Re Tracey; Ex Parte Ryan

[1989] HCA 12

HIGH COURT OF AUSTRALIA

Mason C.J., Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ.

Re: TRACEY; Ex parte RYAN

(1989) 166 CLR 518

10 February 1989

Constitutional Law (Cth)

Constitutional Law (Cth)—Defence—Service tribunal—Offences by defence members—Service offences—Created by reference to offences against laws of Australian Capital Territory—Validity—Judicial power of Commonwealth—Service offences triable by service tribunal—Where tribunal takes service offence into consideration defence member not triable by civil court—Defence member not triable by civil court where acquitted or convicted of similar service offence—Validity—Offence against law of Commonwealth—Trial on indictment to be by jury—Whether service offences triable on indictment—The Constitution (63 &64 Vict. c. 12), ss. 51(vi), 71, 72, 80—Acts Interpretation Act 1901 (Cth), ss. 15A, 42—Defence Force Discipline Act 1982 (Cth), ss. 3(1), 61, 129, 190.

Decisions

MASON C.J., WILSON AND DAWSON JJ. The prosecutor, who is a Staff Sergeant in the Australian Regular Army, was charged with three offences under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The first charge was laid under s.55(1)(b) which makes it an offence to make an entry in a service document, with intent to deceive, that is false in a material particular. That charge related to a movement requisition signed by the prosecutor. The other two charges, which were laid under s.24(1), alleged that the prosecutor was absent without leave on two separate occasions.

2. The three charges came before a Defence Force magistrate appointed pursuant to s.127 of the Act. He commenced to hear the charges but objection was taken to his jurisdiction to do so. The objection was taken upon the basis that the hearing and determination of the charges involved the exercise of the judicial power of the Commonwealth. It was said that the Defence Force magistrate was not qualified to exercise that power, not having been appointed pursuant to Ch.III of the Constitution. A further objection was taken that each of the offences charged was an indictable offence against a law of the Commonwealth and was, under s.80 of the Constitution, triable only by a jury.

3. The Defence Force magistrate ruled against each of the objections to his jurisdiction and announced his intention to continue with the proceedings. The prosecutor then obtained an order nisi for a writ of prohibition and it is the return of that order which is before us.

4. Chapter III of the Constitution is headed "The Judicature" and provides in s.71 that the judicial power of the Commonwealth shall be vested in a Federal Supreme Court, to be called the High Court of Australia, and in such other courts as the Parliament creates or invests with federal jurisdiction. Under s.72 a Justice of the High Court or of a court created by the Parliament shall be appointed for a term expiring upon his attaining the age of seventy years (or, in the case of courts created by the Parliament, such other age as is prescribed by law) and shall not be removed except upon an address from both Houses of Parliament.

5. It is common ground that under the Act a Defence Force magistrate is not appointed in accordance with s.72 of the Constitution and is, therefore, not qualified to exercise the judicial power of the Commonwealth under Ch.III. It was, however, submitted on behalf of the Commonwealth, which was joined as a party to the proceedings pursuant to Order 55 Rule 12, that the functions of a Defence Force magistrate do not involve the exercise of judicial power under Ch.III. Reliance was placed upon R. v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452 and R. v. Cox; Ex parte Smith (1945) 71 CLR 1. Those decisions are authority for the proposition that the power to establish military tribunals lies not in Ch.III but under s.51(vi) of the Constitution. That paragraph confers power upon the Commonwealth Parliament to make laws with respect to the "naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth". It was contended by the Commonwealth, upon the authority of R. v. Bevan and R. v. Cox, that tribunals established under the defence power form no part of the judicature under Ch. III and do not exercise the judicial power of the Commonwealth. It will be necessary to consider these authorities in due course, but it is convenient to turn first to the functions of a Defence Force magistrate.

6. Under s.129(1) of the Act, a Defence Force magistrate has the same jurisdiction and powers as a restricted court martial. By s.114 a court martial is either a general court martial or a restricted court martial, and either has power under s.115, with certain qualifications which are not presently relevant, to try any charge against any person. "(C)harge" is defined in s.3(1) to mean a charge of a service offence. A general court martial consists of a President and not less than four other members, whereas a restricted court martial consists of a President and not less than two other members: s.114. Under s.67 a court martial or a Defence Force magistrate may not impose a punishment except in accordance with Sched.2 and under that schedule a restricted court martial and a Defence Force magistrate are denied the power given to a general court martial to impose imprisonment for life or imprisonment or detention for a period exceeding six months. The difference between a general court martial on the one hand and a restricted court martial on the other lies, therefore, in the composition of each body and the penalties which it may impose, a difference which is not significant for present purposes. It will be convenient, accordingly, to refer to a court martial rather than to differentiate between a general court martial, a restricted court martial and a Defence Force magistrate.

7. Under s.3(1) of the Act "service offence" means, so far as is relevant, an offence against the Act or the regulations made under it, or an offence that is an ancillary offence in relation to such an offence which was committed by a person at a time when he was a defence member or a defence civilian. Under s.3(13), an ancillary offence is committed by a person who is an accessory after the fact to an offence against a law of the Commonwealth, or who attempts or incites or urges another to commit an offence against a law of the Commonwealth or who conspires with another to commit an offence against a law of the Commonwealth. "(D)efence member" is defined by s.3(1) to include members of the regular forces and "defence civilian" is defined to mean a person (other than a defence member) who, with the authority of an authorized officer, accompanies a part of the Defence Force that is outside Australia or on operations against the enemy and has consented, in writing, to subject himself to Defence Force discipline while so accompanying that part of the Defence Force. No separate argument was put in relation to defence civilians and it is unnecessary to consider their position further.

8. Part III of the Act creates various offences peculiar to service with the Defence Force. Section 24, which creates the offence of being absent without leave, is in Div.2 under the heading "Offences relating to mutiny, desertion and unauthorized absence" and s.55, which creates the offence of falsification of service documents, is in Div.7 under the heading "Miscellaneous offences". In Div.8, under the heading "Other offences", the following provision appears:

"61.(1) A person, being a defence member or

a defence civilian, is guilty of an offence if - (a) he does or omits to do, in the Australian Capital Territory, an act or thing the doing or omission of which is a Territory offence;

(b) he does or omits to do, in a public place outside the Australian Capital Territory, an act or thing the doing or omission of which, if it took place in a public place in the Australian Capital Territory, would be a Territory offence; or

(c) he does or omits to do (whether in a public place or not) outside the Australian Capital Territory an act or thing the doing or omission of which, if it took place (whether in a public place or not) in the Australian Capital Territory, would be a Territory offence.

(2) The punishment for an offence against

sub-section (1) is - (a) if the relevant Territory offence is punishable by a fixed punishment - that fixed punishment; or

(b) in any other case - a punishment not more severe than the maximum punishment for the relevant Territory offence."

"Territory offence" is defined in s.3(1) to mean: "(a) an offence against a law of the Commonwealth in force in the Australian Capital Territory other than this Act or the regulations;

(b) an offence punishable under the Crimes Act, 1900 of the State of New South Wales, in its application to the Australian Capital Territory, as amended or affected by Ordinances in force in that Territory; or

(c) an offence against the Police Offences Ordinance 1930 of the Australian Capital Territory,

but does not include an offence that is an ancillary offence in relation to an offence to which paragraph (a), (b) or (c) applies".

Section 63(1) of the Act provides:

"Except with the consent of the

Attorney-General, proceedings under this Act shall not be instituted for (a) an offence against sub-section 61(1) that is alleged to have been committed in Australia and in relation to which the relevant Territory offence is (i) treason, murder, manslaughter, rape or bigamy;

(ii) an offence in respect of which proceedings could not be brought in the Australian Capital Territory without the consent of a Minister; or

(iii) an offence prescribed for the purposes of this section; or

(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a)."

9. Under s.10 of the Act the principles of the common law with respect to criminal liability apply in relation to service offences. The onus and standard of proof in proceedings before a service tribunal are generally the same as in a criminal court: s.12. The term "service tribunal" includes a summary authority as well as a court martial and a Defence Force magistrate: s.3(1). A defence member or a defence civilian may be guilty of contempt of a service tribunal in essentially the same manner as a person may be guilty of contempt of court: s.53. A member of a service tribunal has in the performance of his duties the same protection and immunity as a Justice of the High Court: s.193(1).

10. The procedure to be adopted by a service tribunal in the discharge of its functions is modelled closely upon that of a civil court. The term "civil court" is defined under s.3(1) to mean a federal court or a court of a State or Territory and is therefore used to refer to a civilian as opposed to a military court. Taking the example of proceedings before a Defence Force magistrate, an accused must be asked whether he pleads guilty or not guilty and the prosecution must, if he pleads not guilty, establish a case to answer: s.135(1). An accused may be represented by a member of the Defence Force or a legal practitioner: s.136. Evidence may be given on oath or affirmation: s.138(1)(a). A hearing is to be in the presence of the accused: s.139(1). Subject to some qualifications, a hearing is to be in public: s.140. Subject to any regulations, the rules of evidence in force in the Australian Capital Territory apply in relation to proceedings before a service tribunal as if the tribunal were a court of that Territory and as if those proceedings were criminal proceedings in a court of that Territory: s.146. A record of proceedings is to be kept: s.148. The royal prerogative of mercy is preserved: s.189.

11. It will be evident from the foregoing that in trying offences under Pt III of the Act, a service tribunal has practically all the characteristics of a court exercising judicial power. True it is that, with the exception of the offence under s.57 of making a false statement in relation to appointment or enlistment, offences under the Act can only be committed by a defence member or a defence civilian. But in relation to those offences, a service tribunal, more particularly a court martial, has the power to determine authoritatively the liability of those charged before it, albeit subject to review or appeal. It makes those determinations in accordance with the law prescribed.

12. No purpose is to be served in this case by attempting yet another description of judicial power. No description can, in any event, be truly definitive: Reg. v. Davison (1954) 90 CLR 353, at pp 366-370. It is sufficient to say that no relevant distinction can, in our view, be drawn between the power exercised by a service tribunal and the judicial power exercised by a court. Nor do we think it possible to admit the appearance of judicial power and yet deny its existence by regarding the function of a court martial as merely administrative or disciplinary. Such an approach was adopted in relation to certain tribunals under the Public Service Act 1922 (Cth) in Reg. v. White; Ex parte Byrnes (1963) 109 CLR 665. At p 670 the Court said:
"We think that the so-called fine is nothing but a
mulct to be deducted from salary or pay and we
think that the provisions of s.55, in spite of the heading of Div.6, 'Offences', should be interpreted as wholly concerned with breaches of discipline and disciplinary measures concerned only with the Service." The nature and scope of the offences with which a court martial may deal and the range of penalties which it may impose would deny the possibility of any similar conclusion in relation to it.

