Re Nolan; Ex parte Young

[1990] HCATrans 290

A ~,,AUSTRAL!A,1i./:' -_...);..~~~««<'-'

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide	No A12 of 1990
In the matter of -

An application for a Writ of

Prohibition against the

COMMONWEALTH OF AUSTRALIA

and LIEUTENANT COLONEL

J.A. NOLAN a Defence Force

Magistrate

Respondents

Ex parte -

HUGH YOUNG

Prosecutor

MASON CJ
BRENNAN J
DEANE J

DAWSON J

TOOHEY J

GAUDRON J

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 DECEMBER 1990, AT 10.03 AM

(Continued from 4/12/90)

Copyright in the High Court of Australia

Young(2) 80 5/12/90

MASON CJ: Yes, Mr Solicitor for the Commonwealth.

MR GRIFFITH: Before turning to the stronger parts of our

arguments which seem to have lost the attention of

some of the camp followers, Your Honour, may I hand

the Court the charge sheet that I said I would hand

to it yesterday?

MASON CJ: Yes.

MR GRIFFITH:  May we turn - this is the question of the operation of section 4C of the Crimes Act. Our

submission is that it and its predecessor section,

section 30 of the Acts Interpretation Act, has no
relevance to the validity of the Defence Forces

Discipline Act.

We would say as a matter of construction this

section and section 30 should be construed as not

applying to the Defence Forces Discipline Act.

Sections 144 and 190 of that Act are particular provisions which specifically deal with issues of

double jeopardy and we submit that the constitute

contrary intention for the purposes of the
operation of section 4C. Section 4C is merely a
provision of statutory construction which is
indicated by the second reading speech on its

introduction by the Attorney-General into

Parliament. Its purpose was merely to move from

the Acts Interpretation Act a provision for

construction of Commonwealth criminal law to a

place where it could be more conveniently found.

In our submission, the term "offence" in section 4C should not be interpreted as including a

service offence.

TOOHEY J:  Mr Solicitor, does the term "offence" have a

definition either in the Crimes Act, the Acts

Interpretation Act or -

MR GRIFFITH:  Your Honour, I did look through the Crimes Act

yesterday and could not find it so -

TOOHEY J:	No, I could not either.
MR GRIFFITH:	- - - conditionally I would say, no, and I

will let Your Honour know if the position is

different but it seems not. We would submit that

if there were any difficulties with the application

of section 4C to a Defence Forces Discipline Act defence, the question would be as in the case of sections 190(3) and (5) as to the validity of

section 4C in that circumstance and we would say it

Defence Forces

could not affect the validity of the observed yesterday, section 4C only applies in

Young(2) 81 5/12/90

federal jurisdictions it does not have the general operation which section 190 purported to have and, we would submit, it may well be within power for

the Commonwealth to define "offences" in respect of

the operation of Commonwealth criminal offences in

the way which would follow if section 4C were to

apply in respect of offences in federal
jurisdiction. So that section 4C may well be

valid, in any event, so far as it applies to

prosecutions and punishment under Commonwealth law.

We refer, of course, to subsection (2) which

has a reverse provision re proceedings completed

under State law and we would say there could be no

difficulty about that provision. But our

submission is that it is not necessary for the

Court to explore these issues further because we

say section 4C has no relevance to issues

pertaining to the validity of section 55 or

section 61 of the Defence Forces Discipline Act.

Turning then to the basic issues of validity

of section 55 and section 61, we submit that if the
matter is to be considered afresh, as it were, our
submission is none the less to pick up by reference

the historical material and argument which we put

to the Court in Tracey, and we, without rehearsing

all those arguments, reiterate and adopt our

arguments put on the basis of those materials to

the Court over the three days of hearing of Tracey

in 1988. In essence, of course, those arguments

support the view which is embraced by three of

Your Honours in the decision in Tracey.

Turning to section 55, as we understand the

submissions by the three interveners to the Court
yesterday, none of those interveners directly
attacked the validity of section SS(l)(a) of the

Act and I think my learned friend, the

Solicitor-General for South Australia, seemed to be

content with the inclusion of the words "service

document" which is in section SS(l)(a).

We submit that the offence under paragraph (a)

is indistinguishable from that under

section SS(l)(b), which was dealt with and which

was of course the first offence involved in the

Tracey proceedings. Paragraph (a) deals with

making or signing a service document by a defence
member with a view to gain, and paragraph (b)

refers to making a service document an entry that

is false in the material particular.

We submit firstly that this offence is

sufficiently related to service discipline to found

jurisdiction. It is defined by reference to

falsity dealing with a service document in a

Young(2) 82 5/12/90

service context, in this case forging a commanding

officer's signature is picked up from the amended

charges included in the application book. The

offences are defined in each of those seven charges

under section SS(l)(a) as being concerned with the

elements of forging a signature to a service

document, by a service member, in the course of his

duties, and we submit that five of the Justices in

the Tracey decision held the equivalent provision

in paragraph (b) to be valid.

