Re Tyler & Ors; Ex parte Foley

[1993] HCATrans 347

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IN THE HIGH COURT OF AUSTRALIA

Registry	No Cl3 of 1993
In the matter of -

An application for a writ of

prohibition against GROUP

CAPTAIN C.A. TYLER AM, WING

COMMANDER T.R. MARA, WING
COMMANDER I.M. LITTLE, WING

COMMANDER P.M. HEWITSON and

WING COMMANDER W.A. EVANS

President and Members of a

General Court Martial

Ex parte -

JOHN WILLIAM FOLEY

MASON CJ
BRENNAN J
DEANE J
DAWSON J
TOOHEY J
GAUDRON J

McHUGH J

Foley(2) 31 11/11/93

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 11 NOVEMBER 1993, AT 11.40 AM

(Continued from 10/11/93)

Copyright in the High Court of Australia

MASON CJ:	Mr Katz.
MR KATZ:	Your Honours, I had a few brief more remarks to

make about the first part of my argume~t that

dealing with the second limb of section Sl(xi). I

had got to the point of making the submission which

appears in paragraph 8 on page 4 of my written

document, to the effect that the purpose, both of

the relevant American and Australian provisions,

was to confer on the legislature a power to control

the occasions upon which the executive might use an
armed force under its command for the purpose of

executing the laws of the relevant jurisdiction,

rather than for its essential defensive function.

The other matters to mention are these.

First, that the construction which, I submit, is

the construction to be given to both provisions can

be seen in its operation by an American statute

which, Your Honours, I believe, have before you.	A
statute enacted by the American Congress roughly
contemporaneously with the American Constitution. It gives Your Honours an idea of the sorts of
occasions upon which a legislature might choose to
permit the executive to use the power being spoken
of.

The statute is one of 2 May 1792, and it is

popularly known as the George Washington Act, by

reason of the fact that that was the president upon

whom it conferred the relevant powers. Could I

very briefly direct Your Honours' attention to

three provisions: first, section 9 which confers

on:

the marshals of the several districts -

that is to say, the federal districts -

the same powers in executing the laws of the

United States, as sheriffs and their deputies

in the several states have by law, in

executing the laws of their respective states.

Then section 2, which is the crucial section for

present purposes:

whenever the laws of the United States shall

be opposed, or the execution thereof

obstructed, in any state, by combinations too

powerful to be suppressed by the ordinary

course of judicial proceedings, or by the

powers vested in the marshals by this act, the

same being notified to the President of the

United States, by an associate justice -

Foley(2) 32 11/11/93

that is to say the Supreme Court -

or the district judge, it shall be lawful for
the President of the United States to call

forth the militia of such state to suppress

such combinations, and to cause the laws to be

duly executed. And if the militia of a state,

where such combinations may happen, shall

refuse, or be insufficient to suppress the

same, it shall be lawful for the President, if

the legislature of the United States be not in session, to call forth and employ such numbers of the militia of any other state or states

most convenient thereto, as may be necessary,

and the use of militia, so to be called forth,

may be continued, if necessary, until the
expiration of thirty days after the

commencement of the ensuing session.

So one sees a concern by the legislature to

restrain the use by the President of armed force

for this, as I have described it, subsidiary

purpose. There must, first of all, be a notice by

a judge who has jurisdiction in the relevant area

that the execution of the laws cannot be maintained

by the ordinary judicial means, and then as well
there is the constraint about the use of a militia

other than that State.

The third, and last, provision to mention is

section 10 which nowadays, of course, would be

described as a "sunset" clause. It is a provision
which permitted the Act to continue only for two
years plus a bit, consistent with the sort of

approach taken, say, to the Mutiny Act in the

United Kingdom. I may tell Your Honours that the

George Washington Act has, in fact, been continued

ever since and it remains part of American federal

law to this day, although not precisely in the form

in which it appeared as early as 1792.

I have tried to find within the body of Australian federal legislation some statute which

may have some similar sense to this Act, and I am

unable to find one. There is nothing, for

instance, in the first Defence Act 1903. It did

occur to me that it might be possible that

legislation of this sort might have been enacted

during the time of the Lang government during the

depression, and I have examined the relevant

legislation. There are four statutes called the

Financial Agreements Enforcement Acts 1932. None

of them go so far as to provide for the use of the

military for the purpose of enforcing any

Commonwealth law.

Foley(2) 33 11/11/93

The very last matter to mention is that which

appears in paragraph 9 of my submission, and that

is a reference to the -

McHUGH J:	The military has been used on a number of occasions in Australia, I think.
MR KATZ:	Yes, certainly it has, Your Honour.