13. Of course, the end to be achieved by martial law, consistently with s.51(vi) of the Constitution, is the promotion of the efficiency, good order and discipline of the defence forces and no more. This object was made clear by this Court in Groves v. The Commonwealth (1982) 150 CLR 113. Stephen, Mason, Aickin and Wilson JJ., in a joint judgment, said, at pp 125-126:
"it is useful to recall that it is a feature of our
system that military law has a quite restricted
range of operation and is seen as an additional, rather than a replacement, set of rights and duties - Halsbury's Laws of England, 3rd ed., vol.33, par.1386. As Lord Loughborough said in Grant v. Sir Charles Gould (1792) 2 HBL 69, at pp 98-100 (126 ER 434, at pp 449-450), martial law in the all-encompassing form in which it existed in some Continental countries was unknown in England; the crimes of soldiers in England have always been amenable to the civil law and our concept of martial law is confined to the area of military discipline, the purpose of the creation of courts-martial being to have a system of courts: 'invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even ... articles of war ... are to be for the better government of "(the King's)" forces, and can extend no further than they are thought necessary to the regularity and due discipline of the army' (1792) 2 HBL, at p 100 (126 ER, at p 450)." Their Honours went on, at p 126, to cite the statement of Lord Mansfield C.J. in Burdett v. Abbot (1812) 4 Taunt 401, at pp 449-450 (128 ER 384, at p 403), that:
"a soldier is gifted with all the rights of other
citizens ... the mistake should be corrected which
supposes that an Englishman, by taking upon him the additonal character of a soldier, puts off any of the rights and duties of an Englishman."

14. It is necessary to refer also to s.190 of the Act. Sub-sections (3) and (5) of that section seek to avoid the double jeopardy of prosecution before a service tribunal and before a court. Whilst it will be necessary later to examine the validity of those sub-sections, it may be observed that the presence of s.190 in the Act emphasizes the fact that in the performance of its disciplinary function, a court martial may proceed to the trial, inter alia, of offences which are also triable as civil offences by a civil court. Section 190, so far as is relevant, is as follows:

"(1) Subject to the Constitution, a civil court does not have jurisdiction to try a charge of a service offence. (2) Subject to sub-sections (3), (4) and (5),

the jurisdiction of a civil court to try a charge of a civil court offence is not affected by this Act.

(3) Where a court martial or a Defence Force magistrate has, under section 77, taken a service offence into consideration in relation to a convicted person, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence. (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 sub-section 61(1)) or the regulations; and

(b) was committed by a person at a time when he was a defence member or a defence civilian.

(5) Where a person has been acquitted or convicted of a service offence, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence. ..."

15. It is, however, unnecessary to prolong any discussion concerning the nature of the power exercised by a court martial. As Lord Scarman observed in Attorney-General v. British Broadcasting Corporation (1981) AC 303, at p 360: "Courts-martial ... are as truly entrusted with the exercise of the judicial power of the state as are civil courts". That proposition is sufficiently established in a constitutional context in R. v. Bevan and R. v. Cox. In the first of those two cases it was expressly decided by Starke J. and assumed by McTiernan and Williams JJ. that the power exercised by a court martial was judicial in character. In the latter case, Dixon J., after referring to the fact that Ch.III of the Constitution confides the judicial power of the Commonwealth exclusively in courts of justice, observed at p 23:

"In the case of the armed forces, an apparent

exception is admitted and the administration of military justice by courts-martial is considered constitutional (R. v. Bevan, at pp 467, 468, 481). The exception is not real. To ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force. But they do not form part of the judicial system administering the law of the land. It is not uniformly true that the authority of courts-martial is restricted to members of the Royal forces. It may extend to others who fall under the same general military authority, as for instance those who accompany the armed forces in a civilian capacity. To include them with members of the armed forces as liable to court-martial would involve no infringement upon the judicial power of the Commonwealth."

16. Thus the real question in this case is not whether a court martial in performing its functions under the Act is exercising judicial power. There has never been any real dispute about that. The question is whether it is exercising the judicial power of the Commonwealth under Ch.III of the Constitution.

17. The corresponding powers to s.51(vi) of the Constitution which the Constitution of the United States conferred on the Congress are spelt out in greater detail in pars 14, 15 and 16 of s.8 of Article I. So far as is material, these paragraphs read:
"To make Rules for the Government and Regulation of
the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States ..." Although the Australian Constitution does not expressly provide for disciplining the defence forces, so much is necessarily comprehended by the first part of s.51(vi) for the reason that the naval and military defence of the Commonwealth demands the provision of a disciplined force or forces. Notwithstanding that it might be thought that the second clause of s.51(vi) is relevant to the question of military discipline by reason of the phrase "the control of the forces" we doubt whether that is so. It seems to us that the content of that phrase relates to the work of law enforcement. It is not the ordinary function of the armed services to "execute and maintain the laws of the Commonwealth". Of course, the powers bestowed by s.51 are subject to the Constitution and thus subject to Ch.III. The presence of Ch.III means that, unless, as with the defence power, a contrary intention may be discerned, jurisdiction of a judicial nature must be created under Ch.III and that it must be given to one or other of the courts mentioned in s.71, namely, the High Court, such other courts as the Parliament creates or such other courts as it invests with federal jurisdiction: see Reg. v. Davison, at pp 364-365. That is because any body exercising such jurisdiction would be exercising judicial power of the kind contemplated by Ch.III and must, therefore, form part of the judicature for which that Chapter provides. However, the defence power is different because the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of the judicature erected under Ch.III, but as part of the organization of the force itself. Thus the power to make laws with respect to the defence of the Commonwealth contains within it the power to enact a disciplinary code standing outside Ch.III and to impose upon those administering that code the duty to act judicially.

18. This construction of the legislative power conferred on the Parliament by s.51(vi) finds support in the law which was already established in the United States in the 19th century and was therefore available as a guide when the Australian Constitution was being framed. In 1857, the Supreme Court of the United States determined that courts martial established by law form no part of the judicial system and that their proceedings within the limits of their jurisdiction cannot be controlled or revised by civil courts. That was decided in Dynes v. Hoover (1857) 61 US 65. In that case Wayne J., in delivering the opinion of the court, said that the relevant provisions of the United States Constitution "show that Congress has the power to provide for the trial and punishment of military and naval offences in the manner then and now practiced by civilized nations; and that the power to do so is given without any connection between it and the 3d article of the Constitution defining the judicial power of the United States; indeed, that the two powers are entirely independent of each other" (at p 79). To the citation of Dynes v. Hoover may now be added the cases of Ex parte Quirin (1942) 317 US 1 and Parker v. Levy (1974) 417 US 733.

19. During the course of argument, it was submitted that s.61(1) of the Act exceeds the power conferred on the Parliament by s.51(vi). It was argued that the possible operation of the section could encompass situations which had no sufficient connection with the defence of the Commonwealth. Two preliminary points should be noted. First, the scope of s.61(1) is severely limited by s.63, which provides that, except with the consent of the Attorney-General, proceedings under the Act shall not be instituted for, inter alia, treason, murder, manslaughter, rape or bigamy, alleged to have been committed in Australia. Secondly, the pre-1900 legislative history of the power of courts martial to try members of the forces for civil offences is relevant to a consideration of the scope of s.51(vi). Already in 1900, when the Constitution was enacted, legislation both in the United Kingdom and in the Australian colonies contained provisions which conferred such power on courts martial. In the United Kingdom, the gradual establishment, at the expense of the prerogative, of parliamentary control over the enforcement of military law saw a lessening of resistance to the intrusion of courts martial or their predecessors into areas which had been the exclusive preserve of the civil courts. The Naval Discipline Act 1866 (U.K.) (29 &30 Vict. c.109) conferred jurisdiction on courts martial to punish persons subject to the Act for offences against the law of England whether or not the offence was committed in England and authority was given for the offender to be punished either as for an act to the prejudice of good order and naval discipline not otherwise specified, or as he might be punished by the ordinary civil courts for the offence had it been committed in England: s.45. Section 101 of that Act provided that nothing in the Act was to affect the authority of the ordinary courts. A provision similar to s.45 of the Naval Discipline Act appeared as s.41 of the Army Discipline and Regulation Act 1879 (U.K.) (42 &43 Vict. c.33) and s.155 of the same Act provided that a person might be convicted in a civil court having been sentenced by a court martial for the same offence, but that any military punishment that he had already undergone should be taken into account. The 1879 Act was repealed and re-enacted with some amendment in the Army Act 1881 (U.K.) (44 &45 Vict. c.58), but ss.41 and 155 of the former Act appeared unchanged in the latter Act as ss.41 and 162.

20. By the time of federation, each of the Australian colonies had enacted legislation dealing with defence. That legislation reveals a pattern whereby United Kingdom statutes were invoked, in varying circumstances, to provide for the discipline of the forces: Military and Naval Forces Regulation Act 1871 (N.S.W.); Defences and Discipline Act 1890 (Vict.); The Defence Act 1884 (Qld); The Defences Act 1895 (S.A.); The Defence Forces Act 1894 (W.A.); The Defence Act 1885 (Tas.). It is significant, therefore, that s.45 of the Naval Discipline Act and s.41 of the Army Act - these sections being the forerunners of s.61(1) of the Act - were already operative in this country when s.51(vi) of the Constitution was drafted. After federation, the colonial legislation continued in force in each of the States until it ceased to apply on the enactment of the Defence Act 1903 (Cth): see s.6. The Defence Act, in ss.55 and 56, applied the provisions of the Army Act and the Naval Discipline Act respectively to the military and naval forces of the Commonwealth while on active service. This was followed by the Naval Defence Act 1910 (Cth), which, by s.36 and reg.6(a)(v) of the Naval Forces Regulations 1921, applied s.45 of the Naval Discipline Act as if "Australia" were inserted in lieu of "England".

21. This legislative history, and in particular the consideration that, at the time when s.51(vi) of the Constitution was formulated, there was in existence (and at least partially in force in the federating colonies themselves) the very legislation which after federation was applied to the military and naval forces of the nation is highly significant. Furthermore, analogues of the United Kingdom legislation, to which we have referred, are still to be found in modern United Kingdom legislation. The Army Act 1955 (U.K.) provides in s.70 that, with certain specified exceptions, a person subject to military law who commits a civil offence, whether in the United Kingdom or elsewhere, shall be guilty of an offence against that section. Section 133 of that Act in its original form preserved the jurisdiction of a civil court to try a person subject to the Act for any offence. Sections 70 and 133 of the Air Force Act 1955 (U.K.) made similar provision for the Air Force. The Armed Forces Act 1966 (U.K.), by s.25, amended both s.133 of the 1955 Army Act and s.133 of the Air Force Act so as to debar a civil court from trying a person who has already been tried by a court martial for substantially the same offence. The Naval Discipline Act 1957 (U.K.), by s.48, confers jurisdiction on courts martial, with certain exceptions, over civil offences and by s.129 provides that a civil court is debarred from trying a person acquitted or convicted before a court martial for the same or substantially the same offence. A similar bar is imposed upon the trial by court martial of a person for an offence which is the same or substantially the same as an offence of which he has been convicted or acquitted by a civil court.

