Private R v Brigadier Michael Cowen & Anor

[2020] HCATrans 90

[2020] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S272 of 2019

B e t w e e n -

PRIVATE R

Plaintiff

and

BRIGADIER MICHAEL COWEN

First Defendant

THE COMMONWEALTH OF AUSTRALIA

Second Defendant

KIEFEL CJ
BELL J
GAGELER J
KEANE J
NETTLE J
GORDON J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 30 JUNE 2020, AT 10.03 AM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the plaintiff, with MR B.L. JONES and MR J. NOTTLE.  (instructed by Wyatts Lawyers)

MR S.P. DONAGHUE, QC, Solicitor‑General of the Commonwealth of Australia:   If the Court pleases, I appear for the second defendant, with my learned friends, MS J.E. DAVIDSON and MR D.J. RYAN.  (instructed by Australian Government Solicitor)

KIEFEL CJ:   Yes, Mr Game.

MR GAME: If the Court pleases. Procedurally we are seeking prohibition against the first defendant under section 75(v) of the Constitution.

KIEFEL CJ:   Mr Game, you might need to speak up a little bit because the Bench has been extended for social distancing purposes.

MR GAME: Sorry, your Honour, it was not a very good start. Procedurally we are seeking prohibition against the first defendant, who I understand has filed a submitting appearance. The application is made under section 75(v) of the Constitution.  Procedurally the material before the Court is the statement of facts and attachments.  The parties have differing positions in respect of the relevance of particular material in there and that should be apparent from the written submissions but I will say something about that towards the end of my argument.

Your Honours, you should have our outline.  Shall I wait for a minute while you look at it or shall I press on?

GORDON J:   Mr Game, could I ask you to speak up. 

MR GAME:   Yes.  I am sorry, your Honour.

GORDON J:   I really would like to hear what you have to say and at the moment I am getting about one word in four.

MR GAME:   I will try harder, your Honour.

GORDON J:   Thank you.

MR GAME:   Feel free to tell me I am not speaking loudly enough, your Honour.

KIEFEL CJ:   We will, Mr Game.

MR GAME:   Shall I wait for a moment while your Honours read it or shall I press on?

KIEFEL CJ:   No, you are fine.

MR GAME:   I am going to effectively speak to the document, so first of all we see that the charge that is brought is brought under the Defence Force Discipline Act, section 61(3) picking up section 24 of the Crimes Act 1900 (ACT). Jurisdictionally, the offence alleged took place in Queensland and in terms of local law was subject to section 339 of the Criminal Code (Qld).

Now, your Honours, at this point I am going to take you to some provisions in the Defence Force Discipline Act, and that is at volume 1, tab 3. So the first thing to note is that the offence is brought under section 61, picking up by virtue of subsection (3) laws that would apply at Jervis Bay, and that takes one back to the definition of “Territory offence” and Territory offence includes offences against the Commonwealth and offences punishable in Jervis Bay Territory.

There is no need to go to this but by virtue of the Jervis Bay Acceptance Act, section 4A, (2)(b) is a reference to ACT legislation. So the criminal laws of both the Commonwealth and the ACT would, if section 61 was not read down, apply without discrimination to however serious or however trivial the conduct was, and however connected or unconnected it was to military discipline.

Your Honours, there are some other provisions that I would just take you to briefly in this legislation.  If I could take your Honours to Part IV, at section 66 and following, we see under “Authorised punishments”:

A court martial or a Defence Force magistrate must not impose –

and then, “A summary authority”.  Schedule 2 there has a maximum penalty of six months, and this was referred to a magistrate.  So, the magistrate dealing with this case could have punished by no more than six months.  One can find that by going to Schedule 2. 

The decision about where the case – sorry – the decision about what we see under section 68, that the scale of punishments can go up to imprisonment for life and that happens in a general court‑martial.  But, I will take you now to section 103.  The Director of Military Prosecutions chooses where the jurisdiction is.  If you look under subsection (1)(c) and (d), could go to a defence force magistrate or to a general court‑martial.  So, that is an Executive Act which actually determines jurisdiction. 

If one looks at section 104 we see that what are called “prescribed offences” and, under subsection (iii) it says, “an offence prescribed”.  There is no need to go to it but the regulations say that that is for offences that carry a maximum of two years.  So a commanding officer could not have tried this case because the maximum penalty was five years but otherwise a commanding officer could deal with such cases.

Then courts‑martial are dealt with by Division 3.  So you come to Division 3 through a referral by the prosecutor under section 103.  And a general court‑martial is dealt with under subsection (2).  The general court‑martial is five members and can impose a penalty of whatever the penalty is for the offence, so up to life imprisonment.  Then you see subsection (3), “a restricted court‑martial” – that is dealt with by Schedule 2.

So, then, in terms of who hears this case, that is dealt with by section 129.  So it is referred to a defence force magistrate who does have jurisdiction to deal with it but is limited in terms of the penalty which may be imposed.   If I just note, your Honours, section 144 is a provision providing for double jeopardy where a person has previously been acquitted of an offence civilly.

So, in terms of appeal rights, if you go back to our recent document, and I will not take you through this legislation but one sees there through the Defence Force Discipline Appeals Act that one can appeal against conviction but not sentence.  That appeal goes to a defence force discipline tribunal and it was a defence force discipline tribunal that decided the case of Williams.  One gets into a Chapter III court only by way of an appeal or a referral on a question of law, and that is in section 52 for an appeal, so one gets into the Federal Court from the tribunal but only on a question of law. 

So then there is a curiosity - legislative curiosity I should just draw your Honours’ attention to is that some general laws are provided for in this legislation and they are neither the most serious nor the most trivial kind of offences.  So if one looks back at, say, section 33, we see that assault, in particular places, is an offence and it extends to “service vehicle or in a public place”. 

Section 33A was introduced in July 2015 and this offence actually took place in August 2015.  Section 33A was introduced and, one sees there, assault occasioning actual bodily harm and one sees it extends to a “public place”.  It does not matter for present purposes, but a hotel room is not a public place although the corridor in a hotel room might be. 

Then we see other offences such as 37 which is – sorry, not 37, 47 is the other one I wanted to take your Honours to – one sees some dishonesty offences are included but on our argument - again it is not essential for our argument - one would do a reading‑down exercise with respect to those provisions as well but it does show that some specific conduct has been – civil conduct has been the subject of particular attention.

Whether that is capable of being dealt with separately than the offences dealt with under section 61, in our submission is not the matter that calls for determination but it does have to be observed how they work together because what would be the situation here is that say section 33(a) was not catching the offending by definition and then, as it were, the prosecution was relying on section 61 to make - section 61(3) to make their case work. So that is what I wanted to say by outline in respect of the question of general jurisdiction.

Now, in paragraphs 5 and 6 is an important part of our argument and it is really a significant point of difference between the parties.  I explain that point by reference to what was said in Re Tracey.  May I take your Honours to Re Tracey which is at volume 4 of the books at tab 36.

In the joint judgment of Justices Brennan and Toohey, one sees at page 562 a conclusion, starting with “The significance of the history”.  That conclusion is an important part of the argument and it really is confirming the primacy of civil criminal laws and the application of military laws when necessary for the purpose of military discipline, and that is expanded.  We see at the end of that sentence, at line 30:

True it is that, by the time of federation, the scope . . . to enforce . . . were governed by statute but the provisions . . . reflected the resolution of major constitutional controversies.

Then there is an explanation of the circumstances in which military offences were charged, from line 30 on page 562 to line 33 on page 563.

If one goes to the joint judgment of Chief Justice Mason and Justices Wilson and Dawson in the same case, at pages 543 to 544, we see where the significant point of divergence is.  The significant point of divergence can be seen between lines 30 on page 543 through to line 10 or 11 on page 544.  Our argument is that, properly examined, history accords with the approach taken by Justices Brennan and Toohey.  History does not accord with the way things are reflected in the passage in the judgment of Chief Justice Mason and Justices Wilson and Dawson.

In order to do this without taking your Honours through all the material, and both parties have gone to a good deal of it in their written submissions, I will pick up as much of it as I can by reference to the joint judgment of Justices Brennan and Toohey, but I will take you to some specific legislation that you see referred to in paragraphs 5 and 6.

EDELMAN J:   Mr Game, just before you do, historical discussion in Ex parte Ryan by all of their Honours was in a context where one of the primary issues was the Chapter III considerations that do not arise in this case.  What do you seek to draw from historical considerations in a context where, as here, the only concern is the scope of the word “defence”?

MR GAME: Your Honour, we seek to rely upon it to show that in the context of the constitutional arrangements in section 51(vi) against Chapter III of the Constitution that historically and constitutionally, both in terms of in England and in the States ‑ ‑ ‑

KEANE J:   Mr Game, could you repeat that for me, I am sorry, I just cannot hear you. 

MR GAME:   Sorry, your Honour.  Well, what I seek to draw from it is that the broader context – the broader constitutional and legislative and historical context, supports a view that the application of military discipline was only done so far as was necessary and expedient in the circumstances ‑ that there was no wider exercise of jurisdiction. 

EDELMAN J:   Even supposing that were absolutely correct, why would that affect the construction of the defence power in 2020, where what you are concerned with is the application – not the meaning of the word defence – it is just the application to the particular circumstances that prevail in 2020?

MR GAME:   Well, your Honour, I suppose we would say the position we are arguing is that it has always been thus – the position that is put against us is that it has always been otherwise, and we say that that does have significance in terms of how you address the ultimate question, and that is explained by the way in which both Justice Brennan and Toohey analysed the question in that case, and, for example, how Chief Justice Gleeson examines the same question in White.

That is to say, one has to look at the relations between the way in which this exercise of judicial power operated historically and then under our Constitution operated under the Defence Act, leading to the introduction of section 61, well down the track, borrowed from – it is put against us that it is taken from section 41 of the Army Act and that section 41 of the Army Act had extensive and unlimited operation. 

Our argument is that that was never the case, so that the breach that is – the connection that is said to be drawn in effect by our opponents, we say cannot be drawn. It cannot be suggested that section 61 has as its parenting provision section 41 of the Army Act, and that had any extensive jurisdiction of the kind that is being advanced by the Commonwealth.  That is how we put the argument. 

EDELMAN J:  So, to give a hypothetical example, just to understand it, if in 1900 it were thought that, for example, sexual offences could have no connection with discipline required in the defence forces, would that then mean that in 2020 the view should still be taken that sexual offences can have no connection with discipline in the defence forces?

MR GAME:   Not at all, your Honour; we would not put that argument.  But we are talking about the scope of legislation that attaches to whatever the legislation may be of the day – and the mores of the day – clearly they change.  But the reach of the legislation, jurisdictionally, or the defining limits of it, that does not change, but it may bring about a quite different outcome depending on the circumstances.  And one would not ignore for a minute the mores of the day, but the question is, how does that relate to military discipline. 

Your Honour, we say that there is a strong body of authority, that in the application of the test propounded by Justices Brennan and Toohey, and really I say accepted – there is no ratio – but really accepted in the cases that follow it – the question of whether or not the civil courts are ready and available to deal with such cases conveniently is a relevant factor and not to be ignored, that the test is not just a test about connection.  The test that is applied is a broader test and that is made plain in the cases that follow Re Tracey; Ex parte Ryan. 

So that is how we put it, your Honour, and what we say is this, that a close reading of this judgment and a careful attention to the earlier legislation shows just how limited the jurisdiction was. Now, of course when one looks at the proper application of section 51(vi) and the limitations involved in Chapter III, one has regard both to changed mores, but one also has regard to the development of our reasoning and thinking in respect of Chapter III of the Constitution and to that extent one ‑ ‑ ‑

KEANE J:   Mr Game, sorry to interrupt, but the historical contest was a contest between the Crown and its prerogative in relation to service offences, and the Parliament, and it was the Parliament that was seeking to limit the extent of the Crown prerogative to punish citizen soldiers.  There was never a contest between some abstract notion of an individual right to a trial by civil court and what Parliament could require.  In the end what we see is the ultimate triumph of Parliament.  Parliament gets to decide whether one is tried by a military court or by a civil court.  That is the upshot of the historical discussion.

MR GAME:   Parliament gets to decide but actually by the time we get to the Defence Act, the Commonwealth Act, the actual exercise of the jurisdiction is very limited and it is limited to a service relation and the reason ‑ ‑ ‑

KEANE J:   And it is frozen there forever.

MR GAME:   No, it is not frozen there forever, but that is the context within which section – it is against ‑ ‑ ‑

KEANE J:   That brings us back to the question that Justice Edelman asked you.  What is it that this historical exercise actually shows us about the scope of the defence power?

MR GAME:   What it shows us is that in the matter of judicial power the proper construction of section 51(vi) has observed, because of the limitation in Chapter III, the primacy of civil jurisdiction. That is what the analysis shows.

KEANE J:   But 51(vi) is not about judicial power, is it?

MR GAME:   No.

KEANE J:   The authorities, which are not challenged, show that Chapter III stands apart from the system of justice established under 51(vi) to the point where it is wrong to say that the tribunals established under 51(vi) are exercising judicial power.

MR GAME:   They are exercising judicial power, but not the judicial power of the Commonwealth.  They are unquestionably exercising judicial power.

KEANE J:   But not the judicial power of the Commonwealth with which Chapter III is concerned.

MR GAME:   Yes, but the limit – if I could just take you to a passage – two passages, but if one goes to White 231 CLR 570 - I will just find where that is in the - volume 4, tab 39, in the judgment of Chief Justice Gleeson. One sees at paragraph 20 – his Honour is speaking about section 51(6) but then in paragraph 24 he comes to Chapter III:

There is a serious question of interpretation of the Constitution, involving the need –

et cetera, so the protections contained in Chapter III and the separation of powers.  Then his Honour says:

Their response –

that is the response of Justices Brennan and Toohey:

was to conclude that proceedings may be brought for a service offence –

KIEFEL CJ:   Sorry, Mr Game, are you at paragraph 20?

MR GAME:   Paragraph 24.

KIEFEL CJ:   Sorry, thank you.

MR GAME:   So:

Their response to that question was to conclude that proceedings may be brought for a service offence in a tribunal established outside Ch III only if those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

GORDON J:   But it is the next sentence which explains even further why his Honour draws that distinction.  He recognises that the service tribunal stands outside Chapter III.  He recognises it is an exercise of judicial power.  He adopts a formulation which reflects, in substance, the Brennan and Toohey test from the earlier decision and then says but that is the response.  The response recognises you cannot adopt this classification of in one bucket or not in another bucket.  One has to be driven back to a test which can apply, as I understood your submission, to adapt to the circumstances and the facts that exist.

MR GAME:   Yes, that is correct, but it was not in issue in this case that the application of the proposition that the test was whether the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline - and one sees that back at paragraph 3.  But, your Honour, the next sentence is that one – the next sentence that your Honour took me to actually makes our point, that is to say you do have to look at the circumstances to determine whether or not the matter falls within the defence power.  There is no a priori answer to that question.

GORDON J:   That is a different submission to one starts and gives primacy, as I understood your earlier submission, to the civil courts.  That is a different consideration.  I mean, I do not understand what the submission is then, is it primacy or is it it is a factor?

MR GAME:   Sorry, I am saying my argument here is it is a factor. I was saying that historically it was given primacy. That is what I was saying. So, I am not saying it is given primacy in this context but I am saying that respect of it and concern about that which is involved in making all the laws, all the criminal laws of the Commonwealth and the ACT applied to the army in – sorry, to military forces in whatever circumstances, that that cannot be supported under section 51(vi). That is my basic argument.

But I am not saying at all that one gives primacy to the civil courts but I am saying that that is what is shown by the history and what I am trying to show is that the analysis by Justices Brennan and Toohey is sound and that is the reason why I am doing this exercise.

There is also, on the same subject, in the judgment of Justices Brennan and Toohey, a passage at page 569 that is worth observing in this context.  So, at 569, at the top of the page, their Honours are contemplating either striking it down or giving it application to every possible criminal circumstance – whether it be a parking fine or murder, or a breach of a council regulation, none of which would have anything remotely to do with the military.

KEANE J:   But also they have nothing remotely to do with Chapter III because they are not offences for which one would be entitled to trial by jury.

MR GAME:   No, but the judicial power vests in the State to – and all of that sits, ultimately, under Chapter III and section 106 is preserved because section 51 says “subject to the laws of the Constitution”. Section 51(vi) preserves the jurisdiction of the State courts and all of that is relevant – even if it is just a parking fine, your Honour – or an environmental offence or whatever that has got nothing at all - but the point is ‑ ‑ ‑

GAGELER J:   Mr Game, in what sense would the service tribunal be trespassing on the proper jurisdiction of civil courts over defence members?  I am just picking up their Honours’ language in this passage.  Where is the trespass?

MR GAME:   If it was adopted without qualification they could put a person on trial for an offence and imprison them for whatever the penalty is.

GAGELER J:   That is all their Honours are talking about?

MR GAME:   That is what they are talking about.

GAGELER J:   They are not really contemplating the Act as it was at that stage, with sections 193 and 5 in it, and contemplating some sort of exclusive operation of the service jurisdiction.

MR GAME:   No, your Honour. 

GAGELER J:   All right.

MR GAME:   But that passage is important because it explains – or it highlights what the problem is.  One is the qualification is that the judicial power that vests in Chapter III is qualified to the extent necessary to preserve military discipline but not otherwise.  That is the fundamental proposition.  But that is not to say that there are not circumstances where an offence of assault occasioning, for example, might be a matter to which 51(vi) applied, or it might not.  That has to be determined, we say, on a reading‑down exercise.

But we do say that it is axiomatic that there are many crimes and offences that have nothing whatsoever to do with military service.  We do say that it would change the relationship of a soldier to the civil community if everything that that soldier did in a civil life was also subject to military jurisdiction.  So, it does affect the relationship between the citizen and the State – the citizen there being the soldier.

BELL J:   That submission carries with it that a member of the defence force of the Commonwealth has, as it were, a civilian aspect to him or her, as distinct from an alternative view which would see their status as a member of the Commonwealth’s Defence Force as a characteristic broader than the fact of the employment.

MR GAME:   The truth is they are a citizen first; they are also a member of the armed forces.  All of their obligations and relations with the State operate in exactly the same way as the rest of the community, subject of course to matters that are relevant to military discipline.  We say that the preservation of that relationship is an integral idea to the way in which Chapter III sits over the relationship between the State and the individual in terms of the application of all of our criminal laws, amongst other things.

KEANE J:   Are they citizens first because of Chapter III?

MR GAME:   They are citizens first because of the actual preliminary words in the Constitution, but Chapter III recognises that they are citizens first.  That is absolutely essential and the recent jurisprudence of this Court, by which I mean everything that has followed Kable, Kirk and the like, reinforce that in different ways, in different aspects.  But yes, that is the first and most important thing.

