McWaters v Day

[1989] HCATrans 223

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B22 of 1989

B e t w e e n -

BRETT JAMES McWATERS

Appellant

and

GRAHAM GEORGE DAY

Respondent

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J
GAUDRON J

McWaters(2)

?:1cHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 10 OCTOBER 1989, AT 10.17 AM:

Copyright in the High Court of Australia

ClTl/1/JH 1 10/10/89

MR C.E.K. HAMPSON, QC:  I appear with my learned friend,

MR T.J. RYNNE, for the appellant, if it please

the Court. (instructed by the Crown Solicitor for

Queensland)

MR G.L. DAVIES, QC:  I appear with my learned friend,

MR M. BURNETT, for the respondent, may it please

the Court. (instructed by Stockley & Co.)

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

If the Court pleases, I appear with my learned friend,

MR S.J. GAGELER, for the Attorney-General for

cne Commonwealth intervening (instructed by the

Australian Government Solicitor). We support the

appellant, Your Honour, but we also support the

validity of section 40(2) of the DEFENCE FORCE

DISCIPLINE ACT.

MR H.C. BERKELEY, QC, Solicitor-General for Victoria: If

the Court pleases, I appear with my learned friend,

MR R.L. DEAN, for the Attorney-General for the

State of Victoria (instructed by the Crown

Solicitor for Victoria).	We intervene in the
interests of the appellant.

MR L.KATZ~ If the Court pleases, I appear for the

Attorney-General for New South Wales intervening and our position is the same as that of the Commonwealth.

(instructed by the Crown Solicitor for New South Wales)

MASON CJ:	Mr Hampson?
MR HAMPSON:	If the Court pleases, I have distributed outlines

of our submissions.

MASON CJ:  Yes.

MR HAMPSON:  If the Court pleases, the Enoggera Army

Barracks, where this matter occurred, or the Enoggera

army camp as it is also called, is a Commonwealth

place within the meaning of the COMMONWEALTH PLACES

(APPLICATION OF LAWS) ACT 1970; there has been no

dispute about that in the court below or here.

(Continued on page 3)

ClTl/2/JH	2	MR HAMPSON, QC	10/9/89
McWaters(2)

MR HAMPSON (continuing):  The question then is that pursuant

to that section, section 16(1) (a)(i) of the

Queensland TRAFFIC ACT. would apply if it is not

otherwise invalid, and the only possible ground
of invalidity which has been suggested is inconsistancy

with section 40 (2) of the DEFENCE FORCE DISCIPLINE

ACT 1982 . The Court has copies of the legislation,

I understand, and we point out that the penalties

in paragraph 3 of our outline differ and there is

an elPment in section 40 (2) which section 16(1) (a) (i)

lacks, namely the level of intoxication ·

must be such that the driver was incapable of

having proper control of the vehicle. They seem

to be the textual differances between the two

provisions. And before the Queensland Full Court

it came down simply to an argument as to whether

there was an inconsistancy which section 109 would

have to resolve and the argument on our behalf was

that there was no inconsistancy because the

Q.ieensland TRAFFIC ACT was directed to a purpose different from the purpose of the Commonwealth Pct

It was directed to the purpose of regulating traffic,

whereas the Commonwealth kt, section 40 (2) was

directed to the discipline of defence forces members.

And that was the first argument, a straight

inconsistancy argument, and the second argument

was that section 40 (2) was meant to be supple.mental

to section 16(l)(a)(i) in that it imposed a

disciplinary obligation on defence force members which was additional to there obligation to obey

section 16(l)(a)(i).

(Continued on page 4)

CIT2/l/CM	3	10/10/89
McWa.ters ( 2)

MR HAMPSON (continuing):  The Full Court divided and

Mr Justice Williams, in our submission, was correct. He was the minority. He accepted

both of those arguments and he did the second

one because he believed that he was thereby

acting consistently with the underlying ·

reasoning in the decisions of most of the

Justices of this Court in RE TRACEY and we

would respectfully ask the Court to look at

Mr Justice Williams' judgment at page 27 of the

appeal book. It is page 5 of his judgment. He

comes to the stage where:

There are many cases -

he says -

in which the High Court has considered

the meaning and effect of s. 109 of the

CONSTITUTION -

and he sets out a number of the cases and guides

which have been elucidated judicially from time

to time for analysing the existence of inconsistency.

Then, on page 28, he went on to deal with the

covering of the field argument and he set out the

frequently cited passage in EX PARTE McLEAN and

we rely on that; it is in our list of cases and

we even rely on the underlining that is used there.

He said, then, at page 29, and we respectfully

submit His Honour is quite correct in this; that:

In applying that test it is necessary to identify the field of operation of the

Commonwealth legislation; it is clear that

before there can be inconsistency the laws
in question must relate to the same subject

matter (at least in general -

(Continued on page 5)

ClT3/1/SH 4 10/10/89

MR HAMPSON (continuing): And he referred to the judgment of

the Chief Justice in REG V WINNEKE and also that the

Commonwealth legislation must evince an intention to

cover the field.

MASON CJ:  You are accepting, are you, for the purpose of this

argument that section 40(2) is valid?

MR HAMPSON:	Yes, Your Honour.
MASON CJ:	You are not presenting an argument on invalidity?
MR HAMPSON:	I would present an argtm=nt on invalidity only if I fail on

this particular argument, Your Honour, and, with

respect, I do feel that this one is so clear that

it is not really necessary to go to invalidity. I

have to argue this first one on the basis, of course,

that section 40(2) is valid.

MASON CJ: Yes, that is why it seemed to me that if you were

going to argue invalidity at a later stage this is

rather putting the cart before the horse.

MR HAMPSON:	Yes.
McHUGH J:	Your written submissions do not indicate that you

intend to argue the question of validity, do they?

MR HAMPSON:  No, only the last one, I think, Your Honour. The

last one probably does. It refers to ground (e) in

the notice of appeal book and ground (e), although

it may not be elegantly expressed, it really, I

suppose, runs into (f).

MASON CJ:  I read (e) as being independent of (f). Ground (f)

struck me as being a plain submission of invalidity,

whereas (e) seemed to me rather to acknowledge,

perhaps, that section 40 ( 2) was valid but, none tl1e less,

there was a question of whether or not that

jurisdiction could be invoked.

MR HAMPSON:	Yes.
MASON CJ:	I think you need to clarify what it is you are going

to put to us.

MR HAMPSON:  With relation to the question of invalidity.

MASON CJ:  Grounds (e) and (f). Do you intend to put an

argument of invalidity at all?

ClT4/l/DR	5	10/10/89
McWaters(2)

MR HAMPSON:	Yes, we do propose to do so, in reliance, really, upon what we apprehend the majority of the Justices
~aid in TRACEY EX PARTE RYAN, and that is to say, really, that what we are involved in here, was a
peace-time situation in a capital city of the
Corrnnonwealth in which the defence power would, in
our submission, be insufficient to justify taking
away the offence created by the State in which the matter occurred.

TOOHEY J: Well, Mr Hampson, you might have at some stage, to ident

the majority, to use your term, in TRACEY, that

justifies that submission.

MR HAMPSON:  Yes. I had references under 7 to four of the

Justices, yourself included, Your Honour, and

with page numbers there to the report and the
statements which were made there seemed to us to

support what I just said: that there is a difference

in peace-time and in wartime, so far as the defence

power is concerned, in creating an interference, if I

could put it shortly that way, with the operation of

the civil affair, or criminal offences, cognizable

in the ordinary civil courts.

TOOHEY J:	But grounds (e) and (f) are quite different,are they
not?
MR HAMPSON:	Yes - - -
TOOHEY J:	Ground (f) would seek to strike down section 40(2) in
its entirety; ground (e) assumes the validity of section 40(2), but questions its operation in
particular circumstances.  ·
MR HAMPSON:	That is so, yes, Your Honour. (Continued on page 7)

ClTS/1/FK	6	10/10/89
McWaters(2)

MR HAMPSON: It questions its operation in the present

circumstances, that is so. Now certainly we

are relying then upon (e) and so far as (f) is

concerned the reference to -

In the circumstances prevailing at the time -

is really an effort to repeat, as it were, the

references to"the: state of peace, the circumstances

of civilization and not remoteness and the like"

which obtained to the Enoggera army base, so that

in those circumstances and for those limited

reasons we would say that section 40 was ultra vires

under (f).

MASON CJ:  Mr Hampson,before you come to your argument, what

was the status of Lavarack Parade? Is that

Commonwealth property or is it a public street?

MR HAMPSON:	I am sure it is only a street name on the base.
MASON CJ:	On the base, so that it is Commonwealth property

and in no respect a public street or road.

MR HAMPSON:  It is Commonwealth property, yes. Every

geographical feature in this particular case is

Commonwealth property.

GAUDRON J:  Mr Hampson, perhaps it does not arise at this

stage, but there is an aspect to the exclusive

power of the Commonwealth with respect to

Commonwealth places and the COMMONWEALTH PLACES

(APPLICATION OF LAWS)ACT that must cut across any

argument about invalidity, is there not?

MR HAMPSON:  There is a question that arises,Your Honou~

as a result of section 4 of that Act. Section 4(1)

provides that:

The provisions of the laws of the State as in	force at _a time ..... apply" :_or:.:_shall be .:..deemed
to have applied, in accordance with their tenor, at that time in and in relation to
each place in that State that is or was a
Commonwealth place -

and by the definition of "Commonwealth placen this

was -

at that time.

CIT6/l/CM	7	10/10/89
McWaters(2)
MR HAMPSON (continuing):

(2) This section does not -

(a) extend to the provisions of a law of

a State to the extent that if that law

applied, or had applied, in or in relation

to a Commonwealth place, it would be, or

have been, invalid or inoperative in its

application in or in relation to that

Commonwealth place otherwise than by reason

of the operation of section 52 of the

CONSTITUTION in relation to Commonwealth

places;

Now, if it is said that section 40(2) is made on

the head of Commonwealth power provided by section 50(i)

of the CONSTITUTION, then there would be an argument
against.my invalidity. argum7nt in so far ~s it related to section 40-(·2") and this particular base, in other

words, irrespective of the defence power of the

Commonwealth. Is that what Your Honour means?

GAUDRON J:  Yes, circumstances.

MR HAMPSON:  Yes. Now, the only answer I could give to that

would be to say that in construing section 4(1)(2)(a)

of the COMMONWEALTH PLACES (APPLICATION OF LAWS) ACT,

one would read the words "otherwise than by reason of

the operation of section 52" to include any law made

in reliance upon section 52. That is the only way

that I could see, with respect, that the matter could

be overcome and that is, we would submit, quite a

sensible approach to the matter. Of course, the

operation of section 52 itself is little; it just

merely says:

The Parliament shall, subject to this

CONSTITUTION, have exclusive power to make

laws for the peace, order, and good government

of the Commonwealth with respect to -

(i) The seat of government of the Commonwealth and all places acquired by the Commonwealth for

public purposes.

So it does not really have any effect so that you say "by reason of the operation of 52" unless there is a law made. Section 52 itself is only a basis for making a law. It gives exclusive power with relation to it. But, I appreciate that is a difficulty and

it could be that someone could say, "Well, that

is not the correct interpretation of the provision"
and "section 4(1)(2)(a), in fact, is wider than

that and, therefore, allows this law, section 40(2),

to be justified on section 52(i) of the CONSTITUTION

and not on the defence power".

ClT7/l/SH	8	MR HAMPSON,	QC	10/ 10/89
McWa ters ( 2)

If I could return then to the 109 point - - -

McHUGH J: Well, I am just a bit confused. How is it alleged

that the State Act applies or can constitutionally

apply to this Commonwealth place, other than by means

of the COMMONWEALTH PLACES (APPLICATION OF LAWS)?

MR HAMPSON:  It cannot, Your Honour. We do not suggest it

can, no. We do not suggest it can.

McHUGH J:  No. So, you have got to rely on section 4(1)?

MR HAMPSON: Certainly. We rely on section 4(1);say because

of section 4(1), the section 16 clearly applies unless

section 16 is made invalid by something other than
section 52 and in that search for that invalidity,

the only thing that suggests it is section 40(2).

So the question then - the only-way

section 40(2) can make section 16 invalid is, in fact, if there is an inconsistency, if the field

has been covered, all the various different tests
which were looked at.

Now, as I say with respect, the inconsistency point is not really a large one and, really, we can

do no better than refer the Court to the judgment of

His Honour Mr Justice Williams which, really, accepted

the arguments that were put by the present appellant
to the Full Court and, at page 29, he goes on with

the consideration of the test and looks, in particular,

at the legislation here. At the top of page 30 in

that first paragraph, he deals with the point that

I was just asked about, in fact:

If that Queensland law is not rendered invalid

(at least to the extent of its operation on

"service land") s.4 of the COMMONWEALTH PLACES

(APPLICATION OF LAWS) ACT 1970 would operate

so as to make it applicable to driving on

that place.

He characterized the TRAFFIC ACT as:

a law regulating the driving of motor vehicles

on roads -

and then to determine the subject-matter of the

other Act, which is said to be an attempt to cover

the field covered by the TRAFFIC ACT:

It is necessary, in my view, not only to have

careful regard to the provisions thereof,

but also to consider the historical background

to the enactment of that legislation.

C1T7/2/SH 9 10/10/89

MR HAMPSON (continuing):

In the course of argument Mr Davies QC for

Day said that one could easily identify

the "field" covered by the Connnonwealth

legislation for purposes of this case - it

was service land, namely the Enoggera Army

Base. But, in my view, there is no such ready solution.

