R v McBride - [2023] ACTSC 328

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McBride
Citation:	[2023] ACTSC 328
Hearing Date:	13-14 November 2023
Decision Date:	15 November 2023
Before:	Mossop J
Decision:	1. The oral application by the accused for the referral of the questions or statement of a case to the Court of Appeal is dismissed.
Catchwords:	CRIMINAL LAW – STATUTORY INTERPRETATION – Accused charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty” – accused sought a determination of the directions that will be given to the jury in relation to the references to “duty” – whether “general orders” as defined in the Defence Force Discipline Act 1982 (Cth) could define the scope of the accused’s duties – obligations under the Discipline Act not enforceable in civilian courts – lawful orders enforced under the Discipline Act can define the scope of the accused’s duties for the purposes of the offences charged – jury will be directed that the rules of the Discipline Act inform the content of the accused’s duties CRIMINAL LAW – STATUTORY INTERPRETATION – Accused charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty” – accused sought a determination of the directions that will be given to the jury in relation to the references to “duty” – whether the accused had a duty to act in the “Australian public interest” – accused submitted that this duty arose from the terms of his oath and s 45 of the Defence Act 1903 (Cth) – not possible to read the terms of the oath or s 45 in the manner contended for by the accused – the Australian public interest is advanced by compliance with duties imposed by law – accused’s duty does not allow him to act contrary to a lawful order on the basis that it is in the “Australian public interest” CRIMINAL LAW – STATUTORY INTERPRETATION – Accused charged with offences under the Defence Act 1903 (Cth) and the Crimes Act 1914 (Cth) that involve the concept of “duty” – accused sought a determination of the directions that will be given to the jury in relation to the references to “duty” – whether s 122B of the Defence Act 1903 (Cth) resulted in the accused’s duties as a legal officer prevailing over Defence Instructions – not appropriate to resolve these issues at this stage CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Oral application for referral of matter to the Court of Appeal pursuant to s 37E(2) of the Supreme Court Act 1933 (ACT) – effect of referring matter would delay any final determination for months if not years – proceedings on foot in this court since 2019 – referring the matter to the Court of Appeal at this stage is contrary to administration of justice – matter not referred – accused retains rights of appeal
Legislation Cited:	Commonwealth Employees’ Compensation Act 1930 (Cth) Commonwealth of Australia Constitution Act Court Procedures Act 2004 (ACT), s 76 Court Procedures Rules 2006 (ACT), rr 5830-5836 Crimes Act 1914 (Cth), s 70(1) Criminal Code (Cth), s 131.1(1) Criminal Code 1899 (Qld) Criminal Code Act 1924 (Tas), s 110 Defence Act 1903 (Cth), ss 38, 45, 50, 73A, 122B Defence (Inquiry) Regulations 1985 (Cth), regs 63, 78 Defence (Personnel) Regulations 2002 (Cth), Sch 2 Defence Force Discipline Act 1982 (Cth), ss 3, 29, 27, 28, Pt III Disability Discrimination Act1992 (Cth) Legal Profession Act 2006 (ACT), s 585 Legal Profession (Solicitors) Rules 2007 (ACT), r 2.1 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rr 3.1, 4.1, 9.2 Police Act 1892 (WA), ss 7, 9, 19 Police Service Act 2003 (Tas) Police Regulations 1968 (WA), reg 221 Police Regulation Act 1958 (Vic), ss 17, 127A Public Interest Disclosure Act 2013 (Cth) State Service Act 2000 (Tas) Supreme Court Act 1933 (ACT), s 37E(2)
Cases Cited:	Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 Commonwealth v Carter (1965) 7 FLR 223 Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 Commonwealth v Quince (1944) 68 CLR 227 Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; 184 A Crim R 582 Enever v The King (1906) 3 CLR 969 Fletcher v Nott (1938) 60 CLR 55 Groves v Commonwealth (1982) 150 CLR 113 Marks v The Commonwealth (1964) 111 CLR 549 Pense v Hemy [1973] WAR 40 Police Service Board v Morris (1985) 156 CLR 397 Private R v Cowen [2020] HCA 31; 271 CLR 316 R v Hyman & French (1990) 2 WAR 222 Reedman v Hoare (1959) 102 CLR 177 Tasmania v Johnston [2009] TASSC 60; 197 A Crim R 152 The King v Boston (1923) 33 CLR 386 The Queen v District Court of the Northern District of Queensland; Ex parte Thompson (1968) 118 CLR 488 X v The Commonwealth [1999] HCA 63; 200 CLR 177
Texts Cited:	Australian Defence Doctrine Publication 00.6 - Leadership, Edition 1 Australian Defence Force – Philosophical - 0 Military Ethics, Edition 1 Clode, Military Forces of the Crown (vol 2, 1869) Clode, The Administration of Justice Under Military and Martial Law (2^nd ed, 1874) Defence Instructions (General) ADMIN 08-1 Defence Instructions (General) ADMIN 08-2 Defence Instructions (General) ADMIN 20-29
Parties:	The King David McBride ( Accused)
Representation:	Counsel P McDonald SC with C Tran and B Kaplan ( Crown) S Odgers SC with E Kerkyasharian and P d’Assumpcao ( Accused) A Berger KC (Attorney-General (Cth))
Solicitors Commonwealth Director of Public Prosecutions Xenophon Davis ( Accused) Australian Government Solicitor (Attorney-General (Cth))
File Number:	SCC 127 of 2019

MOSSOP J:

Introduction

David William McBride is charged with five offences. They are in summary as follows:
(a)Count 1: Between about 1 December 2013 and about 26 February 2018, the accused dishonestly appropriated property belonging to a Commonwealth entity with the intention of permanently depriving the entity of the property, contrary to s 131.1(1) of the Criminal Code (Cth).
(b)Count 2: Between about 1 August 2014 and about 31 December 2015, the accused, being a member of the Defence Force, communicated documents relating to naval, military or air force information to another person, namely Chris Masters, and that communication was not in the course of his official duty, contrary to s 73A(1) of the Defence Act 1903 (Cth).
(c)Count 3: Between about 1 August 2014 and about 31 December 2015, the accused, being a member of the Defence Force, communicated documents relating to naval, military or air force information to another person, namely Andrew Clark, and that communication was not in the course of his official duty, contrary to s 73A(1) of the Defence Act.
(d)Count 4: Between about 4 April 2016 and about 31 May 2016, the accused, being a Commonwealth officer, published a fact or document, except to some person to whom he was authorised to publish it, which came to his knowledge or into his possession by virtue of him being a Commonwealth officer and which it was his duty not to disclose, contrary to s 70(1) of the Crimes Act 1914 (Cth).
(e)Count 5: Between about 2 May 2016 and about 11 July 2017, the accused, being a member of the Defence Force, communicated documents relating to naval, military or air force information to another person, namely Daniel Oakes, and that communication was not in the course of his official duty, contrary to s 73A(1) of the Defence Act.
As will be apparent from the terms of these charges, counts 2, 3 and 5 allege breaches of s 73A(1) of the Defence Act and count 4 alleges a breach of s 70(1) of the Crimes Act.
For present purposes, the allegations of breaches of s 73A of the Defence Act and s 70 of the Crimes Act are significant because each of the offence provisions involve a reference to the concept of “duty”.
As at the relevant dates, s 73A(1) of the Defence Act provided:
73A Unlawfully giving or obtaining information as to defences
(1)A person who is a member of the Defence Force or a person appointed or engaged under the Public Service Act 1999 commits an offence if:
(a)the person communicates to any other person any plan, document, or information relating to any fort, battery, field work, fortification, or defence work, or to any defences of the Commonwealth, or to any factory, or air force aerodrome or establishment or any other naval, military or air force information; and
(b)the communication is not in the course of the first-mentioned person’s official duty.
The reference to “duty” in s 73A(1)(b) is in the context of the “person’s official duty”.
As at the relevant dates, s 70(1) of the Crimes Act provided:
70 Disclosure of information by Commonwealth officers
(1)A person who, being a Commonwealth officer, publishes or communicates, except to some person to whom he or she is authorized to publish or communicate it, any fact or document which comes to his or her knowledge, or into his or her possession, by virtue of being a Commonwealth officer, and which it is his or her duty not to disclose, shall be guilty of an offence.
The reference to duty arises from the expression “which it is his or her duty not to disclose”.
The accused has sought an indication prior to the commencement of the trial as to what jury directions the court will ultimately give in relation to the references to duty in ss 73A(1) and 70(1). Both prosecution and accused agreed that it was appropriate for the court to entertain argument on this issue prior to the commencement of the trial. They agreed that it was convenient to do so prior to the arraignment of the accused and the empanelment of the jury. Section 76(1) of the Court Procedures Act 2004 (ACT) provides that the Supreme Court has jurisdiction in relation to the conduct of a criminal proceeding against an accused person for an indictable offence after the Magistrates Court has made a committal order. Any orders, rulings or directions that may be made by the Supreme Court for the purposes of a trial may be made prior to the jury being empanelled: s 76(2). The parties agreed that there was jurisdiction to hear argument and rule, to the extent that it was possible, on the scope of the directions to ultimately be given to the jury.
Although the position is somewhat more complicated, there were two principal issues that divided the parties:
(a)Whether or not “general orders” within the meaning of the Defence Force Discipline Act 1982 (Cth) (Discipline Act) could define the scope of the accused’s duty for the purposes of ss 73A(1) and 70(1) or whether their effect was confined so that they only had effect for the purposes of any disciplinary consequences that might flow pursuant to that Act.
(b)Whether or not there was a duty to act in the “Australian public interest” arising from the terms of the oath made by the accused upon becoming a member of the Defence Force in combination with s 45 of the Defence Act that would permit conduct that was inconsistent with a lawful order to be within the scope of his duty for the purposes of ss 73A(1) and 70(1).
The accused contended that general orders only had effect for the purposes of discipline under the Discipline Act and could not be relied upon to define the scope of the accused’s duty for the purposes of a charge under s 73A(1) or s 70(1).
He further submitted that as a result of the oath made by the accused, there may be circumstances where his duty extended to acting in the “Australian public interest”, even where that involved contravening a lawful order that applied to him.

