McWaters v Day

[1989] HCATrans 155

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No Bll of 1989

B e t w e e n -

BRETT JAMES McWATERS

Applicant

and

GRAHAM GEORGE DAY

Respondent

Application for special

leave to appeal

BRENNAN J
DEANE J

DAWSON J

Mcwaters

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 30 JUNE 1989, AT 9.37 AM

Copyright in the High Court of Australia

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MR C.E.K. HAMPSON, QC: If it please the Court, I appear with

my learned friend, MR T.J. RYNNE, for the applicant.

(instructed by the Crown Solicitor for Queensland)

MR G.L. DAVIES, QC:  May it please the Court, I appear with

my learned friend, MR M.J.F. BURNETT, for the

respondent. (instructed byStockley & Co)

MRS. GAEGLER: If the Court pleases, I appear for the

Attorney-General for the Commonwealth, intervening

in the interests of the applicant. (instructed by

the Australian Government Solicitor)

MR HAMPSON: If the Court pleases, the respondent, a member of the Australian regular army was charged by the

Queensland police, Mr McWaters, under section 16(1)(a)(i)

of the Queensland TRAFFIC ACT.	I have copies of the
legislation for the Court.

BRENNAN J:  I take it this application is opposed, Mr Hampson,

is it?

MR HAMPSON:	I believe so, yes, Your Honour.
MR DAVIES:	Yes.
MR HAMPSON:	That offence is one of driving a motor vehicle

while under the influence of liquor, and the offence

occurred on the Enoggera army camp at Brisbane.

Day, being off duty at the t"fme, in uniform but driving

his own civilian motor vehicle, and the Queensland

police became involve with the invitation of the

Enoggera garrison military police.

Now, Day claimed, in the Full Court, that

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

first of all, here is the TRAFFIC ACT and I will also

pass up some photocopies of the DEFENCE FORCE DISCIPLINE

ACT. The relevant provision, I will just remind the

Court, was section 16(l)(a)(i). And section 40(2) of

the DEFENCE FORCE DISCIPLINE ACT 1982 appears at

page 2153 of that photocopied Act.

Day claimed that the section of the Commonwealth

Act was inconsistent with that section of the Queensland

TRAFFIC ACT and so far as his situation was concerned,

the Queensland Act was invalid by reason of the

operation of section 109 of the CONSTITUTION. He

said that if he is to be dealt with, he can be only

dealt with by a service tribunal for an offence under
section 42 of the Commonwealth Act.

The Court will notice that the penalities for the two sections differ slightly and also the

Commonwealth section contains an element which the
Queensland section lacks, namely, the level of intoxication, under the Commonwealth offence, must be

such as the driver was:

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incapable of having proper control of the

vehicle -

the Queensland Act does not require that. So, with a
high blood concentration it is possible to have breached

the State section but not yet have breached the

Corrnnonwealth one.

Now, before the Full Court then the argument

between the two sections because each was directed to a different purpose. The Queensland section was

on the other side, the argument for our client,

directed to the regulation of traffic in Queensland

and the Commonwealth section was directed to the

discipline of defence force members. Secondly,

we submitted that the Corrnnonwealth section,

section 40(2), was meant to be supplemental to

section 16 of the Queensland Act in that it

opposed a disciplinary obligation on defence force

members, which was additional to their obligation

to obey the ordinary law in Queensland evidenced

by section 16.

We also arguedthat in peace-time Brisbane, with a functioning magistrate's court available to hear

the offence, charged under section 16, it be a
corresponding offence to one which could have been

charged under section 40(2), section 42 was

ultra vires the defence power of the Corrnnonwealth

and in that connection, of course, the argument was

looking at remarks of members of this Court in RE

TRACEY EX PARTE RYAN, which I notice is now

reported in 63 ALJR 250.

In the Queensland Full Court, which was

comprised by Mr Justice McPherson, Mr Justice Williams
and Mr Justice Dowsett, there was a division of

opinion. Mr Justice Williams accepted-- his judgment

appears at page 42 of the a.ppeal book. He accepted

our argument, the first two arguments, that the

disciplinary code was something supplementary, it

was not intended in any way to cover the field,

it was just sorrething - extra law which applied to

a particular body of Australian citizens, namely,

people in the Army.

BRENNAN J:  Mr Harnpson,I think we will hear from other

counsel at this stage.

MR HAMPSON: Thank you, Your Honour.