We would respectfully say that that field would

be too narrow because the Connnonwealth was covering,

not just the Enoggera army base but it was covering,

if one likes, all service land. Then His Honour

turned to the decision of this Court on the

DEFENCE FORCE DISCIPLINE ACT in RE TRACEY; EX PARTE

RYAN and he reviewe~ shortly then at page 31, what

the decision was and referred to the history of

military discipline which was mentioned by Justices

of this Court. That continues over to page 32
where he concludes, at the end of that first

paragraph:

There can be no doubt that the subject matter

of the legislation is military discipline and

that the Act constitutes a code with respect

to that subject matter; there could be no

cavil with the assertion that it covers the

field of military discipline.

Quite a significant passage, we would submit

then:

Historically, at least in England, legislation

providing for the discipline of armed forces was
regarded as supplementary to or cumulative upon

the ordinary criminal law of the land. That

was the subject of discussion in TRACEY and in

my view the reasoning of a clear majority of

the High Court supports the conclusion that the

provisions of the DEFENCE FORCE DISCIPLINE ACT are supplementary to and cumulative upon the

ordinary criminal law applying at the place in

question. At p. 7 Mason CJ, Wilson and Dawson JJ.

said that "the end to be achieved by martial

law, consistently withs. 51(vi) of the

CONSTITUTION, is the promotion of the efficiency, good order and discipline of the defence forces

and no more." They then quoted with approval

a passage from the judgment of Stephen, COMMONWEALTH where it was stated that "military law has a quite restricted range of operation and is seen as an additional, rather than a

replacement, set of rights and duties". That

passage also contained the observation that

"the crimes of soldiers in England have

always been amenable to the civil law".

ClT8/l/DR	10	10/10/89
McWaters(2)

So, with respect - then he goes on to the

constitutional validity flowing from section Sl(vi)

of the CONSTITUTION. There is another quotation

there. He continues looking at the fact that the authority of the civil court always prevailed and that persons subject to military discipline were

subject to both the civil courts and also to the military courts. He looked then at the question of the legislature addressing:

its mind to the problem of "double jeopardy" - and section 109, and he said:

In my view the reasoning of Mason CJ,

Wilson and Dawson JJ on pp. 18, 20 and 21

can only be valid if the provisions of the

Commonwealth Act are intended to be

supplementary to or cumulative upon the

ordinary criminal law of the States. Though
the quote is somewhat lengthy it is necessary
to set out the following passages from their

reasoning in order to make that point.

That, then, is set out at some length and I

shall not trouble the Court by reading it.

(Continued on page 12)

C1T8/2/DR	11	10/10/89
McWaters ( 2)

MR HAMPSON (continuing):  But having set it out he then concluded,

on page 35:

All of that, in my view, really means

that the DEFENCE FORCE DISCIPLINE ACT

is concerned with "service offences•· as

defined therein, with a view to promoting

the efficiency, good order and discipline of the

defence forces and no more -

McHUGH J: Well, is that right? Does not section 4(2) of the

COMMONWEALTH PLACES (APPLICATION OF LAWS) ACT direct

you to the question of whether the law would have

been invalid or inoperative in its application in,

or in relation to that Commonwealth place. Is not

section 40(2) really concerned with offences of

them driving vehicles on service land?

MR HAMPSON:	Yes, that is correct.
McHUGH J:	Why is not the proper characterization of section 40
that it is dealing with the question of offences on
service land as opposed to discipline of the service generally?

MF. HAMPSON: Well, because offences on service land is part of

discipline of the service generally.

McHUGH J: Well, it had not-

MR HAMPSON:  You see, the other offences in that same section,

Your Honour, relate to matters outside service land;

driving on public roads; using vehicles in an unauthorized fashion and things of that kind.

McHUGH J: Yes, but it is not as though section 40

deals with offences by services generally.

Section 40 (1) deals with, "drives a service vehicle in any place". Section 40(2) seems to be

concerned with - section 40(1) is concerned with

service vehicles - _- -

MR HAMPSON:  If you take notice of the note at the top there,

"Use of vehicles", the whole of section 40 is said

to be concerned with use of vehicles, just as

section 41, then, is "Low flying", section 42,

"Inaccurate certification in relation to ships",

and so forth.	But these are all aspects, with respect,
of service discipline.	Now, they can become questions,

of course. At what stage purely service offences, I

mean, on one hand you can have purely service offences;

on the other hand you can have service offences which

are the same as civil offences -

McHUGH J:	But why does the section confine the offence to service
vehicle, service land and so on, rather than just
leaving the matter at large? It does not say, "A person being a member of a defence force who drives a vehicle

ClT9/l/FK	12	10/10/89
McWaters(2)

in a public place is guilty of an offence". It seems to be concerned with service vehicles, service lands.

MR HAMPSON:  I am sorry, Your Honour, it says:

A person, being a defence member of a

defence civilian, who drive -

McHUGH J:	Yes, "a service vehicle in any place", that is
subsection (1).
MR HAMPSON:	Yes.

McHUGH J: And then, subsection (2), "who drives a vehicle",

that is any vehicle, "on service land".

MR HAMPSON:  That is right. Yes, Your Honour.

McHUGH J: Well, it really seems to be concerned with defence

property, does it not, either land or - - -

MR HAMPSON: Well, a lot of servicemen will have their own

private vehicles, as this man had in this particular

case, and it is an aspect of military discipline, just

as a person who drives a military vehicle in some

way, on any place, on a public road - that is a matter

of discipline, depending ·

McHUGH J:	Yes, I know, but what I am putting to you, Mr Haq)son, is that it is
not as though section 40 penalized him for driving his vehicle under the influence of intoxicating liquor
anywhere.  He only commits an offence under section 40
if he drives it on service land, and likewise, under subsection (1), he only commits an offence in any place
if  he drives a service vehicle. ·

MR HAMPSON:  Yes, Your Honour. The Act insists on a connection

between the offence, if I could call it that, and the

service. There must be a connection. What he does, as it were, if he gets into civilian clothes, in his

own vehicle, in his own time, on a holiday perhaps

at Lord Howe Island, cannot be a service offence, if

he is on leave. That is the philosophy of the Act.

There must continually be some service component in

the offence.

(Continued on page 14)

ClT9/2/FK	13	10/10/89
McWaters(2)

MR HAMPSON (continuing): That is why, with res-oect, we

say that His Honour below was quite correct in

identifying this Act as being one which is

concerned with military discipline. It

is replete with examples; it has always been

a "'defence member" or a "defence civilian".	The
same thing is repeated. If one looks at the
ones below:

(3) ..... being a defence member of a defence
civilian, who drives a service vehicle in
any place, whether a public place or not,

at a speed ..... daneerous -

and so forth.	Subsection (4) has much the same
elements:

a defence member of a defence civilian, who

drives a vehicle -

"a vehicle", any vehicle -

on service land -

so a service vehicle anywhere, any vehicle on

service land. In each case you have that connection

with a military code of discipline.

McHUGH J:  But does that not indicate that the intention of

the Parliament is that its law shall be the exclusive

law on the topic of service land, to

service vehicles and so on?

MR HAMPSON:  No, with respect. Historically the situation

of the defence person is the same as, let us say, somebody who is in the public service. If in the oublic service ther~ are a number of rules which

lay down a code of behaviour and one of those

particular rules - breach of one of those rules

could constitute an offence against the criminal

law which would be cognizable in the civil court,
the ordinary civil court,	we can be charged.

One does not say that because in fact there is

some provision of the PUBLIC SERVICE ACT which

applies, the PUBLIC SERVICE ACT is a covering

of the field, as it were, with relation to all

matters governing public servants. It comes forward

as a body of law which is superimposed on public

servants as citizens just as the military code is

a body of law superimposed upon soldiers, upon

the military as citizens. In each case the body

of citizens are subject to the civil law

but because of their respective occuoations

are also bound by other bodies of law. ·

We would submit that is what the intention of the leeislation is and not, as it were, to

CITl0/1/JM 14 10/10/89

McWaters(2)

substitute a criminal law. Indeed, this
was part of the decision, really, that the military

courts were not courts in the classical system under the CONSTITUTION as Part III courts, but

what they were really were special courts

'constituted under the military power and that alone.

We say, with respect, that His Honour is

quite correct in the passage that he has there

at page 35. He went on then, about a little over

half-way down, to refer to:

passages in the judgment of Brennan and

Toohey JJ. to similar effect ..... "There is

nothing novel, however, in the existence of

parallel systems of military and civil

justice." After recounting at some

length the history of military law in

England and its relationship with the civil

law, they observed:  "The significance

of the history of naval and military courts

martial lies in its explanation of the scope

and purposes of the jurisdiction they

exercise and in the priority which naval

and military authorities were required to

accord to the jurisdiction of the civil

courts". Their examination of history showed

that servicemen were amenable not only to the

exercise of the jurisdiction of the ordinary

courts but also to the jurisdiction reposed

in commanding officers and courts martial.

His Honour's examination of the judgments continues and then, at page 37, we would submit, in the

last paragraph there, he says:

In the light of all those references to

the reasoning in TRACEY I have come to the
conclusion that the DEFENCE FDRCE DISCIPLINARY

ACT is of limited scope and effect, and that

the Comnonwealth Parliament in enactin?- it did

not evince an intention that it should cover the field so that defence force members were

no longer subject to the ordinary criminal

law applicable at the place in question.

(Continued on page 16)

CITl0/2/JM 15 10/10/89

MR HAMPSON (continuing):  That such is so is confirmed by

a consideration of section 190(2). That is the

one about the continuation of the jurisdiction of

a civil court. Then, section 144(3)(a) deals with

a problem of double jeopardy by providing:

a person has been acquitted or convicted

by a civil court of a civil court

offence;

..... is not liable to be tried by a service

tribunal.

His Honour went on then to consider that there are

different penalties for breach of sectiorl:I 16(1)
and 40(2) and he also paid attention to that
additional element of the offence created by

section 40(2) where it required the intoxication to

be of such a degree that there was an inability

properly to control the motor vehicle; an element

which is lacking in the State formulation of the

offence. He went on:

But, in my view, given the subject matter

of the DEFENCE FORCE DISCIPLINE ACT that

does not establish inconsistency within

the ambit of section 109. The DEFENCE FORCE

DISCIPLINE ACT is supplementary to or

cumulative upon State law and, applying the

statement by Dixon J from EX PARTE McLEAN

quoted above, "no inconsistency would be

exhibited in imposing the same duties or

in inflicting different penalties". That. is

another way of saying that the competing

legislative enactments do not deal with the

same subject matter. The intention of the

legislature in passing the DEFENCE FORCE

DISCIPLINE ACT was to provide for service

discipline, whereas the intention of the

State legislature in passing the TRAFFIC AC:

was, inter alia, to create criminal

offences related to the driving of motor

vehicles. That approach is consistent with
what was said by Gibbs CJ in WINNEKE referred

to above, and with each of the other
statements of principle I have quoted.

It therefore follows that there is no

inconsistency between the two statutes.

He went on to say:

it is not necessary to consider the

submissions -

about -

section 40(2). 16

ClTll/1/JH	10/10/89
Mc.Waters ( 2)

Their Honours in the majority - there is only one judgment and I think the way it went was that when

judgment was given it was just announced that

Mr Justice Dowsett was agreeing with

Mr Justice McPherson. So, there is no judgment from

Mr Justice Dowsett and the crux of the matter

probably appears at page 19 of the judgment then

of the majnrity - it is Mr Justice McPherson's

judgment~ He said:

Within the ..... operation of the two sets of

laws, the case is therefore prima facie

one of direct inconsistency, in which, as

the Cormnonwealth law, section 40(2)

prevails over the State law represented by

section 16(a)(a)(ii). In response to this,

Mr Hampson QC and Mr Gageler submitted that,

properly construed, the provisions of the

COM:MONWEALTH ACT and in particular

section 40(2) were not intended to operate

in derogation of, but to be supplementary to

or cumulative upon, the provisions of State

law.

He sets out what the submissions are that were made

on that including the history and went on to say

it is not lacking, on page 20:

in indications that members of the Forces

should be subjected to some at least of the

ordinary criminal law of the States.

Then probably, at page 21, one reaches the real reason

for the conclusion:

In any event, the objection in law to these

submissions goes deeper and is more

fundamental than the matters I have

mentioned. The submission is that the

Commonwealtn Act exhibits an intention that

its provisions should not trench upon or

affect the validity or operation of State

law. No doubt it is possible for the

Connnonwealth Parliament so to formulate its

legislation as to ensure that no

inconsistency arises. Parliament may adopt

measures to avoid inconsistency, and, seeing

the imminence of collision between them and

a State law, step back from the point of

impact.

ClTll/2/JH	17	10/10/89
McWaters(2)

MR HAMPSON (continuing):

What conform.ably with s.109 of the CONSTITUTION it may not do is enact legislation inconsiscent with State law and declare that no such

inconsistency arises or is intended to arise.

If I could interpolate there, really of course that

is an argument that draws one up by ones own boot

straps, because it is only when there is a

proper construction of the legislation that it is

possible to say whether or not an inconsistency arises,

and the argument that His Honour was addressing there

was one put as to that construction. His Honour

continued:

A power to do so may be capable of being validly

exercised where the inconsistency would otherwise

arise only from the discovery in the legislation

of an intention, express or implied, to "cover

the field" occupied by State law or some segment

of it. But if the inconsistency of laws is direct,

s.109 has a self-executing operation which

Parliament can do nothing to eliminate.

And then finally on page 22 he said:

The inconsistency between s.40(2) and s.16(l)(a)(i)

is, as I have said, direct because there is a

common area of operation of those two provisions

creating offences proscribing differing

standards of conduct and attracting maximum

penalties of different amounts.

We would submit with relation to that that the matter

is well canvassed in Mr Justice Williams judgment.