Legislation and instruments

Counts 2, 3 and 5

In relation to counts 2, 3 and 5, s 73A(1) requires the prosecution to prove that “the communication is not in the course of the first-mentioned person’s official duty”.
It will be uncontroversial at the trial that the accused was a Major in the Regular Army and a lawyer. For most of the relevant period, he held a practising certificate issued by the Australian Capital Territory (ACT) Law Society. At the relevant times, he was posted to positions based in Canberra. The communications giving rise to the charges are alleged to have been made to three different journalists. As articulated by counsel for the prosecution, the communications relate to “over investigation of Special Forces troops”. The prosecution proposes to establish that each of the communications was not in the course of the accused’s official duty, by identifying that the communications were contrary to seven different legally established rules. I use the expression “legally established rules” in order to describe them neutrally, because whether or not they define the boundaries of the accused’s “official duty” for the purposes of s 73A(1) is controversial.
The rules identified by the Crown are as follows:
(a)The first two duties are said to arise from the terms of the Defence Instructions (General) ADMIN 08-1 – Public comment and dissemination of official information by Defence personnel.
(b)The third and fourth duties are said to arise from the terms of the Defence Instructions (General) ADMIN 20-29.
(c)The fifth and sixth duties are said to arise from the terms of the Defence (Inquiry) Regulations 1985 (Cth).
(d)The seventh duty was imposed by the professional conduct rules relating to solicitors. Those changed over the relevant period. Prior to 1 January 2016, the relevant rules were the Legal Profession (Solicitors) Rules 2007 (ACT). From 1 January 2016, the relevant rules were Legal Profession (Solicitors) Conduct Rules 2015 (ACT).
The proposition to be advanced by the Crown is that a communication is not in the course of a person’s “official duty” if the person was under a duty not to make that communication.
It is necessary to identify the legal basis for the different instruments said to define the scope of the accused’s “official duty”.

Defence Instructions (General)

Section 29 of the Discipline Act provides:
(1)A person who is a defence member or a defence civilian is guilty of an offence if:
(a)a lawful general order applies to the person; and
(b)the person does not comply with the order.
Maximum punishment: Imprisonment for 12 months.
(2)An offence under subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(3)It is a defence if the member proves that he or she neither knew, nor could reasonably be expected to have known, of the order.
Note:The defendant bears a legal burden in relation to the matter in subsection (3). See section 13.4 of the Criminal Code.
A “general order” is a term defined by s 3 of the Act as follows:
general order means:
(a)a Defence Instruction (General), a Defence Instruction (Navy), a Defence Instruction (Army) or a Defence Instruction (Air Force);
(b)any other order, instruction or directive issued by, or under the authority of, the Chief of the Defence Force or a service chief; or
(c)a general, standing, routine or daily order in force with respect to a part of the Defence Force.
As a consequence of para (a) of this definition, a Defence Instruction (General) is a general order within the meaning of s 3 and hence a general order within the meaning of s 29. This has the effect that a “defence member” must comply with that order as a result of the operation of s 29.
The Defence Instructions ADMIN 08-1 contained two obligations which provide the foundation for the Crown’s first and second duties. The first obligation is that Defence personnel must not provide public comment, official information or images to individuals or organisations outside of Defence without adhering to the procedures detailed in the instruction. It is an agreed fact that the accused had no authority or permission to provide the relevant documents to any of the three journalists.
The second obligation is that Defence personnel “need also to understand that official information acquired in the course of their duties … whether classified or not, must be treated confidentially”. “Official information” is defined in the document. For present purposes, it is not necessary to elaborate upon that definition.
The third and fourth duties arise from Defence Instructions ADMIN 20-29. This instruction requires compliance with the Electronic Defence Security Manual. This imposed obligations said to give rise to the third and fourth duties. The third duty was to only publicly release information if it was approved by the Director-General of Public Affairs. The fourth duty required Defence personnel to ensure that access to classified information was limited to those who have the level of security clearance at least equivalent to the classification of the information.

Defence (Inquiry) Regulations 1985 (Cth)

The fifth and sixth duties are said to arise from the Defence (Inquiry) Regulations 1985 (Cth). These are regulations made under the Defence Act 1903 (Cth).
Regulation 63 of the Regulations creates certain offences relating to disclosure of records or reports of Courts of Inquiry appointed under the Regulations. It applied to a member of the Defence Force: reg 63(10). Regulation 78 of the Regulations provides that reg 63 applies to and in relation to an Investigating Officer appointed under the Regulations as if the Investigating Officer constituted a Court of Inquiry.
The duties relied upon by the prosecution are said to arise from regs 63(1)(a)(i) and 63(1)(a)(ii), as applied to the report of an Investigating Officer.
The fifth duty was a duty not to disclose to a person, or make available to the public generally, information contained in the report of an Investigating Officer except in the performance of the duties of the office of that person.
The sixth duty was a duty not to disclose to a person, or make available to the public generally, a document, part of a document or a copy of all or part of a document forming part of the report of an Investigating Officer if the document or part of a document came into the possession of the accused during the course of his employment.
The distinction between the fifth and sixth duties is that the fifth relates to information contained in a report, whereas the sixth relates to documents forming part of the report.

Solicitors Rules

The seventh duty relied upon by the Crown is said to arise from the terms of the relevant Solicitors Rules. For counts 2 and 3, those are the Legal Profession (Solicitors) Rules 2007 (ACT), and for the purposes of counts 4 and 5, the relevant rules are the Legal Profession (Solicitors) Conduct Rules 2015 (ACT).
Those rules apply to persons holding an ACT practising certificate: Legal Profession Act 2006 (ACT) s 585. Up until calendar year 2015, the accused held an ACT practising certificate.
The relevant rules are those that require a lawyer not to disclose a client’s confidential information and to maintain confidentiality of a client’s affairs.

Count 4

So far as count 4 is concerned:
(a)The first and second duties are the same as the first and second duties relied upon for the purposes of counts 2, 3 and 5.
(b)The third, fourth, fifth and sixth duties all arose from Defence Instructions (General) ADMIN 08-1.
(c)The seventh and eighth duties were the same as the third and fourth duties alleged in relation to counts 2, 3 and 5.
(d)The ninth and tenth duties arose from Defence Instructions (General) ADMIN 08-2.
(e)The eleventh duty was the fifth duty alleged in relation to counts 2, 3 and 5.
(f)The twelfth duty was the seventh duty alleged in relation to counts 2, 3 and 5, imposed by the rules applicable to solicitors.
Before explaining the content of those duties which are alleged for the purposes of count 4, but not alleged for the purposes of counts 2, 3 and 5, I observe that the way in which the Crown has identified the different duties, giving different numbers to the same duties on the different groups of charges, is very confusing and will need to be simplified prior to anything being put to the jury. On my present understanding of the case, there does not appear to be a good reason why the same duty should not have the same number for the purposes of the two groups of charges.