So that, even if the matter were not

determined by Tracey, for the reasons stated either

by the three Justices or by the two Justices,

having regard to the reading of the provisions of

the Act to require a relationship to service

discipline, in our submission, it is clearly the

case here that proceedings in respect of the

section 55 offence must be a proceeding reasonably

regarded as substantially serving the purpose of

maintaining and enforcing service discipline.

It was suggested by Your Honour Justice Deane

yesterday that it may be an impermissible

unintended consequence of invalid operation,

arising from section 190 of the Act being struck

down, that there could be an aggregation of
punishments for service offences tied with the
corresponding punishment for the civil offence

which could lead to a penalty twice that prescribed

by the civil law.

That is obviously, and we would accept, an

issue of tension in respect of the operation of the
Act, absent section 190. Of course, there are
ameliorating provisions in respect of penalties.

My learned friend appearing for the prosecutor

yesterday took the Court to schedule 2 which

provides for reduced levels of penalties having
regard to particular offences and having regard to

the level of tribunal hearing those offences. And

as has been pointed out, it may well be that there

are civil offences having a penalty, which my

learned friend mentioned yesterday, of 10 years

imprisonment which, if determined by a defence

forces magistrate, could have a maximum penalty of

only six months.

That would tend to indicate that it is

accepted by the legislature that there is a

dichotomy between penalties and, in any event, the

decision of Tracey, we would concede, left open the

issue of autrefois acquit and autrefois convict in

these issues. So that is another element which may

be relevant to answering Your Honours' difficulty

as to this aspect.

Young(2) 83 5/12/90

We would say that it must be in any event that

if there were completed proceedings under the

Defence Forces Discipline Act where a penalty was imposed and then civil proceedings with respect to

an offence regarded as identical or substantially

the same, it must be the case that a sentencing

authority in the civil jurisdiction would take into

account the element of penalty imposed by the

military procedures.

The penalties provided under the various

civil analogues as referred to by my learned friend

range in respect of these offences up to 10 years,

so that one is not dealing with, we submit, a case

where there will be an aggregation of 10 plus 10;

and one would expect if there were a case of

consequent proceedings in the civil jurisdiction

the total penalty would be one which would be

regarded as appropriate for the circumstances

without having a position of, in effect, double

sentencing over the maximum prescribed by the

legislature.

DEANE J:  Mr Solicitor, under the decision in Tracey, as you

see it, would the magistrate in the present case

impose a penalty which he thought was appropriate

to punishment for the additional disciplinary

aspect of the offences, or does he impose a penalty
which he thinks is appropriate as punishment for

the entire offences?

MR GRIFFITH:	Your Honour, we would suppose he would see his duty as being the latter.
DEANE J:	So he would impose the penalty appropriate for

all aspects of the offences and proceedings could

under Tracey then be brought in the civil courts

for the same offence.

MR GRIFFITH:  Yes, Your Honour, but he may be doing that in

the context that he only had power to imprison,

say, for two years maximum.

DEANE J:  Yes, I follow that. What if the penalty for the

relevant offence was a fixed penalty?

MR GRIFFITH:  Under the Defence Forces Discipline Act or

under the -

DEANE J:  Under the ACT ordinance or under the applicable

civil law. The result would be that the penalty

would have to be double.

MR GRIFFITH:  Your Honour, not necessarily doubled because

it is a question of what would be the penalty

Young(2) 84 5/12/90

imposed by the magistrate, but it could in that

case, Your Honour, be - - -

DEANE J:  By fixed I mean irreducible.

MR GRIFFITH:  Yes, I follow that, Your Honour. One way of

avoiding that consequence could be that in the ACT

a magistrate would have a choice of adjourning the

matter because he might take the view that the

sufficient penalty had been imposed.

DEANE J:  Would that be proper on the approach of the Court

in Tracey?

MR GRIFFITH:  Your Honour, sentencing is a matter of what

is appropriate in the circumstances and I was never

very good at pleas but I have heard silver tongues

induce magistrates to do things that one might

think that is inappropriate, but the magistrate

believes it is inappropriate and that is the

result. One does not appeal. Your Honour, it is

accepted that there is a tension at that point but

it is pointed out to me that there is a section on

sentencing principle, section 70, which requires
the service tribunal to have a go at the principles
of sentencing applied by the civil courts and the
need to maintain discipline in the defence forces.

That, of course, does not completely answer Your Honour's question, but it is accepted that

there is a problem there but the tenor of our

submission is to say that does not disable the

entire Act because one can get to that point that

Your Honour postulates.

DEANE J:	And Tracey seems to have said that.
MR GRIFFITH:	Yes, we would accept that, Your Honour, and what we say is that one would expect just as, for
example, the cross vesting legislation works in practice because courts act in amity and comity,
that one would have a regard to circumstances to
see that there was a fair result; but,
Your Honour's postulation of a fixed penalty might
make you work a little bit harder to get to that
fair result.  Your Honour, that is a problem from
section 194 but it is one we say which does not
disable the whole Act, in our submission.