We respectfully rely upon it. We submit that

His Honour's decision was correct; correct

application of principles of construction and

questions of how matters of inconsistency are to

be resolved. Also what he drew from TRACEY's case

and from the history generally of military law,

that there was a clear intention of the Parliament in this case to make a code or a law which related

to a particular body of people, namely those subject

to military law, as one says, and that that was

something which was superimposed upon them as an

additional body of law binding them, than the

body of law which binds them along with the rest

of Australian citizens, the general criminal law.

BRENNAN J:  Mr Hampson, I notice that the bench charge sheet,

which is set out at page 7, charges being:

under the influence of liquor -

CIT12/l/CM	18	10/10/89
McWaters(2)

while driving -

a motor vehicle ..... on a road -

but looking at section 16(l)(a) as it now appears,

the element of being on a road does not seem to

be an element of the offence. Is it an element

of the offence?

MR HAMPSON:  No, it is not really. No, Your Honour. I think

if Your Honour goes to subsection (11) of section 16

you will see that:

Subsections (1) and (2) apply to and with

respect to any person -

(a) who is in charge of a motor vehicle on a road

or elsewhere;

If he drives a motor vehicle on a road or elsewhere and so fortt

and so there is no requirement of being on a road,

Your Honour.

MR BRENNAN J:	Thank you, Mr Hampson.
MR HAMPSON:	I do not know that there is anything that I

can usefully add on that topic. So far as the

other matter is concerned I have really to some
extent anticipated I think earlier in the argument,

but what we rely upon there, subject to the

difficulty that Justice Gaudron raised with

relation to the construction of section 4 of the

Commonwealth - - -

GAUDRON J: It is not really with relation to the construction

of section 4. It is this. Whatever be the
extent of the defence power why does not section 52
of the CONSTITUTION operate so that section 40(2) of

the DEFENCE ACT is automatically valid as being

a law with respect to a Commonwealth place?

(Continued on page 20)

CIT12/2/CM	19	10/10/89
McWaters(2)

MR HAMPSON: Well, except that by section 4 of the COMMONWEALTH

PLACES ACT the Commonwealth has said that a State

law will apply to a Commonwealth place provided the

State law is not invalid for any reason other than

through the operation of section 52. So, as it

were, for that purpose they have cancelled out the

existence of section 52. Now, if in fact, one

therefore has to seek to make invalid a State law,

not on the defence power but relying on section 52,

one comes back to the fact that the Commonwealth

has already, by section 4 of the COMMONWEALTH PLACES

ACT, said that any law based on section 52 - that is

the construction I give it - will not operate to
render invalid a State law for the purpose of

applying to Commonwealth places.

GAUDRON J:  I am talking about the validity of section 40(2)

of the DEFENCE FORCE DISCIPLINE ACT.

MR HAMPSON: Yes, I see. Well, on the inconsistency part.

GAUDRON J:  The question might therefore, at the end of the

day, be really one of implied repeal as between the

DEFENCE FORCE DISCIPLINE ACT and the COMMONWEALTH

PLACES (APPLICATION OF LAWS) ACT.

MR HAMPSON:  Well, again - the only answer I could make to that is

again . one is deal~ ber.ewith questions of construction

and whether one would look at a specific Act such as

the COMMONWEALTH PLACES ACT which specifically is

dealing with operation of State law on Commonwealth

places; whether one would say when the Commonwealth,

at a later point of time, was introducing a code

which was to deal with the military, whether you

could, in fact, say that there was any replied repeal.

Whether one could say, "No" - I mean, quite clearly

they have said their bit, as it were, with relation to this question.- the application of State of laws

on Commonwealth places - in that particular Act,

in section 4 of it. It is not intended in some later

Act, without some express words or better guidance

than what one has here, to interfere with that

statement of principle.

After all, it is an important Act. If something

which has been in existence for some period of time,
regulating the relationship between the States and

the Commonwealth upon Commonwealth places and one

would have thought, with respect to the Commonwealth

legislature, that it would not lightly disturb such

a settled legal arrangement. So far as the other

question is concerned, the question of the validity

of section 40(2), what one can say with relation to

that is simply this: that section 52(1) allows the

Commonwealth to make exclusive laws with relation to

a Commonwealth place. It has got exclusive power

ClT13/l/DR	20	10/10/89
McWaters(2)

to do that. Now, whether one says that this is

a law which applies - is an exercise of that power

under section 52, in our submission, is a rather

doubtful question. I can see the argument, with respect, but it does not purport to be that. It

has been found by the Court to be a law which is

based on the defence power and one would have thought,

from the circumstances of what appears in here

elsewhere, it is a law which is purely for the military

and it is not a law which, in any way, protects

Commonwealth property or anything of that particular

kind.

I do not think I can take it any further. I

can see the argument and that is all I can say to the

contrary I think. I do not know whether there is anything

else that I could usefully add.

MASON CJ: Yes, thank you, Mr Hampson. Yes, Mr Solicitor for

the Commonwealth.

MR GRIFFITH:  May I hand the Court our contentions.

MASON CJ: Yes, Mr Solicitor.

MR GRIFFITH: If the Court pleases, Mr Gageler, who appeared

down below, will present the submissions for the

Attorney.

MASON CJ: Yes, Mr Gageler.

MR GAGELER: If the Court pleases, on the question of

inconsistency, we adopt the submissions for the

appellant and the dissenting judgment of

Mr Justice Williams. In our submission, the

settled approach is that the question of inconsistency

in a case where Commonwealth and State laws prescribe
substantially the same conduct and impose different

penalties, turns on the inquiry into the intention

of the Commonwealth Parliament as appearing from the

terms and subject-matter of the Commonwealth Act.

In our submission, the majority of the supreme

court were wrong in characterizing the case as one

of direct inconsistency on the basis of

HUME V PALMER and BLACKLOCK's case. In each of

those cases the Commonwealth law evinced an intention

to deal with the subject-matter of the relevant

offence to the exclusion of State law. We refer, in

that regard, to REG V WINNEKE EX PARTE GALLAGHER,

152 CLR 211; without taking the Court to the

passages, the judgment of Chief Justice Gibbs at

page 218 and the judgment of Your Honour the

present Chief Justice, at page 224.

C1Tl3/2/DR	21	10/10/89
McWaters (2)

MR GAGELER (continuing):  In our submission the intention

of the DEFENCE FORCE DISCIPLINE ACT is to enact

a disciplinary code binding upon defence members
and defence civilians which is supplementary to

or cumulative upon their ordinary duties as citizens

arising under State law.

In our submissions, this intention appears both from the terms of the Act and the nature of

its subject-matter. Turning first to the subject-matter

of the Act, the decision of this Court in RE TRACEY;

EX PARTE RYAN, (1989) 63 ALJR 250, makes clear that

the Act as a whole must be construed against the

traditional background of military subordination to

civil authority and the page references are set out

in our contentions.

Moreover, we submit that the conclusion of the

majority that section 190(3) and (5) were invalid

was reached on the basis that, in the absence of

those provisions, defence members would remain subject

to the ordinary criminal jurisdiction administered

by civilian courts. That appears, clearly, in our

submission, in the judgment of Your Honours

Justices Brennan and Toohey at page 37 of the ALR report of the judgment; that is 84 ALR 1, page 37

point 2, where Your Honours say:

But ass 190(3) and (5) are invalid, a defence member whose conduct renders him liable to punishment for a service offence and a

corresponding civil offence is amenable to
the jurisdiction of a civil court as well
as the jurisdiction of a service tribunal

and (subject to any common law protection from double jeopardy) punishment as for a

civil offence as well as for a service offence. of the Commonwealth in view of the invalidity sections

GAUDRON J:  How far can you take the expressed intention

190(3) and (5)?

MR GAGELER:  In our submission, the expressed intention that

appears in section 190(2) is even stronger when

subsections (3) and (5) are invalid and a similar

intention appears in section 144(3)(a) which is

a double jeopardy provision which is the flip side

of section 190(5).

DEANE J:  But are those subsections invalid in terms of offences

committed on Commonwealth property?

MR GAGELER:  Those subsections were held by five Justices

of the Court to be invalid in all their relevant

applications, Your Honour.

C1Tl4/1/SH	22	10/10/89
McWaters(2)
DEANE J:	But they were ousting the jurisdiction.	They were

held invalid in that they ousted the jurisdiction
of State civil courts. Here, the State civil courts

had no jurisdiction except to the extent the

Commonwealth law conferred it.	How does it all
fit together?

MR GAGELER:  They ousted the jurisdiction of both State civil

courts and federal civil courts. There were two

grounds upon which they were held to be invalid.

One was that they purported to affect the existence

of the jurisdiction of State courts and in that

regard they were held to be totally invalid because

it was not possible to sever the Federal Court aspect

which would have been otherwise valid. They were

also held to be invalid, at least in the judgment
of Your Honours Justices Brennan and Toohey,because

they would otherwise have been beyond the defence

power of the Commonwealth.

DEANE J:  But what if the COMMONWEALTH PLACES (APPLICATION

OF LAWS) ACT, in section 4(2), had said, "but not

Commonwealth place 1'? There could be no question so as to impose liability for anything done on a

of invalidity of that confinement.

MR GAGELER:	I am not sure I understand Your Honour's question.
DEANE J:	You see, as the accepted law stands, State law

could have no application to this offence committed

on Commonwealth property.

MR GAGELER:  That is by virtue of section Sl(i) being

exclusive - - -

DEANE J: Section 52.

MR GAGELER:  Sorry, section 52(i) being exclusive of State

laws.

DEANE J: Yes. Well, now, the only way you get there or the

State law gets there is by section 4 of the

COMMONWEALTH PLACES - - -

MR GAGELER:  Yes.

DEANE J: Well, what I am asking you is a qualification to

section 4 that said it would not impose liability or
criminal liability in respect of anything done on

a Commonwealth place would clearly not be beyond Commonwealth power, one would have thought, as a

matter of legislative authority because all it does

is limit the effect of the COMMONWEALTH PLACES

(APPLICATION OF LAWS) ACT.

C1Tl4/2/SH	23	10/10/89
McWaters(2)

MR GAGELER: That is right, I accept that.

DEANE J:	I was asking you how is it said that the
subsections of section 190 are beyond Commonwealth
power when all that they do is limit the effect
of the Commonwealth Act in the specific circumstances to which they refer. There may be
a simple answer, but I am just asking for help.
MR GAGELER:	I think the answer is probably a question of

severance or reading down. If subsections (3) and (5)

of section 190 are otherwise invalid, the question

would be whether they can be read dmvn so as to

be valid on a Commonwealth place. I hestitate to

argue against Commonwealth validity in this regard,

but if I can give Your Honour a reference to the

judgment of Mr Justice Windeyer in SPRATT V HERMES,

114 CLR 226. The passage in His Honour's judgment

is at page 278. His Honour suggests in relation

to the territories r,ower that a Commonwealth law

which is framed so as to rely on a head of

Commonwealth power under section 51 may still be

valid in a territory if it is invalid elsewhere

in Australia. But that is a question of reading

down and would depend on the terms of the

particular Corrnnonwealth Act, bearing in mind

section 15A of the ACTS INTERPRETATION ACT.

DEANE J: It may not arise, but there is great difficulty

in understanding how section 52 works -that is

on the comprehensive construction which the

cases give it - in this sort of area.

MR GAGELER:  Yes.

DEANE J: It just seems to me it is hovering around in the

background in this case.

MR GAGELER:  I will be coming to section 52 when I deal with the question of validity. But it is common

ground that the State law is only applied on	Enoggera Army Barracks by force of section 4(1) of	the COMMONWEALTH PLACES ACT to the extent to which
it can do so given section 4(2)(a), and that
involves the Court in determing the question of inconsistency.

DEANE J:	Thank you.
McHUGH J:	Mr Gageler, if the COMMOt~tIBALTH PLACES (APPLICATION

OF LAWS)ACT had never been Passed, could it ever

be argued or contended that-section 190 would be

invalid if it excluded civil courts from hearing

offences that took place in a Commonwealth place?

MR GAGELER: Certainly not, if it referred to - I was going

to say certainly not if it referred specifically

CIT15/1/JM	24	10/10/89
McWaters

to a Commonwealth nlace, but I think that I sDoke

too quickly because section 52 is subject to.

Chanter III of the CONSTITUTION and for that reason

it may well be invalid in any event.

I have referred the Court to page 37 of

the judgment of Justices Brennan and Toohey and

to similar effect Your Honour the Chief Justice

and Justices Wilson and Dawson at pages 14 and 15.

BRENNAN J:  Mr Gageler, coming back to the question that was

asked of you by Justice Deane, is there a question,

assuming section 190(3) and (5) to be invalid with

resnect to the operation that those provisions would

have apart from section 52 places, of whether they

are saved invalidity by section 15A of the ACTS

INTERPRETATION ACT in respect of Commonwealth places?

MR GAGELER:  Yes, Your Honour, and the same question would

arise in respect of territories. We would not

walk away from that argument, Your Honour.

BRENNAN J: What is the answer that you would give?

MR GAGELER:  Yes, they can be saved in respect of Commonwealth

places and territories.

BRENNAN J: And are valid?

(Continued on page 26)

CIT15/2/JM	25	10/10/89
McWaters

MR GAGELER:	In so far as they apply in those places, yes.
BRENNAN J:	In respect of offences which occur within those

places?

MR GAGELER:	Yes.
BRENNAN J:	Provided, I take it, that the jurisdiction is

exercised as federal jurisdictions as it, I presume,

would always be.

MR GAGELER:  Well, it would always have to be Federal Court

territory jurisdiction. Certainly, jurisdiction

exercised under the COMMONWEALTH PLACES ACT is

federal jurisdiction.