The third duty imposed by Defence Instructions ADMIN 08-1 was that Defence personnel were obliged to obtain clearance before making public comments.
The fourth duty imposed by the same instrument was that in making public and media comments, Defence personnel had a duty not to reveal any information which was protected by a security classification, confidential or privacy marking or details of an accident or incident beyond the confirmed fact that it has occurred and the time and place that it occurred.
The fifth duty also imposed by that instrument was that Defence personnel were not to comment publicly or to the media about Defence and Australian Defence Force activities and related capabilities without authorisation.
The sixth duty imposed by the same instrument was that no official information may be transmitted or appear online in any form without prior approval and clearance. Further, Defence personnel must not engage in public debate in online forums or by other electronic means using official information.
The ninth duty was imposed by Defence Instructions ADMIN 08-2, which imposed a duty on Defence personnel not to use official information in online forums or transmit it by other electronic means without prior approval and authorisation.
The tenth duty was imposed by the same instrument. That required that when Defence personnel engaged in commentary on social media within their professional expertise and were identified or identifiable as Defence personnel, they were obliged to disclose and comment only on information in the public domain.
So far as the twelfth duty, relating to the Solicitors Rules, is concerned, given that count 4 related to 2016, it is the later version of the Solicitors Rules that would be applicable.

Submissions of the accused

The position articulated on behalf of the accused was set out by reference to six points.
First, there was no authority in respect of the content of the duty element in s 73A or s 70.
Second, the accused accepted that:
(a)there was a duty not to disclose confidential information and confidential documents, pursuant to the Defence Instructions in combination with various provisions of the Discipline Act;
(b)he breached those duties; and
(c)such breaches would have been justiciable in a service tribunal under the Discipline Act.
Third, duties created by offences in the Discipline Act are not duties for the purposes of the criminal law offences created by ss 73A and 70 which are justiciable in civilian courts such as this court.
Fourth, the only duty of the accused for the purposes of the criminal offences is to be found in the oath of allegiance that he swore, when he became a member of the Australian Defence Force, to well and truly serve the Sovereign, and that this duty may require action in disobedience of a lawful order. Whether or not action taken in breach of a lawful order was in the “public interest” was not a matter of subjective belief on the part of the accused, but instead was a matter for a jury to determine.
Fifth, if that argument was rejected, the duties under the Defence Instructions did not apply to the accused because of s 122B of the Defence Act, so long as he had a duty as a legal practitioner which was inconsistent with the Defence Instructions.
Sixth, there may be other duties which conflicted with the Defence Instructions, and a particular duty under the Defence Instructions does not reflect the totality of the duties that apply to the accused and directions would need to be given to the jury about potentially competing duties which might justify what the accused did.
At the conclusion of the first day of argument, counsel for the accused made the submission that the questions that he raised should be referred to the Court of Appeal. He repeated that submission on the second day of the hearing, identifying that what he proposed was a statement of the case or referral of questions of law to the Court of Appeal for the purposes of s 37E(2) of the Supreme Court Act 1933 (ACT). I have treated that submission as an oral application for an order to that effect.
I do not consider that to be an appropriate approach either before or after my determination of the issues raised. My reasons for that conclusion will be given at the end of these reasons.
The six points that are raised by the submissions of the accused are most efficiently addressed by dealing with the third proposition, the fourth proposition and then the fifth and sixth propositions together. In summary, my conclusions are that the third and fourth propositions advanced by the accused cannot be accepted and the fifth and sixth propositions are not appropriate for any determination at this stage.

Third proposition: Defence Instructions and Regulations

Overview of submissions

The ultimate submission made by the accused is that s 29 of the Discipline Act does not create a “duty” for the purposes of s 73A. It does not provide a basis for the determination of the “official duty” of the accused person. That “official duty” does not arise as a result of a disciplinary code, internal Defence Instructions or from the provisions creating disciplinary offences under the Discipline Act.
So far as reg 63 of the Defence (Inquiry) Regulations was concerned, the prohibitions giving rise to duties five and six in relation to counts 2, 3 and 5 and duty eleven in relation to count 4 were dependent upon rejection of the accused’s fourth proposition. That was because reg 63(4) provided an authorisation to disclose information and documents “in the performance of the person’s duties”. If there was a generalised duty to act in the “Australian public interest” arising from the oath taken and s 45 of the Defence Act, then a duty arising from reg 63 may not have constrained the accused. Having regard to my rejection of the accused’s fourth proposition, it is unnecessary to determine whether that is the case. Regulation 63, in its application to information and documents of an Investigating Officer, is a legal rule which may define the boundaries of the duty of the accused.
Returning to the contentions of the accused in relation to the effect of the obligations in the Discipline Act, the argument presented on behalf of the accused contained the following steps:
(a)There is a distinction between a legal duty and a “duty of office”. He submitted that such a distinction was recognised in Director of Public Prosecutions (Vic) v Zierk [2008] VSC 184; 184 A Crim R 582, Pense v Hemy [1973] WAR 40 and Tasmania v Johnston [2009] TASSC 60; 197 A Crim R 152.
(b)Section 190 of the Discipline Act, which denies a civil court jurisdiction to try a service offence created by that Act, supports the argument that the Discipline Act is not a basis on which to identify a military officer’s “official duty” for the purposes of s 73A of the Defence Act. Any legal duty which gave rise to disciplinary consequences was not intended to be elevated to the level that meant a breach could have criminal consequences in a civilian court.
(c)Section 29 created a disciplinary offence and was not sufficient to determine the scope of a person’s “official duty”.
(d)Therefore, obligations arising under Defence Instructions, which it was the duty of the accused to obey under s 29 of the Discipline Act, were not legal rules which defined the boundaries of his duty for the purposes of s 73A or s 70.

The Discipline Act

Section 29 of the Discipline Act is set out above. It is one of many service offences created by Pt III of the Act.
Section 190 of the Discipline Act provides:
190 Jurisdiction of civil courts in relation to offences
(1)Subject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence.
(2)Subject to subsection (4), the jurisdiction of a civil court to try a charge of a civil court offence is not affected by this Act.
(4)A civil court does not have jurisdiction to try a charge of a civil court offence that:
(a)is an ancillary offence in relation to an offence against this Act (other than section 61) or the regulations; and
(b)was committed by a person at a time when the person was a defence member or a defence civilian.
A “civil court offence” is defined as meaning “an offence against a law of the Commonwealth (other than a service offence)” or “an offence against a law of a State or Territory”: Discipline Act s 3. Sections 73A and 70 are both “offences against a law of the Commonwealth (other than a service offence)”. As a consequence, the jurisdiction of this court to try the charges in the present case is not affected by the Discipline Act.
That, of course, does not resolve the issue in contention. That issue is whether or not the rules of conduct contained in the offence provisions of the Discipline Act are legal rules which contribute to the definition of a member’s duty for the purposes of ss 73A and 70.
Except for the existence of the authorities to which reference will be made shortly, the answer would have appeared to be obvious. In the context of military service, the scope of the duty of a member of the Defence Force, for the purposes of offence provisions such as ss 73A and 70, would clearly be defined by reference to orders and instructions given statutory effect by laws controlling the conduct of members of the military. It is undoubtedly the case that factual matters such as postings to particular units, whether achieved by formal orders or otherwise, may be matters that determine the scope of a member’s duties. There is no reason why enforceable rules provided by orders or statutory provisions would not also be relevant to defining the scope of a member’s duty.
The alternative proposition, that there is no definition of a Defence Force member’s duty other than by reference to the oath taken to serve the Sovereign and an obligation (somehow arising) to serve the “Australian public interest”, has no proper legal foundation, would be entirely inconsistent with the reality of military duty and would not be a proper interpretation of the references to duty in ss 73A and 70. There is no proper reason why the duties of military officers defined by the legal rules established for the purposes of the military, in order that it may operate as a disciplined force, would not also assist in defining the scope of a member’s duty for the purposes of ss 73A and 70.
However, a number of authorities pointed to by the accused lend some support for the proposition that, at least in the case of police under particular State regimes, disciplinary rules may not define the scope of a police officer’s duty for the purposes of statutory provisions creating criminal offences. These authorities and the extent to which they may, by analogy, support the contention of the accused, will be examined next.