DEANE J:	Mr Hampson, before you sit down, can I just ask you
this: to what order as to costs do you submit if
leave were granted?

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MR HAMPSON:	Your Honour, I have no instructions in the matter but I am sure the instructions would
be that this is an important case for the
State of Queensland.

DEANE J: What, so that your client would not seek

to disturb the costs in the Full Court and pay

costs in any event?

MR HAMPSON: Well,I think that those instructions would

be forthcoming but perhaps I could just get them immediately, thank you. Yes, I am told that that

would be the attitude of my client.

BRENNAN J:	Mr Gaegler, in what interest do you intervene?
MR GAEGLER:	Your Honour, on the section 109 issue and indeed

in the interests of the applicant and if special

leave is granted on that issue then I cannot

oppose special leave also on the validity point.

BRENNAN J~ Yes. Mr Davies?

MR DAVIES:  Your Honours, in our respectful submission,

the decision of the Full Court below, that the

two sections were inconsistent, was clearly right

and we say that it was clearly right because the

two provisions deal with the same subject-matter,

that is drunken driving of a motor vehicle on

service land by a defence member - - -

BRENNAN J: Is that an accurate description of

section 16(1) (a)?

MR DAVIES: Your Honour, in our respectful submission it is.

The fact that the subject-matter of section 16(l)(a)

is wider than that but includes that, in our

respectful submission, would not mean that that

is not included in the subject-matter of

section 16(l)(a).

DEANE J: 40(1) would have some problems,would it not?You ,;..;ouldset

out to prove what a good drinker you were and you

would be - - -

MR DAVIES:  I am sorry, Your Honour.

DEANE J: I said 40(1) would have some problems. The better

drinker you are the less chance you have got of

being convicted.

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MR DAVIES:  Under section 16?

DEANE J: No, under 40(1) you have got'~o be incapable of

having proper control".

MR DAVIES: Yes, indeed. Yes. And that is really one of the

inconsistencies. in our respectful submission,

that under the Queensland Act the position is simply

that if there are sufficient indications that you

are under the influence of alcohol, then that is

sufficient. Whereas, of course, as Your Honour quite

rightly puts, if you can conceal those indications

and control your motor vehicle then you are, so far

as section 40(1) or 40(2), not guilty. And we say

that the inconsistencies between the two sections

are two: first is the one we have just mentioned,

that is that they state different and to some extent,

inconsistent tests for determining .drunken driving and

the other, the one our learned friend mentioned, that

they impose different penalties.

Your Honours, in our respectful submission, it is

correct to say that they deal with the same subject-

matter and the subject-matter in the way in which

~- have stated, that is driving a vehicle by a

defence member on service land whilst under the

influence of liquor,and the fact that that is only

part of the subject-matter covered by section 16(1)

is, in our respectful submission,irrelevant.

In the court below, Mr Justice Williams really

looked at the subject-matter of section 40(2) by

looking, not simply at its terms, but looking at

the purpose of other sections of the Act thereby

saying what the purpose of the Act was as a whole.

In our respectful submission, in order to determine

the subject-matter of section 40(2), there is no

need and no justification to go outside its terms

to look at any other provisions of the Act or,

indeed,the Act as a whole and,in our respectful

submission,it is irrelevant to the subject-matter

of section 40(2) to say that the purpose of the Act

as a whole is the discipline of defence members or

to say that other provisions in the Act are

intended to be supplementary to, or accumulative

upon,the ordinary criminal law of the States.

Section 40(2) may indeed have a number of

purposes, one in which is discipline and the

other might be the safety and well-being of
defence members and the protection of defence

property, all of which, in our respectful

submission, would be within the·defencepower.

So the subject-matter is the same but, in our

respectful submission, the quality of the conduct,

as Mr Justice McPherson put it below, proscribed

and the penalties for breach are different.

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When dealing with the qualities of conduct,

it could be said, in a sense, that section 16(1)

proscribes driving under the influence,

whereas section 40(2) proscribes driving under

the influence to such an extent as to be incapable

of proper control, that in. that sense the

Commonwealth Act permits, or at least does not

prohibit, conduct which is prohibited by the

State Act ·or, put another way, the sections state

different and inconsistent tests for determining

drunken driving, the Commonwealth test being more

specific and limited in operation.

And as our learned friend said the penalties

are different. The penalty under the State Act

is $1400 or nine months or both and the penalty

under the Cornmonwealth provision is 12 months.

