McWaters v Day

The applicant, McWaters, sought special leave to appeal to the High Court of Australia from a decision of the Full Court of Queensland. The dispute concerned a charge brought by Queensland police against the respondent, Day, a member of the Australian regular army, under section 16(1)(a)(i) of the Queensland *Traffic Act* for driving a motor vehicle while under the influence of liquor. The offence occurred on the Enoggera army camp. Day contended that section 40(2) of the Commonwealth *Defence Force Discipline Act 1982* was inconsistent with the Queensland Act, rendering the latter invalid by operation of section 109 of the Constitution. He argued that he should only be dealt with by a service tribunal for an offence under section 42 of the Commonwealth Act.

The legal issues before the High Court were whether section 40(2) of the *Defence Force Discipline Act* was inconsistent with section 16 of the Queensland *Traffic Act* for the purposes of section 109 of the Constitution. Specifically, the court had to consider whether the Commonwealth Act evinced an intention to cover the field of regulating driving offences by defence force members, or if the Commonwealth provision was intended to be supplemental to state laws, imposing an additional disciplinary obligation. The court also considered whether section 42 of the Commonwealth Act was *ultra vires* the defence power, particularly in circumstances where a state court was available to hear the offence.

The Full Court of Queensland was divided. Mr Justice Williams accepted the arguments that the Commonwealth and Queensland provisions were directed to different purposes, with the Queensland Act aimed at general traffic regulation and the Commonwealth Act at the discipline of defence force members. He also accepted that the Commonwealth provision was intended to be supplemental to state laws. The applicant argued that in peace-time, with a functioning magistrate's court, the Commonwealth provision was *ultra vires* the defence power.