As we understood the interveners' submissions,

they seem to accept the consequences of Tracey,

that the Commonwealth may validly confer on a

military tribunal jurisdiction to hear and

determine proceedings which can reasonably be

regarded as substantially serving the purpose of

maintaining and enforcing service discipline and it

seems that the finding in Tracey challenged by them

Young(2) 85 5/12/90

is whether or not section 61 does validly confer

such a jurisdiction.

Now, at the risk of returning to arguments

which might be regarded our less strong, may I

briefly refer to what His Honour Justice Gibbs said

in Queensland v The Commonwealth,

(1977) 139 CLR 600. His Honour said:

But when it is asked what has occurred to

justify the reconsideration of a judgment

given not two years ago, the only possible

answer is that one member of the Court has

retired, and another has succeeded him. It

cannot be suggested that the majority in

Western Australia v The Commonwealth failed to

advert to any relevant consideration, or

overlooked any apposite decision or principle.

The arguments presented in the present case

were in their essence the same as those

presented in the earlier case.

We would submit that in this case the conduct charged both under section 55 and under section 61

is related conduct, the first of forging, the

second of uttering service documents with a strong

service connection and we submit that in each case
both under section 55 and under section 61 the
charges and the hearing of those charges in a

service context under the Act do substantially serve the purpose of maintaining and enforcing service discipline.

Yesterday Your Honour Justice McHugh asked

whether the issue might be whether the particular

offences are conducive to military discipline or is

the issue whether it is conducive to discipline

that these tribunals should try these offences. we

submit that the answer to that question Your Honour

raised is clearly the first. The question is

whether the particular offences are conducive to

military discipline.	We submit that giving
jurisdiction to civil court is not really service
discipline at all.	It is dealing with the

punishment of the offence as an offence and - - -

McHUGH J: Well how does it operate if a serviceman commits

what might be regarded as, basically, a civil

offence? Say it is smoking marihuana away from the

base. How does that go to discipline? It is

something that he does in his private capacity.

MR GRIFFITH: Well, Your Honour, we may as well have the

example using heroin away from the base. One can

see that it is inimical to service discipline to

have drug addicts whether they take the drugs on

base or off base. Now it might be a matter of

Young(2) 86 5/12/90

anxious debate as to whether marihuana should be

regarded as a drug of addiction for the purpose of

taking that view. That is a matter of difference

of opinion and degree and, in our submission,

Your Honour, it is reasonably capable of being regarded a matter which does go to service

discipline.

McHUGH J: But how? I mean how does it affect the

discipline? I know it might affect the individual,

but then it means everything that deals with his

life must affect him in relation - - -

MR GRIFFITH: Well, I am just using Your Honour's example to

say one can see a chain. Your Honour, if one gets

to the point where you say it does not affect
service discipline because of the strong view that,
for example, just as determining the matter takes

on the facts, well then, as we see the choice,

Your Honour, the choice is whether one should adopt

the Solorio approach which was adopted by three of
the Justices, or the narrow approach which was
adopted by two of the Justices and excluding it for

that reason, but in our submission, Your Honour, really that is the choice. It is a choice which

was made under analogous provisions of the American

Constitution; first one choice was taken, then discqrded and then the discard itself discarded and the first choice picked up again. Now we would say

Your Honour's inquiry really goes to the question

of preference of whether or not one says it is a

matter for definition within the service as to what

is regarded as matters which concern the issue of

service discipline or whether there is to be - - -

McHUGH J:	But to my mind there might be many offences which would not seem to me to have the tendency to affect
discipline but an army officer might be able to
point out very valid reasons why they would which
would not occur to me.

MR GRIFFITH: Precisely, Your Honour.

McHUGH J: 

Was there any evidence put on in Tracey?

MR GRIFFITH: 

Your Honour, what we say is, and we make the

proposition I think in paragraph 7 of our
contentions, that one should have the disciplinary

authorities, the convening authorities in the

tribunals being the persons primarily charged with

that issue to, in effect, marshal the argument and

to form a view on it and if they reasonably may be

regarded as having formed that view even if it

seems somewhat tenuous to the non-military mind

well then that should be sufficient to found

jurisdiction once discards the Solorio approach.

Your Honour, but the point that we are seeking to

Young(2) 87 5/12/90

make in picking up Your Honour's inquiry yesterday

is to say that on the basis of the historical

materials before the Court in Tracey, and I am

sorry that Your Honour only picks them up by reference rather than experience and perhaps,

Your Honour, we could undertake to furnish those

volumes to Your Honour because, in effect, we are

picking them up by reference and they are

summarized, Your Honour, in of course all

Their Honours judgments in Tracey.

One must be careful with summaries,

Your Honour, for example - although he is absent I

will comment on what he said in his absence, but my

learned friend the Solicitor-General for South

Australia referred to his recollection about the

rules for creeks and bays for naval offences before

1900. What we submit, Your Honour, is that those

materials speak for themselves and as we submitted

in Tracey, Your Honour, it does establish the case
that it was established that service offences could

be dealt with by service tribunals as part of the

military law both of the United Kingdom, of course

the United States, and also each of the Australian

colonies of 1900.

