Nicholas v The Commonwealth [2011] HCA 29 - [2011] HCA 29

HIGH COURT OF AUSTRALIA
FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ
PAUL NICHOLAS PLAINTIFF
AND
THE COMMONWEALTH OF AUSTRALIA & ANOR DEFENDANTS
Nicholas v The Commonwealth [2011] HCA 29
10 August 2011
S183/2010
ORDER
1.Order that the question stated in the special case be answered as follows:

Question:Is item 5 of Schedule 1 to the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) a valid law of the Commonwealth Parliament?

Answer: Yes.

2. The plaintiff pay the defendants' costs.
Representation
B Levet with A B Petrie for the plaintiff (instructed by Kinghan & Associates)
S J Gageler SC, Solicitor-General of the Commonwealth with S J Free for the first defendant (instructed by Australian Government Solicitor)
Submitting appearance for the second defendant
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS
Nicholas v The Commonwealth
Constitutional law (Cth) – Judicial power of Commonwealth – Constitution, Ch III – Validity of laws – Plaintiff defence force member – Plaintiff convicted of disciplinary offences and sentenced to punishment by Australian Military Court ("AMC") established under Defence Force Discipline Act 1982 (Cth) ("Discipline Act") – Plaintiff subjected to punishment – High Court subsequently held invalid provisions of Discipline Act establishing AMC – Military Justice (Interim Measures) Act (No 2) 2009 (Cth) ("Interim Measures Act"), Sched 1, item 5 applied where AMC had imposed punishment to declare rights and liabilities of all persons to be same as if punishment properly imposed by general court-martial, subject to review under Sched 1, Pt 7 – Whether provisions of Interim Measures Act had prohibited features of bill of pains and penalties – Whether provisions invalid as contrary to Ch III.
Words and phrases – "bill of pains and penalties", "usurpation of judicial power".
Constitution, s 51(vi), Ch III.
Defence Force Discipline Act 1982 (Cth), ss 27, Pt VIIIA.
Military Justice (Interim Measures) Act (No 2) 2009 (Cth), Sched 1, items 3, 4, 5, Pt 7.

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. From 1 January 2004 until 25 August 2008, the plaintiff was a commissioned officer in the Australian Army, holding the rank of Captain. Between 18 and 25 August 2008 he was tried by the Australian Military Court ("the AMC") on 11 charges under the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"). On 25 August 2008, he was convicted of four of those offences, two of obtaining a financial advantage contrary to s 135.2(1) of the Criminal Code (Cth) (as applied by s 61(3) of the Discipline Act), one of engaging in conduct tending and intended to pervert the course of justice and one of attempting to pervert the course of justice. He was sentenced to be reduced in rank to Lieutenant with seniority in that rank dating from 1 January 2006, to dismissal from the defence force effective on 19 September 2008 and to a severe reprimand. Orders were made…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Nicholas v The Commonwealth [2011] HCA 29

Details

AGLC: Nicholas v The Commonwealth [2011] Hca 29 [2011] HCA 29
Case: [2011] HCA 29
Decision Date: 10 August 2011

CaseChat Overview and Summary

In *Nicholas v The Commonwealth* [2011] HCA 29, the High Court of Australia considered the constitutional validity of provisions of the *Military Justice (Interim Measures) Act (No 2) 2009* (Cth) ("Interim Measures Act"). The plaintiff, a member of the defence force, had been convicted of disciplinary offences and sentenced by the Australian Military Court ("AMC") established under the *Defence Force Discipline Act 1982* (Cth). Following a High Court decision that found the provisions establishing the AMC invalid, the Interim Measures Act was enacted. Item 5 of Schedule 1 of this Act provided that where the AMC had imposed a punishment, the rights and liabilities of the person were to be the same as if the punishment had been properly imposed by a general court-martial, subject to review.

The central legal issues before the High Court were whether item 5 of Schedule 1 to the Interim Measures Act possessed prohibited features of a "bill of pains and penalties" and, consequently, whether it was invalid as being contrary to Chapter III of the Australian Constitution, which vests the judicial power of the Commonwealth in the courts. The plaintiff argued that the provision effectively declared him guilty and imposed punishment retrospectively, thereby usurping the judicial power of the Commonwealth.

The High Court, by majority, held that item 5 of Schedule 1 to the Interim Measures Act was a valid law of the Commonwealth Parliament. The Court reasoned that the provision did not constitute a bill of pains and penalties because it did not declare the plaintiff guilty of an offence or impose punishment directly. Instead, it operated to validate the consequences of a punishment already imposed by a body that was later found to be invalidly constituted, by deeming those consequences to be as if they had arisen from a validly constituted court-martial. The Court distinguished this from a legislative imposition of guilt or punishment, emphasizing that the provision preserved the rights of review and did not create new liabilities or offences.

The High Court answered the question stated in the special case in the affirmative, finding item 5 of Schedule 1 to the *Military Justice (Interim Measures) Act (No 2) 2009* (Cth) to be a valid law. The plaintiff was ordered to pay the defendants' costs.

Orders

Orders of the court

1. Order that the question stated in the special case be answered as follows:

Question: Is item 5 of Schedule 1 to the Military Justice (Interim Measures) Act (No 2) 2009 (Cth) a valid law of the Commonwealth Parliament?

Answer: Yes.

2. The plaintiff pay the defendants' costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ HEYDON J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ, HEYDON J

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