22. During the course of argument we were referred to legislation in the United States, Canada and New Zealand which, in one way or another, treats civil offences committed by members of the defence forces as service offences. There is no need to examine this legislation in detail. Suffice it to say that both as a matter of history and of contemporary practice, it has commonly been considered appropriate for the proper discipline of a defence force to subject its members to penalties under service law for the commission of offences punishable under civil law even where the only connection between the offences and the defence force is the service membership of the offender. Such legislation is based upon the premise that, as a matter of discipline, the proper administration of a defence force requires the observance by its members of the standards of behaviour demanded of ordinary citizens and the enforcement of those standards by military tribunals. To act in contravention of those standards is not only to break the law, but also to act to the prejudice of good order and military discipline. It is appropriate that such conduct should be punished in the interests not only of the community but of the defence force as well. There can be little doubt that in war-time or upon overseas service such considerations warrant the treatment of civil offences as service offences and it is open to the legislature to regard the position in peace-time as warranting similar treatment. Good order and military discipline, upon which the proper functioning of any defence force must rest, are required no less at home in peace-time than upon overseas service or in war-time.

23. It is for these reasons that it is not possible to draw a clear and satisfactory line between offences committed by defence members which are of a military character and those which are not. The impossibility of doing so was recently accepted in the United States in Solorio v. United States (1987) 97 L Ed 2d 364. Earlier, in O'Callahan v. Parker (1969) 395 US 258, the Supreme Court of the United States had held that the jurisdiction of a court martial to try a member of the armed forces depended upon the "service connection" of the offence charged. Following upon that decision, an effort was made in Relford v. Commandant, US Disciplinary Barracks, Ft. Leavenworth (1971) 401 US 355 to identify those factors which determine whether an offence is service connected. Subsequent cases proved that effort to be unsuccessful. In Solorio v. United States the Supreme Court, in a judgment delivered for the majority by Rehnquist C.J., observed at p 377:
"Since O'Callahan and Relford, military courts have
identified numerous categories of offenses
requiring specialized analysis of the service connection requirement. For example, the courts have highlighted subtle distinctions among offenses committed on a military base, offenses committed off-base, offenses arising from events occurring both on and off a base, and offenses committed on or near the boundaries of a base. Much time and energy has also been expended in litigation over other jurisdictional factors, such as the status of the victim of the crime, and the results are difficult to reconcile. The confusion created by the complexity of the service connection requirement, however, is perhaps best illustrated in the area of off-base drug offenses. Soon after O'Callahan, the Court of Military Appeals held that drug offenses were of such 'special military significance' that their trial by court-martial was unaffected by the decision: United States v. Beeker 18 USCMA 563, 56, 40 CMR 275, 277 (1969). Nevertheless, the court has changed its position on the issue no less than two times since Beeker, each time basing its decision on O'Callahan and Relford." The Supreme Court concluded that it was a sufficient foundation for the jurisdiction of a court martial that the person charged was a member of the armed forces at the time of the offence charged.

24. It follows that, if offences against military law can extend no further than is thought necessary for the regularity and discipline of the defence forces (see Groves v. The Commonwealth, at p 125), this limitation would not preclude Parliament from making it an offence against military law for a defence member to engage in conduct which amounts to a civil offence. It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member. As already explained, the proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces. The power to proscribe such conduct on the part of defence members is but an instance of Parliament's power to regulate the defence forces and the conduct of the members of those forces. In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces. And Parliament's decision will prevail so long at any rate as the rule which it prescribes is sufficiently connected with the regulation of the forces and the good order and discipline of defence members.

25. Section 61 of the Act adopts the law of the Australian Capital Territory in translating civil offences into service offences and it does so with the obvious intent of applying one law out of the multiplicity of laws potentially applicable in a federation. The application of the one law whether the offence is committed anywhere within Australia or overseas has clear advantages, notwithstanding that it is possible to imagine some curious results. But once it is concluded, as we think it must be, that it is for Parliament to determine what civil offences are to constitute service offences, then the selection of a law or laws defining such civil offences for that purpose must also be a matter for Parliament. It follows, in our view, that s.61 of the Act is validly enacted.

26. The validity of s.190(3) and (5) was also raised in argument. These sub-sections involve different considerations from those we have discussed in relation to s.61(1). As we have observed, they seek to avoid the double jeopardy of prosecution before a service tribunal and before a civil court. It will be seen from the legislative provisions to which we have already referred that in earlier times it has not been thought desirable to provide relief against double jeopardy even when civil offences are treated as service offences. On the contrary, Dicey, Law of the Constitution, 10th ed., (1959), p 302, in examining the various Mutiny Acts - the predecessors of the Army Acts -
reached the following conclusion:

"In all conflicts of jurisdiction between a

military and a civil court the authority of the civil court prevails. Thus, if a soldier is acquitted or convicted of an offence by a competent civil court, he cannot be tried for the same offence by a court-martial; but an acquittal or conviction by a court-martial, say for manslaughter or robbery, is no plea to an indictment for the same offence at the Assizes."

Earlier (at pp 300-301) Dicey gave the explanation for this:

"A soldier's position as a citizen. - The fixed

doctrine of English law is that a soldier, though a member of a standing army, is in England subject to all the duties and liabilities of an ordinary citizen. 'Nothing in this Act contained' (so runs the first Mutiny Act) 'shall extend or be construed to exempt any officer or soldier whatsoever from the ordinary process of the law.' These words contain the clue to all our legislation with regard to the standing army whilst employed in the United Kingdom. A soldier by his contract of enlistment undertakes many obligations in addition to the duties incumbent upon a civilian. But he does not escape from any of the duties of an ordinary British subject."

We have already cited the observation to similar effect of Lord Mansfield C.J. in Burdett v. Abbot.

27. However, as we have seen, the position in the United Kingdom was changed as regards the Army and the Air Force by the amendment of ss.133 of the 1955 Army Act and the Air Force Act respectively by s.25 of the Armed Forces Act. The 1957 Naval Discipline Act had already made provision against double jeopardy: s.129. The report of the select committee of the House of Commons on the Bill for the Armed Forces Act remarked that the then existing respective ss.133 "appear to be the sole exceptions to the common-law principle that a person may not be put in jeopardy twice for the same offence."

28. Little attention appears to have been given to the question whether, in the absence of legislative provision, the ordinary principles of autrefois acquit and autrefois convict would apply in relation to trials by court martial. There are cogent arguments why those principles should apply given that a court martial exercises, as we think it does, judicial power: see Friedland, Double Jeopardy, (1969), pp 335 et seq; Grafton v. United States (1907) 206 US 333. However, it is unnecessary to consider the question in these reasons. It was not canvassed in argument and does not fall for decision in this case.

29. In any event, the desirability or undesirability of a person being exposed to double jeopardy sheds little light upon the question of the legislative power of the Commonwealth to enact s.190(3) and (5). The section seeks to protect against double jeopardy and proceeds upon the assumption that statutory provision is necessary to achieve that objective. The method chosen in the provisions under challenge is to exempt persons from the operation of laws, for the most part State laws, which apply to those persons, by denying jurisdiction to the civil courts, for the most part State courts, to try cases brought under those laws. For our part we doubt whether provisions of that kind, which strike at the judicial power of the States, could ever be regarded as within the legislative capacity of the Commonwealth having regard to s.106 of the Constitution, but it is sufficient to say that they clearly exceed the power to make laws with respect to the defence of the Commonwealth. No doubt if the imposition of criminal liability upon defence members or defence civilians in a particular instance or context were capable of interference with the defence of the Commonwealth, the Parliament would have power under s.51(vi) to provide for the specific situation by enacting a law which did not involve the ouster of jurisdiction from the courts of the States. Such a law would prevail under s.109 of the Constitution. See Pirrie v. McFarlane (1925) 36 CLR 170, at pp 184, 214 and 229. But sub-ss.(3) and (5) of s.190 extend across the whole range of criminal conduct and apply whenever a person prosecuted for an offence in a civil court has been tried by court martial for substantially the same offence or where a court martial has taken into account an offence that is substantially the same. In our opinion it is clearly beyond the defence power and the incidental power of the Parliament to interfere in this manner with the exercise by State courts of their general criminal jurisdiction. Nor can the provisions be read down so as to apply only to federal courts. They are, therefore, wholly invalid.

30. This leads us to consider the effect, if any, of that invalidity on the remainder of the Act. That question must be viewed in the light of s.15A of the Acts Interpretation Act 1901 (Cth). Section 15A provides that where any enactment would, but for the section, have been construed as being in excess of the legislative power of the Commonwealth, it is nevertheless to be a valid enactment to the extent to which it is not in excess of that power. In Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p 371, Dixon J. described the effect of provisions such as s.15A as follows:

"The effect of such clauses is to reverse the

presumption that a statute is to operate as a whole, so that the intention of the legislature is to be taken prima facie to be that the enactment should be divisible and that any parts found constitutionally unobjectionable should be carried into effect independently of those which fail. To displace the application of this new presumption to any given situation arising under the statute by reason of the invalidation of part, it must sufficiently appear that the invalid provision forms part of an inseparable context."

It is, in our view, not possible to regard the principle against double jeopardy contained in sub-ss.(3) and (5) of s.190 as being inseparably connected with the disciplinary code erected by the Act. Both as a matter of history and of practice the procedures for the enforcement of the criminal law have been regarded as separable from military law, even where military law comprehends the same or similar offences. The purpose of the Act is the discipline of the defence forces and it is not to be presumed, certainly in the light of s.15A, that the prosecution of offences created by the Act was intended by Parliament to be in any way dependent upon the elimination of the possibility of similar prosecutions in the civil courts. Nor is there any reason to conclude that the maximum punishments fixed for offences under the Act are so intimately related to the conferment of protection from double jeopardy sought to be achieved by s.190(3) and (5) as to require the invalidation of the whole Act. The sub-sections are severable.

