Re Tyler; ex parte Foley

[1994] HCA 25

HIGH COURT OF AUSTRALIA

MASON CJ, BRENNAN, DEANE, DAWSON, TOOHEY, GAUDRON AND McHUGH JJ

RE TYLER AND OTHERS;

(1994) 121 ALR 153

1 June 1994

Constitutional Law (Cth)

Constitutional Law (Cth)—Defence—Service tribunal—Offences by defence members—Service offences—Judicial power of Commonwealth—Service offences triable by service tribunal—Offence of dishonestly appropriating property of Commonwealth—Jurisdiction of service tribunal—Whether defence member entitled to trial by jury The Constitution 63 and 64 Viet. c. 12), ss. 55(vi), 71, 72, 80—Defence Force Discipline Act 1982 (Cth), s. 47(1).

Orders

Application refused.

No order as to costs.

Decisions

MASON CJ AND DAWSON J The prosecutor, Wing Commander Foley, seeks a writ of prohibition prohibiting the respondents from proceeding further with his trial before a general court martial upon a charge laid under the Defence Force Discipline Act 1982 (Cth) ("the Act"). He is charged with contravening s.47(1) of the Act by dishonestly appropriating the sum of $24,761.40, being the property of the Commonwealth, with the intention of permanently depriving the Commonwealth thereof. Offences of the same or a substantially similar nature exist under s.71 of the Crimes Act 1914 (Cth) and s.178BA of the Crimes Act 1900 (N.S.W.). He is also charged with breaching a general order in contravention of s.29 of the Act.

2. The general court martial is constituted in accordance with the Act, but not in accordance with Ch.III of the Constitution, and the form of trial is not trial by jury. The prosecutor contends that it is not necessary or appropriate for the maintenance or enforcement of military discipline that he be tried by a service tribunal under the Act rather than by a civil court, nor that he be deprived of a trial by jury which, if he were tried in a civil court, would be required by s.80 of the Constitution or under New South Wales law. He maintains that s.47 of the Act and those provisions of the Act which provide for the trial and punishment of an offence under that section by general court martial purport to vest jurisdiction in a service tribunal to deal with the non-disciplinary aspects of that offence in peace time and are invalid. Accordingly, he submits that the general court martial has no jurisdiction to try him upon the charge under s.47.

3. The prosecutor has been a member of the Royal Australian Air Force ("RAAF") for some 30 years and was posted to 33 Squadron RAAF Base, Richmond, on 20 December 1988. Shortly thereafter he became the commanding officer of that squadron. He brought his wife and family to Richmond and moved into rented accommodation. He applied for a temporary rental allowance ("TRA") and his application was approved.

4. TRA was payable under a scheme laid down by a Determination (Determination 0503) made under s.58B of the Defence Act 1903 (Cth) and implemented by a Defence Instruction (General) ((1) See Defence Act, s.9A(2).) known as INDMAN 0503. Defence Instructions (General) are general orders under s.3(1) of the Act. It was part of the scheme that, if a defence member was in receipt of TRA and purchased a house which was suitable to house that member's family, the entitlement to TRA ceased ((2) Determination 0503, cl.29.). The Defence Instruction required a member to advise the appropriate authority of any change or impending change that would or could affect that member's eligibility for TRA ((3) INDMAN 0503, par.52 as on 17 July 1990. It was replaced by INDMAN 0503, par.51 issued on 14 August 1991. The alleged offence occurred between 17 July 1990 and 25 June 1992. Since 23 February 1993 the relevant paragraph has been INDMAN 0503, par.66.).

5. Whilst he was in receipt of TRA, the prosecutor purchased a house which is alleged to have been suitable to house his family. He did not move into that house, but rented it out. He did not notify the appropriate authority of the purchase. Subsequently he sold the house, but whilst he was the owner of it he continued to receive TRA payments. It is alleged that the receipt of these payments, amounting
in all to $24,761.40, constituted a dishonest appropriation.

6. In Re Tracey; Ex parte Ryan ((4) (1989) 166 CLR 518.) we, together with Wilson J, expressed the view that the power under s.51(vi) of the Constitution to make laws with respect to the naval and military defence of the Commonwealth and the several States necessarily includes a power to provide for the discipline of the defence forces because naval and military defence demands the provision of a disciplined force or forces ((5) ibid. at 540.). The system of discipline required for
the proper organization of a defence force may, we said, be administered judicially, not as part of the judicature enacted under Ch.III, but as part of the organization of the force itself ((6) ibid. at 541.). We concluded that the power to make laws with respect to defence 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 ((7) ibid.). It was implicit in the view which we expressed that the trial of service offences might be by way of court martial and not by way of trial by jury since the former is not a trial on indictment and s.80 of the Constitution has no application.

