Re Aird; Ex parte Alpert

Case [2004] HCA 44

HIGH COURT OF AUSTRALIA

GLEESON CJ,
McHUGH, GUMMOW, KIRBY, HAYNE, CALLINAN AND HEYDON JJ

RE COLONEL STEVEN AIRD & ORS  RESPONDENTS

EX PARTE STEWART WAYNE ALPERT                   APPLICANT/PROSECUTOR

Re Colonel Aird; Ex parte Alpert [2004] HCA 44

9 September 2004
B60/2003

ORDER

1.   The question asked in the case stated:

"Insofar as s 9 of the Defence Force Discipline Act 1982 (Cth) ('DFDA') purports to apply the provisions of that Act, including s 61 DFDA, so as to permit the trial by general court martial under that Act of the Prosecutor in respect of the alleged offence … is it beyond the legislative power of the Commonwealth and, to that extent, invalid?"

is answered "No".

2.   Costs in the case are to be costs in the action in this Court.

Representation:

J A Logan SC with P E Nolan for the applicant/prosecutor (instructed by Beven Bowe & Associates)

No appearance for the first and second respondents

D M J Bennett QC, Solicitor-General of the Commonwealth with G B Hevey, S B Lloyd and B D O'Donnell for the third respondent (instructed by Australian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Re Colonel Aird; Ex parte Alpert

Constitutional law (Cth) – Defence – Offences by service members – Service offences – Offence of sexual intercourse without consent – Offence allegedly committed overseas – Service member on leave – Whether beyond legislative power to make conduct of a service member allegedly committed while overseas on leave a service offence triable before an Australian service tribunal.

Defence – Military forces – Discipline – Service member on leave – Offence of sexual intercourse without consent – Offence alleged to have occurred in Thailand – Whether offence may be prosecuted before Australian service tribunal in Australia – Whether beyond constitutional power so to provide – Whether service connection sufficient within Constitution to found valid conferral of power upon tribunal.

Constitution, s 51(vi), Ch III.
Defence Force Discipline Act 1982 (Cth), ss 9, 61.

  1. GLEESON CJ.   Private Alpert, the prosecutor, is a member of The Royal Australian Regiment.  In 2001, he was deployed to Malaysia, where his unit was serving at the Royal Malaysian Air Force Base at Butterworth.  It is alleged that, while on recreation leave in Thailand, he raped a young woman.  The complainant, a citizen of the United Kingdom, resides in England.  She complained to the military authorities, who intend to try the prosecutor by general court martial in Australia under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The issue before the Court concerns the validity of provisions of the Act which make the alleged conduct of the prosecutor an offence against Australian law, and, specifically, a "service offence". The specific problem is whether it is beyond the power of the Australian Parliament to make it an offence, punishable by a military tribunal, for a member of the Regular Army, who…

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AGLC
Re Aird; Ex parte Alpert [2004] HCA 44
Case
[2004] HCA 44
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered a constitutional law question concerning the jurisdiction of Australian service tribunals. The dispute involved a soldier, the prosecutor, charged with sexual intercourse without consent, an offence alleged to have occurred in Thailand while he was on recreation leave. The central question was whether the *Defence Force Discipline Act 1982* (Cth) validly conferred power on a general court martial to try such an offence committed overseas by a service member on leave.

The legal issue before the Court was whether section 9 of the *Defence Force Discipline Act 1982* (Cth), in purporting to allow the trial of the prosecutor by a general court martial for an alleged offence committed overseas while on leave, was beyond the legislative power of the Commonwealth and therefore invalid. This required the Court to consider the scope of the defence power under the Constitution and its interaction with Chapter III of the Constitution, which establishes the judicial power of the Commonwealth.

The Court's reasoning focused on the constitutional limitations on the defence power, particularly its subjection to Chapter III. While acknowledging that the defence power is generally interpreted broadly, especially in times of danger, the Court emphasised that it is not disjoined from the Constitution and must be construed in light of other provisions, including those safeguarding basic civil rights and the structure of the judiciary. The majority concluded that the offence, allegedly committed by a soldier as a tourist off duty in a foreign country, did not fall within the limited purpose of maintaining or enforcing service discipline properly so called, and that civilian jurisdiction in Thailand was the appropriate forum.

The question asked in the case stated was answered "No", meaning that the provisions of the *Defence Force Discipline Act 1982* were not beyond the legislative power of the Commonwealth in this instance. Costs in the case were to be costs in the action in the High Court.

Orders

Orders of the court

1. The question asked in the case stated:

"Insofar as s 9 of the Defence Force Discipline Act 1982 (Cth) ('DFDA') purports to apply the provisions of that Act, including s 61 DFDA, so as to permit the trial by general court martial under that Act of the Prosecutor in respect of the alleged offence … is it beyond the legislative power of the Commonwealth and, to that extent, invalid?"

is answered "No".