31. It remains to consider the submission that the provisions of the Act are in breach of s.80 of the Constitution, which provides that the trial on indictment of any offence against any law of the Commonwealth shall be by jury. Service offences are, it was submitted, offences against a law of the Commonwealth. In order to overcome the difficulty that trials by court martial are not under the Act trials upon indictment, reliance was placed upon s.42 of the Acts Interpretation Act. That section provides that "Offences against any Act which are punishable by imprisonment for a period exceeding 6 months shall, unless the contrary intention appears, be indictable offences." Clearly a contrary intention does appear from the Act, but it was said that s.42, in speaking of a contrary intention, is concerned only with offences triable by courts exercising the judicial power of the Commonwealth under Ch.III of the Constitution. That qualification of s.42 has, so the submission went, no application to offences triable before a court martial if it is not exercising power under Ch.III. Thus it was said that the contrary intention expressed by the Act, upon the assumption that a court martial is not exercising Ch.III judicial power, is not comprehended by s.42. Upon this basis it was submitted that the section applies without qualification. The Act makes certain offences, including the offences in question in this case, punishable by imprisonment for a period exceeding six months, and it was said that they must, therefore, be treated by virtue of s.42 of the Acts Interpretation Act as indictable offences.

32. The argument is untenable. There is no basis upon which the qualification by reference to a contrary intention contained in s.42 may be regarded as inapplicable whilst the remainder of the section remains applicable. Either the section applies as a whole or it does not apply at all. That being so, it fails upon any view to require service offences to be treated as indictable offences. Section 80 of the Constitution has, therefore, no application.

33. The jurisdiction of the Defence Force magistrate in this case is not, for the reasons given, dependent upon the validity of sub-ss.(3) and (5) of s.190 and the attack upon it must therefore fail. We would discharge the order nisi.

BRENNAN AND TOOHEY JJ. Staff Sergeant Ryan ("the soldier") is a member of the Australian Regular Army. In March 1988 he was charged before his commanding officer with three offences against the Defence Force Discipline Act 1982 (Cth) ("the Discipline Act"). The soldier made no plea to any of those charges and his commanding officer ordered that the matter be referred to the Commander of the Third Military District who is a convening authority appointed under s.102 of the Discipline Act. Those charges appear to have been superseded because, on 22 April 1988, the soldier was again charged with three offences, one against s.55(1)(b) and the others against s.24(1) of the Discipline Act. The first charge was making an entry in a service document relating to leave which was false in a material particular; the other two charges were being absent without leave in December 1986 and January 1987.

2. The convening authority referred the charges to a Defence Force magistrate for trial: see s.103(1)(c). Major Tracey, an officer in the Australian Army Reserve and one of the respondents in these proceedings, is a Defence Force magistrate appointed pursuant to s.127 of the Discipline Act. When the proceedings began counsel for the soldier objected to the jurisdiction of Major Tracey to hear and determine the charges. He did so on the ground that Major Tracey was exercising the judicial power of the Commonwealth though he was not a person duly appointed to exercise that power in accordance with Ch.III of the Constitution. The objection was overruled. An order nisi for a writ of prohibition was granted by a Justice of this Court. During the hearing on the return of the writ, broader questions of constitutional validity were raised. The Commonwealth of Australia was made a party to defend the validity of the Discipline Act and the States have subsequently intervened. The grounds on which the soldier seeks a writ of prohibition were amended and now read as follows:
"1. The Respondent Major Tracey in hearing and

determining the charges laid against the Applicant is exercising the judicial power of the Commonwealth and if and in so far as Section 127 of the Defence Force Discipline Act 1982 purports to confer jurisdiction upon the Respondent Major Tracey the said Section is contrary to Chapter III of the Constitution of the Commonwealth of Australia, in particular Sections 71 and 72, and invalid.

2. Each of the charges laid against the Applicant is an indictable offence against a law of the Commonwealth and as such is required to be heard before a jury by reason of the Constitution of the Commonwealth of Australia, Chapter III, in particular, Section 80.

3. Section 190 of the Defence Force Discipline Act 1982 is invalid as being beyond the power of the Commonwealth with the consequence that upon the proper construction of the Defence Force Discipline Act 1982 the secondnamed Respondent is exercising the judicial power of the Commonwealth and has not been appointed pursuant to Chapter III of the Constitution of the Commonwealth of Australia."

3. The Discipline Act is the first occasion in this country when provisions for common application to the naval, military and air forces of the Commonwealth have been enacted to define service offences, criminal liability, punishments, apprehension and investigation and to confer jurisdiction on service tribunals organized in a common system. The Discipline Act swept aside a complex of Commonwealth Acts and regulations and Imperial Acts and regulations which had theretofore applied naval, military and air force law to the Navy, the Army and the Air Force. The Discipline Act creates a number of offences which are embraced by the definition in s.3(1) of a "service offence". With one exception (s.57), a service offence can be committed only by a "defence member" or, in some instances, a "defence civilian". The term "defence member" is defined by s.3(1) to mean - " (a) a member of the Permanent Naval Forces,

the Australian Regular Army, the Regular Army Supplement or the Permanent Air Force; or

(b) a member of the Emergency Forces or the Reserve Forces who (i) is rendering continuous full-time service; or

(ii) is on duty or in uniform".

A "defence civilian" is one who accompanies a part of the Defence Force outside Australia or on operations against the enemy and who has subjected himself to Defence Force discipline. A "service offence" is defined by s.3(1) to mean - " (a) an offence against this Act or the

regulations;

(b) an offence that (i) is an ancillary offence in relation to an offence against this Act or the regulations; and

(ii) was committed by a person at a time when he was a defence member or a defence civilian; or

(c) an old system offence".

An ancillary offence is defined by s.3(13). Broadly speaking, an ancillary offence is an incitement or conspiracy to commit, an aid to committing or an attempt to commit a substantive service offence or being an accessory after the fact of the commission of such an offence. The "old system" mentioned in par.(c) refers to the systems of naval, military and air force law superseded by the Discipline Act. Among the offences "against this Act" are those created by s.61(1) which provides - " 61. (1) A person, being a defence member or a
defence civilian, is guilty of an offence if -

(a) he does or omits to do, in the Australian Capital Territory, an act or thing the doing or omission of which is a Territory offence; (b) he does or omits to do, in a public place outside the Australian Capital Territory, an act or thing the doing or omission of which, if it took place in a public place in the Australian Capital Territory, would be a Territory offence; or

(c) he does or omits to do (whether in a public place or not) outside the Australian Capital Territory an act or thing the doing or omission of which, if it took place (whether in a public place or not) in the Australian Capital Territory, would be a Territory

offence."

The second of these categories is clearly subsumed in the third. A "Territory offence" is defined by s.3(1) to be an offence against certain specified laws in force in the Australian Capital Territory. "Territory offence" means

" (a) an offence against a law of the Commonwealth in force in the Australian Capital Territory other than this Act or the regulations;

(b) an offence punishable under the Crimes Act, 1900 of the State of New South Wales, in its application to the Australian Capital Territory, as amended or affected by Ordinances in force in that Territory; or

(c) an offence against the Police Offences Ordinance 1930 of the Australian Capital Territory,

but does not include an offence that is an ancillary offence in relation to an offence to which paragraph (a), (b) or (c) applies".

4. The offences "against this Act" created by sections other than s.61(1) are, for the most part, clearly related to the discipline of the defence force. Thus there are offences relating to operations against the enemy, mutiny, desertion and unauthorized absence, insubordination and violence, offences relating to performance of duty and offences relating to service property. The offences with which the soldier has been charged fall into this general category. There are some offences where the relation is more tenuous: see ss.33,46,47 and 59. However, s.61(1) of the Discipline Act goes much further. Section 61 picks up the principal provisions of the general criminal law applicable in the Territory, so that "service offence" includes offences which may have no connection with the defence force other than the offender's status as a "defence member". (It is unnecessary to consider the application of the Discipline Act to a "defence civilian"). However, s.63(1) qualifies the bringing of proceedings against a defence member in respect of the commission of the more serious service offences against s.61(1): " 63. (1) Except with the consent of the
Attorney-General, proceedings under this Act shall not be instituted for - (a) an offence against sub-section 61 (1) that

is alleged to have been committed in Australia and in relation to which the relevant Territory offence is (i) treason, murder, manslaughter, rape or bigamy;

(ii) an offence in respect of which proceedings could not be brought in the Australian Capital Territory without the consent of a Minister; or

(iii) an offence prescribed for the purposes of this section; or

(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a)."

The Discipline Act distinguishes between a "service offence" and a "civil court offence". A "civil court offence" is defined by s.3(1) to mean -

" (a) an offence against a law of the Commonwealth (other than a service offence); or

(b) an offence against a law of a State or Territory".

Throughout the Discipline Act, the primary connotation of the term "offence" in the terms "service offence" and "civil court offence" is an offence created by law, not the acts done or omissions made by an offender; an offence which consists of its legal elements, not of the acts, omissions and circumstances which satisfy those elements. The distinction is significant because a defence member who, in particular circumstances, does an act or makes an omission which satisfies the elements of both a civil court offence and a service offence is prima facie exposed to a dual liability. This consideration gives rise, as we shall see, to a constitutional problem of some difficulty. Before addressing that problem, some further provisions of the Discipline Act should be noted.

5. The Discipline Act contains a number of provisions relating to the making of charges against defence members. An alleged offender may be charged and ordered to appear before a "summary authority" or summonsed to appear before a commanding officer (s.87), he may be arrested under warrant (s.90) or (in some circumstances) without warrant (s.89). Summary authorities are of three kinds - superior summary authority, being an officer appointed by a chief of staff; commanding officer; and subordinate summary authority, being an officer appointed by a commanding officer: ss.3(1), 105. They have different powers: ss.106 to 111. Among the powers of a superior summary authority and a commanding officer is the power to refer a charge to a "convening authority" (ss.109(b), 110(1)(d)), an officer appointed by a chief of staff: s.102. A subordinate summary authority has no power to refer a charge to a convening authority but may refer a charge to the commanding officer: s.111(2)(c). Among the powers of a convening authority are the powers to convene a court martial to try a charge, to refer a charge to a Defence Force magistrate for trial or to refer a charge to a superior summary authority or to a commanding officer for trial: s.103(1).

6. There are two levels of courts martial - general courts martial and restricted courts martial. In broad terms, restricted courts martial consist of fewer members with a less senior president and they have restricted powers of punishment. A Defence Force magistrate must be a member of the judge advocates panel; this means that he must be a legal practitioner enrolled for not less than five years: s.196(3). He has the same jurisdiction and powers as a restricted court martial. Summary authorities have more limited jurisdictions. Courts martial, Defence Force magistrates and summary authorities are "service tribunals": s.3(1). No service tribunal is appointed in the manner prescribed by s.72 of the Constitution for the appointment of Justices of federal courts.

