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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Re Tracey; Ex Parte Ryan [1989] HCA 12
Case
[1989] HCA 12
Decision Date
CaseChat Overview and Summary
The case of *Re Tracey; Ex Parte Ryan* concerned an application for a writ of prohibition brought by Mr. Ryan against Mr. Tracey, the respondent, who was a magistrate. The dispute arose from proceedings before the magistrate concerning an alleged offence under the *Crimes Act 1914* (Cth). Mr. Ryan sought to prohibit the magistrate from continuing with the hearing of the charge. The High Court of Australia was tasked with determining the application.
The central legal issue before the High Court was whether the magistrate had jurisdiction to proceed with the hearing of the charge against Mr. Ryan. Specifically, the Court had to consider whether the charge had been validly laid and whether the magistrate had the power to hear and determine the matter in the circumstances presented. This involved an examination of the relevant provisions of the *Crimes Act 1914* (Cth) and the *Judiciary Act 1903* (Cth) concerning the prosecution of federal offences.
The High Court, in its joint judgment, reasoned that the charge had not been validly laid under the *Crimes Act 1914* (Cth) because the necessary preconditions for laying such a charge had not been met. The Court applied the principle that for a magistrate to have jurisdiction to hear a charge, the charge must be laid in accordance with the governing legislation. As the charge was defective, the magistrate lacked the authority to proceed. Consequently, the Court made orders absolute for the writ of prohibition, preventing the magistrate from continuing the hearing.