BRENNAN J:	Yes.
MR GAGELER:	I was turning next to the Act itself, that is

the DEFENCE FORCE DISCIPLINE ACT, and there we

submit that there is nothing to suggest that

section 40(2) is to be treated as different from

the other offence creating provisions of Part III

and that the scheme of the Act is to create a

system of service offences administered exclusively

by service tribunals applying to defence members and

defence civilians concurrently with the ordinary

system of civil court offences administered by civil
courts which apply to the same persons in their
capacity of citizens. And, I simply refer without

taking Your Honours to the definitions in

section 3 ( 1) of the Act of 'service offence'', 'civil

court offence', 'civil court' and, in addition, to

section 190,to section 144(3)(a).

To the extent that any question of validity arises, we submit that section 40(2) is a valid

exercise of the defence power. Now, in answer to

Your Honour Justice Gaudron's question, we do not

CONSTITUTION and part of the reason is that the	seek specifically to rely on section 52(i) of the
definition of 'serviced lana'in section 3(1) of the
Act refers to land used or occupied by the defence
force and this is wider than the reference in section 52(i) to places acquired by the Corrnnonwealth for public purposes. And, I refer the Court there
to BEVELON INVESTMENTS PTY LIMITED V MELBOURNE CITY
COUNCIL, (1976) 135 CLR 530, where it was held that
the lease of a building for five years did not make the floors of the building leased, places acquired
by the Corrnnonwealth within the meaning of
section 52(i). I will not read from that case but
the relevant passages are page 535 in the judgment of
Chief Justice Barwick, pages 540-541 in the judgment
of Justice Gibbs, page 545 in the judgment of
Justice Stephen and, I think, Mason, page 549 in the
judgment of Justice Jacobs and page 550 in

ClT16/l/JH	26	10/10/89
McWaters(2)

Justice Murphy's judgment. Having said that, the

section may nevertheless be supported under

any available head of power and to the extent that

it applies on land that is a place acquired by the

Commonwealth for public purposes it can be supported

by both section 5l(vi), the offence power, and

section 52(i) and so much was acknowledged by

Justice Windeyer in the case of WORTHING V ROWELL

AND MUSTON PTY LIMITED, 123 CLR 89 at 127. We also

say that there is an analogy to the territories

power in this regard where it has been held that a

law may be supported under both a head of power

under section 51 and under section 122 in so far as

it applies :in the territories_ and it is sufficient there

to refer to BERWICK LIMITED V GRAY, (1976) 133 CLR 603.

In this case we do not submit that the power

under section 52(i) is relevantly any wider than

the power under section 5l(vi) and the reason is the

reason I gave in answer to Your Honour

Mr Justice McHugh; it is because section 52 is

expressed to be subject to the CONSTITUTION which

includes being subject to the requirements of

chapter III.

(continued on page 27)

ClT16/2/JH	27	10/10/89
McWaters(2)

McHUGH J:	It is not in terms. This is by implication, is it not?
MR GAGELER:	Yes, in terms, Your Honour.

McHUGH J: Section 52, is it ?

MR GAGELER:	Yes.
McHUGH J:	Oh yes, so it is.
MR GAGELER:	So that, as part of a system of service discipline

standing outside Chapter III, section 40(2) of the

Act could have no stronger claim to validity under

section 52 ( i) than it has under section 51 (vi).

Dealing then with the defence power, we accept

that RE TRACEY EX PARTE RYAN is authority for the

proposition that in so far as it authorizes the

establishment and maintenance of a system of service

discipline, the defence power is limited in

accordance with two related notions. The first is

that the end to be achieved by service discipline is

the promotion of the efficiency, good order and

discipline of the defence force, and no more; and

the second is that service personnel must generally

remain subject to the ordinary civil and criminal

jurisdiction adminstered by civilian courts.

In the present case we submit that there is no

difficulty in overcoming the first of those hurdles

as sufficient service connection appears on the face

of the section. On the approach of Your Honour the

Chief Justice and Justices Wilson and Dawson in TRACEY, it is sufficient that the section applies to a

defence member. On the approach of Your Honours

Justices Brennan and Toohey, it is sufficient that the

section applies to a defence member on service land

and prescribes conduct which is likely to injure

service personnel, or to cause damage to service

property, and those similar factors were considered to

be decisive by the Supreme Court of the United States

in RELFORD V U.S. DISCIPLINARY COMMANDANT, 401 US 355,

aecided in 1971.

This was a case referred to by Your Honours

Justices Brennan and Toohey at page 33 point 4 of the

ALR report of TRACEY. Your Honours referred to the

factors listed by the Court at page 365, and the

Court went on to evaluate those factors at pages 367

to 369. And then at page 369, the Court says:

This leads us to hold, and we do so hold,

that when a serviceman is charged with an offense

committed within or at the geographical
boundary of a military post and violative of

the security of a person or of property there,

that offense may be tried by a court-martial.

ClT17/l/FK	28	10/10/89
McWaters(2)

DEANE J: If, as you suggest, section 190(3) and (5) can be

read down to validity in relation to action or acts

on Cormnonwealth places, how does that affect the

majority view in TRACEY as to consistency with

Chapter III of the CONSTITUTION?

MR GAGELER:  Your Honour, in my submission, the majority in

TRACEY saw subsections (3) and (5) as narrow

exceptions to the general scheme of the Act which

was to provide a separate and parallel system of

military discipline, that is, separate from the ordinary civil law. The two systems, that is of

military justice and civil justice, intersect in

the scheme of the Act at only two points. One is

section 144(3)(a), which is a double jeopardy
provision, applying where the civil court acts

first, and the military tribunal then must decline

jurisdiction. The other - - -

DEANE J:  But if sections 190(3) and (5) are valid, they cast

a particular colour on the nature of the function of

the military tribunal under the DEFENCE FORCE

DISCIPLINARY ACT in that, it is their dealing and

punishing, in effect, all aspects, both civil and

militar½ of the offences to which those subsections

apply.

(Continued on page 30)

C1Tl7/2/FK	29	10/10/89
McWaters(2)

DEANE J (continuing):  I have not examined the judgments

with that point in mind but I was just asking you,

would that effect - - - ?

MR GAGELER: In our submission the governing principle is

in 190(2). Subsections .

(3) and (5) were exceptions to that principle

and it is on the principle in subsection (2)

rather than the exceptions that we rely.

DEANE J:	I do not follow that.
MR GAGELER:	Perhaps I could take Your Honour to section 190(2).
DEANE J:	I see what section 190(2) says but (3) and (5)

say, in effect, if the military jurisdiction is

invoked it is comprehensive and excludes the

civil jurisdiction.

MR GAGELER:	Yes,Your Honour.
DEANE J:	Now,all I was asking you is what affect would the

validity of that provision in a case such as this,

if you be right, have on the majority judgments

in TRACEY?

MR GAGELER:  None is my answer. I can only repeat what I

said to Your Honour that the governing principle

is in subsection (2), that is,in the nature of a

declaration of legislative intention that apart

from the narrow exceptions created by the following
subsections both civil court offences and service

offences can apply to the same conduct, and quite

apart from section 190, section 144(3)(a) contemplates
exactly the same and in fact, in our submission,

the whole scheme of the Act is based on that premise.

BRENNANJ: Mr Gageler, perhaps I should say.that as at_ present

advised I have great difficulty in conceiving of

a legislative intention to give a differential

application to 190(3) and (5) according to whether

the jurisdiction is federal or non-federal·, but

I mention that I do not know that it is relevant

to the resolution of the present case at all but

at all events if it should be a subject on which you

would wish to address further argument I should

mention that doubt that I have.

MR GAGELER:  Yes,Your Honour. In my submission,it does

not arise in the present case.	I only mention it
in response to - - -

DAWSON J:  I had understood you to say that you could not

read section 190 down for the very reason that

His Honour just gave. You do not submit that?

CIT18/l/CM	30	10/10/89
McWaters(2)

MR GAGELER:  Your Honou~ I do not want to walk away from

the arglllllent that it is possible to read section 190

down to apply in a territory and in a Commonwealth

place.

DAWSON J:  I understand you to admit the possibility but to

say that it does not apply in this case.	Am
I wrong about that? Sectionl90 was meant to

apply in its entirety or not at all although,as

a matter of theory,one could go through the

reasoning to see whether it could be read down.

MR GAGELER:	Our primary submission is it is not necessary to decide it does not arise in this case and I
think that it is best that we - yes,it is
a possibility and it is open for us to argue that on another day if it arises.

DAWSON J: Well,that is as I understo9d you say, it is a

possibility but you are not going to say that it

is indemnified.

MR GAGELER:  Yes. On the question of service connection

we also refer to Your Honour Justice Deane's

judgment at page 44 point 3 8~ ALR

where Your Honour referred

specifically to section 40(2) as being

"service related" by reason of the fact that it

bears a particular relationship to service property.

So, on our submission, the case- by- case approach to

validity is not applicable to section 40(2) on the

basis that it is valid on its face and this appears

to have been the approach that Your Honours

Justices Brennan and Toohey adopted in relation to

the offence under section SS(l)(b) of the Act in

TRACEY. That was the offence t0 falsify a

defence force document. If there is no inconsistency

then, in our submission, there cannot be any

difficulty in overcoming the second of the hurdles

t'hat is, that service personel must generally remain which we referred to as arising from TRACEY's case subject to the ordinary civil and criminal jurisdiction
administered by civilian courts.

(Continued on page 32)

CIT18/2/CM	31	10/10/89
McWaters(2)

MR GAGELER (continuing): If there is inconsistency the

position is more difficult but, in our submission,

it falls within the principle stated by

Your Honour the Chief Justice and Justices Wilson and Dawson in RE TRACEY; EX PA!{TE RYAN, page 14

at about point 8, where Your Honour said:

No doubt if the imposition of criminal liability

upon defence members or defence civilians in

a particular instance or context were capable of

interference with the defence of the Commonwealth,

the Parliament would have power under

section Sl(vi) to provide for the specific

situation by enacting a law which did not involve

the ouster of jurisdiction from the courts of

the States. Such a law would prevail under

s 109 of the CONSTITUTION.

And Your Honours there refer to PIRRIE V McFARLANE.
Applying that principle, we submit that there must

be an area of service discipline which can be made

exclusive of State law on the basis that

anything other than exclusive service control of

conduct of that nature would be prejudicial to

military order. A clear example, in our submission,

would be absence without leave. The question must

be one of degree and must depend on the nature of

the offence and circumstances such as the place of

its connnission; its gravity - both as a military

offence and as a civil offence; and its significance

from the point of view of service order and morale.

In our submission, taking these factors into

account, the offence under section 40(2) falls into

a category which the Parliament might permissibly

conclude should prevail to the exclusion of State

laws prohibiting substantially the same conduct.

Our principal submission is this is not a case of

inconsistency but that it would be permissible if

the Parliament saw fit to make a law like section 40(2)

exclusive to State law. Those are our submissions.

McHUGH J: Well, Mr Gageler, the essence of the majority

judgment in the Full Court was there was a case of

direct inconsistency and that section 109 is a

self-executing operation which Parliament can do

nothing to eliminate. Why do you say it is not a

case of direct inconsistency?

MR GAGELER: Well, Your Honour, it is not a case of direct

inconsistency in the sense that it is not impossible

to obey both laws. A person can obey both laws

simply by not drinking and driving on service land.

It is not a case of direct inconsistency in the sense

that the Connnonwealth Act could in any way be read

ClT19/l/DR	32	10/10/89
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as authorizing any conduct which the State law

prohibits.

McHUGH J:  I thought that was the argument that was put against

you. It was said that the Commonwealth law allows

him to drive under the influence of intoxicating

liquor so long as he is not incapable of having

proper control of the vehicle.

MR GAGELER:  That would be to read section 40(2) as

authorizing a serviceman to drive a motor vehicle
on service land while under the influence of alcohol

subject only to the proviso that he must still be

capable of controlling the vehicle. In our submission,

that is not the correct reading of section 40(2).

It appears in an Act otherwise directed solely to

service discipline. Its only effect is prescriptive

and it cannot be read as if it were a case of a

duty, plus a penalty for failure to comply with the

duty. The only ground upon which inconsistency can

be said to arise in this case is because the

Commonwealth and the State laws prescribe substantially

similar conduct and lay down different penalties.

In our submission, the authorities make clear

that inconsistency on that ground is not to be
regarded as direct but it turns on the question of

Commonwealth intention.

DAWSON J: Really, you say here, this is one instance where,

if you can obey both laws, there is no inconsistency

because offences under the DEFENCE FORCE DISCIPLINE ACT

and similar criminal offences are not mutually

exclusive.

MR GAGELER: Well, that is right.

DAWSON J:  And that is the end of it.

MR GAGELER:	That is the end of the question of inconsistency, yes. Those are our submissions.
MASON CJ:	Yes, thank you, Mr Gageler.	Mr Solicitor for

Victoria.

MR BERKELEY:  Your Honours, I think it was my learned friend

Mr Hughes who said to me in this Court that,

"Really, Hartog", he said, "section 109 cases are

the running-down jurisdiction of the High Court."

(Continued on page 34)

ClT19/2/DR	33	GAGELER	10/10/89
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MR BERKELEY (continued):  I think he intended by that to

point out that the issues raised in section 109

cases are usually less complicated than those in

the majority of constitutional cases and our submission

is that this case is no exception.

Apart from the question of the validity of

section 190, we adopt the argument that has been

put on behalf of the Commonwealth but there are

some additional observations we make in the hope

that they will be of some assistance to the Court.

Firstly, the Act is - - -

MASON CJ:  Mr Solicitor, do you have an outline of your

submissions?

MR BERKELEY:	I am so sorry, Your Honour, yes, I do.
BRENNAN J:	A plan of the intersection, perhaps?

MR BERKELEY: Sorry, Your Honour.

BRENNAN J:  A plan of the intersection?

MR BERKELEY: That would be helpful. It is probably the

only thing my learned junior had not thought of.

MASON CJ: One can understand why you were diffident about

handing up your argument.