Moreover, there is no reason why the exercise of civil jurisdiction does not have – it has military consequences, so that if a person is convicted civilly ‑ if they are sent to gaol, of course, that is the end of their military career but, in any event, as we have set out in our document in the paragraphs I just took you to – sorry, I have just been through – there are administrative processes that apply if you are convicted civilly.  So that the court‑martial process does not come into play at all if you are put on trial civilly.  That is a matter that is dealt with administratively by the army.

So in no sense is there an abrogation of one’s citizenship, even when one is being dealt with in a military context; that is not ignored ‑ so, for example, the Commonwealth relies on recent material of a timely kind in relation to abusive relationships in the army but that very document reinforces, right at the outset, the importance of reporting the matters to the police and the involvement of the civil processes, in a case such as this, the civil processes in Queensland, civil processes which could be activated even today.

KEANE J:   The difficulty with that is that this case, as a matter of fact, Williams, Aird are all examples where the complainants, the victims of the violence seem to have preferred to go to the military authorities.

MR GAME:   Well, your Honour, actually her statement puts a slightly different position because she said she did not report it to the police because the complainant did not want him to get into trouble with the military.  So it is actually the reverse, and then she decided in March 2018 to bring it to the – she notified somebody about it in September, I think it was, 2017, and then she brought it to the attention of the military authorities, not the civil authorities, in March 2018 which was ‑ ‑ ‑ 

KEANE J:   Quite.  The point is she is voting with her feet, she is going to the military authorities, not the civil authorities.

MR GAME:   Yes, but that does not ‑ ‑ ‑ 

KEANE J:   We know from the cases that she is not alone; she is making a judgment about who she would rather complain to.  There may be perfectly good reasons for that. 

MR GAME:   But that is not a thing that, in our submission, in itself engages jurisdiction. 

KEANE J:   Well, it does indeed engage jurisdiction, does it not? 

MR GAME: Well, we say that it does not, and the reason why ‑ and this is kind of at the end of our argument, but we say that it does not for this reason. First of all, we are looking at – I am not saying that the victim being in the army is not relevant to the – cannot be relevant to the circumstances, but we are talking about an exercise in reading down. And if we are talking about an exercise in reading down one is going to have to look at the thing in terms of what I would describe as the external circumstances – those things that can be spoken about meaningfully so that one can speak about the thing in terms of how it is a meaningful reading down of section 51(vi) in the context, so that his motives or the underlying circumstances are not hauled in in terms of the actual question one has to ask about jurisdiction.

I would say this also, your Honour.  Again, there is – what I would say is this – one also in this case ‑ and that is why I say the availability of civil courts is a factor, and it is a factor in the exercise of reading down.  As I say, she did not report it to the police because she did not want him to get in trouble with the military.   Her position is actually reversed at the time she reports it to the military. 

KEANE J:   No, no, she changed her mind about reporting him to the military, and she chose to report him to the military. 

MR GAME:   Yes, but we say that fact itself does not affect jurisdiction – the decision that she made does not affect jurisdiction.  And that is not – I say jurisdictional fact, I do not mean it in the judicial review sense, but that is not a jurisdictional fact in the context of working out whether or not it can be read down, her decision, in my submission.  That could not be brought into a coherent reading‑down exercise, a decision. 

KEANE J:   When you speak of reading down, is the reason to read down the presence of Chapter III?

MR GAME:   No, that is part of the reason to read down.  There are two reasons to read down.  One is the limits of the defence power and that which it can reach to, it being a purposive power.  Because it is a purposive power one uses the language of whether or not – whether the legislation is necessary and adapted for, or appropriate and adapted.  The case has also used the word proportionate, but I am not attempting to make a big point about proportionality, I am attempting to use it as a tool for analysis only.  So there are reasons concerned both with the purposive aspect of 51(vi), and the limitation imposed by Chapter III.  So there are two aspects to the answer to that question, your Honour, not one. 

I am not sure if I have answered all of the questions.  Anyway, if I come back to the document – I was in paragraph 5 and I will attempt to take you to the most significant points fairly briefly, but there is a piece of legislation called – I am in paragraph 5.  There is a piece of legislation called the Jurisdiction in Homicide Act, 1862 and if I could just take your Honours to the joint supplementary book of authorities at tabs 4 and 7, this is something that has not been referred to in the analyses.  But the Jurisdiction in Homicide Act was a way of, for the purposes of discipline, bringing soldiers before the civil courts at the central criminal court so they could be dealt with speedily.  It emphasises both the primacy of civil law historically in maintaining discipline, and the distinction between military and civilian relationships.  It was discussed, if you now go to tab 7, in Clode, The Military Forces of the Crown, Chapter X, if you have a look at page 207 which is the second page, we see there are two points there.  We see a point relating to:

The object of that Act was to support discipline, not speedily to avenge murder ‑

Then, secondly, it said:

where the crime arose out of the ‑ ‑ ‑

KIEFEL CJ:   Sorry, Mr Game, where are you?

MR GAME:   Page 207 of Clode behind tab 7 of the supplementary appeal book.

KIEFEL CJ:   Thank you.

MR GAME:   It looks like that.  It is a very small print, but it is paragraph 4, begins with the words “The object”.  It continues:

of that Act was to support discipline, not speedily to avenge murder ‑

It is 207 on the right‑hand corner at the top.

KIEFEL CJ:   It does not seem to accord with my copy.

MR GAME:   Tab 7 of the supplementary appeal book.  It is called the supplementary appeal book.

GORDON J:   I think it is supplementary book of authorities.

MR GAME:   Sorry, what am I saying, supplementary book of authorities, sorry.  Anyway, I will just read it out, your Honours.  It says:

The object of that Act was to support discipline, not speedily to avenge murder; and therefore in the first case—Major De Vere’s—under the Act, where the crime arose out of the military relationship . . . was tried under the Act; but in the second case, when the crime arose out of the social relationship . . . at the Assizes.

So the point is that distinctions are being made about military discipline determining where it is that the civil trial would take place, not the military trial.  Now, if one goes then in our submissions to paragraph 6, and if one looks at that along with Re Tracey, at page 561 in Re Tracey we see a reference to the Naval Discipline Act and there is an examination of how it worked.  The observation is made at 561 from McDonald that there were reasons to have more expansive jurisdiction in the naval context than in the army one because of the scope of circumstances in which the navy found themselves, and that is the point of that quote at about line 15.

If I take your Honours to – may I just mention this, your Honours ‑ to the Naval Discipline Act at the joint book of authorities, we see at tab 24 that section 45 appears to make any crime against the laws of England a crime wherever it be committed.  But section 46 is a significant qualification on that because what it is saying is that that does apply if the offence is committed “out of the United Kingdom” but only those disciplinary offences further down are dealt with if it is committed within England.

So it is not correct to say that the Naval Discipline Act had the scope that is given to it asserted by the Commonwealth in these proceedings and one sees the same in the judgment of Chief Justice Mason and Justices Wilson and Dawson.  In the same case, if one looks at 542, one sees that they refer to section 45 but not section 46.  So one has to read both of them and the jurisdiction one is section 46.

If we go then to the army legislation, paragraph 6 of the submissions, if we look again at the judgment of Justices Brennan and Toohey, they commence their consideration of the army position at 561 to 562, but what we see is this.  The first one goes to the Army Discipline and Regulation Act and then the Army Act.

If one goes to section 41 of the Army Act, for instance, which is behind tab 15, it is true that under subsection (5) it appears to extend to whatever crimes.  The proviso below it is a significant limitation.  So that much is correct, but when one looks at the Manual of Military Law, which is in volume 5 of the joint book of authorities at tab 52, we see that that was not the practice at all.

If one looks behind tab 52, one sees that the practice is quite limited and the quite limited nature of that practice appears at pages 107 and 108, starting with paragraph 3.  The effect of it is that the military jurisdiction was only engaged when it was necessary and expedient to do so for the purposes of discipline of the Army, and this is the official ‑ ‑ ‑

KIEFEL CJ:   Mr Game, I know that you have been asked this question or a similar question earlier, you appear to be placing great weight on the historical legislation of longer ago whereas we are really dealing with different legislation now.  I am just struggling to find what we are supposed to take from this.

MR GAME:   I understand that, your Honour. What we take from this, it is said against us that section 41 was picked up in section 61 and, therefore, it has the broadest application and I am trying to show that historically that never was the case.

BELL J:   You seek to do that but not by showing that there has been a misreading of section 41 but by indicating that a practice manual suggested its application was more restricted. 

MR GAME:   Absolutely.  But, your Honour, when you come back to the judgments of Justices Brennan and Toohey at 562, when they say “reflected the resolution of major constitutional controversies”, this is what they are talking about and that is the discussion that follows it at 562 to 563.  So, I am trying to give context to what their Honours were doing to show that their actual placement of the legislation in ‑ ‑ ‑

KIEFEL CJ:   Are you saying Chief Justice Mason and the other members in the joint judgment in Re Tracey proceeded upon an incorrect historical assumption ‑ ‑ ‑

MR GAME:   Yes, I am saying that.  Yes, your Honour.

KIEFEL CJ:   ‑ ‑ ‑ and that has affected the approach that they took?

MR GAME:   That is correct.  I am saying that the passage I took you to at the beginning is incorrect or, at least, incomplete and that these ‑ ‑ ‑

KIEFEL CJ:   The question then is the importance of it to the reasons.

MR GAME:   That is correct, your Honour, yes.  But what one can see is this clear divergence in terms of what the situation was historically.  I am trying to show that the joint judgment of Chief Justice Mason and ‑ ‑ ‑

KIEFEL CJ:   Does it matter if the real question is the extent to which this is directed to the purpose of defence?

EDELMAN J:   There is a big difference, is there not, between the scope of what is meant by the judicial power of the Commonwealth which is not in issue here and the application in particular circumstances of what is meant by defence?

MR GAME:   Yes, your Honour, but the argument that is – this is not just defensive but the argument that is put against us is that at the time of Federation, the application of the defence power in terms of military jurisdiction had the widest application and that that is the background against which this is to be understood.  We say that is not true.  I am not making a point just about history.  I am making a point about the conception of what is caught within the defence power and I am making a point about the constitutional arrangement that we have in our Federation that is not in English constitutional law, namely, the observance of the preservation of judicial power in the States and the preservation of judicial power in Chapter III that brings within it not just federal courts but State courts.  That is the point that I am trying to make.

To complete this, if you look at our written document, you will see – I will spare your Honours the Victorian legislation, but the Victorian legislation was quite limited and applied only to members of the army on active service.  What it did was it applied the Naval Discipline Act and it applied the Army Act in terms but only to members on active service and it is that model that was picked up in sections 55 and 56 of the Defence Act 1903. So in terms of the history of the thing – that completes the actual context, then section 61 is introduced much later.

NETTLE J: Mr Game, can I ask, all of this historical material, does it go solely to the correct construction of section 61 or does it go to the connotation of section 51(vi), or to both?

MR GAME:   It goes to both.

NETTLE J:   To both.

MR GAME:   It goes to a proper ‑ ‑ ‑

NETTLE J: So, properly informed by the history of the connotation, you would say, of section 51(vi) is such that it excludes the Commonwealth Parliament’s power to legislate to make what you would call an essentially civil crime, a military offence punishable by ‑ ‑ ‑

MR GAME:   That is correct.  That is the argument.

NETTLE J:   How does one discern what you would class as a civil offence?  Is it fact and degree, circumstance by circumstance?

MR GAME:   Yes.  It is an examination of the particular circumstance of the case.  That has been the practice.

GORDON J:   But it has also been the law, has it not?  Is that not what Chief Justice Gleeson said in White at 21, which leads into the argument in – his Honour’s analysis at 24? 

MR GAME:   Yes, your Honour.

GORDON J:   One can have an offence which is both civil and military.  The facts and circumstances will depend upon whether it is in one or the other.

MR GAME:   That is correct.

GORDON J:   Is it any more than that?

MR GAME:   Hopefully not, your Honour.  I am not trying to take your Honours on a great big – I have finished, actually, going through it.  But what I am trying to show is that one cannot proceed from the position that Chief Justice Mason, Wilson and Dawson took in Re Tracey, that it was ever thus and that this is no more than doing that which has always been the case.  It never was thus, is the point that we are making.

GORDON J:   Just to finish that off, you do not challenge the validity of 61 other than its application to the plaintiff.  So are you not, therefore, directed very much to the questions that Justice Keane asked you?  It is the facts and circumstances of this person.

MR GAME:   We accept that, yes.  The question is teasing out what are the relevant circumstances.  That is the whole ‑ ‑ ‑

BELL J:   Mr Game ‑ ‑ ‑

MR GAME:   In our submission – sorry, your Honour, I interrupted you ‑ our position, ultimately, that is the whole question in this case.  But the Commonwealth wants the whole box and dice.  They want every single offence.  They say there is no reading down to be done.  Every single offence – be it parking, environmental, whatever – every single offence, federal or State, is a military offence and to be dealt with, if necessary, at the lower levels by a commanding officer or a superior officer.  We say that just cannot possibly be correct and it is not supported by 51(vi) and it creates an enormous Chapter III problem when one speaks of the relationship between the individual as a citizen and their community, whether or not they are in the armed forces.

NETTLE J:   Mr Game, can I ask you why should we worry about things like environmental offences when we are talking about assault occasioning actual bodily harm?

MR GAME:   The only reason we are asking about that is that we say that it cannot be the case that section 61 simply applies, according to its terms, to every single crime, whatever that crime be. So, the only reason I am referring to it is to pick a very obvious example that has got absolutely nothing to do with military discipline.

NETTLE J:   Well, fair enough, but this one surely has.

MR GAME:   It may do.  It may do or it may not.  That, we submit, is the ultimate question.  But this case before the military magistrate was not determined according to a service connection test but according to a status test – that is to say, the mere fact that he was a soldier was enough.  And we say the mere fact that he was a soldier is not enough.  That is where this case boils down, and that is the question your Honours, in our submission, have to decide.

There are difficulties in the reading‑down exercise, but the alternatives are the alternatives starkly pointed out by Justices Brennan and Toohey:  either you have everything, which has its own significant problems, or you have nothing and the whole thing is struck down.  So they find a way through it, and they find a reading‑down exercise which is best seen in their analysis actually in Re Nolan, not in Re Tracey, because they do engage in how the reading‑down exercise works in Re Nolan and not so much in Re Tracey.  But that is the question. 

So I am not making any grand claims in this case.  What I am trying to do is, one, meet the Commonwealth’s argument that it applies to any crime of any kind so that, therefore, a reading‑down exercise is engaged.  Two, a matter that is not of any great constitutional consequence is how does the reading‑down exercise work in this particular case?  It is because of the Territory that the case has been brought to by the arguments of the Commonwealth that I am attempting – I am seeking to show that the context is richer and more textured than is suggested and that the analysis of Chief Justice Mason and the other two Justices leads immediately into an extremely broad application of 51(vi), which we say is not warranted.  That is really the point of the whole argument when it boils down to it, your Honours.

BELL J:   Mr Game, just taking up the question of the richer context, if you look at the joint reasons of Chief Justice Mason and Justices Wilson and Dawson at 543 of the report, their Honours note that they were referred to legislation not only in the United Kingdom and here prior to Federation but to legislation in the United States, Canada and New Zealand.  And their Honours summarise it by observing that, as a matter of history, and of contemporary practice that it has been commonly considered appropriate for the proper discipline of a defence force to subject members to penalties under service law for the commission of civil criminal offences. 

That, as I understand the analysis, is not confined to a view about the Naval Discipline Act and the Army Act, which you contend might be unduly narrow.  Is there anything ‑ ‑ ‑

MR GAME:   Yes, I do, your Honour.  So what I wanted to say about that passage is this, that it is neither correct to say that the only connection that has been required is membership of the offender as a matter of history, nor is it correct to say, as is said in the last sentence of the first paragraph, that that which is appropriate in wartime is appropriate in peacetime, in terms of discipline, so that one gets to the next sentence:

Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace‑time than upon overseas service or in war‑time. 

Well, the context is completely different, so that an infringement done on the battlefield or in preparation for battle or whatever is quite different.  Let us say that one had a state of emergency - and this is the kind of example that Justices Brennan and Toohey give in retracing, is that it might be a circumstance where the whole of the law of the ACT needed to apply for some particularly very short period of time, but that time would pass or, that regulation, as one saw in the decision of Andrews v Howell, regulation of the supply of fruit and vegetables might very well be a matter that fell under the defence power during war or during preparations, but not during peacetime, and one has to draw a distinction as to when those circumstances continue to subsist. 

But it is not correct to say that every single thing has always been regarded as appropriate for military discipline or that that which is appropriate in wartime is equally appropriate in peacetime.  So we contest quite heavily that passage in their Honours’ judgment. 

BELL J:   Just so I understand it, you contest that the assertion with reference to the position in the United States, in Canada and New Zealand does not support the ‑ ‑ ‑ 

MR GAME:   Well, what we say is that of the – each of those instances is rather different.  Solorio is the United States position and we deal with Solorio in our reply at paragraph 7 and that is what we say about Solorio.  Stillman is the Canadian case and that is under different constitutional arrangements again.  There is a carve‑out in respect of military law, and there is no Chapter III issue in the Canadian ‑ ‑ ‑ 

BELL J:   Do you address the Canadian case of Moriarity? 

MR GAME:   No, the only one we have addressed is Stillman, so that is what we say about that.  Then in the United Kingdom there is a different arrangement again because there is overlapping jurisdiction, but the Director of Public Prosecutions actually decides where the cases are to be determined and the courts that hear the military cases are actually civil courts.  So, again, those arrangements are quite different ‑ as is in New Zealand.  So we say none of those instances change the bedrock of the argument in this case. 

EDELMAN J:  Do you also say that the historical rigid distinction between peacetime and wartime still applies in the same way today?

MR GAME:   It could do, but not necessarily, your Honour.  I am not making a big point about that but I do say that, just as the example I gave you that regulation of fruit and vegetables might well be a matter for a military power during wartime but could hardly be so conceived in peacetime.  The Communist Party Case makes exactly the same point in numerous different passages, so ‑ ‑ ‑ 

EDELMAN J:   But if the distinction between peace and war is no longer so rigid then issues of discipline become a lot more flexible, do they not?

MR GAME:   Well, they might do, but this is just - in this case this is said – I do not think the distinction between war and peace in this instance has any particular significance.  The only significance between war and peace is to show vividly how in certain circumstances something may be within power but not in other circumstances.  That is all that there is to it.  So again, yes, your Honour, there may be circumstances where, for example, a formal war has not been declared but a particular war is being fought domestically, say, on terrorism and so forth, so that could well – so it is not a formal thing but it does have significance just in terms of how the power works.  That is really all it comes to. 