McHUGH J: What is the source of the power to use the

military?

MR KATZ:	It is not clear to me that on any of the occasions upon which the military was used for the purpose of executing and maintaining the laws there was any
legislative foundation for doing so and, of course,
a question may arise as to the lawfulness of that
which was done.  In the circumstances it is not
surprising that no challenge did occur. But be that as it may, my submission is directed to the
notion that the purpose of the provision in the Constitution is to confer on the legislature a
power to control those occasions.  If the
legislature chooses not to avail itself of the
power conferred on it that, in my submission, does
not affect the proper construction of the provision in the Constitution.
The last matter then is the contemporary understanding of 5l(vi) second limb as it appeared
in Quick & Garran, and I have given to Your Honours page 565 from Quick & Garran which contains their
discussion, brief though it is, of the phrase "to
execute and maintain the laws", and in particular
the second paragraph of their brief discussion says:

The power which may be conferred under

these words is meant to be exercised when some

sudden emergency renders it necessary, in

order to maintain the public peace.

Quick & Garran then refer to an American Supreme

Court case, and it would appear that the learned

authors at least had in mind that the occasions of
the use of the power would confine the executive to
the use of the forces to the occasions mentioned,
generally speaking, cases of emergency. It may be

that also the use of a compound phrase "execute and

maintain" was intended to be used as a hendiadys to

convey the idea of using the forces to maintain the

laws by executing them.

TOOHEY J: But the provision of our Constitution does not

have that distinction between armed forces and

militia that the American Constitution has. What

Foley(2) 11/11/93

significance should we attach to the absence of

that distinction?

MR KATZ:  None, in my submission. The significance from one

point of view is that the powers conferred on the

legislature in Australia are greater than those

conferred on the American legislature by reason of the fact that in Australia the confining effect of the provision may be used in respect of every sort of armed force - not only militia or volunteers but

also regular forces, whereas in America, at least

at a formal level, the power relates only to the

use of the militia and not to the use of the armed

forces for that purpose.

But I think that is explicable by reference to

the historical development of the concept of a
standing army. Whilst it was an unusual idea at
the time of the American Constitution's creation,

by 1900 people were more comfortable with the

existence of a standing army, and so it was
appropriate to deal in a global way with the forces
when adopting the American provision to the
Australian situation.

My submission is that, regardless of the differences between the provisions, which I have

mentioned, calling forth as opposed to controlling

and the forces as opposed to the militia and

execute and maintain as opposed to execute, the

basic concept is the same and does not bear on the

general subject of military discipline.

If Your Honours please, I will turn then to

the second submission which I wish to make which is

dealt with generally under part C which begins at

page 5 of my written document. May I begin by

reminding Your Honours of some things which were

said and not said in the War Crimes case,

Polyukhovich v The Commonwealth, 172 CLR 501.

There was an argument made by the Commonwealth in

the War Crimes Act case that the defence power

provided support for the legislation.

Your Honour Justice Dawson and Your Honour

Justice McHugh did not advert as I have read

through Your Honours' reasons to that submission by

the Commonwealth.

Your Honour the Chief Justice, Your Honour

Justice Deane and Your Honour Justice Gaudron, all

adverted to the submission for the purpose of

saying it was unnecessary to deal with it, and the

relevant page references are, for the Chief Justice

page 531, for Justice Deane page 599, for Justice

Gaudron 696.

Foley(2) 35 11/11/93

Your Honour Justices Brennan and Toohey did deal with the submission. Your Honour

Justice Brennan dealt with it at pages 592 and 593,

and Your Honour Justice Toohey dealt with it at
page 684.

In the circumstances, it may be convenient to deal with what Your Honour Justice Toohey said.

Your Honour adopted the reasoning of His Honour

Justice Brennan on that aspect of the case. So

that I need turn only as a matter of substance to

what Your Honour Justice Brennan said at the bottom

of page 592:

Although the Act is capable of having a

relevant deterrent effect and may, on that

account, be said to be "appropriate and
adapted" to serve defence purposes ..... the

validity under s 5l(vi) of a law enacted in a

time of peace depends upon whether the

Parliament might have reasonably considered

the means which the law embodies for achieving

or procuring the relevant defence purpose to

be appropriate and adapted to that end, a

question of reasonable proportionality ..... In

times of war, laws abridging the freedoms

which the law assures to the Australian people
are supported in order to ensure the survival
of those freedoms in times of peace. In times

of peace, an abridging of those freedoms - in

this case, freedom from a retrospective

criminal law - cannot be supported unless the freedom in question is proportionate to the

defence interest to be served. What is

necessary and appropriate for the defence of

the Commonwealth in times of war is different

from what is necessary or appropriate in times

of peace ..... "That is because the question of

appropriateness and adaption falls for

determination by reference to the

circumstances which engage the power" ..... The

formation of the critical judgment as to
whether the means adopted by a law are

appropriate and adapted to serve defence

purposes is entrusted to the Court.