The authorities

The submissions made on behalf of the accused reviewed in some detail the decisions in Pense, Zierk and Johnston. The submissions of the accused appeared to be that, by analogy to the reasoning in those cases, even though the Defence Instructions given effect under the Discipline Act may impose legal rules upon the accused, they did not define “the course of [the accused’s] official duty” for the purposes of s 73A or the “duty not to disclose” in s 70.
The decision in Pense is from Western Australia in 1973. It involved a failure by a police officer to provide medical assistance to a person that the police officer had arrested. While the police officer identified that the prisoner had a “three-inch cut on the side of his head and he is bleeding like a pig”, he also said that, as far as he was concerned, the prisoner “could bleed to death”: at 45. He said to the nurse who had asked the officer to bring the prisoner in for treatment, “you are nothing but a Wongi lover”: see at 45. On the eighth day after his arrest, the prisoner was found to have an open wound to his head about two-and-a-half-inches long, which was showing no signs of healing and was infected. In these rather unedifying circumstances, a majority of the Full Court found that reg 221 of the Police Regulations 1968 (WA) did not create an obligation which could establish “neglect … of duty in his office” within the meaning of the offence provision.
Section 7 of the Police Act 1892 (WA) was the principal statutory provision referred to for the purposes of defining the duties of a constable’s office. It provided that a constable “shall have all such powers and privileges, and be liable to all such duties and obligations as any constable … may have … either by the common law, or by virtue of any statute law…”. The oath taken by a constable was:
… that, while I shall continue to hold the said office, I will, to the best of my skill and knowledge, discharge all the duties thereof faithfully according to law.
The Commissioner had power under s 9 of the Police Act to
… frame rules, orders, and regulations for the general government of the members of the Police Force, as well with respect to their places of residence, their classification, grade, distribution, particular service, and inspection, as to the description of the arms accoutrements, and other necessaries to be furnished to them and all such other rules, orders, and regulations relative to the said Police Force, and the control, management, and discipline thereof as may be necessary for rendering the same efficient for the discharge of the several duties thereof, and for the purpose of preventing neglect or abuse;
The Police Regulations 1968 (WA) included reg 221, which required that where a prisoner in a lock-up required medical attention, an officer in charge was required to promptly arrange medical attention by a qualified medical practitioner or if unable to do so, obtain telephone advice from such a medical practitioner and act upon that advice.
All three judges of the Full Court determined that the Commissioner’s exercise of the power was not “statute law” within the meaning of s 7: Burt J at 43, Hale J agreeing at 41, Wickham J at 47, and hence did not define the scope of the “office” for the purposes of the offence provision. Wickham J, however, went on to hold that there was a common law duty to provide reasonable medical attention for a prisoner in need of it: 47-48. Burt and Hale JJ went on to find that the duty to provide medical attention from a qualified medical practitioner only applied in circumstances where that treatment could only be provided by a qualified medical practitioner, and hence did not cover an injury which could be addressed, as these injuries ultimately were, by a nurse. Wickham J interpreted the language of the relevant regulation as extending to circumstances in which medical attention could be treated with the advice of such a medical practitioner and that the police officer was not relieved of that obligation because a nurse might be able to provide it: 46-47.
Pense turned on the terms of s 7 of the Police Act, which described the duties by reference to the common law or “any statute law”. It was that statement of the duties which was picked up by the offence provision in s 19 of the Act, which referred to “neglect … of duty in his office”.
The conclusion reached by Burt J in Pense was criticised by Brinsden J when sitting as a member of the Full Court in R v Hyman & French (1990) 2 WAR 222 at 235-238. Those comments were expressly obiter dicta, the application for leave to appeal out of time being refused in any event. However, Brinsden J made persuasive criticisms of the conclusions reached by Burt J in relation to the effect that should be given to the power to make rules, orders and regulations under s 9 of the Act, having regard to the terms of the section and its legislative history, as well as the conclusion that the regulations in question were not caught by the language used in s 9.
Zierk involved a police officer who had disclosed certain material to a friend who was charged with a speeding offence. Some of the material was freely available and the rest was otherwise available upon application. It was not established that the exercise of police functions could be said to have been jeopardised. It was therefore not demonstrated that the police officer was subject to a duty of non-disclosure of the information.
The charge was pursuant to s 127A of the Police Regulation Act 1958 (Vic). That made it an offence for a member of the police force to communicate any document which came to the member’s knowledge “by virtue of his office and which it is his duty not to disclose”. The prosecution relied upon the terms of a manual governing members of the police, issued by the Chief Commissioner pursuant to a power in the Act to issue standing orders or instructions.
The prosecution referred to two aspects of the manual and submitted that the duty of non-disclosure arose at common law and was informed by the instructions in the manual. The officer contended that the duty referred to in s 127A(1) was a reference to the kind of duties imposed by the common law and statute and did not extend to orders or instructions issued by the Chief Commissioner. The magistrate, from whom the appeal had been brought, had held, relying on Pense, that “duties must be derived from the common law or statute” and that the terms of the manual did not “reach the status of statute”: [17].
Warren CJ recognised:
(a)The meaning of “duty” is dependent upon the context in which it is used: [18].
(b)Many duties of police are more aptly described as functions: [18].
(c)The duty to obey a lawful order is one example of a legal duty, citing Police Service Board v Morris (1985) 156 CLR 397: [20].
(d)A function or duty of office involves an element of discretion: [22].
It appears that her Honour misunderstood one aspect of the decision in Pense in that she said (at [22]) that, in that case, the constable was held to have failed to comply with the Regulations. As pointed out earlier, notwithstanding the un-attractiveness of the conclusion, a majority of the court found that there had been no breach of the Regulations.
In relation to the obligation in s 127A, her Honour noted the four elements of the offence:
(a)the communication of information;
(b)the absence of authority to do so;
(c)that the information came into the member’s possession by virtue of office; and
(d)it was the member’s duty not to disclose the information.
Her Honour pointed out that the second and fourth duties implied that there may be a situation where a member may not be authorised, but does not have a duty not to disclose the information.
Her Honour found that if s 17 of the Act permitted the Commissioner to create a duty of the member’s office, then the extracts of the manual relating to the release of information did not so provide. The extracts did not purport to create a duty of non-disclosure. They also referred to employees applying the policies using “their common sense, initiative and judgment”, which indicated that there was a discretionary element to the application of the manual.
Her Honour considered that s 17 should be taken as dealing with disciplinary control of constables, leaving the nature of their powers and duties to the common law as modified by any statutes dealing with the subject. “It is not a section that purports to confer, or should be read as conferring, the authority of the legislature to create duties of office”: [28]. As a consequence, any duty of non-disclosure did not arise from the Act or the manual.
Her Honour next dealt with a submission that the duty arose in the course of officers performing other duties that arose at common law: [30]. Her Honour then went on to say that whether a duty not to disclose information exists must be determined by reference to the context: [34]. She said that there must be circumstances almost daily where a member is not expressly authorised to release information but is not under a duty of non‑disclosure: [37]. She then applied “a commonsense approach” which involves considering how the functions of the officer in question and other police officers were impeded by the release of information. She concluded that the disclosure did not impede crime prevention, detection or pursuit of offenders. The information might have assisted the alleged offender to avoid conviction, but the information was either already available, would have been available on application or was possibly exculpatory and then required to be provided by the prosecution. As a consequence, although her Honour expressly declined to “define where the line is to be drawn in determining the existence of a duty”, she found that it had not been demonstrated that the police officer was subject to a duty of non-disclosure of the relevant information.