So again, I will not take your Honours to the specifics of the reading‑down exercise, but one sees it vividly in the judgment in Re Nolan and page reference – that is over in paragraph 9 of our submissions.  So paragraph 9 of our submissions is where we – so the question that we say in terms of reading down is the exercise engaged in Re Nolan at 484.  But the question that one asks is the question that we frame in the first sentence of paragraph 9.  I will just take your Honours briefly then to the judgment of Justice McHugh in Re Aird.

KIEFEL CJ:   His Honour departs from this, does he not?

MR GAME:   His Honour takes a stricter view.  He takes an even stricter view on this.  That is to say, he does not agree with Chief Justice Mason, Justices Wilson and Dawson at all.

KIEFEL CJ:   He states a different proposition somewhere in between, does he not?

MR GAME:   No, further, more distant.  So if I could just – tab 34 ‑ ‑ ‑

GORDON J:   Sorry, where are we going now, Mr Game?  I missed that.

MR GAME:   Just to Re Aird, your Honour.

GORDON J:   Thank you.

MR GAME:   So in this judgment at paragraph 36 his Honour refers to the tests applied in Relford and again we are not saying that one applies them rigidly in any sense, but they do give assistance to how one determines the question and we do say, as his Honour says at 324, that depending on circumstances the availability of civil jurisdiction may be important.  In respect of that question, I wanted to take your Honours to Re Tyler.

KEANE J:   Before you go there, at paragraph 45 in Justice McHugh’s judgment, with which the other Justices agreed, his Honour concludes:

In any event, as Brennan and Toohey JJ pointed out in Re Tracey, a service connection is evidence of but not definitive of what is necessary to maintain discipline and morale in the armed forces.  A soldier who rapes another person undermines the discipline and morale of his army.  He does so whether he is on active service or recreation leave.

Accordingly, the prosecutor has failed to show –

the case.  So his Honour is actually saying, “That is enough”.

MR GAME:   It may be or it may not be.

KEANE J:   His Honour is saying it is.

MR GAME:   This is about a case where the offence is committed extra‑jurisdictionally.  It is committed on service overseas.  So that is not just a limited proposition.

KEANE J:   And his Honour says:

He does so whether he is on active service or recreation leave –

suggesting that the position is no different if he is not on active service or recreation leave.

MR GAME:   Yes, but, your Honour, this discussion in this case by Justice McHugh is all about the committing of that offence overseas, where there is no availability of civil courts, and the availability of civil courts is relevant to the reading‑down exercise, a fact which his Honour acknowledges.  His Honour emphasises elsewhere it is not just the service connection.  Actually one needs more than the service connection and that is a point he makes in Re Tyler.  So it would not be correct to just take that passage out of context.

GORDON J:   In paragraph 43, he sets out the substantial:

serving the purpose of maintaining or enforcing service discipline –

which is the test you have adopted.

MR GAME:   Yes, but the critical thing is:

In so far as ss 9 . . . make it an offence for a soldier, while on stand down leave in a foreign country ‑ ‑ ‑

GORDON J:   That is the facts in that case, but the analysis he undertakes is to propose the test and then apply it by reference to its application to the particular individual, which is the issue here.

MR GAME:   To the proceedings.

GORDON J:   Correct.

MR GAME:   That is correct.  We do not question that, your Honour.

KIEFEL CJ:   Mr Game, how is paragraph 43 squared with the question his Honour poses at paragraph 38, where the question seems to be limited to whether the discipline of the Australian Defence Force may be enhanced by requiring service personnel to conduct themselves in a particular way, which seems to be somewhat less than is required by Justices Brennan and Toohey, perhaps in the search for obtaining a ratio in the Court, but it does not seem to be the same test for questions posed that way.

MR GAME:   In a minute I will take your Honours back to Re Tyler, but here the question framed in paragraph 38 is whether that discipline is enhanced by a rule that requires a soldier while overseas on recreation leave not to engage in non‑consensual sexual intercourse with another person.  This is in a context where there is no other jurisdiction available.  There is no civil court to deal with this case and that is a relevant fact.

KIEFEL CJ:   My point is Justices Brennan and Toohey would pose the question whether the proceedings in the disciplinary tribunal can be reasonably regarded as substantially serving the purpose of maintaining or enforcing discipline – it is not the same thing.

MR GAME:   It is not precisely the same thing, but we are advancing the test proposed by Justices Brennan and Toohey, whether it be right or wrong, but I do not take Justice McHugh, in his discussion – and I may be wrong – to be meaning to depart from that test.  In fact, he seems to be drawing it back to that which their Honours were speaking about.

GORDON J:   But one sees it in 42, does one not, where his Honour recognises that there is conduct that may go beyond the defence power, go beyond what is required for maintaining the discipline and morale and then turns to the prohibition against rape goes to the heart of maintaining discipline which then picks up, does it not, the test he propounds in 43?  It is recognising that these can be offences both side of the line but one has to sit there and work out what is happening in the circumstances and apply the ‑ ‑ ‑

MR GAME:   Yes, that is correct.  Perhaps if – what is said at 43 is really a reaffirmation of that which Justices Brennan and Toohey said in Re Tracey, I think, your Honour.  Now, the passage I wanted to take you to in Re Tyler, tab 37 – so the passage I wanted to take your Honours to in Re Tyler is ‑ ‑ ‑

KIEFEL CJ:   That might be a convenient time for a break.  The Court will adjourn for 15 minutes.

AT 11.17 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.32 AM:

MR GAME:   If the Court pleases, returning briefly to Re Aird, that passage at paragraph 43 I think is shorthand for that which is quoted at paragraph 32 and that is the test which has been confirmed.  It has those further words:

civil jurisdiction should be exercised when it can conveniently and appropriately be invoked and the jurisdiction of service tribunals should not be invoked, except for the purpose of –

Now, in respect of the question about the question being broader than specific service connection, if I could take your Honours to Re Tyler.  Re Tyler is behind tab 37 and the passage in Re Tyler that I wanted to take your Honours to is at pages 36 to 37.  At the bottom of 36, it says, referring to Justices Brennan and Toohey:

Their Honours held that a service tribunal not appointed in accordance with Ch. III of the Constitution had jurisdiction to hear a service offence only if the proceedings could reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

Then this is the important part from our perspective:

In determining whether the proceedings could be so regarded, the accessibility and appropriateness of hearing the charge in a civil court was a variable factor to be weighed according to the circumstances.

That is the position we embrace and no more or no less than that proposition.  Now, in terms of this question about soldiers being citizens first, there is a passage that is referred to in the joint judgments of Justices Mason, Wilson and Dawson in Re Tracey.  I will just take your Honours to it.  It is at 538 in the judgment in Re Tracey.  It is with reference to a case called Burdett v Abbot, reference to Groves, and then:

that “a soldier is gifted with all the rights of other citizens . . . the mistake should be corrected which supposes that an Englishman –

It sounds quaint:

by taking upon him the additional character of a soldier, puts off any of the rights and duties of an Englishman”.

So one would have to put that in rather different language but the idea is there.  But I wanted to just also refer briefly to a judgment in a civil context of Justice Windeyer in a case called Illawarra District County Council v Wickham, and that is behind tab 29.  The passage I wanted to take your Honours to is at the top of 503:

But the power to make laws for naval and military defence must be considered against a background of established principles of British law concerning the position of the armed forces in the community‑against the rule, that is, that in time of peace members of the services should enjoy, as far as their duties permit, the ordinary rights of citizens; but that (with some limited exceptions) they should be subject to the same general law as are other subjects of the Crown –

So, again, that is just a proposition about the primacy of citizenship. In our submissions, I wanted to just backtrack to that which we set out in paragraph 7. The question that one asks under section 51(vi) – in terms of a purposive power – and I will not take your Honours through those cases – but whether I will not call it “proportionality” or a test of “appropriate and adapted”, it is a limitation that is looking to ask oneself whether it is necessary to ask the particular law for the purposes of defence. So, in the current context the question would be, is it necessary to create ordinary criminal laws of every description?

KIEFEL CJ:   Does that go a bit too broadly?  Is the question whether the offence of a serious assault – or the prosecution of that offence proportionate to the purpose of the defence power?

MR GAME:   That is the second question. The first question is asking that same question about section 61. So does one have to read down 61? Then, the second question is how does one apply that test to this case? So we say the first question is answered in the negative – it is not necessary to create every criminal law to deal with the questions of military discipline. We say that that question should be answered in a way in which it has been dealt with in all of the cases really since Re Nolan, although none has explicitly had to determine that as ratio.  The second question is applying the same question. 

So there are two questions.  I should say, there is the 51(vi) question – and I am doing this in shorthand – but there is also the Chapter III question and the Chapter V question involving State courts.

KIEFEL CJ:   But this is a case involving a writ of prohibition.  So, we are looking at a particular offence - at the prosecution of a particular offence.

MR GAME:   Of course, your Honour, of course.

KIEFEL CJ:   We are not answering the wider question.

MR GAME:   If the wider question is answered unfavourably to us, then we do not get to the second question. That is the problem from the perspective of my client – which is, if it is appropriate to pass every criminal law, then section 61 applies according to its terms and one would never ask this question.

KIEFEL CJ:   The question is, does that question arise in this case?

MR GAME:   That is right.  Your Honour, we say, if the question was determined against us on the second leg, then the question might be ducked but the question is still there, logically speaking, as a question because this case was determined in accordance with a case called Williams.  A military tribunal determined that service connection was not required – just the fact that the person was a soldier.  So, any law of the Commonwealth – of any description – would apply to that person. 

GAGELER J:   What was the offence in Williams?

MR GAME:   There is a case called Williams v Military Tribunal.

GAGELER J:   What was the offence?

MR GAME:   It was an act of indecency done on a fellow soldier, an act of indecency on a fellow soldier at home. So paragraph 7 is kind of picking up those ideas in shorthand but, yes, of course your Honour the Chief Justice, the question ultimately has to be asked with respect to these proceedings, and how does one read down section 61 with respect to the facts and circumstances of this case and what are the matters that fall for consideration in that question. We say this is a case where the availability of civil courts is a significant factor. It was available from the very first day. It is not as though one is in a remote place, which is an example given by Justices Brennan and Toohey.

KEANE J:   So is the availability of a civil court decisive here?

MR GAME:   In our submission, it is decisive here, but ‑ ‑ ‑

KEANE J:   So it is not just a significant factor; it is decisive?

MR GAME:   Ex hypothesi it is a significant factor in the facts of this particular case, given that this was not reported for two and a half years to the military authorities.  It is decisive in this particular case, but I am not elevating that any further or higher than both Justices Brennan and Toohey do in Re Tracey or Justice McHugh does in Re Tyler.

BELL J:   Looking at its application in this case and accepting that the complainant chose not to go to the police about the matter, on your submission there would be an insufficient connection with the promotion of good order and discipline within the Australian Defence Force for one defence force member allegedly to strangle another defence force member, the latter choosing for whatever reason not to seek to avail herself of the civil authorities and the military not being in a position to deal with it.  That is, as you would ‑ ‑ ‑

MR GAME:   Yes, your Honour, but if the matter had been referred to the military then if the guidelines that have been referred to by the Commonwealth are referred to, it would immediately have been referred to the civil authorities, would have been reported to the police, because that is a kind of primary consideration.  So it is not just one thing or the other.

Also, a submission I made to Justice Keane earlier which I repeat which is this, the question of whether or not jurisdiction arises would have to be determined, shall I say, at the moment before the matter is reported, not at the moment the thing is reported because ‑ ‑ ‑

BELL J:   The matter that I am raising with you is, on one view, the recognition that there is a link between the maintenance of good order and discipline and the capacity to make any offence committed against the criminal law of the land a service offence takes account of circumstances such as the fact that those civil courts may be available, it may for whatever reason be – circumstances may arise in which the civil court’s jurisdiction is not engaged.

MR GAME:   Yes, but, your Honour, the question is an objective one about the availability of ‑ ‑ ‑ 

BELL J:   Yes, I appreciate that, but the matter that I am raising with you goes to, on one view, the circumstance that the availability of the civil jurisdiction is not determinative if one sees that there is an interest in the maintenance of good order and discipline in the capacity of the military to deal with, as a service offence, the commission of an offence against the ordinary law of the land, regardless of what approach might be taken by the prosecuting authorities in the civil sphere. 

MR GAME:   Well, your Honour, that – I think that is an issue that comes down to a weighting of considerations, because I would not exclude the matters that you are putting to me as being of relevance, but I am saying that when one is talking about a situation like this and such a gap in time before anything is done about the matter and such an absence of any issue that could possibly in respect of referral to the civil authorities at or shortly after the time, those factors do bring about a different outcome.

But, as I say, that is the ultimate question that this Court has to decide.  That is not a question of constitutional – I say this may be a difficult question but it is not a question ultimately of – it is a straight reading‑down question at that point.  But the question that we pose in it is this – is that the circumstances – if one is doing a reading‑down exercise one has to be capable of describing circumstances in a coherent way that identify particular factors so that a statement of facts with underlying allegations of – in respect of the earlier relationship, for example – are of limited assistance in making this determination because you are trying to work out ‑ take some of these other cases – was the person on service, was the person on recreation leave, where was the person when this happened,  who was the person whom the assault was committed on, were courts available to hear it, so that the question ‑ ‑ ‑ 

GORDON J:   Is that right, Mr Game?  If you take paragraph 42 of Justice McHugh’s judgment in Re Aird, none of those factors or considerations seem to appear.  What he is focusing on is the fact there of rape, but acts of violence, and says that itself is an offence which of its nature gives rise to problems with discipline. 

MR GAME:   Well, your Honour, again, I am not trying to duck and weave ‑ ‑ ‑ 

GORDON J:   Or to ask a different question, what is the answer to 42 given that none of those things seem on its face to be considerations which arise given the matters you have just listed, following on to 43? 

MR GAME:   What is different about it is that this was something that occurred in circumstances where there was no availability whatsoever of civil jurisdiction and there was no way of bringing this within the purview of control, and that the conduct of the soldier while on service overseas was of great interest and concern to the army.  Those are distinguishing features. 

But also, your Honour, one does actually look at the description of the crime so that an assault occasionally might actually throw up a different consideration to an offence which has as its elements sexual assault.  So that the elements of the crime are also quite central to the circumstances - one would not ignore them and they are important too. 

So the particular – and it is not ‑ if one had set about to prove this offence, one is not setting out to prove the prior existing relationship, one is attempting to set about that there was an assault with bruising or worse.  That is what one would be setting about to prove in this case.  Those are the circumstances that I would describe, not literally correctly, but as the jurisdictional facts about which the question of reading down would be determined. 

So that is my answer to that question your Honour, but I have said this more than once - I have said that in Re Aird there was the particular consideration that the person was on service overseas, and that does imbue the judgment.  So that is how I address that question.

So, in terms of our outline, I will not take you to how the reading‑down exercise was actually performed but there is a neat description of it in Re Nolan at 484.  Then in paragraphs 10 to 12 we say that those are the circumstances that one would have regard to in determining the question and that the connection is not established.  It is not established that it was necessary and appropriate to have this matter - it is not established. 

That question is determined, shall I say, in limine at a point in 2018 just before it is reported.  The question of jurisdiction would not change by reference of a decision to report and, whether it be determinative or otherwise, the availability of civil courts in Queensland remains the most important factor in a case such as this.  In terms of the ‑ ‑ ‑

KEANE J:   Is there not something a little bit cute about that where you have a case where the complainant has chosen to complain to the military authorities and there is no agreed fact to suggest that this complainant would be willing to go through the civil process of dealing with the police and the ordinary civil courts.

MR GAME:   Your Honour, the question of willingness is not at the heart of it either, in my submission.

KEANE J:   Why is it not relevant when, at least to the Brennan and Toohey test when they speak of proceedings that can conveniently be brought, if you have evidence of an offence and the availability of civil proceedings is critical, if the complainant is not prepared to pursue the civil proceedings because the complainant regards the military proceedings as more acceptable, safer, whatever, do you not have a situation where you do not have the alternative means of vindicating the interest in disciplining the soldier?

MR GAME:   But, your Honour, the only evidence we have about it in this case is that she was unwilling – did not wish to report it because she would get him in trouble with the military.  So that is hardly a reason that demonstrates ‑ ‑ ‑

KEANE J:   Well, we know that she made no complaint to the police and we know that she made a complaint to the military and there is not a fact that suggests that she is prepared to go to the police.

MR GAME:   But there is a fact in which she says that she did not report the matter because she did not want to get him in trouble with the military authorities.

KEANE J:   She plainly changed her mind about that.

MR GAME:   Yes, but years and years later.

KEANE J:   So what?

MR GAME:   Well, it does make a difference with respect to the question of military discipline if something – is it necessary years later – and, your Honour, speediness, timeliness, is relevant to jurisdiction and that much is very plain from the cases.  It is relevant that the only reason she did not report it to the civil authorities was because she did not want to get him into trouble with the military authorities which cannot be a reason that could justify the course taken when the ultimate report is made to the military.  There is a lack of logic and reason in that.

Objectively speaking, the way the evidence stands there is nothing to suggest that the civil authorities were not available to determine this case in 2015 in Queensland - to be determined according to civil jurisdiction with all which that involves including a right to a trial by jury.  It would have military consequences.  It is not taking it out of significance at all.  It is just saying this is the way the thing should be dealt with and that does bite when it comes to the question of reading down the defence power with respect to the facts and circumstances of this case.

BELL J:   Taking the approach to reading down, which you commend, expressed at 484 of the report in Re Nolan, do I understand your contention is that this case would not be caught in the sense that it would not be regarded as substantially serving the purpose of maintaining or enforcing service discipline because of the availability of prosecution in the civil courts?

The matter I am raising with you, Mr Game, is if an attempt to strangle a service member by another service member is not thought to substantially bear on maintenance of service discipline, it must be because the availability of the civil courts trumps service discipline in almost any case.  In other words, the reading down on the facts of this case would mean that it is difficult to conceive of a case justiciable before the civil courts that would meet the test.

MR GAME:   Your Honour, (a) we would say yes in terms of the availability of civil courts, but (b) in terms of the relationship between the complainant and the plaintiff, their military status was serendipitous to the circumstance of the social exchange.  It was a birthday party.  It had nothing to do with - anything to do with any military matter and the fact that they were both members of the armed forces was really just a matter of social connection.

BELL J:   It is more than social connection when you look at a hierarchical disciplined force in which one member, having an intimate relationship with another, attempts to strangle them.

MR GAME:   Yes, but, your Honour, the intimate relationship took place and was ended before the complainant joined the forces. 

BELL J:   I do not know that that helps the argument from your point of view, does it?

MR GAME:   I would submit that the relationship itself can be described as socially – they were members of the armed forces.  They were in completely different worlds in the military and they came together on this occasion because they were friends, not because of anything else.