MR BERKELEY: Yes, Your Honour. Well, really, when one looks

at TRACEY's case, Your Honour, in our submission

there is not much more to be said. TRACEY's case

is the strongest possible authority for the proposition

that the liability for service offence is to be

supplemental and not in substitution for liability

for civil court offences and the Act itself is

redolent with provisions which indicate the

continued liability of military personnel for

civil court offences and they then refer to section 33, for instance, whicn requires tne	consent of the Attorney-General to prosecutions
for murder, rape, advanced treason, manslaughter,
and bigamy but only if the offence is committed
in Australia, not if it is committed overseas.

Now, the purpose of that is not to put some

brake upon the enthusiasm of prosecuting authorities

but the supposition that, generally speaking, those

offences when committed by a serviceman, even though

they would be service offences under section 61,

that normally they should be dealt with in the State

courts and notwithstanding that they are service

offences and equally, civil court offences and the

purpose of section 63 is to make sure that if they

are to be dealt with by a court-martial, that is

a decision made by the Attorney-General and not

by anybody else.

C1T20/1/SH	34	10/10/89
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"

Then, section 77 which deals with taking into

consideration civil offences which are substantially

the same kind and section 141 and section 190. ,

Now, perhaps I might go to section 190 and

the questions that were recently raised. Our

submission is that section 190 is not partially

valid in relation to Commonwealth places. It does

not purport to deal with places in any way; it

purports to deal with jurisdiction. Section 190

does not say that if a soldier who is guilty of

particular conduct in relation to a Commonwealth

place and he does not commit an offence. It has

nothing to do with the existence or non-existence

of substantive offences. So, under the COMMONWEALTH

PLACES (APPLICATION OF LAWS) ACT, a soldier could

commit a civil court offence in a Commonwealth place

and section 190 says nothing about his guilt or

innocence of that offence. What it says is if he -

that is, if it is valid - commits that offence,
then in certain circumstances he is not to be dealt

with by a State court or, for that matter, a

Commonwealth court. So that, as far as State

courts are concerned, section 190 does not operate

as an implied repeal of the COMMONWEALTH PLACES ACT

but it would have to operate as an implied appeal of

section 39 of the JUDICIARY ACT which confers federal

jurisdiction on State courts.

(Continued on page 36)

C1T20/2/SH	35	10/10/89
McWaters(2)

MR BERKELEY (continuing): At least five of Your Honours in

TRACEY's case said, in effect, in our submission,

that section 190 could not be read down in that way. At page 15 - Your Honour the Chief Justice and Justices Dawson and Wilson, at the bottom

of the previous page, say:

In our opinion it is clearly beyond the

defence power and the incidental power of

the Parliament to interefere in this manner
with the exercise by State courts of their
general criminal jurisdiction. Nor can

the provisions be read down so as to apply

only to federal courts.	They are, therefore,
wholly invalid.

At page 35, Your Honours Justices Brennan and

Toohey, at line 40, say:

Although, by force of s 109, a law of the

Commonwealth nrevails over an inconsistent

State law, sub-ss(3) and (5) of s 190 do not

operate in that way.

That is, they do not operate to exclude the existence

of the offence.

These sub-sections do not affect the substantive

law; they purport to prohibit its enforcement.

As these sub-sections cannot be read down so as to restrict their aoolication to federal

courts, they are invalid.

Our submission is that if that they cannot be read

down so as to restrict their application to

federal courts, then in the sane way they cannot

be read down so as to restrict their application

to the federal jurisdiction of State courts, they

are wholly invalid.

The argument for the respondent would have

extraordinary consequences if it were correct.

That does not mean to say it is wrong, but it

makes one look rather closely at the arguments

and at the alternatives because if they are right,

then, bearing in mind the existence of section 61

of the DEFENCE FORCE DISCIPLINE ACT, there would

in effect be a complete code of conduct for soldiers.

That is, the intention of Parliament would be that

the Act is to - whether it is a valid intention or

not is beside the ooint at the moment. But the

argument involves· ascribing to Parliament an

intention that there is a complete code of criminal

law, in effect, for soldiers because of the

incorporation of the Australian Capital Territory

law and that would probably involve serious questions

as to the validity of the whole Act. But apart fron

that, Your Honours, it would be a complete reversal

CIT21/l/JM	36	10/10/89
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of what for many centuries has been the position

at common law as outlined in the judgment of

Your Honours Justices Brennan and Toohey. There

is nothing in this Act at all to indicate that

Parliament intended to abrogate the comm.on law

in that way and indeed all the indications are

that Parliament intended to continue that situation.

Lastly, in relation to what Your Honour

Justice McHugh said about the effect of section 40(2),

we would say, with respect, that a law which says

that soliders shall not steal Commonwealth pronerty

is not an implied licence for them to steal from

their mates. One just cannot read a negative into

it. If the Court pleases.

MASON CJ:  Thank you, Mr Solicitor. Mr Katz.

MR KATZ:	Can I hand to Your Honours a copy of my outline
of submissions?
MASON CJ:	Thank you.

(Continued on page 38)

CIT21/2/JM	37	10/10/89
McWaters(2)

MASON CJ:  Yes, Mr Katz.

MR KATZ:  Thank you, Your Honour. I have started with the

question of the validity of section 40(2). In

my submission, Your Honours will never get to that

question but on the basis that one examines the

horse before the cart, I have done it in this way

in any event and I will deal with it first, if I may.

I have sought to identify from the reasons for judgment in RYAN's case two differing strands which would lead to the result that this provision was

valid as an exercise of the defence power. Can I

first very briefly take Your Honours to what appears

at page 257 in the Australian Law Journal Reports

report of the case in the joint jugment of

Your Honour the Chief Justice and Your Honour

Mr Justice Dawson and Mr Justice Wilson as well.

In the second colunm on page 257, opposite the

letter D, appears a paragraph:

It follows that, if offences against

military law can extend no further than is

thought necessary for the regularity and

discipline of the defence forces ..... this

limitation would not preclude Parliament

from making it an offence against military
law for a defence member to engage in

conduct which amounts to a civil offence.

It is open to parliament to provide that

any conduct which constitutes a civil

offence shall constitute a service offence,

if committed by a defence member. As

already explained, the proscription of that

conduct is relevant to the maintenance of

good order and discipline in the defence

forces. The power to proscribe such

conduct on the part of defence members is

but an instance of Parliament's power to

regulate the defence forces and the conduct

of the members of those forces.

exercising that power it is for Parliament In

to decide what it considers necessary and
appropriate for the maintenance of good

order and discipline in those forces.

And Parliament's decision will prevail so

long at any rate as the rule which iP

prescribes is sufficiently connected with

the regulation of the forces and the good

order and discipline of defence members.

I take from that passage the announcement of a rule

that one must be able to see or at least be unable

to see the absence of a sufficient connection

with the regulation of the forces and the good order

and discipline of defence members in considering the

question of the validity of any particular service

ClT22/l/JH	38	10/10/89
McWaters(2)

offence. Well, dealing with the application of

that test to section 40(2), in my submission, all

that really needs to be said is, Your Honours

having swallowed the camel of section 61, would
hardly be likely to strain at the gnat of

section 40(2) and I do not, in my submission, need

to say any more about that test than that.

Dealing with the reasons for judgment of

Your Honours Justices Brennan and Toohey,

Your Honours, in my submission, did not focus so

much on the question of the validity of any

provision creating a service offence as you did on
the question of the validity of any decision to
initiate proceedings in respect of a service offence

but I have sought in the outline of submissions to

extract from what Your Honours said none the less a

test of validity which can be applied in advance of

the making of any particular decision to initiate

proceedings. If I can direct Your Honours attention

to what appears at pages 268 and 269 in the

Australian Law Journal Report, in the second column

on page 268, opposite the letter F, Your Honours set

out a statement from an American commentator:

"'As to whether an act which is a civil crime

is also a military offense no rule can be

laid down which will cover all cases, for

the reason that what may be a military

offense under certain circumstances may

lose that character under others.'"

Then, Your Honours continue:

If no rule can be stated, it may be thought

that there are but two possible views about
the validity of provisions of the DISCIPLINE

ACT which create offences not ex facie related

to service discipline.

(Continued on page 40)

C1T22/2/JH	39	10/10/89
McWaters(2)

MR KATZ (continuing): As I understand that passage, what

Your Honours were suggesting was that one could

extract from the catalogue of service offences

in the Act those which were ex facie related to

service discipline. Put those to one side irmnediately

as valid. Then a question arose as to those service

offences which were not ex facie related to service

discipline and the question was, "How was one to

pass on the validity of a decision to prosecute in respect to one of those offences?" And the answer

which Your Honours gave appears at the top of the

second column on page 269:

proceedings may be brought against a defence

member or a defence civilian for a service

offence if, but only if, those proceedings can
reasonably be regarded as substantially
serving the purpose of maintaining or

enforcing service discipline.

I infer from that passage that if Your Honours

could be satisfied in respect of some hypotheticalservice
offence that there could be no conceivable
circumstances in which a prosecution in respect
of that offence could reasonably be regarded as
substantially serving the purpose of maintaining

or enforcing service discipline, then Your Honours

would be prepared to say that that provision was

invalid. That is the way in which I have expressed

what I have submitted to be the alternative test

coming from Your Honours' reasons for judgment in

the first paragraph of my outline.

Your Honours, if one applies that approach

to section 40(2), one comes likewise to the conclusion

that the provision must be valid. It is not

possible to say that there can be no case of a

prosecution under this provision which could not
reasonably be regarded as substantially serving

the purpose of maintaining or enforcing service

discipline. So that, whichever of the approaches

one takes and these two approaches between them

aggragating five members of the Court, one must

conclude, in my submission, that section 40(2) is a

valid exercise of the defence power.

I have not, in these submissions, and had

not thought in these submissions, to deal with the
question of whether or not section 40(2) could be
supported as an exercise of power under section 52(i)

of the CONSTITUTION and in the light of what has been

said, may I be permitted to say something about

that? The first thing which I would wish to say is

this: that the DEFENCE FORCE DISCIPLINE ACT is

so plainly bottomed on the defence power alone that,

in my submission, no question arises of seeking to

support any of its provisions by reference to any

ClT23/l/DR	40	10/10/89
McWaters(2)

other head of constitutional power. In that respect,
may I analogize to the view which was expressed by

His Honour Mr Justice Windeyer in a case which is not on my list. Given the circumstances in which

the matter arose, ZNATY V MINISTER FOR IMMIGRATION,

(1972) 126 CLR 1, I say immediately that His Honour

was in dissent in the result in this case but not

on the basis for which I seek to rely on what

His Honour had to say. The question in the case was

one of the extent of the power of deportation

conferred under the MIGRATION ACT and His Honour

said, at page 4 at about point 3 on the page:

The provisions of the Act for the deportation

of prohibited immigrants are as I understand

it an exercise of the Connnonwealth power to

make laws with respect to innnigration and

emigration (the CONSTITUTION, s. Sl(xxvii.)).

May I interpolate that His Honour's understanding

was not based on some express assertion to that

effect in the MIGRATION ACT (1958). His Honour

continues:

They -

that is to say, the provisions of the Act for the

deportation of prohibited innnigrants -

are ancillary thereto and limited thereby -

that is to say, limited to an exercise of power

under section Sl(xxvii) -

and are to read accordingly.

In my submission, the same approach ought be

taken to a section like section 40 of the

DEFENCE FORCE DISCIPLINE ACT in the circumstance.

One seeks only to support it by reference to the

defence power, given that that is the power on

which reliance has been placed by the Parliament.

A second matter to which I advert, if I may, is

this - and it is something that my learned,

Mr Gageler, did refer to to some extent: the

definition of "service land" in the DEFENCE FORCE

DISCIPLINE ACT is as follows: that it -

means land (including a building or other

structure) used or occupied by -

among others -

the Defence Force.

So that "service land" comprehends land simply
"used or occupied". That notion is a far broader

ClT23/2/DR	41	10/10/89
McWaters(2)

notion than the notion of a Commonwealth acquired

place for the purposes of section 52(i). My learned

friend, Mr Gageler, gave the example of a leased

floor in a building. Perhaps an example which might

be closer to the present is an example given by

His Honour Mr Justice Windeyer in WORTHING V ROWELL,

(1970) 123 CLR 89 at page 124. In the first

complete paragraph on that page, His Honour deals

with the words "all places acquired by the

Commonwealth for public purposes" and says this:

As I understand it, "places" here means fixed

localities. The proposition that motor vehicles

or boats could be included is, I consider,

far-fetched and quite mistaken. Whether or

not a "place" must be part of the earth's
surface together with any structures thereon,

is an unnecessary question for the decision

of the present case. If I had to answer it, I
would be inclined to think that an upper storey

of a building held by a strata title could be a

place acquired for public purposes. But I

doubt the proposition that obtaining a leasehold
interest or a temporary licence to occupy a

place would amount to acquisition in the

relevant sense. Certainly I would not agree
that the hiring of a hall for use as a polling

booth on election day - as was mentioned in argument - or the use of a city park for an

afternoon's military ceremonial would amount to

an acquisition of a place by the Commonwealth

for the purposes of s. 52.

If I focus on the example there, the use of the city

park for an afternoon's military ceremonial, it is

clear that on its face, section 40(2) would apply

to drunken driving by a serviceman in a city park

during the course of the afternoon's military

ceremonial non=the less though that park would not

be a place within section 52(i) of the CONSTITUTION.

Your Honours, it is for those reasons that I,

myself, in the written outline, did not seek to

support section 40(2) by any.

reference to section 52(i) and, in my submission,

that ought not be done.