For present purposes, the only significance of this case is that:
(a)First, it appears to have been determined at first instance on the (incorrect) basis that Pense established a general principle that required that any duty arise from “common law or statute” in circumstances where that requirement turned upon the particular language of the Western Australian legislation.
(b)Second, the standing orders contained in the Victoria Police Manual addressed internal matters of police discipline and did not define the scope of a police officer’s duty for the purposes of s 127A.
Like Pense, the conclusion reached appears to have been influenced by the availability of a body of common law or other statements of a police officer’s duty which then allowed the court to give the terms of the regulations or the manual a confined operation that did not define the scope of the officer’s duty.
Tasmania v Johnston involved some unusual facts. Johnston was the Tasmanian Police Commissioner and was charged with disclosing confidential information to the Premier relating to police investigations. Johnston gave briefing notes to both the Police Minister and the Premier for the purpose of their answering questions in Parliament. This was alleged to be a breach of s 110 of the Criminal Code Act 1924 (Tas) which criminalises the disclosure of facts or documents coming into the person’s knowledge or possession by virtue of his office and which “it is his duty to keep secret”: [29]. An application was made for a stay of the proceedings on the basis that they amounted to an abuse of process because they were doomed to fail. That stay was granted.
In the course of addressing whether there was a duty to keep secret the information, Evans J referred to the decision in Pense. His Honour noted that the decision in Pense had been criticised in Hyman & French, as I have indicated earlier.
His Honour considered whether or not there was a recognised common law duty to keep secret the information in question, and whether the statutory provisions relied upon by the Crown imposed such a duty. So far as a statutory duty was concerned, the Crown relied upon a statutory duty in the Police Service Act 2003 (Tas) to “maintain appropriate confidentiality about any dealing made and information gained” in the course of the officer’s duties. There was a similar obligation relating to public servants in the State Service Act 2000 (Tas). His Honour said that, “The fact that a person has breached the code of conduct in either of these Acts does not necessarily mean that the person, if a public officer, has breached a duty of that person’s office for the purposes of a crime under the Code”: [50]. His Honour identified the issue as being whether the provisions of the Police Service Act and State Service Act imposed a duty which had criminal consequences under s 110 as distinct from disciplinary requirements of the office. In addressing this question, his Honour set out passages from Enever v The King (1906) 3 CLR 969, Fletcher v Nott (1938) 60 CLR 55 at 75 and Reedman v Hoare (1959) 102 CLR 177 at 186. His Honour also referred to other sections in the Police Service Act which made specific reference to a duty. He noted that none of the requirements of the sections relied upon by the prosecution were expressly stated to be duties and that the requirement as to confidentiality stated in those sections was not absolute “but discretionary, in the sense that it calls for an assessment of whether or not the disclosure of information is appropriate”. He identified that to construe such a breach as a breach of duty that exposed the person subject to either Act, who is also a public officer, to a criminal prosecution “is a significant impost”. He drew attention to the fact that only a subset of the police and public servants who are covered by the statutory obligations would also be caught by s 110 of the Criminal Code which applied to a “public officer”, and that this involved “an element of inequity”. He also referred to the consequences of such an interpretation for other obligations in the State Service Act (“act with care and diligence” and "treat everyone with respect") which would be criminalised by different provisions of the Criminal Code.
After further lengthy consideration, his Honour said (at [76]):
My reading of the Police Service Act, s 42(4) and the State Service Act, s 9(7), in the context of the Act containing the particular provision and against the background of the matters I have mentioned, satisfies me that neither provision is intended to impose the duty upon which the Crown seek to rely. Neither provision imposes on persons covered by the Act containing it, and who are also public officers, a duty to keep information secret within the meaning of that term as used in the Code, s 110.
His Honour then went on to examine whether there was a common law duty of confidentiality and concluded (at [81]):
I am unable to derive from the recognised legal duties referred to and the circumstances of this case, a duty as contended for by the Crown. I am unable to find that the defendant in his office as Commissioner of Police was subject to a common law duty of secrecy referable to the information in question.
His Honour then went on to consider whether or not there was any breach if, contrary to the conclusions that he had reached, the officers were subject to a duty to keep secret the information as a result of the statutory provisions relied upon or the common law. He concluded that there was not.
For present purposes, Johnston provides another example where very specific statutory provisions were held to not give rise to a duty of non-disclosure for the purposes of a prohibition in a separate Act.
A number of points may be made about these authorities. Each turned upon the specific laws and instruments applicable to the circumstances of the case. As pointed out earlier, the correctness of the statutory interpretation exercise in Pense was persuasively criticised in Hyman & French. Pense and Zierk may be understood as being significantly influenced by the fact that the powers of police officers were either stated elsewhere in statute or were defined by a significant body of common law. Because the legislation operates against the background of the “duties and powers that attached to the ancient office of constable” (Reedman v Hoare at 186), it was much easier to make the argument that the rules were non-definitional of the scope of the relevant officer’s duty. The broad role of the common law relating to the definition of the “powers and duties” of constables was also referred to by Griffith CJ in Enever at 979. I do not treat any of the three cases, Pense, Zierk and Johnston, as establishing general principles which would be applicable to a different disciplined service, namely the military, the scope of whose duty is, in Australia, defined by statute.

The effect of the Discipline Act

The rules of conduct in the Discipline Act are, self-evidently, contained in an Act of Parliament. They are not obligations arising from subordinate instruments. In the case of s 29, the statute gives statutory effect to subordinate instruments.
The fact that the rules in the Discipline Act are not directly enforceable in the civilian courts is significant. However, it does not mean that the rules may be ignored when assessing the content of a member’s duty for the purposes of either the Defence Act or the Crimes Act. They remain statutory rules of conduct which define the duty of a member. There is no adequate reason why those rules of conduct may not be picked up by other statutes as elements of a member’s duty. To treat them as establishing a completely separate regime which could not be used to define the scope of a member’s duty would result in the anomalous situation where factual issues, such as where a member was posted and the task that the member was given to perform, would be able to be considered when determining the scope of the member’s duty, but all of the statutorily mandated constraints upon the exercise of those functions would be ignored.
I do not consider that the police cases require a different conclusion. Each turned on the specific statutory provisions in question. They related to a disciplined force but not to a military force in which discipline is of central importance. The existence of an established body of common law defining the functions of police officers provided a more secure foundation for an argument that the scope of the officer’s duty could be found other than in the specific disciplinary rules in question. In contrast, on the accused’s argument, the content of the duty would be contained principally in s 45 of the Defence Act and the oath that was required by the relevant regulation at the time of the accused’s enlistment. The terms of s 45 are set out later in these reasons (see [98]). Even if they had the effect contended for by the accused, they would not provide any adequate definition of the duty of the accused. As will be described shortly, the terms of s 45 do not provide a general duty to act “in the Australian public interest”, even if that involves disobedience to orders or instructions. The consequence is that unless the rules provided by the Discipline Act are available to provide content to the duty of the accused, the law will provide very little content. Anomalously, the duty of the accused would be defined by factual matters such as postings or instructions deprived of the legal content which, in reality, defines the nature of his service at the relevant times.