BELL J:   So military discipline does not extend to controlling violent behaviour between members of the military on social occasions.

MR GAME:   I would not go that far, your Honour.  It is a textured question.  I am not saying you can ignore that and I am not saying that it is decisive, the availability of civil courts as a general proposition, but I am saying that in this case that is determinative if you apply the reading‑down test that appears at page 484.

BELL J:   But if you apply that test on the understanding the facts of this case do not meet it, it is difficult to see what lawful reach section 61 might have.

MR GAME:   I do not think I can accede to that proposition, but I do make the submission that when you engage in the reading‑down question you are looking at a multiple of circumstances and that multiple of circumstances does bring into centrality – I say centrality; I do not mean to overstate it – the status of the person as a civilian having committed, on the allegations made, a significant offence against the laws of Queensland.  Those, if the Court pleases, are our submissions.

KIEFEL CJ:   Thank you, Mr Game.  Yes, Mr Solicitor.

MR DONAGHUE:   As your Honours are aware, underlying this proceeding is an alleged assault by a male member of the army against a female member of the air force said to have occurred in a hotel room after an evening in which, on her account, the woman had on several occasions rejected sexual advances made towards her by a former partner. 

A defence force magistrate rejected an objection to his jurisdiction to try that alleged offence on the basis that he was bound by a decision of an appeal tribunal of the Defence Force Discipline Appeal Tribunal constituted by three judges, Justices Tracey, Brereton and Hiley.  Your Honours can see the way the magistrate dealt with that in the court book at page 77, if your Honours could go that.  You will see at the bottom of 76 there is a reference to paragraph 51 of the ruling in Williams which is then quoted at the top of 76 where the Tribunal in Williams had noted that the Act:

attaches amenability to service discipline to status as a “Defence member” . . . In other words, the legislation is framed in terms of the service status test . . . no decision of the High Court rejects . . . even if the service connection test were not satisfied, in the absence of any decision of the High Court . . . we would find jurisdiction on the basis of the service status test.

So that is the appeal tribunal of the Defence Force Disciplinary Tribunal.  The magistrate then says:

I take the view –

that matter having been argued:

the Court has, to my mind, made a binding ruling that [that is] the test to be applied . . . [I do not need] to go on and consider the issue of service connection –

at about lines 19 to 20:

I note at paragraph 30, however, in Williams’ case, the service connection test is referred to as “so‑called”, and really, the test is this; that the proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

So service connection is an aspect of that. So what happened was that here in effect the magistrate said, given what the appeal tribunal said and given that section 61 is actually framed in terms that the Commonwealth Parliament has asserted that it has the power under 51(vi) to enact the entire body of the criminal law as a service offence, “I am going to proceed to exercise jurisdiction on that basis and I don’t need to decide whether or not there is a service connection”.

For that reason, in our submission, this proceeding raises two questions.  The first is, was the magistrate right to proceed in that way because, if the magistrate was right to proceed in that way, you never get to any question of reading down.  Our friends are addressing you at some length about reading down but, in our submission, the provision is valid in its terms.  There is no need to read it down.  That is what the defence magistrate said and, if we are right about that, then prohibition fails for that reason.

EDELMAN J:   That would be subject to what was described in Clubb and Knight as the threshold question?

MR DONAGHUE:   Yes, I accept that, your Honour.  It would, I accept, be possible for the Court to analyse the matter in that way and say because you will win – it would only be if the Commonwealth would win or if the magistrate had jurisdiction but if it were the case that the magistrate would have jurisdiction applying the narrower test, it would be possible for your Honours to analyse the matter in that way. 

But, we submit that – that is the second question, so I do propose to address your Honours on that and we do submit that we can succeed on that limb.  In our submission, to proceed in that way has the difficulty that it perpetuates in this area of the law, this notion that there are these separate tests in play of service status and service connection and that it is necessary to engage in an analysis of that kind.

EDELMAN J:   In other words, there are reasons of constitutional significance why one would not engage in a threshold analysis that might otherwise be adopted.

MR DONAGHUE:   Yes, because it will perpetuate the development of the law in that way and it will also have this further practical problem that given what the appeal tribunal did in Williams, one can expect that in this area defence force magistrates will proceed on the basis that the wide view is correct so that it may well continue to generate cases where the issue comes to this Court to be argued and if your Honours keep deciding it on the narrower basis then that cycle perpetuates.  So, I do not say it is impossible to analyse it in that way but we would urge your Honours not to. 

So, where I propose to go first is to the first argument that the magistrate was correct to decide the matter as he did and then to address your Honours only in the alternative on the connection. The first step, in our submission, on the wider argument about the validity of section 61 in its entirety is that both parties before the Court accept that the defence power clearly does include within it power to enact laws regulating military discipline and that that power clearly extends both to peacetime and wartime to the extent that that dichotomy remains workable.

So, our friends do not deny that even in peacetime, at least in some cases, there will be capacity under 51(vi) to enact disciplinary laws, only the question is what is the boundary of that power.  If your Honours needed authority for that, amongst other cases, Aird at 29 to 30, Justice McHugh says that with the support of three other members of the Court.

So, the question is does the head of power in 51(vi) support section 61? That is, in our submission, a question of a completely familiar kind. It is a question of sufficiency of connection of an Act that the Parliament has passed and a head of power. It is a characterisation question.

To the extent that this area of law has become imbibed with discussions of service status and service connection, they can be at most analytical aids in answering what is the constitutional question which is a question about sufficiency of connection and they should not, in our submission, be allowed to distract attention from that constitutional question.

In answering the constitutional question, there is some debate between us as to the test.  At one point, in fact, in paragraph 36 of our friends’ submissions, they identify the test in terms with which we agree.  So, there is a heading on page 11 of their submissions, “Scope of the defence power in peacetime” and it said:

The criterion of validity of a law made in exercise of a constitutional power directed to a purpose of object, such as the defence power, is that it must be reasonably capable of being seen as “appropriate and adapted” to achieving that purpose –

That, we submit, is exactly right.  But our friends do not maintain that position as their submissions develop and there are different formulations of the tests in 39 and 40 and at 43 our friends end up with the Brennan/Toohey formulation from Tracey.

But there, in our submission, by that point of their judgment – and this was developed to some extent by my friend this morning – their Honours were not actually asking a question of sufficiency of connection.  Their Honours were engaging in what they described as a process of reconciling Chapter III with 51(vi).  The test that they framed was addressed to that objective.  But, in our submission – and your Honour Justice Keane’s questions raised this issue with our friends this morning – that analysis may have the difficulty that because this Court has accepted repeatedly that where a matter is within military jurisdiction – if I can loosely call it that – it stands outside Chapter III.

If 51(vi) confers power to enact a disciplinary regime of a particular kind so that your Honours are satisfied that the law in question actually is reasonably capable of being considered “appropriate and adapted” to the ends of military discipline, the regime thereby created stands outside Chapter III.  It makes, in our submission, no sense to cut it back by reference to Chapter III on the basis of those authorities that have recognised that connection between the head of power and disciplinary functions.

So, in our submission – and we think this is consistent with the way – at least the primary focus of our friends’ case – that the question is one to be addressed by reference to defence. Does the defence power support a law in the terms of section 61? Analysed in that way, in our submission, the test is as our friends put it in paragraph 36, as we put it in paragraph 12 of our written submissions, which is, to reiterate, is section 61 being a law by which Parliament makes it:

a service offence for a member of the military to engage in any criminal conduct ‑

a law that is:

“reasonably capable of being considered appropriate and adapted” to the regulation of the defence forces and the good order and discipline of defence members.

So that, we submit, is the constitutional question your Honours are asked to answer.

GAGELER J:   Mr Solicitor, can I just ask a couple of questions about section 61?

MR DONAGHUE:   Yes.

GAGELER J:   Are you planning to take us to that?

MR DONAGHUE:   About how it works?

GAGELER J:   About how it works.

MR DONAGHUE:   I was not going to, your Honour, but I can.

GAGELER J:   This may be entirely common ground but it is accepted, I think, that when it refers to a “territory offence” it is referring to a territory offence from time to time.  That is to say, it has an ambulatory operation.

MR DONAGHUE:   That is certainly our submission, and I do not understand that to be disputed. 

GAGELER J:   Why I am asking you these questions is that, on one view – a view expressed by Chief Justice Gleeson in Aird, what is being done as a matter of drafting technique in section 61, is effectively incorporating each of the provisions of the Crimes Act (ACT) into the Defence Force Discipline Act. On another view, what is being done in section 61 is just prescribing a single standard of conduct for military personnel. That is to say, act in a way which would not constitute an offence against the law applicable in the Jervis Bay territory. It frames the question in a slightly different way.

MR DONAGHUE:   Yes, although in substance it will be same as long as you do give an ambulatory operation to the picking up of territory defences. 

GAGELER J:   Well, on one view you get to the point that Justice McHugh got to in paragraph 42 of Aird, and you look at the particular territory offence that is being prosecuted – that is one view. On another view you just look at the higher level standard of conduct that is set out in section 61.

MR DONAGHUE: Section 61, and you say is Parliament entitled to specify that higher level standard of conduct.

GAGELER J:   Yes. 

MR DONAGHUE:   And that is the way I am conceding our first argument – is Parliament entitled to do that, and our answer is yes.  And while I will not come to it for a few moments, in terms of the role of history in this case – because like our friends we agree that it is important and the parties are divided on it and the division aligns with the – the division between Chief Justice Mason and Justices Wilson and Dawson on the one hand in Tracey, and Justices Brennan and Toohey on the other, on one view of it the Commonwealth can prevail whatever you think of the history because you are asking a question of sufficiency of connection.  But, if the position be, as we submit, was accurately captured by Chief Justice Mason and Justices Wilson and Dawson in Tracey, that, as a matter of common practice for a long period of time, parliaments have done exactly what Justice Gageler just put to me, and have specified a norm of conduct being that you must, as a matter of military discipline, comply with the entire body of the criminal law as it exists from time to time.

If that is what has happened for a long time historically in England, in the Australian colonies pre‑Federation, in the United States, in Canada, in New Zealand, and still in England, it cannot be anything other than reasonably capable of being considered appropriate and adapted to an act of law that kind.  So the history, we submit, definitively answers the question.  But even if your Honours were to take the Brennan and Toohey view of the history, in our submission, you would still have to ask the question, well, now, is it within the scope of the defence power – is there a sufficient connection with military discipline in order to uphold the conclusion? 

EDELMAN J:   It may not make a difference to this case, but is that ‑ it cannot be other proposition really to say that because it has always been understood to apply in a particular way it must therefore apply in that particular way?

MR DONAGHUE:   Your Honour, I am about to develop the submission that the way that test applies, and indeed the reason it is framed as it is, is to recognise the legitimate scope of parliamentary judgment as to how to approach matters of this type and, if that submission be correct so that there be a range for parliamentary judgment, the fact that for a long time this judgment has been made and that it has been made in other places, in my submission, demonstrates the permissibility of the judgment that Parliament has adopted.

GORDON J:   Can I just ask one question before you develop that.  In answer to Justice Gageler, do you accept, as I understood your answer, that Chief Justice Gleeson in Aird was doing something different at paragraph 3 when he talks about the drafting technique?

MR DONAGHUE:  Your Honour, I said to Justice Gageler it will produce the same result.

GORDON J:   That is why I am asking the question.

MR DONAGHUE:  So I had not proposed to take issue with what Chief Justice Gleeson said there in the sense that he was saying rather than just enact the whole of the ordinary body of criminal law and then have to keep it up to date as it changes in other places ‑ ‑ ‑

GORDON J:   Which is a code of conduct in a different form.

MR DONAGHUE: What you would be doing there would be, by a more laborious means, saying, “We require you, the members of our armed forces, to comport yourselves in a way that conforms to every single offence provision that there is”. Another way of doing it which is perhaps a more elegant way of conceptualising it is the way that Justice Gageler put to me. I do not submit that there is a difference in substance but I think the effect of section 61 is perhaps more accurately put in the way that Justice Gageler put to me.

In terms of that test that I have identified as the appropriate test, in our submission, it has good support in authority, including specifically in the context of the issue that now arises in that three Justices in both Re Tracey and Re Aird ‑ so not a majority but three Justices in each of those cases – adopted in substance that formulation. 

If I could take your Honours to Re Aird because I can deal with both passages in the one hit if I do that ‑ it is tab 34, volume 4, (2004) 220 CLR 308. When you have it, if your Honours go to paragraph 66, on page 329 – I am going to come back to this page to highlight some other aspects of it. If you note the first sentence of paragraph 65, Justice Gummow with whom Chief Justice Gleeson and Justice Hayne have agreed says that:

Two passages . . . in Tracey make what for the present case is the essential point. 

The second of the passages that make the essential point is 66 and there their Honours quote from the Chief Justice and Justices Wilson and Dawson in Re Tracey;

“In exercising that power it is for Parliament 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 it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline ‑

So their Honours are articulating a test in characterisation language.

KIEFEL CJ:   That is what Parliament considers to be necessary and appropriate in fact.

MR DONAGHUE:   Yes, which is, in my submission, the same as what is reasonably capable of being considered appropriate and adapted.  Justice Gaudron in Tracey – I will not take your Honours to it, her Honour was dissenting ‑ but at 597 and at 600 her Honour, albeit in dissent, articulated the test in the same way.

If your Honours could keep Aird to hand because I will come back to it shortly, the same test we submit derives more indirect support from the way this Court approaches the characterisation exercise in the context of other purposive powers.  A good example, in our submission, is the treaty implementation limb of the external affairs power.  In our submissions at 12 we cite the Industrial Relations Act Case for that where five members of the Court adopted this same question:  reasonably capable of being considered appropriate and adapted.

But rather than take you there, can I take you to one more recent passage in Corneloup’s Case, which is Attorney‑General (SA) v Adelaide City. It is in tab 26 of the joint book, which is the last tab in volume 2. It is 249 CLR 1.

KIEFEL CJ:   It is the Chief Justice’s judgment, is it?

MR DONAGHUE:   That is correct, your Honour, yes.

EDELMAN J:   Which tab is this?

MR DONAGHUE:   It is tab 26, your Honour.  In the then Chief Justice’s judgment, in paragraph 57, his Honour is discussing the Tasmanian Dam Case, where Justice Deane adopted what his Honour calls:

a high threshold proportionality test, similar to that stated by Dixon J, for a law purportedly made in the exercise of a purposive power under the Constitution.  Such a law, he said, “must be capable of being reasonably considered to be appropriate and adapted to achieving” its constitutional purpose.

And over the page:

Applying the test so framed, the Court was not simply to substitute its view of what was appropriate and adapted to the objects of the law‑making power for that of the legislative body.

KIEFEL CJ:   Could I interrupt you there?

MR DONAGHUE:   Of course, your Honour.

KIEFEL CJ:   His Honour is talking, by reference to the Tasmanian Dam Case, as referring to an ends and means test – proportionality in that sense.

MR DONAGHUE:   Yes, but of a particular kind.

KIEFEL CJ:   Yes, I am not suggesting that it is the same as the implied freedom ‑ ‑ ‑

MR DONAGHUE:   Indeed.

KIEFEL CJ:   ‑ ‑ ‑ because the question is quite different.

MR DONAGHUE:   Precisely.

KIEFEL CJ:   Anyway, I will let you finish this and I will ask you a question later about how you frame the question here.

MR DONAGHUE:   Well, in our submission, in the context of characterisation with respect to a purposive power as opposed to implied freedom there is some role for a test sometimes described as proportionality but which is shorthand for the longer test that I have been articulating.  And the reason I took you to paragraph 57 is that the then Chief Justice was highlighting not just that that is the right way to approach purposive powers generally ‑ so while he is talking about external affairs there, we say that it must include Defence ‑ but also that the role for Parliament to make a wide range of choices is acknowledged in the formulation of that high threshold type test, and that is adopted in the Tasmanian Dams and approved many times since in the external affairs context and, we submit, equally appropriate here.

In fact – and I will not take your Honours to it – when one traces through from Tasmanian Dams, in Justice Brennan’s judgment, who was a member of the majority in Tasmanian Dams, his Honour formulates the test in much the same language and does so expressly by reference to defence power cases.  So he goes back to Marcus Clarke and Chief Justice Dixon’s formulation ‑ and I have given your Honours the reference in our oral outline to that ‑ where it was put the language might reasonably be considered conducive was used in the defence power context, so one sees in a way a loop defence power cases into external affairs and coming back into the defence context.

KIEFEL CJ:   Marcus Clarke - I think it was Justice McTiernan referred to the question being whether the defence power authorises Parliament to take measures as are proportionate to the end for which the Constitution created the defence power.

MR DONAGHUE:   Yes, indeed, using “proportionate” in the same sense.

KIEFEL CJ:   In that sense, but do I take it that - it is, of course, something of a mouthful, “reasonably capable of being considered appropriate and adapted”, but that your interpretation of that phrase is that it is not a stringent test?

MR DONAGHUE:   Yes, it is.  In exactly the same way that Chief Justice Mason and Justices Wilson and Dawson described in the passage from Tracey that I – Parliament has a wide judgment about what is appropriate to the regulation of the military forces as long as there is a sufficient connection to discipline can be seen.

KIEFEL CJ:   That is what I was going to ask you – “a” connection or a “sufficient” connection.  If we are talking about a “sufficient” connection, how does one assess it?

MR DONAGHUE:   I am not going to try to improve upon the language that their Honours used.  So their Honours framed the “reasonably capable”, et cetera:

Parliament’s decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces –

So, I understand your Honour’s question.

KIEFEL CJ:   Is it more than a rational connection?  Does it have to further the purpose, to some extent, or is a rational connection sufficient?  The reason I choose “rational” connection is not by reference to the implied freedom, it is paragraph 3 of your outline.

MR DONAGHUE:   Yes, well, your Honour, as a matter of principle, where Parliament has adopted a measure that rationally advances the purpose of the defence of the – in our submission, that should be sufficient.  As a matter of principle, I cannot see why more would be needed.

KIEFEL CJ:   If one considers Polyukhovich and a question that arose there where it was held that the measures were not proportionate, in peacetime, at least, because they were retrospective and discriminatory, does that go a bit beyond the approach for which you have just contended?

MR DONAGHUE:   I think in Polyukhovich one had important Chapter III considerations that helped inform that and as your Honour has explained on a number of occasions, once one is in the context of a limit then there becomes a different question. But, for the reasons I have already addressed, we are not in that situation here because we stand outside Chapter III in this context. So that, your Honour, is our submission - that is all I need to say about the test. In terms of why a law in the form of section 61 satisfies the test, if your Honours could go back to Re Aird which was tab 34 and ‑ ‑ ‑

GORDON J:   Sorry, I did not hear you, Mr Solicitor, where were you going?