McHUGH J: Yes, but the big difference is Chapter III of the

Constitution.

MR GRIFFITH: Yes, Your Honour, but may I answer that - - -

McHUGH J:	You have got that conflict - you have got the tension between what might otherwise be permissible
under 5l(vi) and Chapter III, and the difficulty is
to reconcile - - -
MR GRIFFITH:	Your Honour, I quite agree but perhaps

Your Honour's misfortune is not to have been sitting on the Court in Tracey because one thing, we would submit, five Justices did in Tracey is

determine that issue. One picks it up on

paragraph (2) of the headnote on page 519.

McHUGH J: Five Justices may have but did they constitute a

ratio?

MR GRIFFITH:  Your Honour, in that they did, we submit, that

they did all accept that the - can I read from

headnote, Your Honour? Perhaps that is a bit

unwise. It is Ross Sundberg, Your Honour, he is

fairly good at these things and he says, five

Justices:

that although a service tribunal exercised

judicial power, it did not exercise judicial

power of the Commonwealth because the power to

make laws with respect to the defence of the

Young(2) 88 5/12/90

Commonwealth under s Sl(vi) of the

Constitution contained power to enact a

disciplinary code standing outside Ch III and

to impose· upon those administering it a duty
to act judicially.

Your Honour, we would submit that the Court

has determined that issue. So that, we appreciate Your Honour's points, Your Honour, and, of course,

one only has to read the judgments of Tracey to see

the anxiety with which the Court considered those

arguments. But we have made our submissions,

Your Honour, and we would say, on those points,

five Justices took the view that the position was

that it is accepted that this jurisdiction both may

be created and also vested in military tribunals,

the only issue, we would say, being whether it is

one that can be vested in them merely by a

description of being a service member who commits

the offence.

McHUGH J: That is the question, is it, that the five might

say that the jurisdiction to be vested, but the

question is what jurisdiction?

MR GRIFFITH: Yes, Your Honour. What we say, Your Honour,

is it is the issue of whether the particular

offences are conducive to military discipline;

Your Honour's first choice. But we do say that

Your Honour's second choice, although one which, of

course, is a question to be raised, we do go on and

say it is one that has been determined by this

Court although it was appreciated, of course, when

Tracey was argued, there was room for these two

views and, obviously, for the reason that

Your Honour now engages me.	We accept that those
views are open.

But whatever Tracey decided, Your Honour, it

did decide that the defence power permitted the
establishment of a system of military justice. An

essential concomitant of this was, we would say,

service tribunals to determine them. But we do

accept, Your Honour - and I will not keep

elucidating it - that having said our primary

position, we argue for the purposes, today, on the

basis of the secondary level of requiring some

element of saying that the offences are conducive

to discipline as articulated by Justices Brennan

and Toohey.

TOOHEY J:  Mr Solicitor, could I ask you a question on a

slightly different point. If a member of the defence force is dealt with civilly, by civil

court, are there service consequences that follow

either automatically or that may follow, by reason

of a conviction in that court? I ask that not so

Young(2) 89 5/12/90

much in the context of double jeopardy, and

certainly not in the area of a further charge under

the Defence Force Discipline Act, but to ask

whether there are administrative consequences of a

service nature that follow from a conviction by a

civil court.

MR GRIFFITH:  I am sorry I am not able to answer

Your Honour's question in detail, but we would say

undoubtedly there would be, or could be.

TOOHEY J: For instance, there may be provision for

automatic dismissal from the force in the event of a serious conviction. Perhaps you could direct us at some stage to any relevant provision.

MR GRIFFITH: Well, Your Honour, as I am on my feet now and may be sitting down shortly, if I am unable before I sit down, could I send in a short memo answering Your Honour's question?

TOOHEY J: Yes, thank you.

MR GRIFFITH:  Your Honour, depending on the offence our

basic position would be yes, there could be

consequences. Some offences obviously not; others

one would not expect it because they could -

TOOHEY J:  I am not sure what you mean by "could be". Do

you mean because you have in mind that there is a

provision somewhere in the statute law, or are you

referring to something else?

MR GRIFFITH:  Your Honour, there is, for example, section 99

dealing with suspension from duty after conviction.

civil offence but,. Your Honour, I think we had best

That is, I think, in effect, a service offence.

follow it through technically and give you a

technical answer if we may.

Turning to section 61, of course our general proposition is that the determination of charges by

reference to the territory criminal law soon to be

Jervis Bay territory criminal law may be regarded

as substantially serving the purpose of maintaining

and enforcing serv_ice discipline.

Here, we submit that this must be so having

regard to the fact that it is listed in paragraph 6

of our contentions. I will not take the Court

through those factors which speak for themselves,

but perhaps we could observe in passing that in the the factors which the court indicated may indicate

one way or another service connection, the actual

holding in Relford at page 369 was that an offence

Young(2) 90 5/12/90

on service land was within jurisdiction.	The court
said:

This leads us to hold, and we do so hold,

that when a serviceman is charged with an

offense committed within or at the

geographical boundary of a military post and

violative of the security of a person or of

property there, that offense may be tried by a

court-martial.