Fourth proposition: A general duty to advance the public interest

Submissions

Counsel for the accused submitted:
The accused had a duty to courageously stand up for what he believed was right and to speak out robustly and openly against what (he believed) was wrong in the Australian Defence Force. To the extent that this duty conflicted with any other duty, the determination where his official duty lay turns on whether his conduct was reasonably necessary to advance the public interest.
The submissions commenced by identifying the legislative history of the language used in s 73A. This identified that the language was originally contained in the Defence Act 1903, s 73(4), and that s 73A was enacted in 1917. The progenitor of s 73(4) was identified as being in s 84 of the Criminal Code 1899 (Qld).
The submissions of the accused identified that, as at 1917, every person “enlisting in the Active Forces as a soldier or sailor” was required to take the oath set out in the third schedule to the Act, which provided:
I swear that I will well and truly serve Our Sovereign Lord the King in the Forces of the Commonwealth of Australia for [the term of] years or until sooner lawfully discharged dismissed or removed and that I will resist His Majesty’s enemies and cause His Majesty’s peace to be kept and maintained and that I will in all matters appertaining to my service faithfully discharge my duty according to law. So help me God.
That oath was identified as binding the person “until he is legally discharged, dismissed, or removed therefrom, or his resignation is accepted”: s 38.
Next, the accused identified that the oath of allegiance that he took as a commissioned officer of the Australian Army was that set out in the Defence (Personnel) Regulations 2002 (Cth), which was to the following effect:
I, (insert full name of person) swear that I will well and truly serve Her Majesty Queen Elizabeth the Second, Her Heirs and Successors according to law, as a member of the Australian Army for the period [set out] and that I will resist her enemies and faithfully discharge my duty according to law.
Counsel submitted that the words “according to law” qualified the word “discharge” so that there was a separate issue as to what constituted the soldier’s “duty” as distinct from how that duty was “discharged”.
Critically, the accused then submitted:
The duty to “well and truly serve” the Sovereign should be understood, under the Australian constitutional framework, as a duty to advance the (Australian) public interest.
This was said to arise either as a result of the operation of the oath in combination with s 45 of the Defence Act, or by virtue of the common law. Section 45 of the Defence Act provides, “Members of the Regular Army are bound to render continuous full time military service”.
The accused then referred to and quoted from three Defence publications. Those documents are not asserted to have any particular legal status. However, the passages relied upon are as follows:
Australian Defence Force – Philosophical - 0 Military Ethics, Edition 1:
(a)Page 1: “Acting ethically is a lifelong duty to ourselves, our profession and our nation.”
(b)Page 3: “The relationship between ADF members and the Australian people is one of service. The ADF exists not to serve itself, but to serve our nation, our national interests and our people.”
(c)Page 20: “… In acting ethically [members of the ADF should] … be guided by the Defence Values …” These are said to involve “integrity” and “courage”.
Australian Defence Doctrine Publication 00.6 - Leadership, Edition 1 paragraphs 2.34‑2.35:
No one is above the law and actions by the government must be sanctioned by the law. Under the rule of law, a country’s military has an obligation to obey and uphold the law, that is to defend the rule of law as an important social value and to ensure obedience to the law.
…
Military leaders will occasionally be confronted by ethical dilemmas on operations and in their careers. To fire upon children brandishing enemy weapons or to interrogate prisoners withholding imminent ambush information are two contemporary examples. By their very nature, dilemmas have no easy answers. Nevertheless, leaders are expected to apply moral sensitivity and be able to ethically justify their decisions and actions. The Government, and indeed the civil population, expects military leaders to know what ought to be done in these and other ambiguous situations.
Paragraph 3.10:
Integrity. Doing what is right. We behave honestly and ethically, and demonstrate the highest standards of probity in our personal conduct. We act fairly and accept personal responsibility for our decisions and actions. We build trust through productive working relationships. We do not allow mateship to be misused to cover up bad behaviour or bring the organisation into disrepute. Our actions will clearly match our words.
Courage. The strength of character to honour our convictions (moral courage) and bravery in the face of personal harm (physical courage). In Defence we stand up for what we believe is right and we speak out robustly and openly against what is wrong.
It is on this basis that the accused makes the submission referred to earlier. The ultimate submission appears to be that the duty to serve reflected in the oath and in the use of the word “service” in s 45 of the Defence Act necessarily gave rise to a duty to serve “the public interest” or the “Australian public interest”. That was put on the basis that this duty may predominate over the specific legal rules identified by the Crown. Applied to the circumstances of the present case, the submission that was put was:
The jury must be satisfied beyond reasonable doubt that a communication could not be regarded, given the existing circumstances, as a carrying out of [the accused’s] official duty to serve the public interest. That is, the Crown must eliminate any reasonable possibility that the communication could be regarded, given the existing circumstances, as a carrying out of the accused’s official duty to serve the public interest.
Unsurprisingly, counsel for the Crown submitted that the central duty of a military officer is to follow orders and that this was established as a matter of authority and a matter of history.

Decision

I do not accept the submission that there was a duty to act in the public interest arising from the terms of the accused’s oath that would conflict with other legal obligations imposed upon the accused. The submissions put on behalf of the accused suggested that there might be a duty to act in what the jury believed to be the “Australian public interest”, even in circumstances where that supposed duty would conflict with specific legal obligations that he may have. That submission contemplated that the accused would not be acting contrary to his duty or outside the scope of his duty where he was acting directly contrary to a lawful order if a jury found that he was acting in the “Australian public interest”.
I do not accept that the terms of s 45, either by itself or in combination with the oath that he swore, or any of the general publications by the ADF to which the submissions referred, had the effect of creating, as an aspect of his duty, an entitlement to act contrary to specific legal rules that were imposed upon him. Rather, the scope of his duty was defined by those legal rules and, to the extent that it is relevant, the Australian public interest and the interests of the Sovereign must be seen as being advanced by compliance with those duties which the law imposed upon him.

The oath

So far as the oath is concerned, counsel for the accused did not identify that the Defence (Personnel) Regulations or any other Defence legislation expressly gave the oath the effect for which he contended.
The obligation recognised by the oath is to “faithfully discharge my duty according to law”. I do not accept the submission that the words “according to law” are confined to the manner of discharge of the duty so as to allow there to be a duty which does not operate “according to law”. The words “discharge my duty according to law” are a combined expression in which the duty and its discharge are both defined by law. It is not open to read that combined expression as contemplating the possibility that there is a duty not defined by law and then, separately, the manner of its discharge which is defined by law. Any duty that was contrary to law would not be able to be discharged and, as a consequence, not being able to be carried into effect, could not readily be described as a duty at all.
Section 45 of the Defence Act and its reference to “service” cannot, on any view, either by itself or in combination with the oath, give rise to an entitlement such as that asserted. Section 45 is simply a provision which creates the obligation for “continuous full time” military service as distinct from service in the Army Reserve which, by s 50, is not, except in defined circumstances, “continuous full time service”. The use of the word “service” in s 45 cannot reasonably be interpreted as giving rise to a duty to act in the “Australian public interest” that is, by some unspecified means, elevated above other legal obligations that apply to the member.
Counsel for the accused sought to argue by analogy from the statements of Isaacs and Rich JJ in The King v Boston (1923) 33 CLR 386 at 399-400 about the duties of a member of Parliament. In that case, their Honours said of such a member:
The fundamental obligation of a member in relation to the Parliament of which he is a constituent unit still subsists as essentially as at any period of our history. That fundamental obligation, which is the key to this case, is the duty to serve and, in serving, to act with fidelity and with a single-mindedness for the welfare of the community.
(Emphasis in original.)
I do not accept that there is any relevant analogy available. I do not accept that it is possible to take this judicial statement about the nature of a duty of a member of Parliament and apply it in a completely different statutory and organisational context to a member of the military under the Defence Act. It certainly cannot provide any support for the existence of a duty divorced from the specific requirements of the relevant statutes read in their appropriate historical context.