7. Moreover, in that case ((8) ibid. at 544-545.) we accepted the experience of the United States ((9) See Solorio v. United States (1987) 483 US 435.) that it is not possible to draw a clear and satisfactory line between those offences committed by defence members which are of a military character and those which are not. We considered that, even if offences against military law can extend no further than is thought necessary for the regularity and discipline of the defence forces ((10) See Groves v. The Commonwealth (1982) 150 CLR 113 at 125.), it was within the power of Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence if committed by a defence member.

8. In Re Nolan; Ex parte Young we reiterated the view which we had expressed in Re Tracey and summarized our reasons as follows ((11) (1991) 172 CLR 460 at 474-475.) :

"The proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces; so long as the rule prescribed is sufficiently connected with the regulation of the defence forces and the good order and discipline of members, it will be valid. Indeed, we do not understand how it can be suggested that the prescription of a rule of conduct to be observed by defence members, when that rule of conduct is required to be observed by the general community for the good of society, is not sufficiently connected with the regulation of the defence forces and the good order and discipline of those forces. Plainly Parliament can take the view that what is good for society is good for the regulation of the defence forces and can give effect to that view by creating service offences which are cumulative upon, rather than in substitution for, civil offences".

9. Now, as in Re Nolan, we see no reason to resile from the view which we expressed in Re Tracey. That is sufficient to dispose of the prosecutor's main contentions. But even accepting the view of Brennan and Toohey JJ in Re Tracey and Re Nolan the prosecutor cannot succeed.

10. The view expressed by Brennan and Toohey JJ was that the purpose of criminal proceedings in the civil courts is wider than the purpose of maintaining or enforcing service discipline. It is the latter purpose, in their view, which marks the relevant limits of the defence power. If one were able to draw the distinction which they sought to draw (and it will be apparent that, with respect, we do not think that to be possible), nevertheless, for the reasons given by Brennan and Toohey JJ, the proceedings against the prosecutor in this case serve the purpose of maintaining or enforcing service discipline.

11. Finally, some mention should be made of the reliance placed upon the Canadian decision in Reg. v. Genereux ((12) (1992) 88 DLR (4th) 110.) by the prosecutor and by the Attorney-General for New South Wales intervening to support his contentions. In that case a majority of the Supreme Court of Canada held that the statutory provisions governing courts martial were insufficient to guarantee their independence from the executive. The decision was based upon s.11(d) of the Canadian Charter of Rights and Freedoms, which guarantees a person charged with an offence the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". Section 11(d) has no counterpart in this country and it is sufficient to express our agreement with the conclusion reached by Brennan and Toohey JJ, in whose judgment the relevant provisions of the Act are identified, that if there is to be found outside Ch.III a requirement of sufficient independence on the part of service tribunals exercising disciplinary power, that requirement is met by a general court martial constituted in accordance with the Act.

12. For these reasons we would refuse the application.

BRENNAN AND TOOHEY JJ The prosecutor holds the rank of Wing Commander in the Royal Australian Air Force. He was charged before a general court martial, constituted by the respondents, on two counts under the Defence Force Discipline Act 1982 (Cth) ("the Act"). The first count, pursuant to s.47(1) of the Act, is that:
"Being a Defence member, at RAAF Base Richmond between
17 July 1990 and 25 June 1992 did dishonestly appropriate the sum of $24,761.40, being the property of the Commonwealth of Australia, with the intention of permanently depriving the Commonwealth of Australia thereof." Section 47(1) provides that a defence member who dishonestly appropriates property belonging to another person with the intention of permanently depriving the other person of it is guilty of an offence. The second count, pursuant to s.29(1) of the Act, is that:
"Being a Defence member, at RAAF Base Richmond between
17 July 1990 and 25 June 1992 did not comply with a lawful general order that was applicable to him by failing to advise the approving authority namely the Commanding Officer of the Administrative Support Squadron Richmond, in writing of a change in circumstances that could have affected his eligibility to receive temporary rental allowance, namely the purchase by him as a joint tenant with his wife on or about 17 July 1990 of a home at 58 Yaringa Road, Castle Hill, contrary to the provisions of paragraph 51 of INDMAN 0503."