MR DONAGHUE:   Sorry, your Honour, so going back to Re Aird at tab 34, on the same page that I took your Honours to earlier but the passages immediately above and below those I went to, the first of the two decisive passages that Justice Gummow, with Chief Justice and Justice Hayne agreeing, highlighted is that quoted in paragraph 65:

“as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals.”

So, their Honours are endorsing the idea that it is – and the next passage emphasises the point that while that is clearly the case in wartime, it is also open to the legislature in peacetime to mandate that members of the defence force comport themselves, act in a way that is compliant with the general norm that they obey all of the rules that are applicable to everybody else. 

Part of the reason for that is explained both in paragraphs 67 in endorsing the observations of Justice Harlan from the US Supreme Court in O’Callahan where he was in dissent in that case but was picked up by the Supreme Court majority in Solorio:

“The United States has a vital interest in creating and maintaining an armed force of honest, upright, and well‑disciplined persons, and in preserving the reputation, morale and integrity of the military services -

and to protect the members of the military against each other, which is obviously a particular consideration thrown up by the facts of this case.  Justice Harlan finished with a well‑known reference to George Washington’s observations:

“All improper treatment of an inhabitant by an officer or soldier being destructive of good order and discipline as well as subversive of the rights of society is as much a breach of military, as civil law and as punishable by the one as the other.”

What is obviously inherent in that passage and we say the history I will come to shortly makes good, is that the position has long been one of concurrent jurisdiction.  So the picking up of the ordinary criminal law and its incorporation into a disciplinary code does not oust the availability of civil jurisdiction in respect of the same offending conduct. 

There was a short period that I will come to where there was an attempt along the lines of 190 of the Defence Force Discipline Act that was struck down in Re Tracey to say that if you had been tried in a court‑martial that ousted the civil jurisdiction, but England got rid of that in 1721 and we have not seen it since.  But they exist in parallel and because they exist in parallel, to say that the availability of one precludes access to the other is substantially to deny the full breadth of military jurisdiction that has long been conferred. 

Part of the reason that that, in our submission, supports Parliament’s choice or it being open to Parliament to make the choice to import these additional standards was explained in a paragraph in the joint judgment of Justices Gummow, Hayne and Crennan in White.  I do not think I need to take your Honours to it, although I think we have given your Honours the reference – White 231 CLR 570 at paragraph 73 where their Honours emphasise that the:

Additional responsibilities of defence members may give to general norms of conduct a distinct and emphatic operation.  This may be apt for enforcement –

in the military system.  So it recognises, for example, that theft, obviously an offence properly dealt with in the ordinary criminal law, may, when committed by one service member against another in the context of shared living arrangements in a barracks, have a distinct and emphatic effect upon military jurisdiction that calls for a response.

I have already intimated in summary form that the same judgment that has been made by Commonwealth Parliament in enacting section 61 has been made elsewhere. I do not propose to spend any time on the current UK or New Zealand positions, but we have given your Honours the references in our oral outline in paragraph 3. But I do want to take your Honours briefly to the position in both Canada and the United States, in Canada by reference to the decision of the Supreme Court last year in R v Stillman which your Honours will find in volume 5 behind tab 44. 

Stillman is a remarkably similar case to this case in many respects and it, amongst other things, endorses Moriarity.  Your Honour Justice Bell asked about Moriarity.  We have gone to Stillman because it is the most recent, but it is entirely consistent with Moriarity.  So if your Honours could start at paragraph 1 in Stillman, which is on page 205 of the report.  This is in the joint judgment of five members of the court.  Your Honours can see there the Charter context in which the issue arose, which was an equivalent to section 80, a right to trial by jury, but with a carve‑out:

“except in the case of an offence under military law tried before a military tribunal” -

So the question was, were the offences that had been tried in these cases offences under military law tried before a military tribunal because, if so, there was no guarantee of trial by jury.

In paragraph 3, you will see the statutory provision that created the offence, 130(1)(a), and it was materially the same as section 61 in that it operated by incorporation of the body of the ordinary criminal law, established as a service offence:

any “act or omission that takes place in Canada and is punishable under . . . the Criminal Code or any other Act -

So it transforms criminal and other federal offences, their Honours said, that take place in Canada into service offences.  In paragraph 4, their Honours note that for four decades the court had confirmed the enactment of a provision:

transforming ordinary civil offences into civil offences -

was valid under the Canadian equivalent of the defence power, which is quoted in paragraph 4:

“Militia, Military and Naval Service, and Defence -

The particular arguments that were put are summarised at paragraphs 6 through 8.  Basically what was said in paragraph 6 was – and you see this in the last line, the accused said:

only “special standards of military discipline” –

would be enough to constitute:

“military law” –

within that exception to the charter rights trial by jury:

The Crown, in contrast, submits that any service offence –

enacted by the Parliament, validly supported by the defence power was:

“an offence under military law” –

which is equivalent to the submission I am putting here.

KIEFEL CJ:   Is the argument in paragraph 6 close to what Justices Gaudron and Deane were saying?

MR DONAGHUE:   Yes, it is, your Honour – and rejected again in White.  So, that argument failed.  Paragraph 7 was the Crown’s argument there – equivalent to what I am putting now.  But 8 – while neither side had put it – the court below, by majority, had found a military nexus requirement which was basically the service connection test in much the same sense as Justices Brennan and Toohey.  So, all of those issues were on the table in this case.  The answer that was reached, which is summarised in paragraph 9, was that an offence under military law refers to a service offence:

validly enacted pursuant to Parliament’s power –

under the defence power:

As this Court’s jurisprudence confirms, s. 130(1)(a) is rooted in this head of power.

So, as long as it is supported by the head of power, it is a military offence.  In terms of the analysis that gets one there, I will not detain your Honours with it for too long.  Could I just note a couple of paragraphs that might assist you?

KIEFEL CJ:   Just before you do, Mr Solicitor, “is rooted in this head of power” refers to the rational connection that you referred to?

MR DONAGHUE:   In my submission, it does.  I will take your Honour to a paragraph that ‑ ‑ ‑

KIEFEL CJ:   So then does the reference – or the approach of Justices Brennan and Toohey which requires that it substantially served the purpose – go further than is necessary?

MR DONAGHUE:   Yes, it does.  That is why our…..will submit that you should prefer the Mason, Wilson, Dawson view in Re Tracey because, in effect, Justices Brennan and Toohey require too much.  In fact, in this judgment in a passage I will come to in a moment, their Honours in the Supreme Court expressly put it as a rational connection being what is required as the test that they adopt.

So, if your Honours note, first, paragraphs 35 and 36 on page 214, there is a reference to history and some of the reasons why – particularly in 36 quoting Chief Justice Lamer:

Breaches of military discipline must be dealt with speedily and, frequently, punished more severely than would be the case –

in civil courts:

“[r]ecourse to the ordinary criminal courts would, as a general rule, be inadequate –

it is said.  Then, there is a tracing of some history that I do not need to detain your Honours on.  Could I ask you to move on to paragraph 59, on the bottom of page 222?  In the second half of 59, their Honours say:

Stated succinctly, s. 130(1)(a) transforms ordinary civil offences that take place in Canada into service offences, thereby giving service tribunals concurrent jurisdiction over such offences –

Then, at 60:

This is hardly novel.  This provision has appeared in the NDA since its enactment . . . and similar provisions transforming ordinary civil offences into offences under military law had long existed in the United Kingdom.

Their Honours cite the same two provisions that your Honours have already been taken to and that I am going to come to – the Navy Discipline Act and the Army Act – as examples of the lack of novelty involved in this kind of provision like section 60.

Then at 90 through to 97 your Honours see the test and this makes good what I have just said to your Honour the Chief Justice.  So, at 92 there is a discussion of Moriarity ‑ 92 is at the bottom of page 231:

this Court in Moriarity stemmed this line of” jurisprudence by making it clear that the only “military nexus” required to support a rational connection to maintaining discipline, efficiency, and morale in the military is the accused’s military status.

So Canada there rejected the service connection test.  In 93:

This Court rejected that argument, stating that the purpose . . . consistent with the purpose of the military justice system as a whole, is “to maintain the discipline, efficiency and morale –

and there is a quite a long quote in paragraph 94 from Moriarity, again in the chapeau to 94, or just above the quote rather:

“[t]he objective . . . is rationally connected to dealing with criminal actions committed by members of the military even when not occurring in military circumstances”. 

The example is given near the top of that quote of a member of the military committing an assault in a civil context, raising a question as to the individual’s capacity to show discipline in a military environment and to respect military authorities.  That has an echo, your Honours may recall from a passage in our written submissions, of the recent directions of the Chief of the Army who says if you cannot act in a disciplined manner in a civilian setting that causes us to doubt your capacity to act lawfully in accordance with instructions in a military context. 

Finally, at 97 - actually I do not need to trouble your Honours with that.  So, in our submission, Stillman is a recent example of the superior court of a country with a similar military - history of military discipline, shared history in the United Kingdom, adopting an analysis that is entirely consistent with that which we urge upon your Honours and with that of Chief Justices Mason and Justices Wilson and Dawson in Tracey. 

Similarly, in Solorio, which is the United States Supreme Court’s leading authority on this question, which is in volume 5 behind tab 46 - this case involved sexual abuse of the children of fellow members of a coastguard member, but committed not on a military base but in a private home, and the prevailing law at that time in the Supreme Court was in favour of the service connection test, and the Supreme Court overruled that case with O’Callahan v Parker and held that you did not  need anything more than status as a member of the military.

I will not spend any great period of time on this, but if your Honours go to 439 – page 439, looking at the top right‑hand corner – and their Honours at about point 2 on the page refer to the “unbroken line of decisions from 1866 to 1960” as:

conditioning the proper exercise of court‑martial jurisdiction over an offense on one factor:  the military status of the accused.

Passing over page 440 to 441, their Honours say at the top of 441 that they overrule O’Callahan and:

decided that the service connection test . . . should be abandoned.

The reasons for that are then interesting and relate, as explained on 442 and following, to a different view of history.  So it is said on 441, near the top of the page about point 2:

The O’Callahan Court’s historical foundation for its holding rests on the view that “[b]oth in England prior to the American Revolution and in our national history –

the viewing of – sorry, I have read that poorly, but:

trial of soldiers committing civilian offenses has been viewed with suspicion” . . . According to the Court, the historical evidence demonstrates that, during the late 17th and 18th centuries in England as well as the early years of this country, courts‑martial did not have authority to try soldiers for civilian offenses. 

Their Honours say at about point 7 on that page, that that view is wrong:

The O’Callahan Court’s representation of English history following the Mutiny Act of 1689, however, is less than accurate.  In particular, the Court posited that “[i]t was . . . the rule in Britain at the time of the American Revolution that a soldier could not be tried for a civilian offense committed in Britain -

and their Honours go on to reject that view of the British history, we submit correctly, and at the top of 444, specifically reject a submission that has clear echoes in what our friends have put to your Honours:

the O’Callahan Court erred in suggesting that, at the time of the American Revolution, military tribunals in England were available “only where ordinary civil courts were unavailable.”

So their Honours specifically rejected that submission.  So, in our submission, the view of the history that I am about to come to, I hope fairly efficiently, which was favoured by Chief Justice Mason and Justices Wilson and Dawson in Tracey, has also recently been favoured by the Supreme Court of Canada, and a couple of decades ago by the Supreme Court of the United States – and is quite inconsistent with the idea that it was only where ordinary civil courts were unavailable that military jurisdiction could be properly exercised.

Before coming to the history, which I can probably deal with after lunch, can I just make a couple of other brief observations.  Our friends in writing, as we understood it, suggested that the wider view, sometimes labelled the service status view, was inconsistent with authority in this Court.  I do not think that submission is being maintained.  Our friends accepted this morning that it was not as a matter of ratio.  That is clearly correct, and I will not take your Honours to it.

But the status of the authority in Re Tracey, Nolan, Tyler, in that trilogy of cases, was analysed by Justice McHugh in Aird, with the agreement of three members of the Court.  Justices Kirby, Callinan and Heydon were all to the same effect – and they all said none of those cases have a ratio on this point and they all said the test to be adopted is at large so there is not any authority that limits your Honours in choosing the approach to be adopted.

The other point is that both in writing and orally this morning quite some emphasis has been placed on the availability of civil courts.  In writing at paragraphs 43 and 44 of their primary submissions our friends said you could not satisfy the Brennan/Toohey test.  They said this test will not be satisfied where the jurisdiction of a civil court can be conveniently and appropriately adopted.

As I understood the submissions this morning, it was put by reference to Tyler as a variable factor to be taken into account, rather than as a decisive consideration against, but it was then put that it is the most important factor or the most significant factor in the weighing, and your Honours have asked a number of questions about that.

Can we note the following?  In the trilogy Tracey, Nolan and Tyler, they were all cases that were concerned with offences that involved conduct that would also be an offence against the ordinary criminal law.  They involved fraudulent documents in one case.  I actually cannot remember right now what the offences in each one were, but in each case the whole point ‑ the issue was where there was concurrent jurisdiction between the ordinary criminal law and the service offence could military jurisdiction be exercised and there was no reason to doubt in any of those cases that it would have been possible to bring proceedings in the ordinary courts. 

There was no suggestion that the ordinary courts were unavailable, and yet in each one of those cases this Court upheld, for disparate reasons, the exercise of military jurisdiction.  So that if the availability of ordinary courts were to be a factor of the weight that our friends suggest, it is a little difficult to see why it did not feature in reasoning where this Court has upheld military jurisdiction in circumstances where that concurrent jurisdiction would obviously have been available.

Finally, and very briefly before lunch, in fact an argument to almost exactly the same effect was advanced in Lane v Morrison, can I ask your Honours to go to that to note two passages.  Lane v Morrison is in volume 3 at tab 30, it is 239 CLR 230, and mostly, of course, Lane concerned different issues, the validity of the short‑lived Australian Military Court, but there was a separate argument advanced that was dealt with at the end of each of the judgments.  In paragraph 63, on page 251, at the end of the joint judgment of Chief Justice French and Justice Gummow, their Honours say this:

It therefore is unnecessary to deal, save in one respect, with the further arguments presented by the plaintiff. It was submitted that the power conferred by s 51(vi) was limited to the punishment of crimes such as those charged here which were committed on active service (not this case) or in the circumstances and places where the jurisdiction of the ordinary courts could not conveniently be exercised.

Footnote (91) to the passage in Tracey at 563 which is the very foundation in Justice Brennan and Toohey’s reasons for the argument that has been put to your Honours.  That submission is inconsistent with the decisions, the most recent of which is White, which should not be reopened, and similarly at 117 in the joint judgment of Justices Hayne, Heydon, Crennan, Kiefel and Bell, at 117 in the last sentence:

Given the footing on which the present litigation is to be decided, it is neither necessary nor desirable to go beyond what was said in White v Director of Military Prosecutions on these issues or to consider reopening that decision.

So it is a little less express than Chief Justice French and Justice Gummow but, nevertheless, regards that argument as being inconsistent with authority.

So, in our submission ‑ and the history, which I will come to after lunch, will support it ‑ one just cannot give the availability of ordinary civil courts anything like the weight that our friends are attaching to it.  It would be relevant, but only as a matter of policy, where you have concurrent jurisdiction and a choice has to be made, which do you exercise.  If the ordinary civil courts are unavailable, then that is obviously something that will inform the discretionary decisions, or the policy decisions, about which jurisdiction to exercise, but it says nothing about power.  If the Court pleases.

KIEFEL CJ:   The Court will adjourn until 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

KIEFEL CJ:   Mr Solicitor, before you proceed, could I mention to both counsel you may have noticed that the bench has been somewhat extended.  It has substantially altered the acoustics for some Justices.  So do not be afraid of yelling at us a little.  It would be better if you could speak up as much as you can.

MR DONAGHUE:   Thank you, your Honour.  Your Honours, I have arrived at point 6 in our outline, which is addressing the history and I propose to take your Honours to this as efficiently as I can for two purposes. 

The first purpose is to advance the submissions that I will shortly make in relation to the reasons why we submit that your Honours should not accept the conclusions as to history drawn by Justices Brennan and Toohey in their judgment in Tracey and should prefer the analysis in the other judgment.

The second reason is to join issue with parts of our friends’ analysis, particularly in their written submissions.  We particularly join issue with paragraphs that we have listed in paragraph 6 but if your Honours could just take up our friends’ submissions so I can identify more clearly the target of the remarks I am about to make.  If your Honours turn to paragraph 25 ‑ ‑ ‑

GORDON J:   Did you say 55 or 25?

MR DONAGHUE:   Sorry, your Honour – paragraph 25, on page 6.  There our friends say:

As has been revealed by a detailed historical analysis of the scope of the court martial jurisdiction in English law prior to federation –

And that is a footnote to Justices Brennan and Toohey in Tracey at that page range, which I am about to come to:

until the enactment of the Army Discipline and Regulation Act 1879 (Imp), there was no military jurisdiction to try members of the British Army for ordinary civil criminal offences committed in the United Kingdom in a time of peace and civil order.  Hence commanding officers had a duty to assist the civil authorities apprehend soldiers accused of civil crimes so they could be tried by the civil courts.

In our submission, that is not accurate as a matter of history and that is part of what I am going to endeavour to make good.  Similarly, in paragraph 28, the first line:

Under the Mutiny Acts and Articles of War, military jurisdiction extended only to offences that were of a military character –

Again, I am going to endeavour to submit that that is not right as a matter of history.  To do that I propose to take your Honours, in the interests of time, to one Mutiny Act and to the Naval Discipline Act 1860 and 1866 and the Army Act 1879 and then 1881, but the Naval Discipline Acts and the Army Acts, there are two Acts in each case, but they are essentially identical.

But I need to start with the Mutiny Acts.  The Mutiny Acts, your Honours, provided the initial statutory foundation for military jurisdiction.  Prior to the Mutiny Acts in the exercise of prerogative power there were made what were called Articles of War which set the rules for the conduct of the military in England.  The Articles of War eventually obtained a statutory foundation that this placed the prerogative in the Mutiny Acts, although not when they were first made. 

So the first Mutiny Act was passed by the Parliament in 1689 as an urgent measure in response to a rebellion of Scottish troops who did not accept the accession to the throne of William the Third, and thereafter they were passed each year, in each year the Parliament giving permission to the Crown to raise a standing army, to maintain a standing army within the United Kingdom, and setting the rules for the conduct of that standing army, including the size of the army and the disciplinary offences, et cetera.

So one had an annual Mutiny Act for nearly 200 years passed by the UK parliament.  I am only going to take your Honours to one of them.  It is an important one in the progression.  It is the Mutiny Act 1718 and your Honours will find it in the supplementary bundle of authorities behind I think tab 12.

In a very difficult font, which I am reliably informed is called “repellent” for reasons that your Honours will see once you obtain a copy of it, it is not straightforward - once your Honours have it, if you could turn to page 168 which is about 23 of the 29 pages in.  So, when your Honours are turning to that - this is the Act of 1718. 