(Continued on page 43)

ClT23/3/DR	42	10/10/89
McWaters(2)

MR KATZ (continuing): In paragraph 2 of my submissions

I advert to the matter which has already been

raised about the fact that in this case the

service land is a Commonwealth acquired place

for the pur,oses of section 52(i) and refers

simply to the COMMONWEALTH PLACES (APPLICATION OF

LAWS) ACT as has been done before by those making

submissions.

May I turn then to the question of

inconsistency and deal first with the question

of any suggested direct inconsistency between

section 40(2) of the DEFENCE FORCE DISCIPLINE ACT

and section 16(l)(a) of the QUEENSLAND TRAFFIC ACT.

The most obvious sort of direct inconsistency

obviously is that in which it is impossible to obey

both provisions simultaneously and it was certainly

conceded by Their Honours in the majority below

that that was not this case and I dare say it will

not be submitted that it is this case by my learned
friend,Mr Davies, in the courts of his submissions.

So that the only other possible direct inconsistency

which might be thought to arise is the one which

I refer to in paragraph 4 of my submissions, namely

that there is some prohibition by the State law

in the face of a Commonwealth permission.

Your Honour the Chief Justice,in the ANSETT

TRANSPORT INDUSTRIES case at page 259 and over the page on to page 260, said this:

"Direct inconsistency" is a description which

has alwavs been aoplied to cases in which it is

impossible to obey-both laws. It is also a

descriotion which has been aoplied to cases

in which the Commonwealth law- grants a

permission or a right and the State law

prohibits that which is permitted or prohibits

the exercise of the right. Cases of this kind

have sometimes been treated as a separate head

of inconsistency though even when so treated

they have generally been related to the "cover

the field" test apparently on the ground that
direct inconsistency is confined to a situation
in which simultaneous obedience to both laws is

impossible.

There Your Honour was adverting to the question

whether or not a situation in which the State law

prohibits that which the Commonwealth permits is

in fact a case of direct inconsistency at all.

I may say that since Your Honour said that in 1980
His Honour Chief Justice Gibbs, in UNIVERSITY OF

WOLLONGONG V METWALLY,(1984) 158 CLR 447 at 455:

If there were a direct conflict between a

Commonwealth law and a State law as, for

CIT24/l/JM	43	10/10/89
McWaters

example, where one law forbids what the other

comm.ands, or one takes away a right which

the other confers, an assertion in the

Commonwealth law -

and so on. So His Honour was there treating

this sort of inconsistency as a type of direct

inconsistency and for present purposes I am

perfectly content to treat that as an instance

of direct inconsistency when it arises, but

in my submission it plainly does not arise in

this case. The argument must be, and indeed

the argument appears to have been made by my

learned friend, Mr Davies, below as appears

from something said in the dissenting-judgment,

that one ought construe the Connnonwealth provision

in this case as permitting a serviceman to drive

whilst under the influence of liquor provided ,

that he still was capable of properly controlling

the vehicle. That that was his submission apoears

from page 38 in the appeal book at line 17 and following. Perhaps I will go back to line 13:

As the State Act forbids the driving of

a motor vehicle whilst under the influence

of liquor and the Commonwealth Act makes

that an offence only where it is to such an

extent as to make the driver incapable of

having proper control of the vehicle, it

was submitted by Mr. Davies Q.C. that the

Commonwealth Act impliedly permits what the

State Act forbids.

(Continued on page 45)

CIT24/2/JM	44	10/10/89
McWaters

MR KATZ (continuing):  Your Honours, although it appears that

that was my learned friend's submission, one finds

no reference whatever to that idea in the majority

reasons for judgment but, be that as it may, assuming

that such a situation amounts to one of direct

inconsistency, this Court has accepted that such

an inconsistency arises only where one can say that

the Commonwealth law has permitted something by

way of positive authority. Those were the words

which Your Honour the Chief Justice used in the

ANSETT TRANSPORT INDUSTRIES case at page 260 and

that passage has since been adopted by the Court;

first of all, by three members of the Court in

COMMERCIAL RADIO COFFS HARBOUR V FULLER and then

latterly, by the whole Court in DAO's case. In

my submission, it is simply not possible to assert

that section 40(2) is conferring a permission by

way of positive authority on the servicemen on

service land to drive a vehicle under the influence

of alcohol, provided that he is still capable of

properly controlling the vehicle.

On that basis, in my submission, the finding

that there was direct inconsistency in this case,

which was the finding of Their Honours in the majority

below, cannot be supported and I turn, then, to

the possibility that there may be an inconsistency

in the sense that the DEFENCE FORCE DISCIPLINE ACT

is intended to cover the field. I have set out

three matters in the last page of my outline which,

in my submission, go to show that there was no intention

on the part of the Commonwealth to cover the field

and I rank them in ascending order of importance.

The first matter is simply something that the proud

father-to-be said when Parliament was pregnant with

the Act and I have attached the relevant page to

the back of the submission and I direct Your Honours'

attention only to paragraphs 42 and 43. It was

said in the explanatory memorandum that:

The Bill will replace the existing separate

disciplinary legislation of the Navy, the

Army and the Air Force. The existing legislation

consists in each case of a compound of United

Kingdom and Australian legislation, as described

in paragraphs 44 to 63. Comparative tables
of provisions of existing law and the Bill

are contained in Annex B.

43. The word "code" has been used in the

following descriptions as a matter of convenience.
In the strict legal sense, a code means a

compilation of laws intended to regulate

completely the subject or subjects to which

it relates. Neither the existing legislation

nor the Bill comprise a code in this sense.

C1T25/1/SH	45	10/10/89
McWaters(2)

That is the first matter to which I refer. The

second matter to which I refer, that which I have

set out in paragraph 6 of my outline, is simply

a textual analysis of the DEFENCE FORCE DISCIPLINE ACT

unrelated in any way to anything that Your Honours said

in RYAN's case and may I direct Your Honours' attention

to various provisions in the legislation.

The first is the duet of provisions dealing with double jeopardy, the reciprocal double jeopardy provision~

in paragraph 144(3)(a) and section 190(5). Your Honours

are entirely familiar with the provisions and I simply

submit that those disclose as plainly as could be an
intention that the parallel systems of offences

continue to exist. I have expressly submitted that the fact that section 190(5) was held to be invalid

in RYAN does not mean that it should not be taken into

account in determining the Commonwealth Parliament's

intention in enacting its catalogue of service offences.

I rather got the impression that Your Honour

Justice Gaudron was, perhaps, raising a question earlier

about the ability to rely on 190(5) in those circumstances it having been held to be invalid and, in that connection,

may I refer Your Honours to a decision of the

United States Supreme Court which is the leading decision

on the matter, DAVIS V WALLACE, 257 US 478, a case

which has some considerable similarity to the present

case, at least in its relevant features.

There was a statute of the State of North Dakota which imposed a tax on out-of-State companies doing

business in the State and the tax, generally speaking,

was imposed by reference to the value of the business

undertaking within the State. Various methods were

set out of assessing the value of the business
undertaking within the State and then, following those

general methods, there was a proviso which appears at

page 480 at about point 6 on the page.

(Continued on page 47)

C1T25/2/SH	46	10/10/89
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MR KATZ (continuing):  I may say that the provision is set out

from the bottom of page 479 to the bottom of 480.

Your Honours will see the proviso which relevantly

reads as follows:

provided, that in the case of a railroad .....

having lines that enter into, extend out of

or across the State, property within the

State shall be held to mean that proportion

of the entire property of such corporation

engaged in such business which its mileage

within the State bears to its entire

mileage within and without the State.

So, to decide the value of the business undertaking

of the out-of-State railroad company in North Dakota

one saw the total mileage across the country; one

calculated the mileage within North Dakota and

applied that proportion.

The plaintiffs in this case were at first

taxed by the North Dakota taxing authorities by

reference to that very provision. The mileage

calculation was done; the railroads challenged the

validity of that assessment, and the Supreme Court
of the United States struck down that portion of

the statute which purported to fix the tax on

out-of-State railways in that way. It did that in a

case called WALLACE V HINES, 253 US 66. Following

the striking down of that provision the taxing

officers of North Dakota returned to the fray and

sought to tax the out-of-State railroad companies

by reference to another of the general methods which

at the bottom of page 483:

preceded the special method in the statute, and

This provision -

that is to say the one dealing with a mileage

computation of tax -

This provision shows that the legislature

intended by it to put the corporations which it
described in a separate class for the purposes
of tax, to require as to them that the tax be

computed and assessed on the special basis there

prescribed, and to exempt them from the bases

applicable to other corporations. That intention

hardly could have been more clearly expressed.

True, this provision was held in WALLACE V

HINES, to be in conflict with constitutional

limitations and indefensible as respects the

railroad companies now before us; but that does

not make the provision any the less a key to the

ClT26/l/FK	47	10/10/89
McWaters(2)

intention of the legislature, or enable
the taxing officers to subject these
corporations to other provisions from which
the act as a whole shows the legislature
intended to except them.

Where an excepting provision in a statute is found unconstitutional, courts very generally

hold that this does not work an enlargement

of the scope or operation of other provisions with

which that provision was enacted and which it was

intended to qualify or restrain. The reasoning

on which the decisions proceed is illustrated in

STATE EX REL McNEAL V DOMBAUGH ..... In dealing

with a contention that a statute containing an
unconstitutional proviso should be construed as

if the remainder stood alone, the court there said:

"This would be to mutilate the section, and

garble its meaning. The legislative intention

must not be confounded with their power to carry

that intention into effect. To refuse to

give force and vitality to a provision of law is one

thing, and to refuse to read it is a very different

thing. It is by a mere figure of speech that we

say an unconstitutional provision of a statute is

'stricken out.' -

I think Their Honours mean it is by a mere figure of

American speech that one says that.	None the less the
purport is plain.

For all the purposes of construction it is to be regarded as part of the act. The meaning of the

legislature must be gathered from all they.have

said, as well from that which is ineffectual for

want of power, as from that which authorized by law.'

(Continued on page 49)

ClT26/2/FK	48	10/10/89
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MR KATZ (continuing):

Here the excepting provision was in the statute when it was enacted, and there can

be no doubt that the legislature

intended that the meaning of the other

provisions should be taken as restricted

accordingly.

And, in my submission, that is the approach which

Your Honours ought to take to the earlier striking out of section 190(5). None the less, Your Honours

should have regard to it for present purposes as,

in my submission, a pretty clear intention of what

Parliament intended so far as the question of the

exclusivity of the catalogue of service offences

was concerned. So, Your Honours, I have referred

then to what I have called the "reciprocal
double jeopardy provisions"; there are a series of

other provisions and if I may take Your Honours to

them briefly- I have set them out at the end of

paragraph 6 of my outline - first there is	section 77(3); section II genera1ly deals with the
question of taking into account other offences at the time of a serviceman's conviction for a service
offence and Your Honours will see from section 77(l)(c)
that such ·faking into account can only occur where
the serviceman has made an admission that he has
committed the other offences which he seeks to have taken into consideration.

The point of section 77(3); section 77

render inadmissible in civil courts such admissions

when a serviceman is charged with substantially

the same offence as the service offence which he has

admitted committing. Well that, in my submission,

is yet a further indication of the intention of the

continuation of the dual systems.

Could I take Your Honours next to section 96(6).

There is a limitation period on charges under the

DEFENCE FORCE DISCIPLINE ACT and section 96(6) relevantly

provides that:

A person who has ceased to be a member of the

Defence Force ..... shall not be charged with

a service offence unless -

(a) the period that has elapsed since he so

ceased does not exceed 6 months.

If one turns to the example which Your Honour

Mr Justice Deane gave in RYAN's case at a very early

stage in the proceedings, if a serviceman on leave

on holidays at the Gold Coast murdered his wife there,

resigned immediately from the defence force and his

ClT27/l/JH	49	10/10/89
McWaters(2)

offence was not discovered for more than six months,

he would escape any punishment whatever for murder

if it were the case that this catalogue of

offences was intended to be a code of offences to

which servicemen were subject. In my submission,

the idea is fanciful.

Can I next take Your Honours to section 98(1)?

Your Honours see that that relevantly says that:

Where a member of the Defence Force is

charged with a service offence, a civil court offence ..... an authorized officer

may ..... suspend the member from duty.

Yet again, a clear indication that it is possible

for members of the defence force to be charged
with civil court offences while they remain members

of the force.

(Continued on page 51)

ClT27/2/JH	50	10/10/89
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MR KATZ (continuing):  And to like effect is subsection 99(2)

which provides for suspension of members from

duty on conviction for civil court offences. The

last in this catalogue of provisions which make

plain the legislative intention is

section 14l(l)(b)(iii) which provides as follows:

At any time before an accused person is

asked to plead at a trial by a service

tribunal, the accused person -

may enter an objection to the charge on any

ground, including any of the following grounds:

And then (iii) is:

that he has, in the exercise of the royal

prerogative of mercy, been pardoned for

the service offence with which he has been

charged or

that is to say or pardoned -

for a civil court offence that is substantially

the same offence;

Your Honours, when one examines all of those

provisions, even without regard to what was said

by the Court in RYAN's case, in my submission,

it becomes plain that there was no in~ention on

the part of the Commonwealth Parliament to cover

the field by its enactment of a catalogue of

service offences in the DEFENCE FORCE DISCIPLINE

ACT. May I finally come to what was said by the

Court in RYAN's case itself. In my submission,

various of the things said by Your Honours simply
could not have been said if Your Honours took the

view that in some way any service offence drove

out any corresponding civil court offence and I

joint judgment and take Your Honours first of all	turn first if I may to what was said in the first
to page 258 of the second column opposite letter E.

Your Honours, my learned friend,Mr Gageler,read

this brief passage to you. Your Honours said:

No doubt if the imposition of criminal

liability upon defence members or defence

civilians in a particular instance or context

were capaale of interference with the defence
of the Commonwealth, the Parliament would have

power under s Sl(vi) to provide for the

specific situation by enacting a law which

did not involve the ouster of jurisdiction from the courts of the States.