So, we would submit that generally any one of the

aspects of the sort that we list in paragraph 6 may

be sufficient. There may be per se rules such as

offences on a base, whether they deal with service matters or whether they, as in the Relford case or the O'Callahan case, involve sexual offences. But

there may be rules which apply per se without

ad hoc balancing. There may be other cases where

there is an element - where one may say, "Well,

there are some factors pointing one way, some

pointing the other." Then in that case, our basic

position would be as in paragraph 7 of our

contentions. The Court should primarily leave it

to the prosecuting authority to carry out that

balancing process and only intervene if it took a

clear view that there was no reasonable basis for

the yiew taken by the prosecuting authority which

resolved to proceed.

So far as the circumstances are concerned

here, we say that the matters which I have referred

to, taken together or even separately, make the

result clear. It may well be sufficient to say

that it is a service document, as my learned

friend, Mr Doyle, seemed to accept.

If we turn then to the aspects of reading down

section 61 in the manner accepted by the decision

of the two Justices in Tracey, we would submit that

not only is this an appropriate means of applying

the section, in a real sense it is probably the

only possible way of construing or providing a

provision which enables there to be proper
provision for the provision of service offences for

the maintenance of discipline in respect of all the

circumstances which may arise in respect of the

system of military discipline. We submit that

there are not black and white distinctions of peace

or war, overseas or local service. There are many

permutations.

Our primary submission would be that in the aspect of service discipline, as it was put by

Your Honour Justice Dawson yesterday, it is

something to be maintained and enforced at all

times and that examples of its operation in peace

Young(2) 91 5/12/90

or war, overseas or in Australia, are merely

examples of the operation of a uniform system of
discipline.It is the establishment of a system of

discipline in the time of peace, we would suggest,

which establishes the defence forces as a mechanism

able to provide for the defence of the

Commonwealth.

We submit that one cannot construe the

Constitution as requiring periodical legislation,

flowing from time to time, perhaps at the moment

from month to month, to cover the particular

circumstances of peace or bellicose activity, as

that may change from time to time. That is

impossible, if for no other reason than in the

first eight months of this year Parliament sat but

12 days. It must be within power to provide a

general structure of defence force discipline law

which is capable of providing for the maintenance

and enforcement of service discipline from time to

time in accordance with the circumstances which

then exist.

In essence, my learned friend Mr Doyle put an

unformulated proposal which, I think, at the end of

the day, having regard to the several occasions he

referred to in his submissions, he would accept

basically an expression in section 61, on the basis

of picking up an expression by reference to

offences defined by reference to civil offences

which are prejudicial to the good order and

discipline of the forces. As to that expression,

we would refer to section 60 of the Act which does

just that already. Section 60 is what is known in

military law, I understand it, as the general

article, and that provides that:

A defence member who, by act or omission,

behaves in a manner likely to prejudice the discipline of, or bring discredit upon, the

Defence Force is guilty of an offence for

which the maximum punishment is imprisonment

for 3 months.

Now, we submit that it is quite appropriate

for there to be more particular provisions such as

section 61 which pick up several analogues and

apply them if one adopts the view of the two

Justices in the Tracey case by reference to their

relevance in that particular conduct to the

maintenance of military discipline.

My learned friend, Mr Davies, in paragraph 3

of his contentions, gives some examples which

arguably, he says, may be good. We submit that

this does no more than suggest phrases for

articulating in part the form of reading down

Young(2) 92 5/12/90

comprehensively adopted by the two Justices in

Tracey. For the reasons stated by them, we would

accept that if one does not accept the Solorio

approach or the approach of the three Justices in

Tracey, there is no difficulty in reading down

section 61 so it is construed and operated as if it is so limited. In a particular case, regard may be

had to the particular circumstances to determine

whether the requisite purpose is made out.

So, our submission for section 61 is as for

section 55, that although there may be practical

difficulties in assessing facts - and this was

referred to by Your Honours Justices Brennan and

Toohey in 166 CLR 571. Your Honours said:

Tribunals established by the Discipline Act are equally capable of determining whether proceedings for the prosecution of a service offence will serve a substantial disciplinary

purpose.

And, we say that is the position here.

My learned friend, Mr Davies, in particular

and others of the interveners made submissions on

this question of whether or not it is possible to read down a provision such as section 61. In our

submission, this comfortably may be done within the

orthodox application of principles for the

operation of section 15A.

On the view of the scope of legislative power

adopted by the two Justices, we say this falls
within the second type of case referred to by

His Honour Justice Dixon in R v Poole Ex Parte Henry (No 2), (1939) 61 CLR 634. At page 652,

Justice Dixon said - this is a case, the second

type of case he referred to where:

A provision which, in relation to a limited

subject matter or territory, or even class of

persons, might validly have been enacted, is

expressed to apply generally without the

appropriate limitation, or to apply to a
larger subject matter, territory or class of

persons than the power allows.