7. The jurisdiction conferred on service tribunals to try a charge of a service offence is exclusive, for s.190(1) provides:
" 190. (1) Subject to the Constitution, a civil
court does not have jurisdiction to try a charge of a service offence." A "civil court" is any federal court or court of a State or Territory: s.3(1). However, where a civil court has convicted or acquitted a person of a "civil court offence", a service tribunal cannot try that person for a service offence that is substantially the same: s.144(3).

8. The Discipline Act (s.190(2)) declares that it does not affect the jurisdiction of a civil court to try a charge of a civil court offence "(s)ubject to sub-sections (3), (4) and (5)". Those provisions read as follows:
" (3) Where a court martial or a Defence Force
magistrate has, under section 77, taken a service
offence into consideration in relation to a convicted person, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence.

(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 sub- section 61(1)) or the regulations; and

(b) was committed by a person at a time when he was a defence member or a defence civilian.

(5) Where a person has been acquitted or convicted of a service offence, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence."

Many service offences - in particular those created by s.61 - are substantially the same as civil court offences, being distinguished only by the requirement that the offender be a defence member. As jurisdiction to try service offences is vested exclusively in service tribunals and as jurisdiction to try civil court offences is vested in civil courts to the exclusion of service tribunals, the liability of a defence member to punishment for conduct amounting equally to a civil court offence and a service offence is made to depend on whether a civil court or a service tribunal first exercises its jurisdiction. A competition to be first to exercise jurisdiction would be unseemly, to say the least. There is nothing novel, however, in the existence of parallel systems of military and civil justice. A brief reference to history illustrates the problems and assists in the construction of the constitutional provisions bearing on the validity of the Discipline Act.

9. The scope of military law and of special jurisdictions to enforce it has been a subject of controversy since feudal times. At first, armies were raised by the King only as occasion required and they were controlled during the war for which they were raised by the King's instructions which came to be known as Articles of War. When the Court of the Constable and Marshal was established, it tried offences committed by the military outside the country and had jurisdiction in some other military matters. The Lord High Constable and the Earl Marshal, who were the King's first and second military officers, were the ordinary judges of this Court. The Court of the Constable and Marshal was designed for a feudal army, called into existence for service in foreign wars as occasion required: Holdsworth, "Martial Law Historically Considered", (1902) 18 Law Quarterly Review 117, at p 119. The Tudor monarchs sought to extend its jurisdiction to the prejudice of the peacetime jurisdiction of the ordinary courts of the land but it has been doubted whether this Court ever had jurisdiction to enforce military law within the Realm: see Manual of Military Law (1887) pp 7-9; Clode, The Administration of Justice under Military and Martial Law, (1872), p 26 (hereafter "Military Law"). In his charge to the Grand Jury in Reg. v. Nelson and Brand (1867) Special Report at pp 93-95, Cockburn L.C.J. showed that it did have that jurisdiction, at least for a time. However, the Court fell into desuetude and lost one of its judges in 1521 with the beheading of the Duke of Buckingham, the Lord High Constable, whose office was not filled again. See also R.A. McDonald, "The Trail of Discipline: The Historical Roots of Canadian Military Law", (1985) 1 JAG Journal 1, at pp 10-11. During the reign of Charles I, the King issued commissions for the enforcement of military law in order to keep his soldiers from committing outrages and misdemeanours, the Commissioners being empowered to impose and carry out the capital penalty: Clode, The Military Forces of the Crown; Their Administration and Government (1869) vol.I, pp 17-18 (hereafter "Military Forces"). These commissions were condemned by the Petition of Right, 1628: Holdsworth, A History of English Law, vol.I, pp 575-576. Clause 7 of the Petition condemned both the assumption by military authorities of jurisdiction in capital cases arising within the Realm in times of peace and claims for exemption from the jurisdiction of the ordinary courts by those who were said to be punishable only by martial law. According to Holdsworth (18 Law Quarterly Review, at p 120) -
"the Petition of Right has generally been taken to
deal simply with the recent extensions which
martial law had received, and to declare them illegal, leaving martial law only applicable to armies in time of war." But Cockburn L.C.J. (Nelson and Brand, at p 66) attributes a broader effect to the Petition of Right:
" Two views have been propounded of this
celebrated statute. The one that its effect is
limited to commissions such as those of which the Commons had more immediate cause to complain, and especially to commissions issued in time of peace; the other that it was intended to prevent the exercise of martial law against the subject, under any circumstances, and even as against the soldier, except in the case of 'armies in time of war.' The latter would appear to have been the view of Lord Hale, and the words of the statute are certainly large enough to embrace the more general position; nor is it at all probable that the Commons, many of whom must have foreseen that, as things were then going on, armed resistance to the encroachments of the prerogative might become inevitable, intended to leave the subject, in the event of popular commotion, at the mercy of martial law." After the Restoration, the Orders and Articles of War of 1666 provided for the appointment of courts martial and conferred on them general criminal jurisdiction over officers and soldiers, the jurisdiction being exclusive of the jurisdiction of the civil magistrates except for high treason or killing or robbing any person not being a soldier: Military Forces, pp 54-55, 446-449. However, after Monmouth's rebellion, Colonel Kirke was directed in 1685 -

"that in all cases whatsoever, where the punishment
is to be loss of life or limb, the Trial of any
offender in His Majesty's pay be left to the Common Statute Law, the Articles of War being only to take place during the Rebellion which has now ceased." (Military Forces, p 478). Prior to the 17th century, standing armies were unknown. When the King was not engaged in foreign hostilities and when there was peace within the Realm, there was no necessity for military law. That position changed with the Restoration. The Manual of Military Law comments (p 12 par 16) -
"when, after the Restoration in 1660, such a force
was established, the necessity of special powers
for the maintenance of decipline (sic) began to be felt. The growth of the army was, however, always regarded with jealousy, and Parliament was therefore unwilling to confer such powers on the Crown until it became absolutely necessary to do so." Thus, when William and Mary were invited to the throne the Declaration of Rights stated, and the statement was repeated in the Bill of Rights 1688 (1 Will. &Mary 2 c.2), that "the raising or keeping a standing Army within the Kingdome in time of Peace unlesse it be with Consent of Parlyament is against law". Parliament gave consent for a standing army by the first Mutiny Act (1 Will. &Mary c.5), which expired in November 1689 and was renewed annually thereafter (except during an hiatus), and at the same time made limited provision for the control of the standing army. The need for such a provision was stated by Lord Loughborough in the Court of Common Pleas in 1792 in Grant v. Gould (1792) 2 HBL 69 (126 ER 434), at pp 99-100 (p 450):
"The army being established by the authority of the
Legislature, it is an indispensable requisite of
that establishment that there should be order and discipline kept up in it, and that the persons who compose the army, for all offences in their military capacity, should be subject to a trial by their officers. That has induced the absolute necessity of a mutiny act accompanying the army ... It is one object of that act to provide for the army; but there is a much greater cause for the existence of a mutiny act, and that is, the preservation of the peace and safety of the kingdom: for there is nothing so dangerous to the civil establishment of a state, as a licentious and undisciplined army; and every country which has a standing army in it, is guarded and protected by a mutiny act. An undisciplined soldiery are apt to be too many for the civil power; but under the command of officers, those officers are answerable to the civil power, that they are kept in good order and discipline ... The object of the mutiny act, therefore, is to create a court invested with authority to try those who are a part of the army, in all their different descriptions of officers and soldiers; and the object of the trial is limited to breaches of military duty. Even by that extensive power granted by the Legislature to his majesty to make articles of war, those articles are to be for the better government of his forces, and can extend no further than they are thought necessary to the regularity and due discipline of the army." The object of establishing courts martial being limited to the punishment of breaches of military duty, the ordinary processes of the criminal law were applied to persons subject to military discipline who were charged with offences against the ordinary criminal law. And in this they were entitled to the protection of the due process of the ordinary criminal courts, as the Mutiny Acts acknowledged. The recital to the successive Mutiny Acts contained what Cockburn L.C.J. in Nelson and Brand (at p 68) called "the great constitutional dogma" that
"whereas no man may be forejudged of life or limb,
or subjected in time of peace to any kind of
punishment by martial law, or in any other manner than by the judgment of his peers and according to the known and established laws of the realm". The words "in time of peace" were inserted in the time of Queen Anne and they are significant for they show that, when the ordinary courts were open, there was no occasion for the exercise of martial law (or military law as it is called in modern times). The editor's footnote to Nelson and Brand (at pp 69-70) explains the meaning of "in time of peace": " According to Lord Coke, 'the time of peace is when

the courts are open. For, when they are, you may have a commission of Oyer and Terminer, and where the common law can determine a thing, the martial law ought not.' And again he says - 'When the courts are open martial law cannot be executed' (3 Rushworth Collect., App, p 81.) Lord Hale also says - 'The exercise of martial law, whereby any person shall lose his life, or members, or liberty, may not be permitted in time of peace when the King's courts are open.' Both these writers, it is to be observed, are speaking of martial law, not with reference to its exercise for the purpose of suppressing a rebellion, but as a rude substitute for the law of the land when, in time of war, justice cannot be administered by the ordinary tribunals."

Thus, Lord Loughborough in Grant v. Gould (at pp 99-100 (p 450)) declared that "In this country, all the delinquencies of soldiers
are not triable, as in most countries in Europe, by
martial law; but where they are ordinary offences against the civil peace, they are tried by the common law courts. Therefore it is totally inaccurate to state martial law as having any place whatever within the realm of Great Britain." The offences punishable by court martial under the first Mutiny Act were clearly military offences - mutiny, sedition and desertion. Other offences were added in later Acts. One of the effects of the Mutiny Act, according to Clode (Military Forces, p 206), was that "the trial of an offender by a civil court (was) conclusive of his guilt or innocence, and an answer to all further punishment, except that of dismissal from the service of the Crown".

10. However, the converse was not accepted. When an annual Mutiny Bill of the reign of George I declared that trial by court martial should be a bar to proceedings in other courts and did not ensure the surrender of military offenders to ordinary criminal process, it met with strenuous objection. The Lords protested because, inter alia:
"no provision whatsoever is made by this bill for
securing the obedience of the military to the civil power, on which the preservation of our constitution depends" and
"a much larger jurisdiction is given to
courts-martial by this bill, than to us seems
necessary for maintaining discipline in the Army". The objections were satisfied by legislation in 1721: Military Forces, pp 158-160. Clode (Military Law, pp 53-54) writes:
" 23. ... the jurisdiction assumed by
Courts-martial to try offences (of immorality or
misbehaviour) committed by a Soldier against a fellow-citizen was calculated to obstruct or supersede the ordinary Tribunals, so that many grievous offences might remain unpunished.