To understand why it is important I need to give your Honours a very brief background which is that two years earlier in the annual Mutiny Act of 1716, for the first time Parliament had conferred authority to make Articles of War providing for courts‑martial in relation to any crime or offence.  If your Honours have made it to page 168, you will see that that particular provision was repeated in this statute right at the top of the page:

Provided always, That it fhall and may be Lawful to and for his Majefty to Form, Make and Eftablish Articles of War, for the better Government of his Majesties Forces, and . . . Conftitute Courts‑Martial, with Power to Try, Hear, and Determine any Crime or Offence by fuch Articles of War –

So provided the Articles of War made an offence, you could deal with it by court‑martial.  That was highly controversial in 1716, partly because - and if your Honours go down the same page to the – if you look at the marginal notes, the second from the bottom marginal note, the effect of a court‑martial at that time was that an acquittal was a full bar to any indictment or proceeding for the same offence in a civil court.

So that there was capacity by a not very thorough court‑martial at that time to immunise soldiers against the operation of the ordinary law of the land and that was what had created the controversy or the tension.  That article that I have just drawn attention to, the full bar, was removed by the Mutiny Act of 1721 and was not subsequently repeated. So that is the kind of provision that came back for a brief time in section 190 of the Defence Force Discipline Act before this Court invalidated it in Tracey.

But the reason I am taking your Honours to this Act is that at the bottom of page168 and over onto 169 the Mutiny Act dealt with the interrelationship between the military jurisdiction that could be established under the top section on that page, “to try by court‑martial any offence created by the Articles of War and the ordinary civil jurisdiction”.  It is difficult to read, so I might read it out to your Honours, if I may.  It says:

Provided alfo, That if any Officer, Non‑Commiffion Officer, or Soldier, fhall be accufed of any Capital Crime, or of any Violence or Offence againft the Perfon, Eftate, or Property of any of the Subjects of this Kingdom, which is punifhable by the known Laws of the Land –

so that, we submit, is all offences:

the Commanding Officer or Officers . . . is and are hereby required, upon Application made to the then Commanding Officer on behalf of the Party Injured, to ufe his utmoft Endeavour to deliver over fuch Accufed Perfon to the Civil Magiftrate . . . and the Officer to whom fuch Application fhall be made, or any other Officer, fhall not Proceed to the Tryal of fuch Offender or Offenders by a Court Martial, within the fpace of Eight Days after the Offence Committed, unlefs at the Defire of the Perfon or Perfons Injured –

Now, that reflects a point your Honour Justice Keane has made a few times this morning in that the choice was not at the election of the accused to be protected by an ordinary civil court but the choice of the victim was significant in the capacity to proceed by way of court‑martial

but, after Eight Days expired, in Cafe the Perfon Injured fhall not, in that time, have made any Application to fuch Commanding Officer, nor proceeded to the Profecution of fuch Offender or Offenders before a Civil Court or Magiftrate . . . fuch Offender or Offenders may be Tryed by a Court Martial for any of the faid Capital Crimes, Violences, or Offences -

So, the way that it worked from 1718 was that there was the potential, depending on what the Articles of War said from time to time, for complete concurrency between the ordinary offences under the law of the land and military offences, but the possibility of conflict between the exercise of those jurisdictions was resolved by saying if you move to invoke the civil jurisdiction first, promptly, then that prevails.  There is priority for civil jurisdiction.

But it is not correct to say that at any time before 1879 there was no military jurisdiction to try ordinary offences.  On the contrary, there was military jurisdiction to try ordinary offences as long as the civil offence had not gone first.  That position existed in 1718 and it existed right through to the Army Act. 

The exact offences in question varying - depending on the terms of the annual Mutiny Act and the Articles of War, so it is a complicated historical exercise to identify exactly what they were and were not and it waxed and waned over time but, in principle, military jurisdiction existed in parallel with priority to the civil jurisdiction if it were invoked first and one of the main errors about which - or that we respectfully attribute to Justices Brennan and Toohey in tracing is by shifting from the concept of priority to civil jurisdiction over criminal, to a question about the availability of civil over – this is not a position about the availability of civil courts, it is about whether that jurisdiction has actually been invoked.  So, that is, we submit, one of the errors that was made.

So that was the position annually under the Mutiny Acts for a long period of time.  We then get the first significant major statutory reform which is the Naval Discipline Act that my friends have already taken your Honours to.  It was first enacted in 1860.  It was then re‑enacted in 1866 in much the same terms but the section numbers changed.  My friend took you to the latter Act, the 1866 Act, so I will do that as well.  I hope I do not lead you astray in doing that.

The Naval Discipline Act 1866 your Honours should find behind tab 24, I think in volume 2.  Your Honours might recall that the submission my friends make about this Act is that they say under this Act military jurisdiction to try offences committed on shore against the ordinary law of England were strictly limited to those places closely connected to the Navy.  That is what they say in paragraph 30 of their submissions and in paragraph 8 of their reply, and orally this morning was to the same effect.

The way that submission is advanced is that it is said it is true that section 45 of the Act looks very wide but section 45 is cut back by section 46 and section 46 confines the relevant offences to those with a close military connection.  That, in our submission, is only partly true because if your Honours look at 46, it is true that the first half of section 46 does confine the relevant offences specified in the Act to various places that have a connection with the navy, and I will not read it out, but your Honours can see lakes, rivers, dockyards, et cetera.  But about halfway through paragraph 46 there is a line that begins “may be tried and punished” with a semicolon in the middle and it then says:

and for all Offences hereinbefore specified under the Headings –

and then there is a list of headings, the last of which is:

or “Miscellaneous Offences,” if committed by any Person subject to this Act at any Place on Shore, whether in or out of the said United Kingdom –

So any place onshore including within the United Kingdom:

the Offender may be tried and punished under this Act.

What are the offences identified under those various headings?  Well, if we focus just on miscellaneous offences, that heading you will see back above section 27 a couple of pages back in the print.  You can see an italicised heading “Miscellaneous Offences” in the middle of the page.  Then we have quite a lot of offences, the detail of which you do not need to trouble yourselves with until we get to section 43 which says:

Every Person subject to this Act who shall be guilty of any Act, Disorder, or Neglect to the Prejudice of good Order and Naval Discipline, not hereinbefore specified, shall be dismissed from Her Majesty’s Service, with Disgrace, or suffer such other Punishment as in herein‑after mentioned.

So then we need to go and look at where are the punishments hereinafter mentioned, and they are over the page.  That is section 45 which your Honours have already seen.  Section 45 makes it plain that it is contemplated that it will be possible to punish not just manslaughter, sodomy, indecent assault, robbery, theft, but at the end of 45:

any other Criminal Offence which if committed in England would be punishable by the Law in England ‑

whether or not committed in England.  So, in our submission, it is not correct to say that 46 cuts back the operation of 43 and 45 to require this tight nexus with naval discipline, and that is exactly the way the Act was understood, not just by Chief Justice Mason and Justices Wilson and Dawson in Tracey, which our friends criticised this morning – I will not take you back to it – but their Honours said that what those – sorry, our friends said that what their Honours said at the top of page 542 was wrong because it overlooked the effect of section 46.

In our submission, it did not.  What their Honours said at that page was correct.  But also, indeed, Justices Brennan and Toohey in Re Tracey analysed the Naval Discipline Act in exactly the same way.  So if your Honours could return to Re Tracey at the bottom on page 561 where their Honours have been discussing the Naval Discipline Act, they said at about point 8 on the page:

Naval jurisdiction extended to the punishment of any such persons who were guilty of offences punishable by ordinary law, namely, murder, manslaughter, sodomy, indecent assault, robbery, theft or any other criminal offence –

So they are referring to section 45:

“which if committed in England would be punishable by the Law of England . . . whether the Offence be or be not committed in England”: s. 45.

Again, exactly right.  So, in our submission, five Justices in Tracey, not just the Chief Justice and Justices Wilson and Dawson, all understood this Act, the Naval Discipline Act 1866, as having a much wider operation than our friends invite you to attribute to it.

Similarly, the Army Act, which your Honours will find behind tab 15 in the joint book of authorities, again in volume 2 – this is the Army Act 1881 ‑ it was a substantial re‑enactment of the Army Discipline and Regulation Act 1879.  This was actually an unusual Act in that, like the Mutiny Acts it replaced, it also needed to be brought into force by a different Act passed annually, which your Honours can see in section 2:

This Act shall continue in force only for such time and subject to such provisions as may be specified in an annual Act of Parliament –

So, it continued the historical theme of Parliament exhibiting tight control over the armed forces but it removed the need to pass a long and complicated Mutiny Act every year.

The structure is similar in many ways to the Naval Discipline Act.  You have a long list of specified offences.  Then at section 41, under the heading, “Offences punishable by ordinary Law”, a provision which in Re Tracey said – including by Justices Brennan and Toohey – to be clearly the – I want to get the word exactly right – this provision is clearly the precursor of section 61 of the Discipline Act, their Honours said, and we respectfully agree with that. So, section 41 relevantly provides that – from the third line:

every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence . . . shall be liable to be tried by court‑martial –

So, all of the offences we are about to get to – deemed to be offences against military law triable by court‑martial – what are those offences – treason, murder, manslaughter, rape.  Then, in subsection (5):

any offence not before in this section particularly specified which when committed in England is punishable by the law of England, be liable, whether the offence is committed in England or elsewhere –

So, it is the whole criminal law that is deemed to be an offence against military law.  But then there is proviso in paragraph (a) and the proviso is important because the proviso is addressed, in its terms, to the offences listed in subsections (1), (2), (3) and (4):

A person subject to military law shall not be tried by court‑martial for treason, murder, manslaughter, treason‑felony, or rape –

So, it exactly aligns with those four subsections:

and shall not be tried by court‑martial –

for any of those:

committed in any place within Her Majesty’s dominions . . . unless such person at the time he committed the offence was –

either, one:

on active service –

not relevant:

or such place is more than one hundred miles as measured in a straight line from any city or town in which the offender can be tried for such offence by a competent civil court.

So the rule was the whole criminal law becomes an offence against military law, including the serious offences – treason, murder, et cetera ‑ but, by reason of the proviso, you cannot try the most serious offences by court‑martial unless you are on active service or you cannot conveniently access the jurisdiction of the civil courts because they are too far away.

In our submission, there is no plausible way to read this that says you also cannot try by court‑martial the offences under sub (5), subject to the same provisos as are identified in (a) – I put that badly ‑ but our friends seem to be saying, in effect, if the civil courts are available then you could not try anything.  But the whole point of the dichotomy drawn in the proviso (a) between the serious offence listed in (1) to (4), and all the others in (5), is you could try by court‑martial the offences of the kind listed in (5) whether or not there was a city or town within a 100 miles because the demarcation line is clearly being drawn between (1) to (4) on the one hand, and (5) on the other.  And so it is not plausible as a matter of statutory construction to limit the provision in the way that our friends are suggesting.

BELL J:   Was a member of the army at the time of this Act, who was not on duty, on active service?

MR DONAGHUE:   No, your Honour. 

BELL J:   So, the active service is a reference – confined the more serious offences to those committed whilst the officer was on duty. 

MR DONAGHUE:   I think it is even more than on duty; I think it may be on duty at a time of war, so actually in a combat type situation. 

BELL J:   Yes, yes. 

MR DONAGHUE:   So, if you are in that kind of extreme situation then you can do the more serious offences, or, if not in that active service extreme situation but still a very long way away, so that there is not a practical alternative to access ‑ ‑ ‑ 

BELL J:   Yes, yes. 

MR DONAGHUE:   ‑ ‑ ‑ the civil courts. 

BELL J:   But save for the exigencies of active service in the sense of being the more serious offences were the subject of a proviso. 

MR DONAGHUE:   Indeed, indeed, but everything else would not.  And that is the point that ‑ ‑ ‑ 

BELL J:   Yes, I understand.

MR DONAGHUE:   So that this offence, in our submission, the offence charged here, had it happened and been subject to the Army Act, would have been subject to court‑martial jurisdiction, notwithstanding the availability of the ordinary courts, and that is part of our critique in Tracey.  And it is to Tracey that I now come.  I do not know if your Honours still have Tracey, but Tracey is in volume 4, tab 36, 166 CLR 518. Can I start with the joint judgment of the Chief Justice and Justices Wilson and Dawson and ask your Honours to turn to 540.

So on 540 there is really the commencement of a discussion about how to enact section 61. There is a reference in the middle of the page you will see to the first part of section 51(vi), the defence part. Then over the page on page 541, at the top of page 541 it is observed about four lines down:

the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch. III ‑

Then if your Honours go down to about point 7, the last paragraph on the page:

During the course of argument, it was submitted that s. 61(1) of the Act exceeds the power conferred on the Parliament by s. 51(vi). It was argued that the possible operation of the section could encompass situations which had no sufficient connexion with the defence of the Commonwealth.

So, their Honours are grappling with the characterisation argument and whether 61 goes too far.  They note that 61 is limited by a consent requirement in section 63 which is still there although it is now the DPP rather than the Attorney‑General.  And then six lines up, I think – this is the second preliminary point:

Secondly, the pre‑1900 legislative history of the power of courts‑martial to try members of the forces for civil offences is relevant to a consideration of the scope of s. 51(vi). Already in 1900, when the Constitution was enacted, legislation both in the United Kingdom and in the Australian colonies contained provisions which conferred such power on courts‑martial.

So their Honours are dealing with the history in order to assist them in answering the question, as your Honour Justice Nettle raised this morning, about the width of section 51(vi) itself and using it in that way, and using in particular the fact that there was already in force at the time of Federation and when 51(vi) was drafted, legislation in materially the same terms as section 61.

What was that legislation?  It was the Naval Discipline Act and the Army Act that I have just taken your Honours to.  I do not think I need to repeat that summary at the top of 542 of the Acts I have just gone to but it is, in our submission, consistent with what I have just put.  Then the second part of page 542:

By the time of federation, each of the Australian colonies had enacted legislation dealing with defence.  That legislation reveals a pattern whereby United Kingdom statutes were invoked, in varying circumstances, to provide for the discipline of the forces . . . It is significant, therefore, that s. 45 of the Naval Discipline Act and s. 41 of the Army Act – these sections being the forerunners of s. 61(1) of the Act ‑ were already operative in this country when s. 51(vi) of the Constitution was drafted.

Then over to the top of the next page, page 543:

This legislative history, and in particular the consideration that, at the time when s. 51(vi) of the Constitution was formulated, there was in existence (and at least partially in force in the federating colonies themselves) the very legislation which after federation was applied to the military and naval forces of the nation is highly significant.

Then in the bottom half of page 543:

During the course of argument we were referred to legislation in the United States, Canada and New Zealand which, in one way or another, treats civil offences committed by members of the defence forces as service offences.

I will not read this passage out, your Honours have already seen it, but it is the historical conclusion that it has commonly been considered appropriate to enact legislation of that kind.

NETTLE J:   Mr Solicitor, is that also the answer to Justices Brennan and Toohey’s concern about the interface with Chapter III?

MR DONAGHUE:   Yes, in our submission, insofar as it is – I should expand that.  In our submission, the answer to Justices Brennan and Toohey’s concerns about the interface with Chapter III is that, where one is concerned with a law that is properly understood as a law about military discipline, that is a topic that does not intercept with Chapter III; it stands apart from it.

So one does not wind back what can be done by way of military jurisdiction by reference to Chapter III, which is perhaps all the more the case when it is realised that the jurisdiction of civil courts is unaffected.  It runs in parallel to this military jurisdiction and for the most part in the criminal context that will be State jurisdiction, in any event.  So it will not directly engage Chapter III considerations.

EDELMAN J:   That is because, is it, of the approach that is taken, at least in White by the joint judgment, that although it is judicial power it is not judicial power of the Commonwealth?

MR DONAGHUE:   Yes, in White but also in Tracey and the cases since.  I think, certainly, at least, five judges and perhaps all judges in Tracey accepted that judicial power of the Commonwealth was a different concept to judicial power.  So, in our submission, that last passage that I have not read out, the “as a matter of history and contemporary practice”, we submit is historically accurate.  It was embraced by Chief Justice Gleeson in both White and in Aird.  In paragraph 4 of both of his Honour’s judgments his Honour agreed with it and it – the reasoning behind it is explained at the bottom of page 543 in that their Honours say:

Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals.  To act in contravention of those standards is not only to break the law, but also to act to the prejudice of good order and military discipline.

So, that analysis, in our submission, is correct and we commend it to the Court. It led their Honours to conclude at page 545 that section 61 is valid. So, it is 545 is the passage identifying the test that I took your Honours to in opening, that was also embraced by Justices Gummow and Chief Justice Gleeson and Hayne in Aird.  You will see that at about point 3”

It is open to Parliament to provide –

Then their Honours conclude at about point 8 on the page:

It follows, in our view, that s. 61 of the Act is validly enacted.

So both the pathway to that conclusion and the conclusion itself are entirely consistent with the submission that the Commonwealth now makes to the Court. 

Can I go then to Justices Brennan and Toohey because their analysis and conclusion is markedly different and it is the discussion from page 554 through to 563 that underlies much of what our friends are putting to your Honours.  Justices Brennan and Toohey start their historical analysis quite a lot earlier.  Your Honours will have seen that Chief Justice Mason and Justices Wilson and Dawson basically say from the Naval Discipline Act and the Army Act it is clear that for decades prior to Federation and at the time of Federation there was this jurisdiction.  Justices Brennan and Toohey go way back to Richard III and the Articles of War in the 14th century, from the bottom of 554:

the King’s Court of the Constable and Marshal –

I do not need to take your Honours through any of this, the Petition of Right.  There is a discussion of the Petition of Right at the bottom of 555 presented to Charles I and, in our submission, when we get in a few pages time to the Court talking about the resolution of the great constitutional struggles, that is what they are talking about.  This is all a reference to the Petition of Right and the struggles between Parliament and the Crown in the 16th century, not to anything more recent than that.

After the Petition of Right there is a discussion of the Mutiny Acts, on 556 – sorry, no, it is still the Petition of Right really through 556 and the first Mutiny Act is mentioned at the bottom of 556 and then 557 we get the Mutiny Acts.  I do need to make a couple of submissions to your Honours about 557.  You will see there is a long quote from Grant v Gould on the top half of the page and then immediately under the quote their Honours say:

The object of establishing courts‑martial being limited to the punishment of breaches of military duty, the ordinary processes of the criminal law were applied to persons subject to military discipline who were charged with offences against the ordinary criminal law.

Well, in our submission, that is only partly true.  It is true if a civil authority sought to exercise their jurisdiction but as your Honours have seen from the Mutiny Act if they did not then the court‑martial jurisdiction was there and available to be used for the ordinary processes of the criminal law. 