And, His Honour went on to say the application of section 15A in such a case is:

The question may simply be whether the

legislature intended the provision to have a

distributive operation or effect. That is to

say, did it intend that the particular command

or requirement expressed in the provision

should apply to or be fulfilled by each and

Young(2) 93 5/12/90

every person within the class independently of

the application of the provision to the

others; or were all to go free unless all were

bound?

And, if I could refer to Pidoto v Victoria, ( 1943)

68 CLR 87 at page 111, referred to by my learned

friend, Chief Justice Latham said:

Where there are general words or expressions

which apply both to cases within power and to

cases beyond power, then if an intention of

Parliament that there should be a partial

operation of the law based upon some

particular standard criterion or test can be

discovered from the terms of the law itself or

from the nature of the subject matter with

which the law deals, it can be read down so as

to give valid operation of a partial

character.

This is an approach to reading down which was

established by this Court in Russell v Russell,

(1976) 134 CLR 495 at page 542 where there was

clear reference at that point by the decision of

His Honour Justice Gibbs to look at the ·

constitutional power and to use that to establish

the limitation in reading down the provisions of

the Family Law Act.

Clearly, in this case, Parliament has sought

to rely upon the aspect of the defence power

concerning the discipline of the force. We would

refer also to Carter, and this is a case not on our

list but I will just give the Court a citation,

Carter v Potato Marketing Board, 84 CLR 466. We

refer to this decision as an example of a situation

where the Court said to find validity in respect of

a marketing scheme there should be a distributive

operation so that each individual transaction is to

be examined to determine whether or not it

contravenes section 92 in which case that

transaction would be invalid because of the

application of section 92.

My learned friend, Mr Davies, relied on

Pidoto as authority against reading down, along the

lines adopted by Your Honours Justices Brennan and

Toohey. In our submission, my learned friend placed too little reliance on the significance of the Chief Justice's statement that the criterion for reading down can come from the nature of the subject-matter with which the law deals and, of course, we say in a constitutional matter -

referring back to the authorities we have

mentioned - can come from the provisions of the

Constitution which imposed the relevant limitation.

Young(2) 94 5/12/90

The subject-matter for the action of

section 61 being limited to defence forces

discipline itself provides, we submit, a standard
or criterion by which the section may be read down.

The Court is not required to exercise or perform an

essentially legislative function of choosing

between different available standards of criteria.

So, we say, there is no analogy between section 61

and Chief Justice Latham's example of a general

statute dealing with larceny which the Court is

asked to read down, with having no guidelines to

read it down.

Parliament clearly intended section 61 should

be given a broad and flexible application as

exigencies of military service will require,

obviously, at different places and at different

times. Section 63 shows that there was no

intention and that is the provision dealing with

the requirement of consent of the Attorney-General
to certain offences being proceeded with and, of

course, implicit in that is that those offences

could as could any other offence be proceeded with

in a civil court. But it shows that there is no

intention that section 61 should be applied in

every case falling within its literal terms and,

indeed, if I could take the Court to the three-tier

structure of section 61(1) itself by an increasing

application of the territory law, firstly, within
the territory and outside the territory.

It is clear that, although one might say that this tier application will now be redundant, it

does demonstrate an awareness on the part of the

draftsman of possible constitutional constraints
and, we submit, a desire that the operation of the

section should be as wide as constitutionally

permissible.

Of course, section 75(v) of the Constitution and section 39B of the Judiciary Act ensures that the application of section 61 so read down remains

capable of judicial review, as in this case. So,

if the service connection approach is to be adopted

in relation to constitutional power then we submit

that the approach of Your Honours Justices Brennan

and Toohey is the only practical solution. To

attempt a legislative definition of every case in

which there was sufficient service connection would
be both impractical and impossible, and I think

Your Honour Justice Brennan said yesterday that

unless one can articulate in the statute and

advance the kinds of circumstances that will serve

a defence purposes you are left either with the

reading down test adapted from Your Honours'

decision in Tracey or Parliament has to inviscerate

the section of any validity. And, of course, the

Young(2) 95 5/12/90

latter approach would, we would submit, inviscerate

the section of any content.

We would submit that it was demonstrated in

argument yesterday that it is not practical to

enumerate the circumstances of a defence connection

and therefore, obviously we would say, if there is

to be a narrowing from the Solorio approach to

adopt the approach of Your Honours in Tracey would

be a proper exercise of the - not only the

construction of the defence power, but a proper
construction to make as a court construing the

operation in the context of section 15A of the

Acts Interpretation Act. I think my learned friend

Mr Doyle, and I am sorry to take advantage of

absence to make inferences from his submission, but

it seems, from reading the transcript, particularly

at page 46 and pages 60, 62 and over to 63, that my

learned friend would have seemed to have accepted

that if the, if I could put it, the Justice Brennan

and Toohey approach had been included as part of

the preamble the chapeau to section 60, my learned

friend at least would have accepted that that would

make the provision within power.

We submit that it makes no difference and the

Court quite comfortably can obtain that result as a

matter of constitutional construction. It allows

the·court to do what my learned friend, I hope I am

not being unfair to him, but we would submit,

conceded that the Parliament could do, give limited

effect to the defence power so that it remains

within power.