2. The second charge is mentioned for completeness and for the light it throws on the circumstances of the first charge. However, only the first charge is the subject of an application for a writ of prohibition directed to the respondents "prohibiting them from acting upon, giving effect to, proceeding further upon the trial of the prosecutor".

3. The prosecutor has already appeared before the general court martial. He there took objection, in accordance with s.141 of the Act, to the jurisdiction of that body to hear and determine the charge against him. The judge advocate overruled the objection and thereafter the prosecutor obtained an order from a Justice of this Court directing him to apply by notice of motion to a Full Court for a writ of prohibition prohibiting the respondents from proceeding further upon his trial.

4. The basis of the application for prerogative relief is that, the offence under s.47(1) being inherently criminal in character and there being an appropriate civil court to determine the charge against the prosecutor, the general court martial lacks jurisdiction. Specifically, the prosecutor asserts that the offence with which he is charged is substantially the same as an offence against s.71 of the Crimes Act 1914 (Cth) and as an offence against s.178BA of
the Crimes Act 1900 (N.S.W.). He further contends that the general court martial is not constituted in accordance with Ch.III of the Constitution and has no authority to exercise the judicial power of the Commonwealth. Moreover, the contention adds, a trial by general court martial is not trial by jury as required by s.80 of the Constitution.

5. The arguments as to the operation and constitutional validity of the Act advanced by the prosecutor were considered by the Court in Re Tracey; Ex parte Ryan ((13) (1989) 166 CLR 518.) and in Re Nolan; Ex parte Young ((14) (1991) 172 CLR 460.). While differing views were expressed by members of the Court on each of those occasions, no clear majority view prevailed. The view we expressed in Re Tracey was ((15) (1989) 166 CLR at 570.):

"(P)roceedings may be brought against a defence member or a defence civilian for a service offence if, but only if, those proceedings can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline".

It was a view we maintained in Re Nolan ((16) (1991) 172 CLR at 477.) . There is nothing to be gained by rehearsing yet again the same arguments that were addressed to the Court in those cases; nothing said in that regard has persuaded us to a different view.

6. There was an additional argument by the prosecutor relating to s.80 of the Constitution. It is clear from the judgments in Re Tracey ((17) (1989) 166 CLR at 548-549, 578-579, 591, 596.) and Re Nolan ((18) (1991) 172 CLR at 480.) that the trial of a defence member
for a service offence lies outside the judicial power of the Commonwealth and does not attract the operation of s.80.

7. However, we should deal with a particular submission made on behalf of the Attorney-General for New South Wales (an intervener) that the conferral by the Act of jurisdiction on a general court martial was, in terms of s.51(vi) of the Constitution, neither a law for the "naval and military defence of the Commonwealth" nor a law for "the control of the forces to execute and maintain the laws of the Commonwealth". The submission contended that the second limb of par.(vi) is not concerned with matters of service discipline and that the first limb will not support the conferral of jurisdiction on general courts martial because the Act is not reasonably proportionate to the end which legislation may legitimately pursue.

8. In Re Tracey we referred to the second limb of s.51(vi) in these
words ((19) (1989) 166 CLR at 564.):

"The traditional jurisdiction to discipline military personnel has two aspects. The first is an authority to compel military personnel to conduct themselves in a manner which is conducive to efficiency and morale of the service; the second is an authority to punish military personnel who transgress the ordinary law of the land while acting or purporting to act as military personnel. These two aspects of the traditional jurisdiction are reflected in the two limbs of s. 51(vi). If that sub-section supports a law creating a military jurisdiction, the jurisdiction has two aspects: first, to compel members of the armed forces to conduct themselves in a manner which is conducive to the efficiency and morale of the forces charged with the defence of the Commonwealth and of the several States; and secondly, to control persons who, being part of the armed forces and acting or purporting to act in that capacity, transgress the ordinary law of the land or fail to obey the lawful directions of the Executive Government as to the activities of the armed forces and the conduct of persons who are part of the armed forces. This is the disciplinary jurisdiction which, subject to the requirements of Ch III ..., s. 51(vi) will support."