2. Costs in the case are to be costs in the action in this Court.

Background

Background to the litigation

The offence with which the prosecutor is charged is sexual intercourse without consent. The offence is alleged to have occurred in Thailand while the prosecutor, a soldier, was on recreation leave. In my opinion, the question should be answered, No.The facts stated The prosecutor is a soldier in the Regular Army and a member of D Company, 6th Battalion of The Royal Australian Regiment. In August 2001, along with other members of D Company, he was deployed to the Royal Malaysian Air Force base at Butterworth in Malaysia. The deployment ended on 10 November 2001. The deployment enabled members of D Company to have infantry training in Malaysia and to train with the Malaysian Armed Forces and other regional military forces. The deployed soldiers also had responsibility for securing Australian Defence Force assets including Royal Australian Air Force aircraft at the Butterworth base. A staff instruction known as Land Command Staff Instruction 1/00 governed the deployment. Upon arrival in Malaysia in August 2001, the prosecutor and other members of D Company were briefed in respect of the Land Command Staff Instruction. Paragraph 59 of that document stated that:"Personnel serving in or with RCB[[8]] are subject to the DFDA."[8]An abbreviation for "Rifle Company Butterworth", the name given to the deployment. On 22 September 2001, the prosecutor was granted stand down leave for the period 22 September 2001 to 30 September 2001 inclusive. Stand down leave was governed by par 53 of the Land Command Staff Instruction. That paragraph declared that, in the absence of express prior approval of the Officer Commanding, leave was required to be taken in the peninsula area of Malaysia or Thailand or Singapore. The prosecutor took his leave in Thailand. To do so, he was required to lodge a leave application with the unit's orderly room of D Company at the Butterworth air base. The application contained his leave destination, accommodation address and telephone number. These details were given so as to facilitate the immediate recall to duty from leave of the prosecutor if circumstances so required. If those details were to change while he was on leave, he was required to notify the unit's orderly room by telephone of the change. After the prosecutor was granted leave, he went to Phuket in Thailand in the company of fellow soldiers. They were driven to the Thai border by RAAF bus. From the border, they proceeded by private transport to Phuket. The prosecutor entered Thailand from Malaysia on his personal, civilian Australian passport without using any form of military identification and without acting under any arrangement between the Australian and Thai governments. At no relevant time has the Commonwealth of Australia had a Status of Forces Agreement with the Kingdom of Thailand maintaining Australian jurisdiction over visiting Australian service personnel in September 2001 or thereafter. The prosecutor's visit was purely recreational. It had no military content of any nature. He paid for his own accommodation, meals and incidental expenses. He wore civilian clothes when he entered and while he remained in Thailand.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

GLEESON CJ HUGH J GUMMOW J (dissent) KIRBY J (dissent) HAYNE J CALLINAN AND HEYDON JJ (dissent)
The citation with approval of the dissenting opinion of the second Justice Harlan[193], quoting in turn the military injunction of General George Washington, can only be explained by an adoption of the "service status" approach to the application of service discipline. This is an approach that, until now, has been rejected by the majority in this Court out of respect for the express subjection of s 51(vi) of the Australian Constitution to the requirements of Ch III[194]. There is no exact equivalent to this in the United States Constitution. Particularly in matters of constitutional interpretation, it is the text of the written law, not the opinions of previous judges, that should prevail. It is to that text that the Justices of this Court are bound in duty to the people of Australia[195].[193]In O'Callahan v Parker 395 US 258 (1969). See reasons of Gummow J at [67]‑[68].[194]See Al-Kateb [2004] HCA 37 at [110]-[111], [133] per Gummow J, [146]-[147] of my own reasons.[195]Stevens v Head (1993) 176 CLR 433 at 461-462, 464-465 and cases cited.Conclusion and orders Applying the approach expressed in the successive reasons of Brennan and Toohey JJ in this Court, I would therefore reject the validity of the proceedings against the prosecutor. Civilian jurisdiction in Thailand could conveniently and appropriately have been invoked in this case. It is the jurisdiction that should have been exercised. The jurisdiction of the service tribunal was only available under the Constitution for the limited purpose of maintaining or enforcing service discipline, properly so called. In the context of the exceptional character of service tribunals, standing outside Ch III, the crime of rape allegedly committed by the prosecutor, whilst a tourist off duty, in the circumstances described in the special case, was not one to which service discipline applied. The present is not a time to expand, beyond this Court's established authority, the jurisdiction and powers of military tribunals in Australia – any more than the power of indefinite punishment or detention at the will of the Parliament and Executive Government[196]. It is at times like the present that this Court – as it has done in the past[197] – must adhere steadfastly to the protection of basic civil rights in Australia's constitutional arrangements. Other final courts are doing so[198]. We should be no less vigilant.[196]cf Al-Kateb [2004] HCA 37 at [144]-[150].[197]cf Communist Party Case (1951) 83 CLR 1.[198]cf Rasul v Bush 72 USLW 4596 (2004); Beit Sourik Village Council v The Government of Israel HCJ 2056/04 at [86]. These are the reasons why the question asked in the stated case should be answered: "Yes". For the reasons given by McHugh J, and the additional reasons given by Gummow J, the question in the special case stated for the Full Court should be answered "No" and the costs in the case should be costs in the action in this Court. The facts and the issue to which they give rise have been stated by McHugh J. His Honour has also considered the relevant legislation and has analyzed each of the authorities in which a similar, although not identical, problem has had to be solved. As McHugh J has demonstrated, there is no majority of High Court Justices in any case favouring any particular construction of the defence power as a basis of legislation relevant to offences by service personnel. The Court remains at liberty to choose from among available tests.