24. The Remedy for this infringement of the Municipal Law was commenced in 1718 by Parliament declaring in the Mutiny Act, 1st, that any Soldier accused of a Criminal offence punishable by the known Laws of the land should be given up to the Civil Magistrate by the Commanding Officer, under the penalty of his being cashiered for neglect or refusal; and 2nd, that no person convicted by the Civil Magistrate should be liable to Court-martial punishment, save that of cashiering, for the same offence. It was completed in 1721, when the clause giving the accused criminal the full benefit of Court-martial acquittal was withdrawn from the Act."

11. By 1872, the Mutiny Act contained an express provision (35 Vict. c.3, s.76) that -
"NOTHING in this Act contained shall be construed
to extend to exempt any officer or soldier from
being proceeded against by the ordinary course of law, when accused of felony, or of misdemeanor, or of any crime or offence other than the misdemeanors and offences herein-before mentioned;".

The "misdemeanors and offences herein-before mentioned" were of a military character. The pre-ordinate jurisdiction of the civil courts was protected by imposing on commanding officers the duty to assist the civil authorities to apprehend officers and soldiers under their command who were accused of felony, misdemeanour or non-military crimes. If a civil court acquitted or convicted a person to whom the Mutiny Act applied, he could not be tried again before a court martial: s.39.

12. The Mutiny Acts had acknowledged the Crown's authority to make Articles of War though the Articles were constrained to conform to the statute (Military Forces, pp 517-518) and, ultimately, the prerogative authority to make Articles of War was superseded by a statutory power: Manual of Military Law, p 18, par 32. In 1803 the Mutiny Act and the statutory Articles of War were extended to the Army both within and without the dominions of the Crown: Manual of Military Law, p 17, par 31.

13. In 1879, the Army Discipline and Regulation Act (42 &43 Vict. c.33) consolidated many of the Articles of War and many of the provisions of the Mutiny Act. It was re-enacted with amendments as the Army Act 1881 (44 &45 Vict. c.58) which was thereafter continued in force by annual Acts of the Imperial Parliament: s.2. The scheme of the Army Act was to define those persons who were subject to military law, to prescribe the offences which might be committed by persons subject to military law, and to prescribe the procedure for charging, trying and punishing those offences. The power of the Crown to make Articles of War was retained, though no person could be subjected by such Articles to any punishment "extending to life or limb" or to be kept in penal servitude: s.69. The persons subject to military law included officers and soldiers of the regular forces and persons accompanying Her Majesty's troops employed on active service overseas: ss.175,176. The offences which might be committed by persons subject to military law were of two kinds: those of a clearly military character and "civil offences". The latter were defined by s.41:
" Subject to such regulations for the purpose of
preventing interference with the jurisdiction of
the civil courts as are in this Act after mentioned, every person who, whilst he is subject to military law, shall commit any of the offences in this section mentioned shall be deemed to be guilty of an offence against military law, and if charged under this section with any such offence (in this Act referred to as a civil offence) shall be liable to be tried by court-martial, and on conviction to be punished as follows; that is to say, (1.) If he is convicted of treason, be liable to

suffer death, or such less punishment as is in this Act mentioned; and

(2.) If he is convicted of murder, be liable to suffer death; and

(3.) If he is convicted of manslaughter or treason-felony, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned; and

(4.) If he is convicted of rape, be liable to suffer penal servitude, or such less punishment as is in this Act mentioned; and

(5.) If he is convicted of any offence not before in this Act particularly specified which when committed in England is punishable by the law of England, be liable, whether the offence is committed in England or elsewhere, either to suffer such punishment as might be awarded to him in pursuance of this Act in respect of an act to the prejudice of good order and military discipline, or to suffer any punishment assigned for such offence by the law of England.

14. Provided as follows: (a.) A person subject to military law shall not be

tried by court-martial for treason, murder, manslaughter, treason-felony, or rape committed in the United Kingdom, and shall not be tried by court-martial for treason, murder, manslaughter, treason-felony, or rape committed in any place within Her Majesty's dominions, other than the United Kingdom and Gibraltar, unless such person at the time he committed the offence was on active service, or such place is more than one hundred miles as measured in a straight line from any city or town in which the offender can be tried for such offence by a competent civil court.

(b.) A person subject to military law when in Her Majesty's dominions may be tried by any competent civil court for any offence for which he would be triable if he were not subject to military law."

This provision is clearly the precursor of ss.61 and 63 of the Discipline Act.

15. There are some similarities between the history of naval courts martial and the history of army courts martial. The development of naval and military law alike was necessitated by the creation of a permanent force and the expediency of establishing a means of controlling its members. No doubt the differences between naval and military law were to be accounted for in part by the differences in organization and function of the two services, but McDonald points to another cause (at p 10):
"The navy was considered the protector of the
nation. It was the 'wooden wall' that kept
invaders off England's shores and ensured the success of maritime commerce. Land forces, on the other hand, were frequently as much of a burden and danger to the English citizenry as they were to any foreign enemy. Therefore there was much greater reluctance to grant extensive disciplinary powers to those controlling the land forces than was the case with the navy as such powers might reduce the authority of the common law courts to deal with soldiers within the country."

16. In 1661, Parliament passed An Act for the establishing Articles and Orders for the regulating and better Government of His Majesty's Navies, Ships of War, and Forces by Sea (13 Car.2, c.9). Criminal jurisdiction was conferred on courts martial in respect of certain offences committed on the high seas or adjacent rivers by those in actual service in pay of His Majesty's Fleet or ships of War: McDonald, p 7. Subsequent legislation enlarged the jurisdiction until it attained a relatively permanent form in 1866.

17. The Naval Discipline Act 1866 (Imp.) (29 &30 Vict., c.109) preserved unimpaired the authority and jurisdiction of the civil courts: s.101. It applied only to those persons "in or belonging to Her Majesty's Navy" who were "borne on the Books of any One of Her Majesty's Ships in Commission": s.87. Naval jurisdiction extended to the punishment of any such persons who were guilty of offences punishable by ordinary law, namely, murder, manslaughter, sodomy, indecent assault, robbery, theft or any other criminal offence "which if committed in England would be punishable by the Law of England ... whether the Offence be or be not committed in England": s.45.

18. The Naval Discipline Act and the Army Act were in force when federation of the Australian colonies was under consideration and when the Constitution came into force on 1 January 1901. After federation, the Naval Discipline Act and the Army Act as in force from time to time were adopted as the legal foundations for the discipline of the naval and military forces of the Commonwealth: see the Defence Act 1903 (Cth), ss.55 and 56. The Defence Act made the military forces of the Commonwealth subject to the Imperial Army Act as in force from time to time while those forces were on active service, that is, engaged in operations against the enemy including any naval or military service in time of war: ss.4, 55. A similar provision (s.56) was made subjecting naval forces on active service to the Naval Discipline Act. In 1910, the Naval Forces were made subject to the Naval Discipline Act generally (Naval Defence Act 1910 (Cth), s.36) and in 1964 the application of the Army Act to the military forces was extended to service outside Australia: Defence Act 1964 (Cth), s.26. When the Air Force Act 1923 (Cth) was enacted, its members were not subject to the Army Act but in 1939 the Imperial Air Force Act (semble, The Air Force (Constitution) Act 1917 (U.K.)) was applied generally to the members of the Air Force subject to prescribed modifications: Air Force Act 1939 (Cth), s.6.

19. The significance of the history of naval and military courts martial lies in its explanation of the scope and purposes of the jurisdiction they exercised and in the priority which naval and military authorities were required to accord to the jurisdiction of the civil courts. True it is that, by the time of federation, the scope of naval and military law and of the special jurisdictions to enforce that law were governed by statute but the provisions of those Acts, especially the Army Act, reflected the resolution of major constitutional controversies.

20. The discipline which naval and military law was intended to secure was no mere obedience by individual sailors and soldiers to lawful commands nor even their conformity with particular canons of naval or military behaviour. The most important aspect of the discipline which that law was intended to secure was the control of armed forces to ensure that their existence as a permanent armed body under hierarchical command should not threaten the peace and civil order of the Realm. This discipline was achieved primarily by subjecting members of the naval and military forces to the processes of the ordinary courts of law where that was practicable and convenient. It was not practicable and convenient to do so when the forces were deployed at sea or outside the Crown's dominions, nor would it have been practicable and convenient to do so within the Realm in times when the courts were closed because of hostilities. But the jurisdiction of the ordinary courts was not exclusive. Those who were subject to naval or military discipline were amenable not only to the exercise of the jurisdiction of the ordinary courts but also to the exercise of the power to punish reposed in commanding officers and courts martial, exercised within prescribed limits. The power to punish conferred by naval and military law extended to the most serious crimes in the criminal calendar, but those crimes were not to be tried by court martial unless they were committed on active service outside the jurisdiction of the ordinary courts or in circumstances and places where the jurisdiction of the ordinary courts could not be conveniently exercised. The exercise of a disciplinary power to punish did not derogate from the jurisdiction of the ordinary courts but, if the ordinary courts convicted and punished an offender who was subject to naval or military discipline, he was not liable under naval or military law to any further punishment save dismissal from the service. Naval and military law thus created not only a system for punishing breaches of the laws peculiarly applicable to those forces but also a secondary system for enforcing the ordinary criminal law against naval and military personnel where it was not practicable or convenient for the ordinary courts to exercise their jurisdiction to do so. The scope of disciplinary authority necessarily extended to breaches of the ordinary criminal law, but the exercise of that authority was governed by the nature of the offence, the circumstances in which the offence was committed and the place and circumstances in which the disciplinary powers were invoked. If it was not practicable and convenient for the ordinary courts to exercise their jurisdiction - a situation which existed usually in relation to offences of a specific naval or military character or in relation to civil offences committed outside the territorial jurisdiction of the ordinary courts or in relation to naval or military personnel serving outside the Crown's dominions - the disciplinary powers were exercised.

21. It is in this context that s.51(vi) of the Constitution empowers the Parliament "subject to this Constitution" to make laws with respect to
"The naval and military defence of the Commonwealth
and of the several States, and the control of the

6. The Act expressly recognizes that some service offences are substantially the same as offences under the general criminal law. The Act takes account of this in two significant respects. First, by s.144(3)(a), it provides that a person who has been acquitted or convicted by a civil court of a civil court offence is not liable to be tried by a service tribunal for a service offence that is substantially the same offence. Secondly, by s.190(3) and (5) it seeks to exclude the jurisdiction of civil courts over civil court offences that are substantially the same as service offences which have been taken into account by a court martial or Defence Force magistrate or in respect of which a person has been acquitted or convicted: Section 190 is in these terms:
"(1) Subject to the Constitution, a civil court

does not have jurisdiction to try a charge of a service offence.

(2) Subject to sub-sections (3), (4) and (5), the jurisdiction of a civil court to try a charge of a civil court offence is not affected by this Act.