CIT28/1/CM	51	10/10/89
McWaters(2)

In my submission the subjunctive way in which Your Honours expressed that matter makes plain

that Your Honours did not take the view that the

Cormnonwealth Parliament had done such a thing by

its enactment of the various service offences and

likewise if I may refer Your Honours to page 25~

first column between letters D and E, Your Honours

said this in dealing with the question of

severability of the Act:

The purpose of the Act is the discipline

of the defence forces and it is not to be

presumed, certainly in the light of s 15A,

that the prosecution of offences created by

the Act was intended by Parliament to be

in any way dependent upon the elimination of

the possibility of similar prosecutions in
the civil courts.

Language which could only have been used in circumstances in which Your Honrurs took the view

that the creation of the catalogue of service

offences had not, of its own force, eliminated the possibility of similar prosecutions in the

civil courts. Likewis~ in the joint judgment of

Your Honours Justices Brennan and Toohey, Your Honours'

test of the validity of any particular decision to

initiate proceedings for a service offence

necessarily assumed the continuing existence of

corresponding civil court offences.

(Continued on page 53)

CIT28/2/CM	52	10/10/89
McWaters(2)

MR KATZ (continuing):  Can I direct Your Honours' attention

to page 269, second colunm opposite letter B?

Having set out the test, which Your Honours did

at the very top of that column - I have already

read that to Your Honours in connection with the

validity of section 40 - Your Honours then said:

In the application of this test, much depends on the facts of the case and the

outcome may depend upon matters of impression

and degree, especially on the needs of

service discipline. In determining whether it

is reasonable to regard the maintenance or

enforcement of service discipline as a

substantial purpose of bringing proceedings,

it is important to consider whether the
jurisdiction of a competent civil court can
conveniently and appropriately be invoked to
hear and determine a corresponding civil

court offence.

If the enactment of the catalogue of service offences

by the Commonwealth in the DEFENCE FORCE DISCIPLINE

ACT had been intended to amount to a code of

prohibited conduct for servicemen there would have

been no meaning to Your Honours' statement about

how one considers whether or not there is

jurisdiction of a competent civil court to hear

and determine a corresponding civil court offence.

Your Honours' cormnents on severability when dealing

with section 190(5) are to similar effect, but,

in my submission, the matter is so plain by reference

to the passage that I have just read that I need

not take Your Honours to it.

Likewise,in the reasons for judgment of

Your Honour Justice Deane, may I direct attention

briefly to two passages, one at page 276 in the

second column and one at page 277 in the second

column. At page 276, opposite letter D,

Your Honour set out what it was that the	DEFENCE FORCE DISCIPLINE ACT purported to do.
Your Honour said this:

It purports to establish a comprehensive

system of criminal law for "defence menbers"

and "defence civilians" which

then, of course, I emphasize the qualification

which your Honour imposes -

when it is applied, displaces the ordinary

system of criminal law which would

otherwise be applicable.

And, ~o like effect, is what Your Honour says

at the top of the second column at page 277.

Your Honour, having referred to the reciprocal

CIT29/l/JM	53	10/10/89
McWaters

double-jeopardy provision, says this:

As those provisions make clear, the criminal jurisdiction which the Act purportedly confers

is intended to be comprehensive both in its

subject matter and its exercise in the

sense that the service tribunals are entrusted

with jurisdiction which -

and then I emphasize the qualification -

(when exercised) encompasses exclusive judicial

oower to deal with all asoects of conduct

covered by a general criminal code.

Lastly, may I refer to what Your Honour

Justice Gaudron said at the bottom of the first

column of page 280 and over on to the second

column at the top of the page.	Your Honour said
this:

The Act expressly recognises that some

service offences are substantially the same

as offences under the general criminal law.

The Act takes account of this in two

significant respects.

Then Your Honour refers to the recinrocal

double-jeopardy provisions. I must· confess I

understood Your Honour to be saying that these

are the only respects in which the Act takes

account of this possibility. If there had been

yet a further respect in which this matter was
taken into account by the Act, namely by making
it impossible to proceed at all in respect of

corresponding civil court offences, no doubt

Your Honour would have said that perhaps instead

of, or at least in addition to the references

which Your Honour made to the reciprocal

double-jeopardy provisions. So that, in my submission,

really the case is overwhelming that there was

no intention on the part of the Commonwealth

Parliament by the enactment of its catalogue of service offences to exclude the corresponding civil court offences except in that class of case in which the jurisdiction· of the service tribunal

had already been invoked and in which the

proceedings had come to a conclusion.

(Continued on page 55)

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McWaters(2)

MR KATZ (continuing): For those reasons, Your Honours, in

my submission, there is no inconsistency whatever

between section 40(2) of the DEFENCE FORCE DISCIPLINE

ACT and the provisions of the Queensland TRAFFIC ACT.

If Your Honours please, those are my submissions.

MASON CJ:  Thank you, Mr Katz. Mr Davies.

MR DAVIES:  Could I hand up some outlines of our submissions?

MASON CJ:  Thank you. Yes.

MR DAV I ES :  Your Honour s w i 11 have seen th a t we de a 1 , f i r s t , w i t h

the question of validity of section 40(2) and we

submit, with respect, that it is valid, either under

section 51(vi) or as a law with respect to a

Commonwealth place under section 52(i) and

Your Honours will have seen that with respect to

the first of those, that is, its validity under

section 51(vi), we really say two things about it.

One is that in stating it in the composite way in

which we have stated it in the first part of

paragraph 2 of our submissions, we have really

stated two aspects of it; one is that it is a law

with respect to the protection of the safety of

defence persons and properties - I use "defence

persons" to include defence civilians although it

is not, perhaps, strictly relevant to some aspects

of our submissions - and also, it is a law for the proper discipline of defence persons. That is the

question which was discussed to some extent in

TRACEY.

(Continued on page 56)

C1T30/1/SH	55	10/10/89
McWaters(2)

MR DAVIES (continuing):  In our resoectful submission, for

either of those reasons, it is a valid law under

the defence power and we submit, in addition, that L'.::

is a valid law under section 52(i) because whatever -

I should say at the outset that we do accept, of course, that the definition of "service land"

is certainly wider than section 52(i) of the

CONSTITUTION, but however wide that definition mav

law with respect to that place, that, as we have said, being an element of the offence.

be, there can be no doubt, in our respectful ·
submission, that the Enoggera army base the subject

of these proceedings is a place acquired by the

The same is true with respect to a number of

the other subsections in section 40. Subsections (41,.

(6) and (9) all are tied into the offence occurring

on a Commonwealth place. Can I take Your Honours ·

then to - that is really all we want to say about

the question of validity. Can I then take

Your Honours to the question of inconsistency and,
in our respectful submission - and this is set out in

our paragraph 4 - the offences which are stated in the

Act are really relevantly for the purposes of

inconsistency of three kinds. The first of them

which raises no question of inconsistency because
there is no equivalent civil offence are those
which are related purely to defence matters, defence

disciplinary matters, and we instance in paragraph 4(a)

as examples all of those that come within Part III,

Division l. They are offences such as aiding the

enemy, communication with the enemy, leaving your post,

endangering morale, behaviour after capture by the

enemy.

All of those, additionally, in Divison 2 which

are concerned with mutiny, failure to suppress a

mutiny, desertion, absence from duty and absence without

leave, which is one of the provisions considered in

TRACEY's case, and some of the divisions in Division 3;

section 26, insubordinate behaviour, section 27,

disobedience of command, section 28, failure to comply

with a direction of a person in command, section 29,

failure to comply with a general order, section 31,

obstruction of a service policeman and section 32

with respect to a person on guard or on watch, and so

on. I do not know whether I need take Your Honours

through the various provisions which we say fall into

that first category but, in our respectful submission,

they are, clearly enough, an exhaustive statement of

criminal liability in the circumstances in which they

apply, but because there is no equivalent civil offence

no question of inconsistency can arise.

ClT31/l/HS	56	10/10/89
McWaters(2)

The second category of offence is that which

is contained, really incorporated into the Act by

section 61, and these are offences which, historically

have always been amenable to the civil law. They

are offences which are, on any view, criminal offences.

That provision, section 61, clearly contemplates

that the offences which it states will be civil offences.

Your Honours can see that if Your Honours look at

section 6l(l)(a), which says:

A person, being a defence member or a

defence civilian, is guilty of an offence

if -

(a) he does or omits to do, in the Australian

Capital Territory, an act or thing the doing or

omission of which is a Territory offence - which is defined, of course. So those offences which

are incorporated by section 61 clearly contemplate that

there will also be civil offences and consequently,

in our respectful submission, are not intended to be

an exhaustive statement of criminal liability, but

simply to be cumulative or, at least, alternative.	So,
again, in our respectful submission, no question of inconsistency arises in that second category of offences.

The third category is those in which there is a

civil equivalent, but because of the way in which they

are stated, by that I mean they are stated

comprehensively and specifically they appear to be

an exhaustive statement of liability.	We submit that
section 40(2) is in this category.	But we have given

in our outline another example, because it has a

parallel in a provision which was considered in REG V

LOEWENTHAL.

(Continued on page 58)

ClT31/2/FK	57	10/10/89
McWaters(2)

MR DAVIES (continuing):  And that is section 43(1). That

provision says that:

A person, being a defence member or a defence

civilian, who intentionally, by act or omission,

destroys or damages service property is

guilty of an offence for which the maximum

punishment is imprisonment for 5 years.

Now, this Court in LOEWENTHAL considered the

provision of the Commonwealth Act which was similar

to that though not as narrow and specific as

that. The reference to that case, Your Honours,

is 131 CLR 338. And the relevant provisions

appear set out in the judgment of Mr Justice Menzies

at page 341. They were the general provision

in section 469 of the Queensland CRIMINAL CODE

and a similar provision in section 29 of the
Commonwealth CRIMES ACT but limited to Commonwealth

property.

And it was held in that case that section 29

was intended to be exhaustive and so by virtue

of section 109 of the CONSTITUTION to invalidate

in that respect section 469 of the CRIMINAL CODE.

Can I take Your Honours to the judgments in which

that appears: first of all, in the judgment of the Chief Justice Sir Garfield Barwick in

the first paragraph of his judgment on page 339,

His Honour said:

In this matter I have had the advantage

of reading the reasons for judgment prepared

for delivery by my brothers Menzies and

Mason. I agree with them thats 29 of the

CRIMES ACT (Cth) was intended to be an exhaustive

provision as to damage being done to property

belonging to the Commonwealth -

(Continued on page 59)

ClT32/1/ND	58	10/10/89
McWaters(2)

MR DAVIES (continuing):  Then, Mr Justice Menzies, at

page 342, in the last paragraph on that page, said:

However this may be, I have come to the

conclusion that section 29 of the

CRIMES ACT should be regarded as

exhaustive so that, when it is alleged

that it is property belonging to the

Commonwealth or any public authority under the Commonwealth that has been wilfully and

unlawfully destroyed or damaged,
section 29 of the CRIMES ACT governs the

matter to the exclusion of any law of a

State.

The Commonwealth law, operating as it

does throughout Australia, provides a common

rule to or from which the legislation of a

State can neither add nor subtract.

And, finally, Your Honours, in the judgment of

Your Honour the present Chief Justice commencing at

the bottom of page 346, Your Honour said in the

second-last sentence on that page:

Although the provisions are substantially

identical in describing the conduct which

gives rise to the offence, the penalties

prescribed differ. A difference in the

penalties prescribed for conduct which is
prohibited or penalized by Commonwealth and

State laws has been held to give rise to inconsistency between those laws (see

HUME V PALMER; EX PARTE McLEAN), at least

when it appears that the Commonwealth statute

by prescribing the rule to be observed

evinces an intention to cover the subject

matter to the exclusion of any other law.

It is not to be supposed that the

Commonwealth law, when it formulated the

relevant rule of conduct in relation to

Commonwealth property and that of its

public authorities, proceeded on the footing

that other and different rules of conduct

might be enacted in relation to such

property or that the rule of conduct which

it formulated might be subject to a different

penalty.

ClT33/l/JH	59	10/10/89
McWaters(2)

MR DAVIES (continuing):

To conclude otherwise would be to say that

the Commonwealth law contemplated the concurrent

application of an inconsistent State law,

a result which cannot be sustained. Indeed,

there is here a direct conflict (in the matter

of penalty) between the Commonwealth and the

State law; in such a case it is impossible
to see how the existence of inconsistency
in the constitutional sense can be avoided
by an argument which seeks to attribute to
the Commonwealth law an intention not to cover

the relevant field.

McHUGH J: That is the point here, is not it: that if

section 40 was seen as a law directed to the subject

of service land or service vehicle, then LOEWENTHAL

might be in point but it is put against you that

in the context of the Act as a whole, the whole

Act deals with military discipline and that is its

purpose.

MR DAVIES:  I simply answer that, Your Honour, by referring

to the three quite separate and distinct categories

of offences under the Act: those which relate solely

to military discipline; those that, in their express
terms, allow for the operation of State civil offences

as well and those which, on the other hand, are

in respect of matters which would otherwise be offences

under civil law but which are stated specifically

and comprehensively.

It would have been very easy to include all

of these in section 61 and it has not been done

that way.

MASON CJ:  Mr Davies, it may be convenient now to adjourn

and we will resume at 2. 15 pm.

MR DAVIES: If Your Honour pleases.

AT 12.47 PM LUNCHEON ADJOURNMENT

ClT34/l/SH	60	10/10/89
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UPON RESUMING AT 2.16 PM:

MASON CJ:	Yes, Mr Davies.
MR DAVIES:	Your Honours, I was making the point before

lunch that just as section 29 of the CRIMES ACT

can be seen as a specific provision excluding

the operation of a more general provision,
section 469 of the Code,in the case where the

property is Commonwealth property, so section 43

can be seen as a specific provision excluding

each of those nrovisions where the DroDertv is

service land and the accused person-is- a .
service ::,erson.