May I refer briefly to the contention made by

the prosecutor as the alternative, what he referred

to as his alternative contention based on a forum

non conveniens approach. We submit, and we make a

brief reference to this in paragraph 8 of our

contentions, that where jurisdiction is found to

exist, the defence force magistrate has no power to

decline to exercise that jurisdiction on the ground

that jurisdiction might be more appropriately
exercised by a civilian court.	We submit the

general rule applicable to courts and tribunals is,

as was expressed by five of the Justices of this

Court and the The King v Commonwealth Court of

Conciliation and Arbitration; ex parte Ozone

Theatres (Aust.) Ltd. 78 CLR 389 at 398 that:

where such a jurisdiction is created for the

public benefit or for the purpose of
conferring rights or benefits upon persons the

court -

or tribunal -

Young(2) 96 5/12/90

upon an application properly made is under a

duty to exercise its jurisdiction and is not

at liberty to refuse to deal with the matter.

And if I give to the Court a more recent reference,

The Queen v The Australian Broadcasting Tribunal

and Others; ex parte 2HD Proprietary Limited

144 CLR 45, in particular the judgement of five

Justices at page 49:

This rule is reinforced in relation to a

defence force magistrate by the language and

structure of the act. Such discretions as may exist to prevent the exercise of jurisdiction,

is conferred on the convening authority

appointed under section 102 and not the

defence force magistrate. The convening

authority has a discretion under section 103

to direct that a charge be proceeded with.

Where a charge is referred to a defence force

magistrate under that section, the convening

authority is required under section 129A to

terminate the reference before the defence
force magistrate commences to try the charge,

if for any reason it appears desirable to do

so and after the defence force magistrate

commences to try the case, if it appears "that

·it would not be in the interest of justice for
the defence force magistrate to continue".

Section 135, on the other hand, provides that

a defence force magistrate shall try a charge

in accordance with its provisions and these

provisions, we submit, are cast in exhaustive

and mandatory terms. The application and

objection to which an accused person may make

and enter are exhaustively set out in

section 141 and this includes the objections

under paragraph B(i) of subsection 1 of that

section, that the accused person is not liable

to be tried by virtue of section 144.
Section 144(3)(a) prevents trial by a service

tribunal for a service offence that is

substantially the same as a civil offence of

which the person has been acquitted or

convicted by a civil court, no wider ground of
objection is open.

So, it may well be that it would be possible to

make representations to the convening authority in

respect of an accused persons desire for a

discretion to be exercised against the commencement

of service proceedings, prior to the commencement

of civil proceedings, but we submit it is not a

discretion vested in the magistrate.

May I refer the Court back to my announcement

of appearance. I did indicate to the Court that

Young(2) 97 5/12/90

the Commonwealth was content to be deleted as a

party respondent to the application for writ

absolute of prohibition but happy to be joined as a

party appearing under Order 55 rule 12 and I would

ask the Court formally to make that order so that

any issue of whether prohibition may run against

the Commonwealth is as in Tracey excluded from that

issue.

May I answer Your Honour Justice Toohey's

question? I am told, Your Honour, that under regulations made under the Defence Act, naval

defence Act and air force Act, a serviceman may be

required to show cause why he should not be

dismissed for a conviction of a civil offence.

TOOHEY J: Yes, thank you.

MR GRIFFITH: If there is a more exhaustive answer,

Your Honour, I will send that by memorandum through

the Registrar.

TOOHEY J: Yes, thank you.

MR GRIFFITH:  Your Honour, I am also told that one of these

many amendments - Your Honour, it has been enacted

by the Defence Legislation Amendment Act 1990, for
the purpose of section 63(1), the Director of

Public Prosecutions is substituted for the

Attorney-General. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Hackett-Jones.

MR HACKETT-JONES: If the Court pleases, we would say, with

very gr·eat respec:t to my learned friends, the

Solicitors-General, that they resemble a Gadarene

assembly who are intent on leaping into a

conceptual abyss and carrying Your Honours with

them if they can.

MASON CJ: Before you develop that argument, which I am sure

will require some development, what is your

attitude to the Solicitor-General's suggestion with

respect to an amendment in relation to the

Commonwealth as a party to the proceedings?

MR HACKETT-JONES:  We have no objection to that,

Your Honour.

MASON CJ:  There will be an order in terms of that proposed

by the Solicitor-General for the Commonwealth.

A:t18dec5.cl We would submit, Your Honour, that it

involves precisely the fallacy that was referred to

yesterday, the fallacy in Miller v

The Commonweal th., namely that if you get your foot

through the door on a disciplinary basis, then the

Young(2) 98 MR HACKETT-JONES, QC 5/12/90

door has to be opened entirely to permit any damn

nonsense that the Commonwealth might care to put in

their Act. Now we say, for reasons that I have

elaborated yesterday that the foot-in-the-door

argument is just not admissible and, perhaps if I

could - as the Relford matter has been raised and
as the Solicitors-General have raised the

possibility of employing the Relford criteria, I

would submit that it is relevant to consider, say,

the position of legal practitioners.