9. Counsel for the Attorney-General drew heavily on the experience of comparable provisions in the Constitution of the United States with a view to showing that the true concern of the second limb of s.51(vi) was with legislative control of the occasions on which the Executive Government might use a military force to maintain internal security. There is considerable historical support for that view though we do not see that "control of the forces" is only within legislative power when the forces are engaged in maintaining internal security. There can be no doubt, in our view, that the Parliament has power to legislate for the discipline of the Defence Force "to maintain the operational efficiency of the Force and to ensure that the standing Force, as an organized entity, is a buttress of, rather than a threat to, internal security" ((20) Re Nolan (1991) 172 CLR at 482. See also Re Tracey (1989) 166 CLR at 562.).

10. We do not accept the argument that the relevant aspects of the Act cannot be supported under the first limb of par.(vi). The end to be pursued is, in the words of the Constitution, the "naval and military defence of the Commonwealth". Essential to that defence is the discipline of the armed forces. Traditionally, the maintenance of that discipline has been through courts martial. The conferral of jurisdiction on general courts martial is appropriate and adapted to the end stated when prosecution before a court martial can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline.

11. The charge sheet identifies an offence by a defence member at a RAAF Base, involving property of the Commonwealth of Australia.
The circumstances of the alleged offence, as detailed to the general court martial, were that the prosecutor was posted to 33 Squadron RAAF Base, Richmond on 20 December 1988, initially as a supernumerary and shortly thereafter as Commanding Officer of the
squadron. He was joined by his wife and three children. On 28 December 1988 he applied for a temporary rental allowance (TRA) and at the same time applied for a rental ceiling increase. TRA is available to defence members requiring temporary accommodation in the course of their service duties. The amount of payment depends on the size of the premises needed to house the family and also on the defence member's rank. Importantly, it is a provision of the TRA scheme that if a beneficiary buys his or her own premises and they are suitable for housing the family, the beneficiary thereafter ceases to be entitled to receive TRA benefits. Beneficiaries are required, by an administrative order known as INDMAN 0503 ((21) An acronym for "Industrial Manual" which is a manual of "Salaries and Conditions of Service for the Permanent Forces" issued for members of the Defence Force and giving effect to determinations made by the Minister pursuant to s.58B(1)(b) of the Defence Act 1903 (Cth).), to notify the approving officer of any such purchase.

12. The prosecutor's applications were approved by the Commanding Officer of Administrative Support Command, Richmond, the relevant approving officer. The prosecutor and his family then moved into a four bedroom home in Glenhaven and he began receiving TRA payments. On 17 July 1990 the prosecutor purchased a home in Castle Hill. He did not notify the TRA scheme of his purchase. He sold the house about a year later but in the interim let the house while continuing to live in Glenhaven and receive TRA benefits. As appears from a record of interview, the prosecutor claims that the Castle Hill home was too small for his family and that he had been told that he could continue to receive TRA benefits while living at Glenhaven. This Court is not concerned with the accuracy of the allegations against the prosecutor or with his answer to the charge against him. This recital of facts serves only to throw light on the relevance of the charge to service discipline.

13. In our view the proceedings in question can reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. The factors leading to that conclusion
are as follows. The charge involves a misappropriation of "service property" as that term is defined in s.3(1) of the Act. The TRA scheme giving rise to the charge is a scheme administered by the Australian Defence Force for the benefit of defence members. The

authority for the TRA scheme is to be found in s.58B of the Defence Act 1903 (Cth) and the elements of the scheme, in the form of INDMAN 0503, constitute a Defence Instruction (General) which is a "general order" as defined in s.3(1) of the Act. The prosecutor was Commanding Officer of 33 Squadron and his alleged conduct related to a scheme instituted for the benefit of defence members, including those under the prosecutor's command. The effect on service morale and discipline by a breach of the kind alleged committed by a commanding officer might reasonably be regarded as substantial.

14. It is necessary to say something of another argument by the prosecutor. While the argument turned mainly on the proposition that the relevant provisions of the Act were not reasonably adapted to the legitimate purposes to be served by the disciplining of the Defence Force, it developed a wider dimension from the decision of the Supreme Court of Canada in Reg. v. Genereux ((22) (1992) 88 DLR (4th) 110.).