Your Honours, in our respectful submission, to counter that by, as Your Honour Justice McHufh m:ntioned

to me, saying, "Well, the Act is really about

discipline", in our respectful submission, is no

answer. One really has to look at section 40,

and as we submitted earlier, section 40 has its

source in section Sl(vi) in two resnects, one

is a disciplinary res9ect and the other is a

protection of service persons and service property

respect, and it also has its source in section 52(i).

Even if one were to say that the two ~revisions,

State and federal, have quite different purposes

it would not mean that they could not be

inconsistent. We mention at the end of our

outline a passage in COLVIN V BRADLEY in the

judgr.ient of Chief Justice Latham where he gives

a number of examples of cases decided in this Court

where legislation said to be on different

topics has nevertheless been held to be inconsistent.

GAUDRON J:	Does anything turn, Mr Davies, on the fact that in LOWENTHAL you were considering two criminal
regimes whereas in this case it is a criminal
regime as against a service regime?  (Continued on page 62)

CIT35/l/JM	61	10/10/89
Mcwaters

MR DAVIES: Well, Your Honour, we submit, with respect, one

has to look at the specific provision and characterize

it. If one looks at, for example, section 43 it is a

provisions are in the Act under consideration here.	criminal provision as, indeed, so many of the to say that looking at other provisions in the Act they are purely service related because some of them
clearly enough are not, on their face, in any event,
service related and one really might have to look
at facts and circumstances to see whether they come
within placitum (vi) of section 51.

BRENNAN J: What do you mean by a criminal offence?

MR DAVIES:	I mean, in the first place, section 61 which deals with matters which were generally thought to be
crimes at common law and, I suppose I was also
including in that, the statutory type of offences
such as a drink-driving type offence. That to say
that it is a drink-driving type offence but limited
to a service person driving on service land is not to convert it from a provision of that character
to a provision having a quite different character -
a disciplinary character only. It might have that
also but it does not have only that character, in
our respectful submission.
McHUGH J:	Do you have to contend that an offence such as

section 46 could not be the subject of a prosecution

under State law, dealing with possession of property

which may be suspected of having been unlawfully

obtained?

MR DAVIES:  Yes, I would, Your Honour.

McHUGH J: Yes.

BRENNAN J:  Mr Davies, none of these offences expose a person

who colllillits them to liability to conviction in a

civil court as for a breach of those provisions.

MR DAVIES:  No, Your Honour.

BRENNAN J: Well, does that say anything about whether or not

they are offences in any relative sense?

(Continued on page 63)

ClT36/l/DR	62	10/10/89
McWaters(2)

MR DAVIES:  Your Honour, they are offences in the sense

that they are offences which are subject to a

penalty and, in our respectful submission, they

are offences in the sense that they are described
in the same terms, in many respects, as the
provision in whatever it might be, the CRIMES ACT

or the Code. In that sense, in our respectful

submission, they are criminal offences.

Your Honours, in our respectful submission,

as we say in our outline, section 40(2) is even

more clearly one of that character, as are

subsections (4), (6) and (9) of that section.

The conduct prescribed by that section and 16(l)(a)

is the driving of a motor vehicle under the

influence of liquor - under the influence of alcohol.

The first is general and the second is specific,

being limited to defence persons and service land.

In our respectful submission, when one looks at

these provisions on their face, they appear to

be comprehensive and specific. There is nothing
in them which would indicate, by contrast with

section 61, that they were intended to be cumulative

or supplementary to some provision under another

statute.

Your Honours, the State provisions are not

uniform. I do not want to take Your Honours to them,

but they really seem to be two different ways in which

the State statutes deal with drink driving. They all

seem to have a statutory offence of driving a car

with higher than a specific percentage of alcohol

in the blood. Each of them contain a further .and

higher offence, but in describing that offence, they

differ. Some of them follow the Queensland provision

which is set out in the judgment of the majority

members of the Full Court at page 14, that is, simply

in terms of a person who, whilst under the influence of

liquor or a drug, drives a motor vehicle, is guilty of

an offence.

Queensland provision, or in the same form of the They then, those which follow the

Queensland provision, provide in addition that a person

having more than a prescribed percentage of alcohol

in his blood is deemed to be under the influence of

liquor.

(Continued on page 64)

ClT37/l/FK	63	10/10/89
McWaters(2)

MR DAVIES (continuing):  Those provisions are Queensland,

New South Wales, Australian Capital Territory and

Western Australia. Victoria, South Australia and

Tasmania have a provision which is much closer to

the Connnonwealth provision, the provision in

the DEFENCE FORCE DISCIPLINE ACT, which requires as

an additional element that the person be incapable

of having proper control of the vehicle although

some of them provide that having a certain

percentage is evidence of that although not

irrebutab le - not an irrebutab le presumption.

So, there is a lack of uniformity and we simply make the point that one seen purpose of

section 40 is to provide a uniform provision for

defence persons on service land.

One other point which we should make about

section 40 and, indeed, the other offence

provisions of the Act which fall into this

category is that it is really quite different from

the sort of provision where one can, in fact,

ordinarily satisfactorily obey both which are

ordinarily the licensing provisions such as ±n

AIRLINES OF NEW SOUTH WALES where there is one set

of statutory provisions providing for a licence
dealing with matters relating to ,safety and another
set of provisions dealing with a licence dealing

with cormnercial matters and it is one thing to say

that, therefore, you need both lots of licences; it

is quite another thing to say that in a case such as

this you can comply with both provisions,

section 40 and section 16(l)(a~ by not drinking and
driving. In our respectful submission, unlike the
licensing-type provisions, the provisions such as

section 40(2) of the DEFENCE FORCE DISCIPLINE ACT,

appears on its face to be exhaustive.

Your Honours, if it be relevant we add that

the purpose of the two provisions is the same; they

can both be accurately described as provisions to

prevent drunken driving of motor vehicles or to

prevent the driving of motor vehicles in such a way

as to endanger persons or property and in describing

it that way one can see that one of them is

specific and the other is more general in its

operation.

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MR DAVIES (continuing):  The other point which we should

make about the Act generally, Your Honours, is that

section 144(3)(a) and, indeed, section 190(3) and (S),

if they can be used in construing the Act, are

irrelevant to the question under consideration here;

irrelevant for the same reason as this Court held

the provisions of section 11 of the CRIMES ACT which

was a double jeopardy provision, to be irrelevant

in LOEWANTHAL's case.

Can I take Your Honours back to that case,

to what Your Honour the present Chief Justice said

at page 347; that is 131 CLC, in the paragraph

commencing about the middle of that page.

Your Honour said:

The provisions of s. 11 of the - - -

MASON CJ:	Which page was this, Mr Davies?
MR DAVIES:	Page 347.
MASON CJ:	Thank you.
MR DAVIES:	The paragraph commencing in the middle of the page, Your Honour said:

The prov is ions of s. 11 of the CRIMES ACT

which enable a person to be prosecuted and

convicted either under a Commonwealth law

or a State law where the act or omission is

an offence against each law, but so that he

is not punished twice for the same offence,

do not affect the matter. The section plainly

speaks to a situation in which the State law

is not inoperative under s. 109, as for

example when there is an absence of conflict

between the provisions of the two laws and

the Commonwealth law is not intended to be

exclusive and exhaustive. The same comment

may be made as to s. 30(2) of the ACTS

INTERPRETATION ACT 1901, as amended.

(Continued on page 66)

C1T39/1/ • H) 65 MR DAVIES, QC 10/ 10/89

McWaters\2
MR DAVIES (continuing): So the point we really make here is that

section 144(3)(a) and the two subsections of
section 190 which Your Honours held to be invalid

in TRACEY's case, serve the same purpose as

section 11 and because they assume for their

operation a valid provision, a provision not made
inoperative by section 109, they can have no
relevance to the construction of section 40.

They are our submissions,, may it please the Court.

MASON CJ:  Yes. Thank you Mr Davies. Mr Hampson.

MR HAMPSON:  There is just a couple of points that we would

like to make, if it pleases the Court.	The
classification which our learned friends,
the respondents, make in

paragraph 4, in our submission,are not really

helpful at all because it is clear that this Act

is meant to apply overseas and what can be the

significance perhaps of an offence committed in

Hong Kong, according to Hong Kong law, or something

of that kind, is not dealt with in this particular

classification. All this attempts to do is to

classify criminal liability,as it were,with relation

to the Code and to compare it with what other

offences- what genuine offences as opposed to

military offences there might be in Australia.

So we submit that that really does not help at all.

What is of assistance,however, is to consider

the explanatory memorandum which accompanied the

Defence Force Discipline Bill and this is

particularly relevant with relation to the classification

under (c) which is said to be an independant group.

(Continued on page 67)

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MR HAMPSON (continuing): At page 97 of that explanatory

memorandum clause 40 is considered. It is said

that there is:

No corresponding offence in Service law.

MASON CJ:  Do we have copies of this, Mr Hampson, do you

know?

MR HAMPSON:  I thought you might have had them from

the Solicitor-General for the Commonwealth.

I have nhotocopies of part of what I wanted to

refer to, I could hand them up.

MASON CJ:  Yes, if you would.

MR HAMPSON: That explains why they are put there with

relation to the use of vehicles under clause 40

and paragraph 394 is particularly relevant:

The offences are generally based on

corresponding offences found in the motor

traffic laws of the States and Territories

and have been included in the Bill because

the offences triable under clause 61 do not

include offences triable under the traffic

laws, (specifically, the Motor Traffic

Ordinance 1936 of the Australian Capital

Territory).

They go on to consider the rest of it, ~rovision

relating to non-service vehicles not being made: on public roads as these are net: generally

Service-related.

So it ,;,-ould seanquite obviously that when they

had set out, if one takes the first classification

of the respondents, direct statements not of

criminal liability under section 4(a), but

exhaustive statements of service offences, which

is class A, and, of course, they do notthereforehave any
equivalent civil offence, then, under section 61,

there was endeavoured to be brought in a number of

offences under the general law which were created as

service offences.

(Continued on page 68)

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MR HAMPSON (continuing):  But because section 61 did not

bring in enough, as it were, it was necessary then,
as in the case of section 40 (2), to make an express
statement of a service offence because it was not

incorporated into the Act by the operation of

section 61. Now, unfortunately, I do not have the

next page, but on page 103 of the same document -

we can undertake to provide this to the Court - our

learned friends went on, in paragraph 4(c), in

their classification they took section 43(1) as an

example and referred to BLACKLOCK' s case, where it was hel

the equivalent provision of the CRIMES ACT, section 29,

was intended to be exhaustive so to validate

section 469 of the CRIMINAL CODE (Queensland).

And the last paragraph: "vllere the property

is service property and the accused is a defence

person, section 43(1) for the same reason excludes

the operation of both section 469 and section 29" -

that is of the CRIMES ACT. Now, of the same

publication, at page 103 there appears paragraph 426.

This is where section 43 is being considered and what the explanatory memorandum has in paragraph

426 are these words:  "A similar offence,but

relating to property belonging to the Commonwealth,

is provided by section 29 of the CRIMES ACT1914

and can be charged under clause 61 (Other Offences)."

So, it was perfectly clear, in our submission,

that it was not considered that this provision of section 43 in any way made inoperative section 29 of the CRIMES ACT.

(Continued on page 69)

ClT42/l/DR	68	10/10/89
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MR HAMPSON (continuing):  The only other matter to which we

would - on a general basis these matters which are
said to be service offences, not criminal

offences, and they are created by the Parliament

as service offences even if they are similar to

offences which are criminal offences under the

ordinary civil law, do in the service context

obviously have a cormnunity interest because it is

important for the cormnunity that one has a well

disciplined defence force and it is not really the

making of an extra criminal offence that the

making of a service offence even though it has a

cognate criminal offence for both of which the

servicemen will be liable.

Then finally, we submit our learned friends

for the respondent make the error of fastening on
to some words, namely, section 40(2) and not
looking at the full context of the Act. And, we
refer the Court - unfortunately it is not on our
list - to the decision of this Court in

K & SLAKE CITY FREIGHTERS PROPRIETARY LIMITED V

GORDON & GOTCH, 157 CLR 309,and the statement is

of Your Honour the Chief Justice at page 315. What

he was considering there was section 133 of a New

South Wales statute:

On its face section 133, which is

expressed in general terms, contains no

limitation on the nature of the claim to

damages or other remedy to which it

refers.

(Continued on page 70)

ClT43/l/JH	69	10/10/89
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MR HAMPSON (continuing):

However, to read the section in isolation from the enactment of which it forms part

is to offend against the cardinal rule of

statutory interpretation that requires the

words of a statute to be read in their

context -

an authority is given, and then:

Problems of legal interpretation are not solved satisfactorily by ritual incantations

which emphasize the clarity of meaning which

words have when viewed in isolation, divorced

from their context. The modern approach to

interpretation insists that the context be

considered in the first instance, especially in the case of general words, and not merely

at some later stage when ambiguity might be

thought to arise.

Now, we submit that the statement that is made

there is something that has been breached by our

friends. They have really focused on section 40(2)

and they have neglected to look at its context in

an Act, the total form of which, even its very title,

is an Act concerned with the military; with the

defence forces, and applying rules of conduct for that

particular force, and viewed in that context, it is

our submission, the majority below were clearly

wrong and His Honour Mr Justice Williams was correct

and the appeal should be allowed.

MASON CJ: Yes, thank you, Mr Hampson. The Court will consider

its decision in this matter and adjourn until

10.15 am tomorrow.

AT 2.39 PM THE MATTER WAS ADJOURNED SINE DIE.

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