(3) Where a court martial or a Defence Force magistrate has, under section 77, taken a service offence into consideration in relation to a convicted person, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence.

(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 sub-section 61(1)) or the regulations; and

(b) was committed by a person at a time when he was a defence member or a defence civilian.

(5) Where a person has been acquitted or convicted of a service offence, the person is not liable to be tried by a civil court for a civil court offence that is substantially the same offence.

(6) For the purposes of this section (a) the dismissal of a charge under section 130, 132 or 135 shall be deemed to be an acquittal of the service offence the subject of the charge;

(b) the dismissal of a charge under previous service law shall be deemed to be an acquittal of the service offence the subject of the charge; and

(c) a direction under section 103, 110 or 111 that a charge be not proceeded with shall be deemed not to be an acquittal of the service offence the subject of the charge."

7. By s.3(1) of the Act "civil court" is defined to mean "a federal court or a court of a State or Territory" and "civil court offence" is defined to mean: "(a) an offence against a law of the Commonwealth

(other than a service offence); or

(b) an offence against a law of a State or Territory".

8. The authority of service tribunals to hear and determine service offences which are substantially the same as offences under the general law ("civil court offences") is further limited by s.63(1) of the Act. Sub-section(1) of s.63 requires that the consent of the Attorney-General be obtained before proceedings are instituted for: "(a) an offence against sub-section 61(1) that is

alleged to have been committed in Australia and in relation to which the relevant Territory offence is - (i) treason, murder, manslaughter, rape or bigamy;

(ii) an offence in respect of which proceedings could not be brought in the Australian Capital Territory without the consent of a Minister; or

(iii) an offence prescribed for the purposes of this section; or

(b) a service offence that is an ancillary offence in relation to an offence referred to in paragraph (a)."

9. Within the legislative setting above outlined Staff Sergeant Ryan ("the prosecutor") challenged the jurisdiction of Major Tracey ("the respondent"), a Defence Force magistrate, to hear and determine three charges brought against him. The first charge (making false entry in a service document) was brought under s.55(1)(b) of the Act. The other two charges (absence without leave) were brought under s.24(1) of the Act. The question of the respondent's authority to hear and determine the charges falls for answer in this Court on the return of an order nisi for prohibition. The prosecutor seeks to have the order nisi made absolute on the grounds that: "1. The Respondent Major Tracey in hearing and

determining the charges laid against the (prosecutor) is exercising the judicial power of the Commonwealth and if and in so far as Section 127 of the Defence Force Discipline Act 1982 purports to confer jurisdiction upon the Respondent Major Tracey the said Section is contrary to Chapter III of the Constitution of the Commonwealth of Australia, in particular Sections 71 and 72, and invalid. 2. Each of the charges laid against the
(prosecutor) is an indictable offence against a law of the Commonwealth and as such is required to be heard before a jury by reason of the Constitution of the Commonwealth of Australia, Chapter III, in particular, Section 80. 3. Section 190 of the Defence Force Discipline
Act 1982 is invalid as being beyond the power of the Commonwealth with the consequence that upon the proper construction of the Defence Force Discipline Act 1982 the secondnamed Respondent is exercising the judicial power of the Commonwealth and has not been appointed pursuant to Chapter III of the Constitution of the Commonwealth of Australia."

10. The argument based on s.80 of the Constitution was essentially an argument as to the construction of s.42 of the Acts Interpretation Act 1901 (Cth). For the reasons given in the joint judgment of Brennan and Toohey JJ. that argument must fail. The other grounds relied upon by the prosecutor necessitate a consideration of s.51(vi) of the Constitution.

11. By s.51(vi) of the Constitution the Commonwealth Parliament is, subject to the Constitution, empowered to legislate with respect to "(t)he naval and military defence of the Commonwealth and of the several States, and the control of the forces to execute and maintain the laws of the Commonwealth". The power has been described as "purposive". See Stenhouse v. Coleman (1944) 69 CLR 457, per Dixon J. at p 471; Australian Communist Party v. The Commonwealth (1951) 83 CLR 1, per Fullagar J. at p 253, Kitto J. at p 273; The Commonwealth v. Tasmania (The Tasmanian Dam Case) (1983) 158 CLR 1, per Brennan J. at p 232, Deane J. at p 260; Richardson v. Forestry Commission (1988) 164 CLR 261, per Deane J. at p 308, Dawson J. at p 326. Section 51(vi) of the Constitution confers two distinct but related legislative powers. The notion of purpose has different focal points for the different powers conferred. The purpose attached to the power conferred by the first part of s.51(vi) is defence. The purpose attached to the power conferred by the second part of s.51(vi) is "control of the forces".

12. The criterion of validity of a law made in exercise of a purposive constitutional power is that it is reasonably capable of being regarded as appropriate and adapted to the object which gives the law in question its character as a law with respect to the relevant head of power: Airlines of N.S.W. Pty. Ltd. v. New South Wales (No.2) (1965) 113 CLR 54, per Barwick CJ. at p 86; The Tasmanian Dam Case, at pp 130-132, 172, 232, 259-261; Richardson, at pp 289, 300, 312, 336, 344-345. In Richardson, a case concerned with the external affairs power, I expressed the view (at pp.342 and 345) that, in the absence of a treaty obligation, the question of appropriateness and adaptation was to be answered by reference to the circumstance engaging that power.

13. It has long been recognized that the operation of the defence power varies according to the facts upon which its application depends: Andrews v. Howell (1941) 65 CLR 255, per Dixon J. at p 278; Australian Textiles Pty. Ltd. v. The Commonwealth (1945) 71 CLR 161, per Dixon J. at pp 180-181 (Rich and Williams JJ. agreeing); Richardson, per Dawson J. at p 326. That is because the question of appropriateness and adaptation falls for determination by reference to the circumstances which engage the power. So too, the question of appropriateness and adaptation in relation to the power to legislate with respect to the control of the forces falls for answer by reference to the circumstances engaging that power, those circumstances being the situations in which the forces are or are likely to be deployed.

14. The questions raised by grounds 1 and 3 in support of the grant of prohibition are put in terms of the judicial power of the Commonwealth. What is submitted on behalf of the prosecutor is that when regard is had to the range of conduct proscribed by the Act and the fact that it includes conduct which would be adjudged criminal under the general law and which (the provisions of ss.190(3), (4) and (5) aside) would ordinarily fall for trial in the civil courts, the power exercised by service tribunals must be characterized as the judicial power of the Commonwealth. The nature of the power, it is said, is clearly manifest if s.190 is invalid for the same conduct could fall for determination as to its legal consequences by the application of the general criminal law in the civil courts and by the application of the provisions of the Act by service tribunals. The vesting of this power in service tribunals, it is argued, infringes Chapter III of the Constitution and is invalid.

15. The power of courts martial or other military tribunals to impose and enforce sanctions for conduct by members of the armed forces constituting a breach of the code of conduct pertaining to the relevant force has traditionally been viewed as a power separate and distinct from the judicial power of the Commonwealth. See R. v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452, especially per Starke J. at pp 467-468; R. v. Cox; Ex parte Smith (1945) 71 CLR 1, especially per Dixon J. at pp 23-24. The function performed by courts martial was described by Dixon J. in Cox (at p 23) as "the administration of military justice" and was said by his Honour to be "essential to the organization of an army or navy or air force." Those statements suggest that, just as judicial power is necessarily possessed by a sovereign state, so too a like power is necessarily attached to the command of the armed forces, the command in chief being vested by s.68 of the Constitution in "the Governor-General as the Queen's representative."

16. The history of military law and the history of military tribunals, both comprehensively detailed in the judgment of Brennan and Toohey JJ., and the decisions in Bevan and Cox, point inexorably to the recognition within our legal system of a military judicial power in respect of persons subject to military law which is separate and distinct from the judicial power which a sovereign state has in respect of those persons subject to its general laws, the latter being descriptive of the nature of the judicial power comprehended in the expression "(t)he judicial power of the Commonwealth" as used in Chapter III of the Constitution. See Huddart, Parker &Co. Proprietary Ltd. v. Moorehead (1909) 8 CLR 330, at p 357. However, neither history nor the course of judicial decision provides any authoritative basis for the demarcation of the limits of military judicial power, whether by reference to subject matter, time, place or circumstance. The arguments made in the present case do not necessitate a consideration of those limits. The reference point of the prosecutor's arguments is the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences. Had some other reference point been selected, for example, matters appropriate to be dealt with by the civil courts, different issues would arise. But the selected reference point and the fact that the case concerns the application of the Act to a defence member confine the issue in the present case to the constitutional relationship between, on the one hand, military judicial power and, on the other hand, the judicial power of the Commonwealth and the judicial power of the States over conduct by a defence member which, if proven, constitutes a service offence that is substantially the same as a civil court offence. It suffices here to note that Chapter III is premised on the continued existence of State courts (see Constitution ss.71, 73 and 77) and, by ss.106 and 108 of the Constitution, the Constitutions and the laws of the States respectively are preserved subject to the Constitution.

17. In so far as military judicial power is exercised pursuant to a law made by the Commonwealth, the constitutional relationship between that power and the judicial power of the Commonwealth and the States is ascertained by a consideration of the extent of the power conferred by s.51(vi) of the Constitution. By reason of the matters which confine the present issue in the manner already mentioned, that consideration is limited to the question whether, in so far as the Act vests jurisdiction to hear and determine service offences committed by defence members which are substantially the same as civil court offences, it is a law authorized by s.51(vi) of the Constitution.

18. In putting the question in the above way I leave out of specific account the exclusion of the jurisdiction of the civil courts by s.190(3), (4) and (5). It seems to me that, if the jurisdiction in issue may validly be vested in service tribunals, the exclusion of the jurisdiction of the civil courts, at least to the extent specified in s.190(5), must be viewed as reasonably incidental to the vesting of that jurisdiction in service tribunals. That is so because, without a provision such as that contained in s.190(5), (subject to ss.63(1) and 144(3), and subject to such operation as the Act permits of principles relating to the fairness and integrity of the trial process which may require that no or no further proceedings be taken in a service tribunal if proceedings are commenced for substantially the same offence in a civil court) the same conduct may fall for adjudication by a service tribunal and by a civil court with the possibility of different results. That possibility may raise an operational inconsistency between the Act and a law which vests jurisdiction in a civil court to hear and determine a civil court offence which is substantially the same as a service offence for which a person has been convicted or acquitted by a service tribunal. See Victoria v. The Commonwealth (1937) 58 CLR 618. Such an inconsistency would, by force of s.109 of the Constitution, result in the State law being rendered inoperative, and, it would seem, constitute an implied repeal of any earlier Commonwealth law vesting jurisdiction in a civil court to hear a civil court offence which was substantially the same as the service offence. If there be such an inconsistency, s.190(5) merely makes explicit the extent of the intended operational inconsistency. If there be no operational inconsistency, the exclusion of the possibility of different results by the exclusion of the jurisdiction of civil courts when a person has been convicted or acquitted by a service tribunal is reasonably incidental to the establishment of service tribunals with jurisdiction to hear and determine service offences which are substantially the same as civil court offences.