15. In Genereux a member of the Canadian Forces was charged with narcotics offences and desertion. He was convicted before a general court martial but, on appeal, contended that his right to trial by an independent tribunal, as guaranteed by s.11(d) of the Canadian Charter of Rights and Freedoms, had been infringed ((23) Section 11(d) guarantees a person charged with an offence, the right "to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".).

16. The Supreme Court of Canada (L'Heureux-Dube J dissenting) held that trial before a general court martial convened under the National Defence Act of Canada did not meet the requirement of a fair and public trial by an independent and impartial tribunal. In the
view of five members of the Court ((24) Lamer CJC., Sopinka,
Gonthier, Cory and Iacobucci JJ concurring.), the essential conditions for independence, namely, security of tenure, financial security and institutional independence, were lacking. Particular emphasis was placed on the possibility of perceived influence by the Executive on the exercise of the tribunal's judicial function. Three members of the Court applied those three conditions but held that some connection between the Executive and those participating in a military tribunal was inevitable ((25) Stevenson J, La Forest and McLachlin JJ concurring.). L'Heureux-Dube J dissented, focussing on the military nature of the tribunal and holding that it was not appropriate to apply civilian criteria to evaluate the validity of a general court martial. L'Heureux-Dube J considered that the three essential conditions identified by the majority could not always be applicable to every tribunal. Section 11(d) of the Canadian Charter of Rights and Freedoms has no express analogy in our Constitution. If there were any analogy, it would be found in Ch.III governing the courts in which the judicial power of the Commonwealth is or can be vested. But a court martial under the Act does not exercise the judicial power of the Commonwealth ((26) The King v. Bevan; Ex parte Elias and Gordon (1942) 66 CLR 452; Re Tracey; Ex parte Ryan and Re Nolan; Ex parte Young.) and Ch.III has no application to a law creating or conferring the jurisdiction of a court martial.

17. In any event, the constitution of a general court martial pursuant to the Act answers the requirement of independence of a service tribunal exercising disciplinary power. Eligibility for membership of a court martial under the Act is in effect confined to officers ((27) s.116.). A person is eligible to be the judge advocate of a court martial if, and only if, he is a member of the judge advocates' panel ((28) s.117.). The panel is constituted by officers appointed by a chief of staff on the nomination of the Judge Advocate General ((29) s.196(2).). An officer is not eligible for appointment unless enrolled as a legal practitioner for not less than five years ((30) s.196(3).). The judge advocate fulfils the function performed by a judge in a trial by jury ((31) s.134.). The position of Judge Advocate General is dealt with in Pt XI of the Act. That appointment is made by the Governor-General and may be made on a full-time or part-time basis ((32) s.179(1).), for a term not exceeding seven years ((33) s.183(1).). A person shall not be appointed as Judge Advocate General unless he is or has been a Justice or Judge of a federal court or of a Supreme Court of a State or Territory ((34) s.180(1).).

18. A court martial is convened by a convening authority who is an officer, or an officer included in a class of officers, appointed by a chief of staff to be a convening authority ((35) s.102.). A convening authority shall not appoint as a member, or as the judge advocate, of a court martial an officer whom he believes to be biased, likely to be biased, or likely to be thought on reasonable grounds to be biased ((36) s.118.). The accused may object to a member of the court martial or to the judge advocate on similar grounds ((37) s.121.). The Judge Advocate General has security of tenure within the period of his appointment. It is true that the members of the court martial
are chosen by the convening authority on an ad hoc basis but historically this has always been the pattern according to which courts martial have been appointed and necessarily so given the exigencies of war.

19. Part IX of the Act contains provisions for the review of a decision of a court martial. The Defence Force Discipline Appeals Act 1955 (Cth) provides a right of appeal to the Defence Force Discipline Tribunal against conviction, though only by leave of the Tribunal on a ground that is not a question of law ((38) Defence Force Discipline Appeals Act, s.20.).

20. The provisions of the Act to which we have referred establish an independence on the part of courts martial commensurate with the system of service tribunals for the discipline of the Defence Force.

21. The application should be refused.

DEANE J The argument of the present case, including the discussion
of the judgments of the Supreme Court of Canada in Reg. v. Genereux ((39) (1992) 88 DLR (4th) 110.), has served to confirm the conclusions which I expressed in Re Tracey; Ex parte Ryan ((40) (1989) 166 CLR 518.) about the limits of the judicial power which the Parliament can, consistently with Ch.III of the Constitution, confer upon service tribunals to deal with offences by members of the armed forces. It has also served to reinforce the reasons which led me to conclude, in Re Nolan; Ex parte Young ((41) (1991) 172 CLR 460.), that I should continue to reject what I see as an unjustifiable denial of the applicability of the Constitution's fundamental and overriding guarantee of judicial independence and due process to laws of the Parliament providing for the trial and punishment of members of the
armed forces for ordinary (in the sense of not exclusively disciplinary) offences committed within the jurisdiction of the ordinary courts in times of peace and general civil order.