DAWSON J:  Mr Davies, on your argument would there ever be

any room for the application of the double-jeopardy

rules as between service offences and civil

offences?

MR DAVIES:	In many other cases there would, Your Honour. What we are saying is that when one is talking about
service offences and civil offences generally as opposed to a specific provision such as this - there are many provisions which are made service offences
by incorporation into the DEFENCE FORCE DISCIPLINE ACT
by incorporating other law, saying that these things are service offences, that certainly - thare is a double-jeopardy situation there, but what we say, with respect to section 40(2), is here is a
specific and detailed provision dealing with a specific offence and that that is different from
those general provisions which are incorporated into
the Act by section, I think,  61 or 62 or
thereabouts, of the DEFENCE FORCE DISCIPLINE ACT.
BRENNAN J:	of the COMMONWEALTH PLACES ACT? Does any question arise as to the construction
MR DAVIES:	Below it was certainly argued on the basis that

it did not, Your Honour, that, ,in effect, the effect of

section 4 of the COMMONWEALTH PLACES ACT was that

one really had to determine the question of

inconsistency before the State Act was taken over

and applied by the COMMONWEALTH PLACES ACT, because

the effect of that section was that it did not

apply to State Acts which were inconsistent with

the Commonwealth Act.

BRENNAN J:  I am just a little puzzled how one gets to a

problem of inconsistency when the relevant offences

have a locality element in them, as 40(2) does,

does it not?

Mcwaters BIT2/6/CM 6 30/6/89

MR DAVIES:  Yes it does.

r

r·

BRENNAN J: So.that 16(l)(a), apart from the COMMONWEALTH

PLACES ACT, could never apply in relation to

areas to which 40(2) applies?

MR DAVIES:  It could not apply, Your Honour, if that

inconsistency question is determined in our favour.

BRENNAN J: It could not apply anyhow. It simply would not

have any application, of course, apart from the

COMMONWEALTH PLACES ACT - - -

MR DAVIES: Quite.

BRENNAN J:	So one wonders whether there is an inconsistency question arising under section 4 before it is
picked up and applied?
MR DAVIES:	I would have to say to Your Honours that that was really assumed below by the court - I take Your Honour's point - and I really cannot take it
any further than saying that that was the -way it was - - -

DAWSON J: Can I take you back to the answer you gave to

m: - I may be being dull - but if the civil offence is

taken across and made a military offence, then there

is a complete inconsistency,is there not, because

it covers the field?

MR DAVIES: Well, unless, in that respect, Your Honour -

DAWSON J: And then therefore there would be no room for

double jeopardy.

MR DAVIES: Unless in those cases the Commonwealth provision

was intended to be no more than supplementary to

the State provision.

DAWSON J: Well, if it is in that case, why not in this? That

is.:the sort of thing I had - - - ·

MR DAVIES: HWhy not in this?"because, in this case, one does

have a separately stated and specific provision of

the ~ommonwealth Act dealing with a specific

situation.

DAWSON J: But you would, otherwise, I mean, assume that instead

of making a specific provision it just said.,, "Civil

offences for driving under the influence shall be

military offences"and then you have a closer

correspondence of the two sections, as it were.

MR DAVIES:  No, we would submit that that would be a different

argument from the one that we are putting to the Court,

Your Honour, in the sense that what we are saying is

that instead of some general taking over in bulk

of a large number of State provisions, that is done

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in one part of the Act, and, in another part of the

Act, here is a specific and detailed provision dealing with a specific situation, and with the

intention, in our respectful submission - the
statutory intention- that in that specific and detailed

situation that that section should prevail.

BRENNAN J: 

Mr Davies, why is it that this case does not

involve questions of the test of inconsistency,
questions of the construction and operation of

section 4 of the COMMONWEALTH PLACES ACT and

questions of the operation of the TRACEY views upon

State and Corrn:nonwealth laws?

MR DAVIES: 

Your Honour, I cannot say that it does not involve

those questions. All I can submit to the Court is
that the decision of the court below on those

questions was clearly right and I have endeavoured to do

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

BRENNAN J: Yes. 

The order of the Court is that special leave

will be granted upon condition that the order for costs made in the court below shall stand, in any event, and that the applicant for special leave

shall meet the respondent's costs of the appeal

in this Court, in any event.

AT 9.55 AM THE MATTER WAS ADJOURNED SINE DIE

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