Statute

Apart from the oath and s 45 of the Defence Act, no other statutory authority was pointed to which would give rise to an entitlement as an aspect of the accused’s duty to undertake acts in the “Australian public interest” that were contrary to lawful orders that he had been given.
The Discipline Act makes it clear that there is a duty to obey a lawful command of a superior officer (s 27) or of a lawful “general order” such as a Defence Instruction (s 28).
The Defence Act and the Discipline Act exist against a background which assumes the importance of a disciplined force that follows lawful orders. The obviousness of that proposition has meant that the courts have not been required to directly confront an argument such as that presented in the current case. However, judges of the High Court have, in other contexts, made reference to the centrality of discipline and compliance with lawful orders.
In Commonwealth v Quince (1944) 68 CLR 227, the High Court held that the action per quod servitium amisit (an action for damages consequent upon a tortious injury to a servant) was not available to the Crown in respect of the loss of services of a member of the Royal Australian Air Force. Williams J (who was in dissent as to the result) described (at 255) the obligation of a member of the Air Force to obey orders in the following terms:
The oath is an oath to serve the King in person according to its tenor. Service in the Air Force, as in the naval or military forces, involves in its most absolute form the right of a member superior in rank to give lawful orders to a member inferior in rank, and the obligation of the member inferior in rank to obey those orders.
Notwithstanding that Williams J dissented in the result, the statement that he made is completely orthodox.
I do not accept the submission made by counsel for the accused that the statements quoted from Williams J or those remarks of Latham CJ (at 234-235) which were also referred to, are affected by the fact that those judges were in dissent as to the result. Each of Rich J (at 243), Starke J (at 245, 246) and McTiernan J (at 250) also relied upon the very different nature of the relationship between the Crown and members of the military when compared with that of a master and servant in reaching the conclusions that they did.
Some reliance was placed by the accused upon the statement in the judgment of McTiernan J (at 250):
His enlistment was an engagement for public service: for the defence and security of the community. As public service it was “for the public benefit” or the “good of the public” and could not at common law be the subject of a contract consisting of mutual promises (Dunn v The Queen [(1896)1 QB at pp 118, 120])
Neither that passage nor the case from which the references to “for the public benefit” or “good of the public” are drawn, support the proposition that there was some independent entitlement arising from the accused’s oath to disobey a lawful order.
In Marks v The Commonwealth (1964) 111 CLR 549 (a case about the capacity of an officer to resign), Windeyer J (at 573) made reference to the background of the common law and traditional practices and customs established in the military service of the Crown as being background matters against which the Defence Act must be seen:
And each statute must be seen against a background - in the case of the Defence Act against the background of the common law and the traditional practices and customs established in the military service of the Crown and recognized by the common law in 1903 when the Act was passed.
The relationship of members of the armed Services to the Crown differs essentially from that of civil servants whose service is governed by the regulations of the Public Service. The members of the Forces are under a discipline that the others are not: they have duties and obligations more stern than theirs: and rights and privileges that they cannot claim. As Dixon C.J. said in The Commonwealth v. Welsh [(1947) 74 CLR 245] "The relation to the Crown of members of the armed forces is no new subject; the rules of the common law define it. The regulations are not to be read in disregard of those rules and of the long tradition to which they have contributed" [(1947) 74 CLR, at p 268]. He was speaking of statutory regulations having the force of law. His remarks are equally applicable to the Act itself: see too The Commonwealth v. Quince [(1944) 68 CLR 227].
In The Queen v District Court of the Northern District of Queensland; Ex parte Thompson (1968) 118 CLR 488 (a case about conscientious objection), McTiernan J said (at 497):
It is an integral part of military service in the military forces of the Commonwealth that a member of these forces must obey any lawful orders of a superior or commanding officer given to him to do or refrain from doing, as a member of these forces, certain acts (The Commonwealth v Quince [(1944) 68 CLR 227]). Any act done in obedience to such orders is a form of military service. A person who is liable to render service under the Act, if not granted an exemption under s. 29A, is liable to be lawfully ordered and required to perform any act that a member of the military forces of the Commonwealth at that time may be commanded to perform.
In Groves v Commonwealth (1982) 150 CLR 113 (a case about negligence), Brennan J said (at 137-138):
Second, the existence of a general duty of care does not impair the duty of obedience to lawful commands. The dictates of military law require a serviceman to execute the lawful command of a superior officer (Naval Discipline Act 1957 (UK) s. 12(a); Army Act (UK) s. 9(2); Australian Military Regulation 203(1)(xiv); Air Force Act (UK) s. 9(2); Air Force regulation 226(h); and see The Commonwealth v Quince [(1944) 68 CLR 227, at p 254]).
In X v The Commonwealth [1999] HCA 63; 200 CLR 177 (a case about the operation of the Disability Discrimination Act1992 (Cth)), Callinan J made reference to the obligations of members of the Defence Force and said that they were largely governed by statute and regulation. However, his Honour made reference (at 233) to the historically recognised special nature of military service described by Clode in his Military Forces of the Crown (1869) volume 2, chapter 15, paragraph 112, where he said:
In the first place, he is bound to obey and to give his personal service to the Crown under the punishments imposed upon him for disobedience by the Mutiny Act and Articles of War. No other obligation must be put in competition with this; neither parental authority nor religious scruples, nor personal safety, nor pecuniary advantages from other service. All the duties of his life are, according to the theory of Military obedience, absorbed in that one duty of obeying the command of the Officers set over him.
Edelman J also relied upon Clode’s work in Private R v Cowen [2020] HCA 31; 271 CLR 316, quoting with approval (at [193]) a passage in which Clode said:
Obedience must be implicitly exacted by each responsible officer, “for nothing (even in Civil affairs) can be more dangerous than to allow the obligations to obey a law to depend on the opinion entertained by individuals of its propriety,” [Fergusson v Earl of Kinnoul 9 Cl and Fin p 324] and in military affairs it would be intolerable.
Those words are particularly apt in the present case, where a similar contention is advanced.
While on the topic of Clode’s work, it is notable that shortly after the page cited by Edelman J, discussing the extent of orders that may be made in peacetime, Clode says:
Possibly in matters of quasi-social or political importance a controversy may arise, but “it would,” said the late Sir Robert Peel, “be utterly impossible to maintain discipline if soldiers were allowed to be political partisans, correspondents to newspapers, or members of political clubs. Then, indeed, a standing Army would be in truth a curse – then they [the House of Commons] might bid farewell to Liberty.
Finally, departing for a moment from High Court authority, in Commonwealth v Carter (1965) 7 FLR 223 (a case relating to a workers compensation claim by a member of the Air Force), Smithers J, when considering the application of the Commonwealth Employees’ Compensation Act 1930 (Cth), said (at 227):
The duty of the enlisted man towards his “employer” does not arise by contract but out of the provisions of the Air Force Act, the regulations thereunder and the oath which he takes on enlistment. In that oath he swears that he will well and truly serve our Sovereign Lady the Queen in the Air Force of the Commonwealth of Australia for the term of … years … and that he will resist Her Majesty’s enemies and cause her Majesty’s peace to be kept and maintained and that he will in all matters appertaining to his service faithfully discharge his duty according to law.
Within this broad charter the airman is bound to obey the lawful orders which he receives from time to time from a superior in rank. The class of acts to be performed by an airman includes, therefore, all those things which he may lawfully be ordered to do.
None of these authorities involved a question such as arises here. All of them are comments made in the context of considering other legal questions. They are therefore, in one sense, of limited assistance. However, none of them recognise a duty of a military officer arising pursuant to the oath taken, or otherwise, to act in the public interest when that is in direct contravention of a lawful order. On the contrary, the authorities recognise that discipline within the military is dependent upon the obligation of members to comply with a lawful order. The absence of any reference to any independent aspect of a member-of-the-Defence-Force’s duty being to disobey a lawful order in the “public interest” or “Australian public interest” is because there is no textual, common law or historical foundation for the existence of such a duty.
I will therefore be directing the jury on the basis that there is no aspect of the accused’s duty as a military officer arising by virtue of the oath that he took at the commencement of his service that allows him to act in the “Australian public interest” where that is contrary to a lawful order that he has been given.

Fifth and sixth propositions

The fifth proposition was that s 122B of the Defence Act had the consequence that the accused’s duties as a legal officer would prevail over the Defence Instructions. The sixth proposition was that it would be necessary to give directions to the jury as to the potential for there to be competing duties that conflicted with the Defence Instructions in a way that may justify what the accused did.
The submissions made on behalf of the accused in relation to the operation of the Solicitors Rules differed as between his written and oral submissions.
In written submissions, counsel for the accused submitted that the Solicitors Rules were, even more clearly than the Defence disciplinary codes of conduct, rules which did not create or constitute an official duty that might give rise to an offence under the criminal law. He submitted that it was “unlikely in the extreme” that an ethical breach by a lawyer which might be the subject of a disciplinary finding could found the commission of a criminal offence under s 73A.
In any event, counsel for the accused submitted that the duty not to disclose confidential material of a client would not operate in all circumstances. The 2007 Rules contain certain exceptions to the confidentiality rule: rr 2.1(b), 2.1(c). So too do the 2015 Rules: rr 9.2.2, 9.2.4. He submitted that the accused would not be acting contrary to an ethical duty “if disclosure of that document was believed to be necessary in the public interest”. In support of that contention, he referred to rr 3.1 and 4.1 of the Solicitors Rules which indicate respectively that a solicitor has a paramount duty to the administration of justice and must “avoid any compromise to their integrity and professional independence”.
However, in oral submissions counsel advanced his fifth point, which elevated the role of the Solicitors Rules. Instead of downplaying the significance of the Solicitors Rules, the submission was made that s 122B of the Defence Act had the effect of elevating the duties that the accused had, so that they prevailed over any inconsistent orders that would otherwise have applied to him. Section 122B provided:
122B Exercise of rights and discharge of duties and obligations by legal officers
A legal officer acting in that capacity is entitled to exercise his or her professional rights, and discharge his or her professional duties and obligations, in accordance with the generally accepted rights, duties and obligations applying to legal practitioners.
“Legal officer” and “legal practitioner” have the same meaning as in the Discipline Act. The submission was made that, as a consequence of the terms of s 122B, any Defence Instruction that was inconsistent with the exercise by a legal officer of his professional duties and obligations would not bind him. That was said to be consistent with the terms of s 29 of the Discipline Act which requires that a lawful general order “applies to the person”. The submission was that such an order would not “apply” to the accused if his conduct was protected by s 122B.
In support of the proposition that the conduct of the accused may be protected by s 122B, reference was made to the Solicitors Rules insofar as they permitted disclosure of confidential information “for the sole purpose of avoiding the probable commission of a serious criminal offence” and the “duty to … the administration of justice”. Counsel also submitted that there was a public interest qualification upon the circumstances in which courts would enforce requirements of confidentiality. That submission was made by reference to Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 10 NSWLR 86 at 191 and Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 52.
Counsel for the accused submitted that how the Solicitors Rules apply will depend upon the evidence given during the trial. As a consequence, he submitted that it was a matter that it was not possible to make a ruling on at this stage.
So far as the sixth proposition was concerned, the submission was made that there may be conflicting duties which were applicable to the accused, which may require directions to the jury in order to explain how any conflict between those duties was to be resolved. Reference was made to the terms of a statement prepared by Colonel James Field, which set out a number of documents which described the duties of an Australian Army Legal Corps Legal Officer at the rank of Major at the relevant time. Counsel also referred to a directive from the Chief of Army dated 25 January 2021 and submitted that the terms of that document would be consistent with duties that existed at the time of the alleged offending.
Neither the fifth nor the sixth propositions raise issues which it is appropriate to attempt to resolve at this stage. What directions are required to be given to the jury will depend upon the evidence that is given at the trial. Once the scope of the evidence is known, it is likely that directions addressing the scope of the duties of the accused will need to be given. That may involve resolving a question of law as to the status of particular instruments or obligations. However, there is no overarching question of law that may be resolved in a way that is determinative of the scope of the trial.