2. The alleged offence against s.47 of the Defence Force Discipline Act 1982 (Cth) in the present case is not exclusively a disciplinary
offence. It is substantially the same as offences under both Commonwealth ((42) Crimes Act 1914 (Cth), s.71.) and State ((43) Crimes Act 1900 (N.S.W.), s.178BA.) legislation. That being so, the general court martial lacks jurisdiction to entertain the proceedings against the prosecutor in relation to it.

3. Prohibition should issue.

GAUDRON J This Court has twice considered the Defence Force Discipline Act 1982 (Cth)("the Act"), first in Re Tracey; Ex parte Ryan ((44) (1989) 166 CLR 518.) and, later, in Re Nolan; Ex parte Young ((45) (1991) 172 CLR 460.). In both cases, the central issue was whether the Parliament can validly authorize service tribunals to hear and determine charges against persons subject to military discipline, where the service offence charged is also a criminal offence under the general law ((46) Note, there was also an issue in Re Tracey as to the validity of provisions ousting the jurisdiction of the civil courts.). The same question arises in this case, this time involving s.47(1) of the Act ((47) Section 47(1) provides that it is a service offence for a defence member or a defence civilian dishonestly to appropriate the property of another. Section 178BA(1) of the Crimes Act 1900 (N.S.W.) covers the same conduct, as does s.71(1) of the
Crimes Act 1914 (Cth) in relation to the property of the Commonwealth.).

2. Neither of the earlier cases was determined by reference to a principle or line of reasoning which commanded majority support. They are, thus, of limited authority ((48) See Philip Morris Ltd. v. Commissioner of Business Franchises (Vict.) (1989) 167 CLR 399 at 437-438, 481, 496-500 and the cases there cited.). Moreover, where fundamental constitutional principle is involved, as in this and the
earlier cases, the Constitution must prevail over judicial pronouncements on the subject ((49) See Stevens v. Head (1993) 176 CLR 433 at 461-462, 464-465 and the cases there cited.). Even so, I have considered afresh whether Parliament can validly authorize service tribunals, which plainly are not courts of the kind contemplated by Ch.III of the Constitution, to hear and determine charges under the Act in relation to acts or omissions which, although called "service offences", are, in essence, the same or substantially the same as criminal offences under the general law.

3. I remain firmly of the view that persons who are subject to military discipline cannot, on that account, be made "immune from
the operation of the general law .... or deprived of (its) protection" ((50) Re Nolan (1991) 172 CLR at 497.). In particular, they cannot, on that account, be deprived of the protection which flows from Ch.III of the Constitution. For the reasons which I gave in Re Nolan and which need not be repeated, the Act is invalid to the extent that it authorizes a service tribunal to hear and determine the charge laid against the prosecutor under s.47(1) of that Act.

4. Prohibition should issue.

McHUGH J The prosecutor seeks a writ of prohibition directed to the respondents, who are the President and members of a general court martial. The prosecutor asserts that the general court martial has no jurisdiction to try charges brought against him for alleged offences against ss.29(1) and 47(1) of the Defence Force Discipline Act 1982
(Cth) ("the Act"). The charge under s.29(1) alleges that the prosecutor, who was a Wing Commander at the RAAF Base, Richmond "did not comply with a lawful general order that was applicable to him by failing to advise the approving authority, namely, the Commanding Officer of the Administrative Support Squadron Richmond, in writing of a change in circumstances that could have affected his eligibility to receive temporary rental allowance". The charge under s.47(1) alleges that the prosecutor "(b)eing a Defence member, at RAAF Base Richmond ... did dishonestly appropriate the sum of $24,761.40, being the property of the Commonwealth of Australia, with the intention of permanently depriving the Commonwealth of Australia thereof." The prosecutor contends that the Act is invalid in so far as it purports to authorise the general court martial to hear the charges. He alleges that the members of the court martial are exercising the judicial power of the Commonwealth and have not been appointed to their offices in accordance with Ch.III of the Constitution. In my opinion, the application should be refused.