Ratio Decidendi

Legal Principle Established

Established by: GLEESON CJ, HUGH J, HAYNE J,

Where, as here, there is no earlier decision clearly applicable to the legal question before this Court, our duty is to answer the question in the special case by reference to the usual sources which judges call upon in such matters. These are the state of legal authority; any relevant legal principles; and any applicable considerations of legal policy[109]. I turn to those considerations.[109]Oceanic Sun Line Special Shipping Co Inc v Fay (1988) 165 CLR 197 at 252; Northern Territory v Mengel (1995) 185 CLR 307 at 347; see Fairchild v Glenhaven Funeral Service Ltd [2003] 1 AC 32 at 43-44 [8]-[9], 46-47 [14], 66-67 [33].Considerations of legal authority The scope of military discipline: The language of the Constitution, granting power to the Federal Parliament to make laws for the defence of the Commonwealth (and of the States)[110], should be given a broad meaning, capable of varying with changing circumstances and different dangers for the security of the nation. [110]Constitution, s 51(vi). See also s 51(xxix) (external affairs), (xxxii) (railway transport of military personnel), (xxxix) (incidental powers), and see reasons of McHugh J at [25]. Thus, in times of war, federal law has been accorded a very large ambit to regulate activities that would "conduce to the more effectual prosecution of the War"[111]. In times of immediate danger, and preparation for possible combat, this Court has accepted the existence of substantial federal law-making authority[112]. The position is the same in times of demobilisation and thereafter in respect of appropriate post-war arrangements[113]. Nevertheless, this Court has never surrendered to the Parliament, or the Executive, the conclusive determination of the constitutional validity of a military regulation[114]. The defence power, and the other heads of power relied upon in this case, are not disjoined from the Constitution. They are part of the "one coherent instrument"[115] which is "intended to be construed and applied in the light of other provisions of the Constitution"[116]. [111]Farey v Burvett (1916) 21 CLR 433 at 442.[112]Marcus Clark & Co Ltd v The Commonwealth (1952) 87 CLR 177 at 219-220, 245, 255-257.[113]R v Foster; Ex parte Rural Bank of NSW (1949) 79 CLR 43 at 84.[114]Communist Party Case (1951) 83 CLR 1 at 252.[115]Lamshed v Lake (1958) 99 CLR 132 at 154.[116]Bank of NSW (1948) 76 CLR 1 at 185. It is for this reason that the defence power is subject to s 51(xxxi)[117] and s 116[118]. Likewise, both by the structure of the Constitution and by the express statement that the grants of legislative power in s 51 are "subject to this Constitution", the defence power is also subject to the requirements of Ch III. [117]Johnston Fear & Kingham & The Offset Printing Co Pty Ltd v The Commonwealth (1943) 67 CLR 314 at 317-318, 325, 331.[118]Adelaide Company of Jehovah's Witnesses Inc v The Commonwealth (1943) 67 CLR 116 at 131, 149, 155, 159. In the present case, application of the approach that I favour would mean that any trial of the prosecutor for rape would have to take place in a court of Thailand. It should not be for the complainant, in effect, to select the jurisdiction of an Australian service tribunal when the relevant civilian court, applicable to her complaint of the crime of rape, was the criminal court of Thailand having jurisdiction with respect to allegations of that crime occurring on Patong Beach. The proper response of the Australian service authorities to the complainant's accusation was not, therefore, to abandon their hitherto "conservative" application of the law, as defined by Brennan and Toohey JJ in this Court. It was not to try out what is effectively a "service status" criterion for military offences. It was to inform the complainant that she should take her complaint to the Thai authorities (and possibly to facilitate that complaint in practical ways).