The recital to the successive Mutiny Acts contained what Cockburn L.C.J. in Nelson and Brand called “the great constitutional dogma” that “whereas no man may be forejudged of life or limb, or subjected in time of peace to any kind of punishment by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of the realm”.  The words “in time of peace” were inserted in the time of Queen Anne and they are significant for they show that, when the ordinary courts were open, there was no occasion for the exercise of martial law (or military law as it is called in modern times).

In our submission there are, with respect to their Honours, a number of difficulties with that analysis or historical description.  The first is that when your Honours see that reference to the quote from the recital to the Mutiny Acts and the great constitutional dogma, it was not being said that in times of peace there shall be no military law.  To the contrary, the whole point of the Mutiny Acts was to identify the circumstances in which military law would apply and the problem is that the recital continues in terms that carve out from the great constitutional dogma.

So to make that good, can your Honours turn to tab 11 in the supplementary bundle, which I hope is the Mutiny Act 1872, which their Honours are about to discuss, and it will do for present purposes.  Right at the start, on the second page of that extract your Honours will see part of the recital for the Mutiny Act of that year.  On the second page, about six or seven lines down you will see the great constitutional dogma beginning:

And whereas no man can be forejudged of life or limb –

et cetera.

KIEFEL CJ:   I am sorry, Mr Solicitor, which page?

MR DONAGHUE:   I am sorry, your Honour.  If your Honour has the 1872 Mutiny Act ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR DONAGHUE:   The second page.  It has a page 4 in the corner of my print, top left‑hand corner – it is slightly smudged.

KIEFEL CJ:   Yes, thank you.

MR DONAGHUE:   And looking, then, about seven lines down, there is a colon and it says then:

And whereas no man may be forejudged of life or limb –

That is the bit that their Honours, Justices Brennan and Toohey, quote as “the great constitutional dogma”.  But then about two lines down you will see a semicolon:

yet nevertheless it being requisite, for the retaining all the before‑mentioned forces in their duty, that an exact discipline be observed, and that soldiers who shall mutiny or stir up sedition, or shall desert Her Majesty’s service, or be guilty of crimes and offences to the prejudice of good order and military discipline, be brought to a more exemplary and speedy punishment than the usual forms of the law will allow:

Be it therefore enacted –

So the distinction that was being drawn, in the first part of that passage and the bit that follows the “yet” is that martial law is not to be applied in times of peace but military discipline is necessary to be applied to the soldiery.  In the commentary on this – and your Honours will have seen in the submissions various references to Clode, who wrote a number of texts about this - I will not take your Honours to it, but you have the extract in the same supplementary bundle at tab 7.  On page 143 Clode describes that distinction as saying “Martial law” here means military law against the civilian population.  It does not mean military disciplinary law against the soldiery.

What Parliament was doing in the Mutiny Act was denying to the Crown the capacity to apply martial law to ordinary citizens and accepting that it was necessary that it be applied to soldiers in order to achieve military discipline.  So when, at the bottom of the page on Re Tracey at 557, their Honours equate martial law and military law and say “in times of peace” - that the inclusion of the words “in time of peace” means:

that, when the ordinary courts were open, there was no occasion for the exercise of –

military discipline.  With great respect to their Honours, that is just wrong.  It is not an accurate reading of what was being done by the Mutiny Acts. 

Can I ask your Honours then to go on two pages in their Honours’ judgment to 559?  If you still have the 1872 Mutiny Act, you might want to keep it there because you will see on 579 their Honours discussing that Act.  In the middle of the page, there is a quote from section 76:

“NOTHING in this Act contained shall be construed to extend to exempt any officer or soldier from being proceeded against by the ordinary course of law, when accused of felony, or of misdemeanor, or of any crime –

That is clearly correct.  That simply reflects the fact that throughout there has been concurrent military and civil jurisdiction.  So, the conferral of the military jurisdiction did not exempt the soldier from the ordinary civil law.  Their Honours then say, under the quote:

The “misdemeanors and offences herein‑before mentioned” were of a military character. 

That is partially but not completely true because, as your Honours have seen, the body of the criminal law was picked up by the Naval Discipline Act and by the Mutiny Acts.  Then their Honours say – and this is particularly important:

The pre‑ordinate jurisdiction of the civil courts was protected by imposing on commanding officers the duty to assist the civil authorities to apprehend officers and soldiers under their command –

Your Honours might see the echo there from the Mutiny Act I took your Honours to at the start – the 1718 one – with the eight‑day rule.  The eight‑day rule did not survive but in section 76 – which their Honours partially quoted in that passage – it went on to say – and if your Honours still have the Mutiny Act you will see this on page 45 – 76 is at the bottom of page 45.  So, there is the part their Honours quoted: 

Nothing in this Act contained shall be construed to extend to exempt any officer or soldier from being proceeded against –

for any crime or other offence:

herein‑before mentioned; and if any commanding officer shall neglect or refuse, on application being made to him for that purpose, to deliver over to the civil magistrate –

the officer committed an offence and could be cashiered – or was, by force of law, deemed to be cashiered.  So the regime was the same.  There were parallel jurisdictions.  If the civil authorities asked for you – they had to be handed over on pain of punishment to the officer, but if no one asked – if, for example, the offence was committed between two military members neither or whom sought to invoke the authority of the military, or if the offence was committed against a civilian who chose to complain to the military rather than to the civil authorities so that the civil authorities never asked, the court‑martial jurisdiction was there and it could be exercised.

So, again, the conclusion that their Honours have drawn in the middle of that page – that the pre‑ordinate jurisdiction of the civil courts not only was there but if there had to be exercised is not right.  The second step is not right – not borne out by the history.

It was, as it is now, possible for the two systems to co‑exist, recognising that if the civil system goes first, any result in the civil system binds the military system, so it is determinative; there is no double jeopardy.  But if the military system goes first and a disciplinary offence is proved, the ordinary civil law remains available. 

In light of those criticisms, what their Honours then do, having moved on from the Mutiny Act is to go to the Army Act and the Naval Discipline Act and, as I have already submitted, their Honours analyse those Acts consistently with Chief Justice Mason and Justices Dawson and Wilson and we do not cavil with their analysis of those sections. 

The problem is that at 562 their Honours essentially discount the significance of those statutory reforms partly because they view them as a continuation of the Mutiny Acts which have been, we respectfully submit, misunderstood for the reasons that I have just identified and they say, in effect, this is all just the resolution of the major constitutional controversies going right back to the Petition of Right. 

But, again, we respectfully submit that is not so.  The Petition of Right was the height of the struggle between Parliament and the Crown.  That struggle was won by the Parliament which exerted annual authority over the army and by the time several hundred years later when Parliament was quite comfortable that it had control of the armed forces, it granted increasingly greater scope for military jurisdiction to operate in parallel.  By the time of the Army Act you had provision of the width of section 41 which you have seen now just reflected in the Australian statute book. 

So, in our submission, there is no proper historical basis for the conclusions, which I will not read to your Honours again, on 563 which is at the heart of the case our friends put against us.  That page, on 563, it said in effect that if the ordinary civil courts are available – or that military jurisdiction could be exercised only where the jurisdiction of ordinary civil courts was not available.  That is not the case. 

If the ordinary civil courts chose to exercise their jurisdiction then, yes.  But in many cases military jurisdiction could be exercised in parallel as long as no such application was made.  For those reasons, in our submission, one cannot read – one should prefer the analysis in the other joint judgment over this joint judgment. 

Now, your Honours will see perhaps in the middle of 563 that there their Honours seem to be focusing less in terms of power to exercise military jurisdiction and more in terms of policy.  There are a number of references there to the exercise of the jurisdiction that had been granted, and our friends have asked your Honours to have regard to the military manual of the War Office from 1899 as indicative of what the policy was. 

In our submission, it is really almost impossible to know how this jurisdiction was actually exercised in practical terms.  The sources that Justices Brennan and Toohey refer to are not sources that go to that matter.  Their Honours are focusing on the legislation.  The legislation did not have the effect that their Honours attributed to it. 

It is clear from the legislation that Parliament had chosen to confer an extensive military jurisdiction in parallel with the ordinary civil law.  It may well be – probably is the case – that the availability of civil courts was one of the factors that informed the policy judgment whether one should proceed under one system rather than the other. 

But it is not any part of our case to need to deny that because there is no mode of reasoning that we can understand that would translate a policy practice in the exercise of concurrent jurisdiction into a constitutional limitation on power that says the Commonwealth Parliament cannot enact legislation in exactly the same terms as existed, not just in the United Kingdom but also in the Australian colonies, immediately prior to Federation.  That would, in our submission, be a truly extraordinary conclusion to find that because as a matter of policy sometimes the military jurisdiction was not exercised, the Commonwealth Parliament cannot confer it.  In our submission, there is no acceptable way to reason to that conclusion. 

Our friends made something of a point about the Victorian colonial legislation just pre‑Federation and the Commonwealth legislation just after it.  We are not sure why it would matter in principle even if Victoria’s legislation was narrower in circumstances where all the other colonies picked up the Army Act and the Naval Discipline Act - why it would matter from the perspective of power. 

But, just for the sake of completeness, we note that both at the Commonwealth level post Federation and in Victoria, the Acts, to the extent that they limited military jurisdiction to active service, were supplemented by regulations made under the Acts that applied disciplinary laws to many circumstances in which soldiers were not on active service.  So it was just a different model.  You found the relevant rules in the regulations rather than the Act.

We have not given your Honours those regulations but I am perfectly happy to do so if that would be of assistance to the Court – we have not given your Honours the references.

KIEFEL CJ:   Yes, thank you, at some point.

MR DONAGHUE:   The trouble is how much paper to give your Honours. 

KIEFEL CJ:   I gather there is a limited amount of interest.  Some might be. 

MR DONAGHUE:   I certainly was not proposing to take your Honours to them, but we will provide them to the Court promptly after the hearing.  Thank you, your Honour. 

I think I have probably said what I need to say about the manual.  The only remaining point I would make about the manual without going back to it – this is the manual behind tab 52 in the joint book of authorities - is that in its terms, while that manual recognised there was concurrent jurisdiction and said often you would exercise the ordinary jurisdiction, it then immediately goes on to identify a number of exceptions to that rule in terms that are inherently imprecise such that they are not capable of being a constitutional limit. 

So it talks about things like it being desirable if it was important to get prompt punishment or there was consideration arising from the importance of maintaining military discipline.  There were a range of circumstances acknowledged on the face of the policy why the concurrent jurisdiction might be exercised even in relation to an ordinary criminal offence. 

The final point I need to make on our primary submission is just to link back to the significance of the pre‑existing state of the law at the time of Federation.  I have said that it is most unlikely that the defence power would not extend to enacting the very laws with which the framers were familiar. 

The topic of what the Convention Debates might tell us about this is addressed in Chief Justice Gleeson in White, and can I ask your Honours to go to White (2007) 231 CLR 570 which is in, I think, volume 4 tab 39. In the Chief Justice’s judgment, if you start at paragraph 4, you will see his Honour there embracing Chief Justice Mason, Justices Wilson and Dawson’s analysis from Tracey, of the history - at the top of that paragraph referring to comparable legislation in other States, and giving the example of a sexual assault by one defence member on another as an example of circumstances where the requirements of discipline would overlap with those that citizens owe to the ordinary law.  He picks up Chief Justice Lamer in Généreux.  So I rely on all of that without pausing on it. 

If your Honours then move on to paragraph 7, his Honour has just set out a quote from Tracey about – I do not need to trouble your Honours with that quote but it is paragraph 7.  Their Honours Justices Brennan and Toohey went on to say:

the Convention Debates are silent on this point, by which presumably they meant on the relationship between service tribunals and Ch III.  The Debates are not silent on the topic of courts martial. 

His Honour then goes on to refer to various parts of the debate, including at the bottom of that page Mr Barton saying:

“A court-martial is a judicial tribunal, and a Minister cannot affect its decision in any way.

Then at the top of the next page, the most important passage:

Mr O’Connor said:

“You must have some one Commander‑in‑Chief and, according to all notions of military discipline that we are aware of, the Commander‑in‑Chief must have control of questions of discipline, or remit them to properly constituted military courts.  Dr Cockburn has referred to the trial of breaches of military discipline.  Well, I should think that one of the most material parts of any Act constituting the forces of the Commonwealth would be to provide for the mode in which these courts‑martial would be conducted, and the Parliament would have abundant power to decide how these matters were to be conducted, and what the particular form of the court was to be.”

The Chief Justice then says in paragraph 8:

Not only is there “testimony to the absence of any consciousness on the part of the delegates that they were leaving the naval and military forces of the Commonwealth without authority to maintain or enforce naval and military discipline . . . but, rather, it is clear that, as would be expected, the delegates were well aware of the role and functions of service tribunals, and Mr O’Connor told them that Parliament would have “abundant power” to decide how such tribunals were to be –

constituted.  His Honour then says he does not need to repeat the history:

but it is necessary to recognise its importance.

He goes on to refer to O’Callahan and Solorio.  In our submission, that is really just a convenient way of highlighting that the Convention Debates, insofar as they address the topic of courts‑martial, do it in terms suggestive of a wide power for the Commonwealth Parliament to determine how such matters would be conducted.

Your Honours, I can address our alternative argument on the service connection test very briefly. We reach this only if your Honours hold the view it is necessary to engage in some reading down of section 61 of the Act. If your Honours do reach that conclusion and were to apply the service connection test as Justices Brennan and Toohey articulated it in Re Tracey, then in our submission the prosecution in the particular circumstances of this case can reasonably be regarded as serving the purpose of maintaining or enforcing service discipline, which is the test as their Honours articulated it.

In very brief form we would say if you need more than status as a member of the forces, that more is provided sufficiently, one, by the fact that the offence is an offence of violence – that in our submission would be enough.  If we are wrong about that, if you add the fact that the offence is an offence of violence and it is committed against another member of the services, again, that in our submission would be enough.

Can I ask your Honours to go back to Re Aird, which is tab 34, not at any length.  Your Honours have seen some of the key passages in Justice McHugh’s reasons already.  Can I ask you to go to paragraph 32 at the bottom of page 319, where his Honour is in the course of an analysis of the earlier authorities and he has referred to Justices Brennan and Toohey’s views in Tracey.  He then moves on to a discussion of their views in Nolan. 

In paragraph 34 at the bottom of page 320 there is a quote from Nolan which we emphasise, given that it is these two Justices who are the source of the test that is being deployed against us and they said in Nolan:

“Service discipline is not merely punishment for wrongdoing.  It embraces the maintenance of standards and morale in the service community of which the offender is a member, the preservation of respect for and the habit of obedience to lawful service authority and the enhancing of efficiency in the performance of service functions.  Here, the charges are obviously ‘service connected’ but that is not the ultimate criterion though it is an important element –

So, their Honours’ conception of the service connection test is not a narrow one, in our submission, as that passage makes plain.  There is then at paragraph 36 a discussion of the Relford factors.  Our friends have accepted that the Relford factors are not determinative but, nevertheless, most of the particular arguments, I think all, of the particular submissions that were made about why there is no service connection here can be aligned with one or more of the Relford factors. 

So factor 2, it was committed away from the base.  Factor 5, it was committed in peacetime.  Factor 8, the civilian courts are available.  So, our friend’s argument while disclaiming that the Relford factors are decisive actually hooks in at various points to those various factors.  But the point of the analysis in Aird was that Justice McHugh said, well, it is true, he said at paragraph 45, that the Relford factors here:

point strongly against there being a service connection.

If they were exhaustive then there would be no service connection in this case but that is not what his Honour found and the reason is the reason that your Honours have already identified at paragraphs 42 and 43.  His Honour said sometimes there are some offences which are central to the discipline of the defence forces and the offences that he identifies are acts of violence.  So, in paragraph 42 he mentions rape and sexual assault but they are particular examples of the category of acts of violence.  So:

the prohibition against rape goes to the heart of maintaining discipline and morale in the Defence Force.  Rape and other kinds of sexual assault are acts of violence.  It is central to a disciplined defence force that its members are not persons who engage in uncontrolled violence. 

So, his Honour is saying sometimes we do not care about the Relford factors.  There are some kinds of offence that if committed by members of the military disclose a service connection and the paradigm example is an act of uncontrolled violence.  That is enough for us to succeed if we reach that limb of the case.

The plaintiff says, well, the only relevant connection is the fact that he is a soldier but, we submit, for four reasons that is not right, putting them very briefly.  One, he is not just a soldier, he is a soldier who was trained in combat and has served in active combat overseas and, in our submission, where one has the army equipping a person by their training and experience to be a particular danger to their fellow citizens, an offence involving an act of violence has - and this really links in to the point I have just been making by reference to Justice McHugh - but the very fact that what is being deployed in an uncontrolled and unlawful way is skills that have been trained into the member of the armed forces, creates an additional connection between the offence and the disciplinary needs of the armed services.

The second of the four factors is that at the time of the complaint, at the time of the alleged offence, the complainant was also a member of the defence force.  That is a point that Chief Justice Gleeson emphasised in White by reference to Chief Justice Lamer in the Canadian Supreme Court as being particularly reprehensible and distracting from the esprit de corps and mutual respect and trust in comrades.

The third factor is that the offence occurred in circumstances where there were a number of defence personnel present and there were defence personnel present both before and after the offences, so again any trial of these offences has the potential to bring in not just the complainant and the plaintiff, but other members of the armed forces. 

Fourth, and finally, may I ask your Honours to go in the court book to annexure G to the statement of agreed facts which is at page 138.  This is a directive from the Chief of the Army which was issued after the offence in question but before the investigation occurred.  But, in my submission, there is no real significance – temporal significance needs to be attached to the document because, in our submission, this document is really evidence of the reason why the army would be concerned about an offence of the kind that is alleged here, rather than creating some reason for concern that did not previously exist. 

What the Chief of the Army explains, in my submission, in powerful terms in paragraphs 2 through to 4, but particularly paragraph 2, is why this alleged offence has a service connection:

Army exists for the lawful and disciplined use, or threat of use, of violence to protect Australia and its interests.  The ill‑disciplined use of violence on operations is a war crime and at home is a criminal offence.  Australia empowers its Army members with the skills, knowledge and weaponry to apply lethal force.  If Army members engaged in ill‑disciplined use of violence at home or at work, then Army’s confidence in them to execute their duties lawfully and discriminately in circumstances of immense stress on the battlefield is deeply undermined.  Perpetrators of FDV –

family and domestic violence:

are fundamentally at odds with the meaning and profession of soldiering.  As such, FDV is an Army workplace issue.

In our submission, if the Chief of the Army is right about that – and we respectfully submit that of course he is – then if one needs to establish a service connection, one can do so.  But as your Honours understand, in our submission, to go down that path is to take the law down a wrong path, which it has been going down for some time, and if one does not need to engage in an analysis of that kind because the provision means what it says, we respectfully submit that your Honours should so hold.  Unless there are any other questions, those are our submissions.