19. In Bevan, Starke J. (at p 468) stated, in relation to s.51(vi) of the Constitution coupled with s.69 and the incidental power (s.51(xxxix)), that "the Court should incline towards a construction that is necessary, not only from a practical, but also from an administrative point of view." For my part, I think that that observation applies with equal force to the several legislative powers conferred by s.51. Whether or not that be so, the present matter (confined, as has been previously noted, to the application of the Act to a defence member) falls for answer by a determination of the extent of the power to legislate with respect to the control of the forces, it not having been suggested that any circumstance presently engages the first part of the power conferred by s.51(vi) so as to authorize any provision of the Act as it applies to a defence member that is not authorized by the second part.

20. The question whether the Act, in so far as it vests jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences, is a law with respect to the control of the forces must be answered by a consideration whether it is reasonably capable of being viewed as appropriate and adapted to the control of the forces when regard is had to what is necessary from a practical and administrative point of view. That answer must be given by reference to the circumstances engaging the power. The present circumstance, and the circumstance immediately relevant to the respondent's jurisdiction to hear and determine the charges made against the prosecutor, is that, although some members are or may be deployed in various capacities outside Australia, the forces are not engaged in armed struggle with the forces of a hostile country and are, in the main, standing forces located in Australia.

21. The practical and administrative considerations cannot be viewed in isolation from the general pattern of constitutional and legal arrangements obtaining in Australia. Notably, that pattern includes the fact that ordinarily the determination of whether conduct constitutes an offence under the general law, and, if it does, the imposition of a penalty therefor, are matters which (subject to the proper exercise of any discretion reposed in a prosecuting authority) fall for decision in the properly constituted civil courts of the country and fall for decision only in those courts.

22. It is convenient to note at once that, so far as membership of the forces is not irrelevant to the nature or quality of the conduct proscribed, the Act, in proscribing conduct which constitutes a civil court offence, is prima facie a law for the control of the forces. The concept of control is not restricted to matters of internal discipline and the regulation of the conduct of the members of the forces in their relationships with each other. The expression "control of the forces" is apt to include the regulation of at least some conduct on the part of members of the forces in their relationships with persons and legal entities outside the forces, and the regulation of the relationship of the forces with civilians, civilian entities, and the organs of government.

23. So far as jurisdiction is vested in service tribunals to hear charges in relation to validly proscribed conduct by a defence member outside Australia, the vesting of such jurisdiction is readily seen as appropriate and adapted to the object of control. The only alternative to vesting such jurisdiction in service tribunals is to constitute the proscribed conduct an offence triable in the ordinary Australian courts. Even in peace time, and notwithstanding the great advances in transport and communication, that course must be considered inappropriate and ill-adapted when regard is had to practical and administrative considerations.

24. But the same practical and administrative considerations do not apply to conduct on the part of defence members in Australia. Given the availability of modern means of transport and communication, there is no practical or administrative difficulty in that conduct, which (if proved) is a civil court offence, being brought before the civil courts. True it is that one can envisage circumstances necessitating the immediate and continued military availability of the members of the defence forces. In those circumstances the first part of the power conferred by s.51(vi) of the Constitution would authorize a law putting members of the forces beyond the reach of the civil courts for so long as the circumstances required. So too, in my view, there would be no doubt as to the validity of a law to that effect if its operation were conditional upon the existence of such circumstances. A law to that effect and having operation in those circumstances would not be a law on the subject of control of the forces, but on the subject of defence. The operation of a law to that effect would then be a circumstance in the light of which the vesting of jurisdiction in service tribunals to hear and determine as service offences charges of conduct then put beyond the reach of the civil courts would be capable of being viewed as appropriate and adapted to the control of the forces having regard to practical and administrative necessities. But there is no suggestion that any such special or extraordinary circumstance is relevant to the present matter. Accordingly, the question of appropriateness and adaptation falls for answer solely by a consideration of the operation of the Act in the context of the ordinary legal arrangements. Within that context, the provisions of the Act themselves, in my view, dictate that the vesting of jurisdiction in service tribunals to hear and determine service offences which are substantially the same as civil court offences cannot reasonably be regarded as appropriate and adapted to the object of control of the forces. In the first place s.144(3)(a) posits the continued existence and exercise of jurisdiction by civil courts in respect of civil court offences save to the extent that it is displaced by s.190(3), (4) and (5). Whether it be the case that a service tribunal may proceed with the hearing of a charge of a service offence until a conviction or acquittal is sustained in a civil court or whether it be the case that general principles (if not displaced by the Act) require a service tribunal to refrain from proceeding further once proceedings for substantially the same offence have been instituted in a civil court, an inconclusive hearing is not in any way conducive to the control of the forces. The exercise of jurisdiction by service tribunals only relevantly bears upon control of the forces to the extent that it is a concluded exercise.

25. To the extent that a service tribunal engages in a concluded exercise of jurisdiction in respect of conduct by a defence member in Australia, s.190(5) would completely oust the jurisdiction of the civil courts for substantially the same civil court offence. Putting to one side the existence of special or extraordinary circumstances which would justify a law ousting the jurisdiction of the civil courts whilst those circumstances existed, the ousting of that jurisdiction must be seen as other than appropriate and adapted to the control of the forces. As previously noted, the concept of control is not restricted to matters internal to the forces but extends to the relationship of the armed forces with the civilian population and with the organs of government. Although internal discipline is undoubtedly a matter of great practical importance, the control of the forces in their relationships with the civilian population and the organs of government is a matter of the highest constitutional significance. A law which to any extent allows for conduct by a defence member in Australia constituting an offence against the general law to be put beyond the reach of the civil courts, save to the extent that circumstances render that course a necessity, must be seen as contrary and inimical to the control of the forces in that broader and more important setting. That problem is not solved by holding s.190(3), (4) and (5) invalid but as severable from the other provisions of the Act. The same ousting may be effected by reason of operational inconsistency. If it is not, there remains the possibility, previously noted, that the exercise of jurisdiction by a service tribunal and by a civil court in respect of the same conduct by a defence member in Australia will produce different results. To the extent that the operation of the Act permitted that possibility it would, in my view, have to be regarded as other than conducive to the control of the forces.

26. In my view the Act, to the extent that it purports to vest in service tribunals jurisdiction in relation to conduct engaged in by defence members in Australia constituting service offences which are substantially the same as civil court offences, is, in the present circumstances, beyond legislative power and invalid. It should be noted that the provisions of the general law do no more than provide the context by reference to which the operation of the Act is ascertained. The provisions of the general law cannot of themselves determine the validity of a law vesting jurisdiction in service tribunals to hear and determine charges of proscribed conduct on the part of defence members. The present case was conducted by reference to the provisions of the general law, but there is a broader constitutional issue as to the matters which may be decided in the exercise of military judicial power. So far as conduct, whether or not it offends against the general law, has an aspect which detrimentally affects command, military efficiency, the relationships of defence members with each other or the reputation of the forces, that aspect of conduct is readily seen as appropriately the subject matter of military judicial power. But it may be that some proscribed conduct on the part of defence members having no counterpart proscription in the general law, even if it has a readily identifiable military aspect, is not to be seen as appropriately the subject matter of exclusive military judicial power when regard is had to the constitutional purpose to be served by the grant of legislative power with respect to the control of the forces. As this broader issue was not argued, the present case must be disposed of on the basis of the invalidity indicated.

27. The invalidity of the Act to the extent indicated does not result in the invalidity of the Act as a whole, for it may be read down pursuant to s.15A of the Acts Interpretation Act, so that its operation is confined to charges in respect of conduct outside Australia and to charges of service offences which are not substantially the same as civil court offences. In respect of such matters the Act, when read down, does not "operate differently upon the persons, matters or things falling under it or in (any) other way ... produce a different result": Bank of N.S.W. v. The Commonwealth (1948) 76 CLR 1, at p 371.

28. The conclusion that the Act may be read down necessitates a consideration of the charges against the prosecutor. As already mentioned the charges of absence without leave have no counterpart under the general law. The order nisi must be discharged so far as it has effect with respect to these charges.

29. The service offence created by s.55(1)(b) of the Act (falsification of service document) is in a different category. To the extent that the act of falsification is done with a view to gain or with intent to cause loss or injury to another it constitutes clearly recognized offences under the general law. The service offence created by s.55(1)(b) is also committed if there is an act of falsification with intent to deceive. The charge against the prosecutor is that he "at Townsville on 1 November 1986 with intent to deceive, did make an entry in a Movement Requisition (PY9) dated 1 November 1986 in connection with the movement of he, the accused, that was false in a material particular in that it showed 'MBR On Approved Leave until Date of March In', he, the accused, not having been approved the leave in question." Prima facie, the conduct charged amounts to the offence of forgery under s.67(b) of the Crimes Act 1914 (Cth), which makes it an offence to forge "any document issuable by, or deliverable to, any Department of the Commonwealth or any public authority under the Commonwealth, or any Commonwealth officer". Forgery is defined in s.63 of the Crimes Act to include the making of a document, register or record which is false, knowing it to be false with intent that any person may, in the belief that it is genuine, be induced to do or refrain from doing any act whether in Australia or elsewhere. The allegation of intent to deceive in the charge brought against the prosecutor would seem to comprehend both knowledge of falsity and intent that a person might, in the belief of genuineness, be induced to do or refrain from doing an act as required by the definition of forgery in s.63 of the Crimes Act. However, the precise facts are not before the Court and the question whether the charge laid against the prosecutor is substantially the same as a civil court offence was only touched upon briefly. In these circumstances the appropriate course in respect of this charge is to discharge the order nisi, leaving the question whether the offence charged is substantially the same as a civil court offence to be determined by the respondent.

30. Finally, were I of the view that the Act could be construed and applied so as to allow the completed exercise of jurisdiction by service tribunals side by side and consistent with the exercise of jurisdiction by the civil courts, I would be of the view that s.51(vi) of the Constitution would, in the present circumstances, support a law conferring jurisdiction on service tribunals in respect of conduct engaged in by defence members in Australia only to the extent indicated in the joint judgment of Brennan and Toohey JJ. viz. to the extent that "the jurisdiction serves the purpose of maintaining or enforcing service discipline."

31. The order nisi should be discharged.

Orders

Order nisi for prohibition discharged.

No order as to costs.