2. In Re Tracey; Ex parte Ryan ((51) (1989) 166 CLR 518.), a majority of this Court ((52) Mason CJ, Wilson, Brennan, Dawson and Toohey JJ,
Deane and Gaudron JJ dissenting.) held that the Act validly invested a Defence Force Magistrate with jurisdiction to hear a charge that a Staff Sergeant in the Australian Regular Army had made an entry in a service document with intent to deceive, contrary to s.55(1)(b) of the Act. The majority of the Court held that s.51(vi) of the Constitution authorised the Parliament to invest the magistrate with that jurisdiction although he had not been appointed in accordance with Ch.III of the Constitution. However, the reasoning of the majority Justices differed in fundamental respects. Mason CJ, Wilson and Dawson JJ held ((53) Re Tracey (1989) 166 CLR at 545.) that a service tribunal need not be constituted in accordance with Ch.III of the Constitution to hear and determine charges under military law if the charge is sufficiently connected with the regulation of the defence forces and their good order and discipline. If the offence is so connected, it is for the Parliament to say whether the offence is necessary for the regularity and discipline of the defence forces. Brennan and Toohey JJ took a more limited view of the power of the Parliament. Their Honours held ((54) ibid. at 570.) that a service tribunal not appointed in accordance with Ch.III of the Constitution had jurisdiction to hear a service offence only if the proceedings could reasonably be regarded as substantially serving the purpose of maintaining or enforcing service discipline. In determining whether the proceedings could be so regarded, the accessibility and appropriateness of hearing the charge in a civil court was a variable factor to be weighed according to the circumstances.

3. In Re Nolan; Ex parte Young ((55) (1991) 172 CLR 460.), this Court by majority ((56) Mason CJ, Brennan, Dawson and Toohey JJ, Deane and Gaudron JJ and myself dissenting.) again rejected a challenge to the power of the Parliament to invest a Defence Force Magistrate, who had not been appointed in accordance with Ch.III of the Constitution, with jurisdiction to hear charges under the Act. In Re Nolan, the defence force member was charged with fourteen offences in relation to seven documents. He was charged with two offences in respect of each document. The first charge was that he had falsified a pay list, contrary to s.55(1)(a) of the Act; the second charge was that he had used a false instrument contrary to s.61(1) of the Act which adopts s.135C(2) of the Crimes Act 1900 (N.S.W.). Mason CJ and Dawson J said ((57) Re Nolan (1991) 172 CLR at 474.) that there was no reason to resile from the view that they had expressed in Re Tracey. Brennan and Toohey JJ also followed the views that they had expressed in Re Tracey ((58) ibid. at 484.).

4. The divergent reasoning of the majority judges in Re Tracey and Re Nolan means that neither of those cases has a ratio decidendi. But that does not mean that the doctrine of stare decisis has no relevance or that the decisions in those cases have no authority as precedents. Because it is impossible to extract a ratio decidendi from either of the two cases, each decision is authority only for what it decided ((59) Dickenson's Arcade Pty. Ltd. v. Tasmania (1974) 130 CLR 177 at 188; Philip Morris Ltd. v. Commissioner of Business Franchises (Vict.) (1989) 167 CLR 399 at 496.). But what is meant by saying that a case, whose ratio decidendi cannot be discerned, is authority for what it decided? It cannot mean that a court bound by that decision is bound only by the precise facts of the case. Stare decisis and res judicata are different concepts.

5. In my opinion, the true rule is that a court, bound by a previous decision whose ratio decidendi is not discernible, is bound to apply that decision when the circumstances of the instant case "are not
reasonably distinguishable from those which gave rise to the decision" ((60) Scruttons Ltd. v. Midland Silicones Ltd. (1962) AC 446 at 479 per Lord Reid.). In Great Western Railway Co. v. Owners of S.S. Mostyn ("The Mostyn") ((61) (1928) AC 57.), Viscount Dunedin, after concluding that no binding ratio decidendi could be extracted from the House's decision in River Wear Commissioners v. Adamson ((62) (1877) 2 App Cas 743.) said ((63) The Mostyn (1928) AC at 74.):

"Now, the judgment is binding. What, therefore, I think is our duty on this occasion is to consider the statute for ourselves in the light of the opinions, diverging as they are, and to give an interpretation; but that interpretation must necessarily be one which would not, if it applied to the facts of Wear v. Adamson, lead to a different result."