KIEFEL CJ:   Thank you, Mr Solicitor.  Yes, Mr Game.

MR GAME:   Mr Jones is going to reply.

MR JONES:   Your Honours, addressing the submission that was put before the luncheon adjournment, namely that Chapter III has no role to play in this particular case because service tribunals are outside the scope of Chapter III, in our submission that fails to recognise that service tribunals stand outside Chapter III for a very particular and limited purpose, namely the maintenance and enforcement of discipline. 

Now, that function comes, of course, without any of the rights that are guaranteed by Chapter III, or indeed by Chapter V, picked up indirectly by Chapter V through State law and, therefore, in our submission, the scope of that jurisdiction must be limited to no more than is reasonably necessary to achieve the purpose, that is to say, the maintenance and enforcement of service discipline.  The test propounded by Justices Brennan and Toohey achieves this, and we submit for the reasons Chief Justice Gleeson gave in White, and that appears at paragraph 24 of his Honour’s judgment. 

Turning to the submission in exchange between the Chief Justice and my learned friend, namely that that test, the test of Justices Brennan and Toohey goes too far, in our submission that test conforms entirely with an orthodox proportionality analysis.  I use “proportionality” as a shorthand for “reasonably appropriate and adapted” simply because it is easier to say and that test is as described in the subsequent authorities to which we refer in paragraph 7 of our outline, namely Cunliffe, Leask, in particular.

Now, the concept of “reasonable necessity” has long been the touchstone of the scope of the defence power, particularly in peacetime and, for that proposition, if I could take your Honours very briefly to the Communist Party Case.  That appears in volume 3 behind tab 27.  It is a famous and lengthy judgment, and I will take your Honours to page 226.  This is the decision of Justice Williams, who, of course, had first‑hand experience of the military, having won the Military Cross on the Western Front.  At about point 4 of his Honour’s reasons, he says:

The defence power can only invade subjects which are in most respects within the domain of State legislation to the extent to which it is reasonably necessary to do so for the purposes of defence.

I interpolate there, in the present context – that is, the purposes of maintaining and enforcing service discipline.  If I could borrow from the McCloy test – I appreciate the different context in which that is applied, but the obvious and practical alternative to what has been described in shorthand as the status test or the status view of jurisdiction is that the jurisdiction that was exercised from the beginning of the Federation or, I should say more accurately, when the Defence Act was enacted in 1903, all the way through to 1985, when the Defence Force Discipline Act came into effect ‑ ‑ ‑

KIEFEL CJ:   There is a problem, is there not, though, with applying the test of reasonable necessity in the McCloy test to one which is directed to the question of purpose as answering the sufficiency of connection?

MR JONES:   That is quite true, your Honour.

KIEFEL CJ:   It just does not seem possible to do it.

MR JONES:  The proportionality analysis is relevant obviously to the characterisation of the law in question – here we are dealing with section 61. Because we are dealing with what might be fairly described as the penumbra operation of the defence power, section 61 does not by its terms obviously deal with matters of defence. We are talking about the creation of criminal offences that apply to service members and, in our submission, that proportionality analysis adopts the concept of “reasonable necessity”.

To put it more clearly, to answer the Chief Justice’s question, if the law cannot be characterised as reasonably necessary to maintain service discipline, then it is not a law within the scope of the defence power.  We put it that simply and we say that the historical analysis does show one thing ‑ and I have just adverted to the practice in Australia, at least from the enactment of the Defence Act – and that is it has never been reasonably necessary to apply the full suite of the criminal law to service members at all times in all circumstances.

It was not the case, certainly from 1903 to 1985, encompassing of course peacetime in circumstances not too dissimilar to today – during the Korean War, for example, the Vietnam War – ordinary crimes committed by service members were left to the civilian jurisdiction. That is manifest from sections 55 and 56 of the Defence Act.

There has been no suggestion in any of the authorities, indeed, in any of the history that that did not achieve the fundamental purpose of maintaining and enforcing military discipline.  Indeed, it is a false premise to suggest that it is necessary to enforce that discipline in military or service tribunals when it can be enforced in - the conduct which constitutes a criminal offence can be prosecuted in civilian courts. 

The defence force is not without remedy.  We have already taken your Honours to the powers under the regulations to dismiss members if they commit criminal offences, to dismiss members if their character or their conduct does not conform with the Code or the standards of the military or, indeed, they can be reduced in rank as well. 

That is an equally valid method of, in fact - I say equally valid, it is in recognition of a pre‑ordinate status of the civilian criminal law that conforms with that long‑established practice in Australia, in particular, but also in terms of contemporary practice.  I might note that since Re Tracey or the trilogy of cases the situations in New Zealand and the United Kingdom are fundamentally different.  Certainly, in the United Kingdom under the Armed Forces Act 2006, the military justice system has been largely civilianised and they now have civilian judges with tenure who preside over courts‑martial and that is the same case in New Zealand.

Turning to the submissions regarding Re Aird, it was submitted that the decisions of the three Justices in that case supported the view of Chief Justice Mason and Justices Dawson and Wilson in Re Tracey.  In our submission, a consideration of the reasons does not bear that out.  You might note in particular what Justice Gummow said at paragraph 57, that the case gave “no occasion” for a choice between the two tests – it just simply did not arise.  All his Honour did, at the passages to which my learned friend took the Court, merely recited the relative positions of the competing arguments.

Certainly Justice McHugh in that case did not support it.  Justices Callinan and Heydon rejected the approach, as did Justice Kirby.  Moreover, it is incompatible with what Chief Justice Gleeson had said later in White, in particular at paragraphs 23 and 24, where he clearly embraced the test of Justices Brennan and Toohey.

KEANE J: Mr Jones, your submission, is it that section 61 is beyond power because it is not reasonably necessary and it is not reasonably necessary because of the availability of civil courts and civil law?

MR JONES:   In part, your Honour.  I do not suggest for a moment - Mr Game had addressed the Court on that earlier - that the availability of civil courts is not the only criterion.

KEANE J: But is that not – am I misunderstanding you? I thought you were saying that it is the availability of the civil courts that means that section 61 cannot meet a test of reasonable necessity. It is not reasonably necessary because the civil courts are available.

MR JONES:   That is right.  It is not reasonably necessary where the civil courts are available, and I might add - I appreciate it is a nuanced position because it depends on the circumstances of the particular occasion.  We accept for the reasons – and we adopt the reasons entirely of Justices Brennan and Toohey in Re Nolan in their task of reading down.  We say section 15A of the Acts Interpretation Act warrants the provision to be read down, so that it only applies in circumstances where the proceedings in the service tribunal cannot be regarded as substantially serving the purpose of maintaining and enforcing service discipline.

It is that test, in my submission, your Honour, that answers the question as to proportionality.  If that test is adopted, in my submission, on an orthodox approach to characterising defence power in peacetime, then the law is valid.

KEANE J:   And it does not - it is not substantially advancing the purpose of the defence power because of the amenability of your client to civil process.

MR JONES:   Yes.

KEANE J:   Is that why it is not substantially connected?

MR JONES:   In part, yes, but also because of the, again, as established by practice and history, that the discipline function has two aspects where the civil courts are used as the primary means to enforce discipline, that is to say, where a service member has committed an offence, that is, a crime against the ordinary law, then they are no less - discipline is no less served by them being tried in a civilian court than in a service tribunal.  Secondly, the interests of defence are protected ‑ ‑ ‑ 

KEANE J:   How do you know that?  How do you know that the military are not able to act quicker?  How do you know that the circumstance that the military may take a harsher view is not a better way of securing discipline?

MR JONES:   This goes back to the earlier point I made regarding the limited scope of service tribunals, recognising that they do not conform, or rather that they do not recognise the rights that a service member would otherwise have.  We are talking about - certainly in the less serious‑ ‑ ‑ 

KEANE J:   So, if you just excuse me interrupting you.

MR JONES:   Sorry, your Honour.

KEANE J:   Because you keep saying “in part”, but once again you are saying “the rights they otherwise would have”, so you are coming back to the notion that it is the availability of civil process that is the stumbling block.

MR JONES:   When it comes to ordinary civil crimes, yes, your Honour.

EDELMAN J:   Mr Jones, perhaps ‑ ‑ ‑

KEANE J:   So to accept that submission, we would have to overrule the decisions in all three of the trilogy cases?

MR JONES:   No, your Honour, and I will answer it this way, if I can, by reference to those trilogy of cases.  Now, the charges in each of those cases had analogues in the civilian criminal law, but they were all service offences in that case and the charges were all intimately connected, very directly connected, to the discharge of their military duties.  In the case of Tracey, it was falsifying a service document; in Nolan it was the same; and in Tyler it was dishonestly appropriating housing assistance – all directly related to their military duties.

KEANE J:   But also all cases, fraudulent misappropriation or dishonest misappropriation, all of which could be tried in civil courts.

MR JONES:   Absolutely they could be, your Honour, but the point is this.  Those cases were very – and this is why I appreciate it is a nuanced or a subtle point.  There are two aspects to the test.  When I say the “test” I mean the test of Justices Brennan and Toohey.  First of all, there is the service connection aspect, which is not of itself determinative.  We accept that entirely.  Another aspect is the availability of civilian courts.  That is what their Honours adverted to in their reasons.  But, ultimately, the question has to be answered by a test that they pose:  can the proceedings reasonably be regarded as substantially serving the purpose of maintaining or enforcing military discipline. 

Now, the availability of civilian courts may be determinative.  They may be but, again, it would depend on the circumstances.  Again, that is nothing unusual when we come to the scope of the defence power, particularly in peacetime.  Mr Game has already taken the Court to the authorities on that, which are well established.  Power waxes and wanes.  So it is at its zenith during a time of great conflict and it is at its nadir at a time of peace.  So the test of Justices Brennan and Toohey is no stranger to that proposition.  Hopefully, I have answered your Honour’s question.  I note the time.

KIEFEL CJ:   Just to go back to the question of “reasonable necessity” in the McCloy test, the purpose of that test as part of the proportionality analysis is to determine whether there are measures which have a less restrictive effect on the freedom.  That is not a question which arises here.  You cannot shape the question in the same way here.

MR JONES:   Well, insofar as the adoption of the McCloy test in its full terms, I agree with you entirely, your Honour. 

KIEFEL CJ: The overall question addressed by all of the proportionality testing there is the limits on legislative power but section 61(5) contains its own limits and that is its purpose.

MR JONES:   That is right but - sorry, if I may answer the question this way.  Taking what Justice Dawson, in particular, in Leask, but also Justices Brennan and Gummow in Leask all accepted - and I would - in our submission, to be an orthodox proposition that the proportionality analysis as a tool is appropriate when you are dealing with a purposive power.

KIEFEL CJ:   But “proportionality” there means something different, does it not?

MR JONES:   Well, in my submission, all it means - again, it is a shorthand.  Justice Brennan in Cunliffe said it was synonymous with the other form of the test which your Honour Chief Justice more…..called a “mouthful”, namely reasonably appropriate and adapted to.  We accept that.  That is the test and, as Justice Brennan said in Cunliffe, it is synonymous with proportionality, the notion of proportionality.  It does not go any further.

KIEFEL CJ:   Proportionality as a means and ends test, I think, is really what they ‑ that has been discussed in the cases and I think it might have been described in that way in a few of the cases to which you have referred.

MR JONES:   That right.

KIEFEL CJ:   But that does not take you into McCloy territory.

MR JONES:   No, it does not.  I accept that entirely.  Sorry, I was perhaps being a little bit flagrant in suggesting that McCloy does not.  It is quite evidently a different context.  But if it might assist in that analysis where there is an obvious alternative, then something ceases to be reasonably necessary to the purpose in question, in this case the defence power.

If I can turn to the case of R v Stillman upon which our friends rely, that case occurred in a fundamentally different constitutional context and a fundamentally different statutory context. First of all, the Canadian Constitution has no Chapter III equivalent. In fact, section 91 of the Canadian Constitution, which is the same as section 51 in ours, has a converse position, namely it is expressed to be, notwithstanding anything else in this Constitution, the powers of the Canadian Parliament as such. So constitutionally it is a fundamentally different beast.

The other points in terms of the decision reflect a fundamentally different statutory context with which the court was dealing.  I note that at paragraph 53 of the reasons, one of the factors that the majority had regard to was that the military system largely mirrored the civilian counterpart in Canada where military judges have tenure until retirement, where the military judge is responsible for imposing sentence and where the panel, or the military jury as it is sometimes referred to, must be unanimous, all very different from our system, with majority verdict from the panel and where it is the panel that imposes the sentence or the punishment and where the relevant judge advocate or the judicial officer, if I can use that expression, is not independent in the same sense as they are in Canada.  Moreover, in Canada, unlike our system, there are rights of appeal against both conviction and sentence whereas in our system it is an appeal against conviction only to the Defence Force Appeals Tribunal. 

Just turning very briefly to an exchange between Justice Gageler and my learned friend about section 61 being a code of conduct, in our submission it is not a code of conduct as such, but rather it is a device, makes it a service offence to engage in conduct that is a criminal offence, so that in appropriate circumstances service members can be tried by a service tribunal to maintain and enforce service discipline for the reasons, in our submission, given by Chief Justice Gleeson in White at paragraph 24. 

Again, may I briefly deal with the history submissions made by our learned friends.  In terms of the Mutiny Act of 1718, that was the “difficult to read” version that my friend addressed the Court upon.  Now, that is dealt with by Justices Brennan and Toohey at 558 to 559 in Re Tracey – they acknowledge that position, but the fact remains that from 1749 there was a recognition by the Parliament that the full scope of the criminal law should not apply in peacetime in the United Kingdom. 

Now, the final manifestation of that is reflected in section 1 of the Mutiny Act.  Our friends took the Court to that, which appears behind tab 11 of the joint supplementary authorities.  If I may very briefly draw the Court’s attention to section 1, which appears on page 4.  The provision begins:

It shall be lawful for Her Majesty to make Articles of War -

A little bit later, about point 8, there is a very important proviso:

Provided that no person within the United Kingdom of Great Britain and Ireland, or within the British Isles, shall by such Articles of War be subject to suffer any punishment extending to life or limb, or to be kept in penal servitude, except for crimes which are by this Act expressly made liable to such punishments -

Bearing in mind in 1872 penal servitude for felonies extended to a very, very broad range of offences, there are very few offences in the Mutiny Act for which such penalties are imposed.  I will briefly draw your Honours’ attention to them.  They are dealt with at section 15, which appears on page 9, and section 17, which appears on page 10 and over on 11.  I just may note that those offences are all very closely and directly connected to performance of service duties; they are not the ordinary criminal law or the full suite of the ordinary criminal law.

Your Honour Justice Keane mentioned this morning that the great constitutional controversy or challenge was between the Crown and Parliament over control of the armed forces.  My submission went a bit further than that, not just the battle between the Crown and Parliament over control but also the scope of military jurisdiction.

In our respectful submission, we would adopt what Justice Douglas says in O’Callahan at page 268.  It is a decision of the Supreme Court of the United States where his Honour deals with the history – that appears at volume 4, tab 42.

As for our friend’s submissions regarding the scope of the Naval Discipline Act, your Honours were taken to section 43, which formed part of the miscellaneous offences which applied at all times onshore.  However, one can see – sorry, I should give your Honours the reference – that appears at volume 2 behind tab 24.  The relevant provision upon which our learned friends relied was section 43.

But I just note that from section 27 up to there, the miscellaneous offences are all manifestly service offences – they are not ordinary criminal offences. Section 43 does not pick up the full suite of the criminal law – that is done by section 45 by its terms. In our submission, section 43 is directed to a very different thing, namely what would now be called prejudicial conduct. That offence finds its modern manifestation in section 60 of the Defence Force Discipline Act, and where it refers to, at the last line of section 43, where the sailor is liable to:

suffer other Punishment as is herein-after mentioned -

that is found in section 44, namely:

the Law and Customs in such Cases used at Sea.

It is a very limited, very limited operation, and no fair reading can it be said to be the full scope of the criminal law. 

Very briefly, our learned friends have very kindly undertaken to provide the Court with the regulations that were provided for under the Victorian colonial legislation and the Defence Act1903. We make the observation that those offences that were dealt with by those regulations were all military character, they were not the full criminal law that was picked up by section 41 and that only applied in times of active service.  Now, very briefly, and finally, turning to the application of the service connection test to the circumstances of this case, I will not ‑ ‑ ‑ 

EDELMAN J:   Just before you do, as I understand your submission, it would also have the effect that even some of the service offences would, subject to section 15A, be invalid, such as the service offences in relation to public places and so on.  Even those would be invalid, on your submission.

MR JONES:   I think there are only three, your Honour - two.  There is section 47C, and I think there is a section 45 - please correct me if I am

wrong, I may be mistaken, but they are the provisions to which Mr Game took the Court a little bit earlier, and yes, we would say they would need to be read down to the circumstances that - and they are mentioned, I might say, in the decision of, or the reasons, rather, of Justices Brennan and Toohey in Re Tracey.  They do advert to them.  But we would say that equally the same test would need to apply to them.

Now, I will not repeat what we say in our written submissions upon which we rely, namely, to say this, there is a distinction, in our respectful submission, between breaches of the civil order and service offences and we adopt what Chief Justice Gleeson said in White at paragraph 21 where he made that point and we submit that as abhorrent as the alleged conduct is, it does not follow that military jurisdiction ought to be exercised in these present circumstances where in not only the circumstances where it was committed - and we deal with those in our written submissions, they are not in dispute - but also the relationship between the parties.

In our submission that was a private or social relationship rather than a military one and I might give another example which would commonly occur.  It could be two brothers that are in the ADF and they get into a fight at home with their mother and father.  Now, the mere fact that they happen to be service members in that circumstance, our submission is serendipitous and it does not alter the fact that it is a breach of a civil order rather than a service offence.  One has to have regard to the circumstances.  Again, Chief Justice Gleeson makes that very point in White. 

Finally, as to the Chief of Army directive, of course one can accept the merit of that policy and we have already taken the courts to the various administrative means that the command has to deal with people who breach such matters.  A directive by the Executive can never create jurisdiction if it does not already exist and one need to go no further than what this Court said in the Communist Party Case where, with the exception of Chief Justice Latham, all the Judges made it very clear that it is for the Court to determine, not the Executive, by making, in that case, by recitals to the legislation to determine whether or not something is validly within the scope of the defence power.  I note the time.  Unless I can be of further assistance, those are our submissions.

KIEFEL CJ:   Yes, thank you, Mr Jones.  The Court reserves its decision in this matter and adjourns to 9.30 am on Friday, 3 July in Sydney.

AT 3.49 PM THE MATTER WAS ADJOURNED