Re Aird; Ex parte Alpert

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.