6. This Court is not bound by its previous decisions but, in the absence of special circumstances, its longstanding practice is to follow its own decisions. However, the present case involves the interpretation and application of provisions of the Constitution. The doctrine of precedent is not as rigid in relation to decisions on the Constitution as it is in relation to decisions under the general law. A decision by the Court on a statute or the doctrines of the common law or equity can be changed by the legislatures. A decision by the Court on the Constitution can be changed only by referendum or by the Court overruling the decision. In Australian Agricultural Co. v.
Federated Engine-Drivers and Firemen's Association of Australasia ((64) (1913) 17 CLR 261 at 278.), Isaacs J declared:

"Our sworn loyalty is to the law itself, and to the organic law of the Constitution first of all. If, then, we find the law to be plainly in conflict with what we or any of our predecessors erroneously thought it to be, we have, as I conceive, no right to choose between giving effect to the law, and maintaining an incorrect interpretation. It is not, in my opinion, better that the Court should be persistently wrong than that it should be ultimately right."

7. But as Gibbs J pointed out in Queensland v. The Commonwealth ((65) (1977) 139 CLR 585 at 599.), this statement can be misleading because, even in constitutional cases, no Justice of this Court "is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank". It is, as his Honour also pointed out, only after the most careful consideration of the earlier decision and after giving due weight to all the circumstances that a Justice may give effect to his or her own opinion in preference to an earlier decision of the Court.

8. In Re Nolan, I agreed with the judgment of Deane J in Re Tracey and with his judgment in Re Nolan. I expressed the view ((66) Re Nolan (1991) 172 CLR at 499.) that, unless a service tribunal is established under Ch.III of the Constitution, it has jurisdiction to deal with an "offence" only if that "offence" is exclusively disciplinary in character or is concerned with the disciplinary aspects of conduct which constitutes an offence against the general law. However, that conclusion was rejected by a majority of Justices in both cases.

9. Although I remain convinced that the reasoning of the majority Justices in Re Nolan and Re Tracey is erroneous, I do not regard that as a sufficient reason to refuse to give effect to the decisions in those cases. They are recent decisions of the Court where, after full argument on each occasion, the Court upheld the validity of the Act in circumstances where the facts are not readily distinguishable from the present case. In both Re Tracey and Re Nolan, the Court held that, consistently with Ch.III of the Constitution, a person, not appointed in accordance with Ch.III, had jurisdiction under the Act to hear and determine charges against a member of the defence forces. In each case, the relevant charges involved allegations of dishonest conduct by a member of the defence forces in the performance of his duty in circumstances that were contrary to the good order and discipline of the defence forces. In the present case, one charge alleges the dishonest appropriation by a defence member of a large sum of money belonging to the Commonwealth. The other charge alleges a failure to comply with a lawful order that he advise a Commanding Officer at an RAAF Base of any change in circumstances that could affect his entitlement to receiving a temporary rent allowance. Obviously, the two charges are connected.

10. Although a magistrate constituted the service tribunal in the two earlier cases and a general court martial is the service tribunal in the present case, I am unable to see any legally relevant distinction
between the three cases. Like cases should be decided alike. Uniformity of judicial decision is a matter of great importance. Without it, confidence in the administration of justice would soon
dissolve. As Lord Devlin has pointed out ((67) "The judge and the aequm et bonum in the Judge (1979) at 85.) : "A sense of injustice is more easily aroused by the apprehension of unequal treatment than
by anything else."

11. Furthermore, for the Court now to hold that a service tribunal had no jurisdiction to try this case after reaching the opposite conclusion twice in the past five and a half years would defeat the expectations of the Parliament and those concerned with the
administration of discipline in the defence forces. Both the Parliament and those responsible for the administration of service
discipline could be fairly excused for thinking that the constitutional question had been settled. Moreover, the two decisions are confined to the special position of the defence forces and give effect to a tradition that has existed in this country from its earliest days. The decisions have no authority outside the situation of the defence forces.

12. Accordingly, in my opinion, the Court should continue to follow Re Tracey and Re Nolan in any case whose circumstances are not readily distinguishable from the circumstances of those two decisions, notwithstanding that they contain no binding ratio decidendi.

13. The application should be refused.