative of that, and the Boilermakers’ Case itself, your Honours, in 94 CLR 254 at page 289 in the joint judgment says this, and I will read just half a sentence:

it is difficult to see what escape there can be from the conclusion that the Arbitration Court, though under s. 51 (xxxv.) of the Constitution there is legislative power to give it the description and many of the characteristics of a court, is established as an arbitral tribunal which cannot constitutionally combine with its dominant purpose and essential functions the exercise of any part of the strictly judicial power of the Commonwealth.

But it was a body that was, according to that passage, within the scope of section 51(xxxv) established as a court and given the characteristics of a court, but what it could not be given was the judicial power of the Commonwealth. If the Court pleases.

FRENCH CJ:   We will adjourn until 10.15 tomorrow morning.

AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 23 APRIL 2009