Evidence

For the purposes of argument on the matters raised by the parties, they put before me a number of documents that went beyond authorities about the law.
They included:
(a)MFI A: a statement of Colonel James Field dated 10 November 2023.
(b)MFI B:
(i)CA Directive 03/21 “Bystander Behaviour”.
(ii)The oath in Sch 2 of the Defence (Personnel) Regulations 2002.
(iii)The oath in the schedule to the Commonwealth of Australia Constitution Act.
(iv)Statement of Stephen Coleman dated 11 November 2023.
(c)MFI C: A letter to the accused dated 8 April 2013.
(d)Defence Instructions (General) ADMIN 08-1, 08-2, 20-29 and extracts of the Electronic Defence Security Manual contained in tabs 8 to 11 of the Crown’s “List of Material”.
(e)Australian Defence Force – Philosophical - 0 Military Ethics, Edition 1 at tab 27 of the Crown’s “List of Material”.
I treated these documents as being documents which would be relied upon by the Crown in order to establish the scope of the duty of the accused, or alternatively which would be relied upon by the accused, if his legal contentions were accepted, in order to establish either the scope of his duty or duties which he would contend were in competition with the duties contended for by the Crown.
Counsel for the Crown had a specific objection to document iv in MFI B, the statement of Stephen Coleman. That was a statement prepared by him on 11 November 2023, the Saturday prior to the commencement of the hearing, and served shortly prior to the hearing commencing. Dr Coleman is an Associate Professor of Ethics and Leadership at the University of New South Wales. He has published a book about military ethics. His statement gives “an account of what is taught about the meaning of duty at the Australian Defence Force Academy”. He provides such an outline. The submissions did not make clear how such a statement might be admissible at trial. It may have been sought to be admitted at the trial in the event that there was a freestanding duty to pursue, in contravention of orders or instructions, the “Australian public interest”. As will be apparent from what I have already said, I have not accepted that such a duty exists.
Having regard to the manner in which the present hearing was conducted, I consider that it is sufficient to mark each of these documents for identification as being documents referred to during the course of argument which the parties may seek to tender at trial. If any of the parties consider that I should formally mark them as exhibits, albeit in a series of exhibits separate to the trial exhibits, then they can make that submission.

Referral of the matter to the Court of Appeal

Submissions

At the end of the first day of argument, counsel for the accused submitted that it would be appropriate to refer the questions raised to the Court of Appeal. On the second morning, he made it clear that what he was proposing was the stating of a case for a question reserved to the Court of Appeal pursuant to s 37E(2) of the Supreme Court Act1933 (ACT). That section provides:
(2)The following matters may be brought before, and heard by, the Court of Appeal:
…
(c)cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal;
Rules 5830-5836 of the Court Procedures Rules 2006 (ACT) set out the procedure to be followed in relation to such a referral or case stated.
In support of adopting such a course, counsel for the accused submitted that there were six matters that favoured such a referral.
First, the questions would be of significance for the purposes of four out of the five charges on the indictment.
Second, the answer to those questions would have an impact upon the duration of the trial.
Third, the accused was of limited means and would not be able to afford a second trial if, following a successful appeal, such a trial was ordered.
Fourth, there was no direct authority on the questions that were argued.
Fifth, they were complex and difficult questions.
Sixth, a jury had not been empanelled and hence there was no compelling reason why the matter should not be referred in circumstances where the accused was not in custody.
The suggestion that the matter be so referred was opposed by the Crown.

Decision

It is not appropriate to state a case or reserve a question to the Court of Appeal.

So far as the particular submissions were concerned, my conclusions are as follows. I accept that the questions that I have addressed will be of significance for four of the five charges. I also accept that the answers will affect the duration of the trial. As I understand it, the answers that I have reached will tend to reduce rather than expand the length of the trial. There was no evidence of the means of the accused. I infer from what I have been told that he is not legally aided and that, as a consequence, if an appeal was allowed and a retrial ordered then that would be a very significant financial burden upon him. I accept that there is no direct authority on the points argued. It does not matter whether I would characterise the issue as complex and difficult. I accept that no jury has presently been empanelled.
In my view, it would be contrary to the proper administration of justice to refer a question or state a case to the Court of Appeal at this stage.
The accused was committed for trial on 30 May 2019. An indictment and case statement was filed on 8 August 2019. Proceedings were commenced by the accused relating to a claim that the Public Interest Disclosure Act 2013 (Cth) applied to his disclosures. That was listed for hearing to commence on 27 October 2022. On that day, senior counsel for the accused indicated that the accused did not wish to pursue the application and a Notice of Discontinuance was filed. On 13 April 2023, the proceedings were listed to commence on 13 November 2023. In about May 2023, particulars were sought by the accused of the source of the relevant duty. Those were only provided recently.
Therefore, the proceedings have been on foot in this court since 2019. No application was made for any referral at any stage prior to the first day listed for the hearing of the proceedings. A jury is scheduled to be empanelled tomorrow, Thursday. The effect of reserving a question or stating a case would be to require the vacation of the trial and delay any final determination of the matter for many months, if not years. My experience with cases stated are that there is often dispute over what the facts are and that the preparation and settlement of the special case and settlement by the court under r 5833 is not necessarily straightforward. Once settled, it would take many months for the matter to be heard by the Court of Appeal and months for it to be determined. The determination by the Court of Appeal would not have the effect of avoiding the need for a trial but simply affect its scope. It is not a case where the proceedings would be rendered unnecessary if the Court of Appeal ruled one way or the other. It would therefore be many months before the matter could obtain a hearing date following the Court of Appeal. It is notable that the present hearing is listed for three weeks. In the context of the procedural history of this matter, it would be completely inappropriate to defer a trial for the purposes of the determination of some issues by the Court of Appeal. It is appropriate that the trial proceed in the ordinary way. The accused retains his rights of appeal.
I will therefore dismiss the oral application for the referral of a question or the statement of a case to the Court of Appeal.

Orders

So far as the majority of these reasons are concerned, it is not necessary to make any orders to give effect to them at this stage. They resolve some issues relating to the directions that I will make during the course of the trial. If it is necessary to do so, then after the empanelment of the jury and prior to the prosecution opening, I will give effect to these reasons by a formal ruling if that will assist the parties.
So far as there was an oral application made by counsel for the accused to have a question referred or a case stated to the Court of Appeal, I will make an order formally dismissing that application.
The order of the Court is:
1.The oral application by the accused for the referral of the questions or statement of a case to the Court of Appeal is dismissed.

I certify that the preceding one hundred and sixty-four [164] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: 22 November 2023