Nicholas v The Commonwealth [2011] HCA 29

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.