Now it is possible that I might defraud my

client sitting in my chambers, dressed up in robes

and gown. It is possible that I might change into

a swimming costume and go down to the street corner

and pick somebody's pocket. Now what I would

earnestly put to Your Honours is this, that those

Relford criteria are very peripheral and

superficial indicia and that, in fact, I may bring

equal discredit on my profession by changing into the swimming costume and going down to the street corner to pick somebody's pocket as I would if I

defrauded somebody in the privacy of my chambers

and arrayed in all the majesty of the law.

So, our submission would be that the true.

position is put by John Donne, the poet, "When one
hears the bell toll one does not ask for whom it

tolls, because in a sense it tolls for us all", and

we would not dispute the general proposition that a

person, a service member, who commits an offence,
of course, injures the integrity of society as a

whole, he injures the integrity of the group of

which he is a member, but the question is this,

"Does that fact justify the whole mighty edifice

that the Commonwealth purports to base on it?". We

would say, "Clearly it does not", for the same

reason as one would. not justify a separate class of

judiciary who have their own rules and who were to

go about administering discipline to legal

practitioners, dealing not only with the

disciplinary aspect of their offence, but with all

aspects of their offences.

Moreover, we would say that there is a further

difficulty if the Relford criteria are to be

introduced. Your Honours will recall that in the

Communist Party case it was held that the

Parliament could not arrogate to itself

jurisdiction on the basis of its own declaration.

That principle, we would submit, must apply

a fortiori to the case of a military tribunal.

Perhaps my learned friends assume that my

client is guilty, and perhaps he is. I do not know. But let us assume, just for the sake of

argument, that he is innocent and that these

Young(2) 99 MR HACKETT-JONES, QC 5/12/90

charges are the product of an overheated

imagination on the part of the prosecutor. If that

were so, and if the Relford principles are
applicable there would be no jurisdiction because
the jurisdiction would be purportedly founded on
the assertion of the prosecutor.

We would submit that the arguments, or the suggestion that the Relford principles apply, just

carries within it inherent contradictions and that,

in any event, we would say that the view that

Your Honour the Chief Justice and Your Honour

Justice Dawson put as to the Relford principles is, in fact, the preferable one.

Now, my learned friend, the Solicitor-General

for the Commonwealth, put submissions to you about

force majorities and so on in Tracey. We would

merely reiterate the point that we made originally

that there really is no majority for any

proposition, and that the matter should be treated

as being at large.

There is perhaps one additional point I should

raise about what I regard at any rate as the

conceptualist fallacy, and I would invite

Your Honours to compare Lloyd v Wallach,

20 CLR 299, which is not on my list of authorities.

It is a case in which a legislation conferred an

absolute discretion on a minister to incarcerate

people whom he suspected of harbouring disloyal

intentions.	Now, Mr Wallach was incarcerated in
pursuance of a ministerial order.	He made an

affidavit that, in fact, he was not disloyal or

disaffected. This Court said it was a valid

exercise of the defence power and that was that.

So Mr.Wallach remained incarcerated.

On the other hand, if Your Honours compare

that with Shrimpton v The Commonwealth, 69 CLR 613,

you will notice that in that case it was also a

case of an absolute discretion conferred on the

Treasurer which the Treasurer purported to exercise

in a rather innovative way - Mrs Shrimpton wanted

to buy some land, the Treasurer had an absolute

discretion either to say yea or no or to impose
conditions. In fact he said that she could buy it

but a condition was that she should invest a

substantial sum in war loan bonds. So while one

might have said that that was an innovative way of

contributing to the war effort perhaps the Court

gave the Treasurer no credit for originality,

however, and declared the exercise of the

discretion or the discretion invalid as being one

that was absolute and unrestricted.

Young(2) 100 MR HACKETT-JONES, QC 5/12/90

What I would say is that perhaps you can

reconcile those provisions on the basis of an

ex facie characterization. You might perhaps say

that incarceration of disaffected aliens is -

actually he was not an alien. He was a naturalized

subject, but incarceration of possibly disaffected

citizens is more closely related to the defence

power than control of land transactions; but we

would say that that is simply an unduly superficial

view of the matter and those two cases lead to the

unfortunate inference that this Court places

greater value on proprietary rights than it does on

personal rights of liberty.

So, I return to my original proposition that

the defence power simply does not, in the

circumstances of the present case, support the

jurisdiction that has been asserted against

Sergeant Young. As to the forum non conveniens

argument, I would submit the Act is not necessarily

a code and it does not exclude the exercise of

rights under common law and that if Your Honours do

reach the conclusion that jurisdiction exists,

Your Honours should qualify that position by

admitting the forum non conveniens exception. That

is all I wish to put, if Your Honours please.

MASON CJ:  Tliank you, Mr Hackett-Jones. The Court will

consider its decision in this matter.

AT 11.00 AM THE MATTER WAS ADJOURNED SINE DIE

Young(2) 101 5/12/90