The means which the Act adopts to secure future adherence to the laws and customs of

war not only trample upon a principle which is

of the highest importance in a free society,

namely, that criminal laws should not operate

retrospectively, but also select a specific

group of persons from a long time past out of

all those who have committed, or are suspected of having committed, war crimes in other armed

conflicts. Respect for the laws and customs

Foley(2) 11/11/93

of war cannot be secured by a law having such
an oppressive and discriminatory operation.

So that Your Honour considered it a matter entrusted to the Court to gauge whether or not the

abridging of a particular important freedom - in

that case the freedom against subjection to

retrospective criminal laws - was proportionate to

the defence interest to be served by that law and

emphasized the important difference in approach to that question, depending on whether or not the law was to be applied in times of war, as opposed to

times of peace. May I come back to that approach

after I have dealt with the Defence Force

Discipline Act relevantly.

May I now turn to what was said relevantly by

Your Honour the Chief Justice and Your Honour

Justice Dawson in Nationwide News Pty Ltd v Wills,

177 CLR 1. Your Honours will recall of course that

this was not a case which raised any question of

the defence power. Instead, what was involved was a question of the extent of the implied incidental power associated with the express conciliation

arbitration power. At page 30 in particular - this

is in the reasons for judgment of Your Honour the

Chief Justice - Your Honour, after having dealt

with the earlier decision of this Court in Davis v

The Commonwealth, summed up the propositions which

had been established by Davis, and I read from the

last paragraph on page 30:

Davis establishes two propositions.

First, that, even if the purpose of the law is

to achieve an end within power, it will not

fall within the scope of what is incidental to

the substantive power unless it is reasonably
and appropriately adapted to the pursuit of an
end within power, ie, unless it is capable of

being considered to be reasonably

proportionate to the pursuit of that end.

Secondly, in determining whether that

requirement of reasonable proportionality is

satisfied, it is material to ascertain

whether, and to what extent, the law goes

beyond what is reasonably necessary or

conceivably desirable for the achievement of

the legitimate object sought to be attained

and, in so doing, causes adverse consequences

unrelated to the achievement of that object.

In particular, it is material to ascertain

whether those adverse consequences result in

any infringement of fundamental values

traditionally protected by the common law -

Foley(2) 37 11/11/93

and Your Honour there instanced freedom of

expression, given the context in which the case

arose.

So that, in my submission, in an approach

similar to the approach by Your Honour

Justice Brennan and Your Honour Justice Toohey in

Polyukhovich, Your Honour was considering the

question of reasonable proportionality and
considering to be a matter of utmost moment in the

decision as to reasonable proportionality of the

law concerned, the effect which such a law might

have on important freedoms traditionally recognized

by the common law. The lack of ability to subject

persons to retrospective criminal laws,

discrimination or absence of equality before the

law or, to take the Nationwide News example,

freedom of expression and, in particular, freedom

to express views critical of the conduct of

governmental institutions.

My submission, if I now may return to my

written document, which appears at paragraph 14, is

that one of the fundamental values which is

traditionally protected by the common law is that

of independence in the making of decisions in the

exercise of judicial power. I emphasize

immediately that I use the notion of judicial power

in a generic sense. I do not mean to refer to "the

judicial power of the Commonwealth". I have given

references at the end of paragraph 15 to the

expressions of view by Your Honour the

Chief Justice, likewise by Your Honours

Justices Brennan, Dawson and Toohey, to the fact that service tribunals, under the Defence Force

Discipline Act, all do exercise judicial power, albeit not the judicial power of the Commonwealth.

So, the submission which I make is that we are

concerned here with the conferral of a jurisdiction

on a body which jurisdiction is properly
denominated the exercise of a judicial power.	My

submission is that the common law has traditionally

protected the independence of decision making in

the exercise of such powers and may I add, because

in my submission it is a matter which is relevant

from this point of view as well, that Australia has

obliged itself internationally to give effect to
the principle of independence in the making of
decisions in the exercise of a judicial power.

May I refer Your Honours to article 14(1) of the International Covenant on Civil and Political

Rights, which relevantly provides:

In the determination of any criminal

charge against him, or have his rights and

Foley(2) 38 11/11/93

obligations in a suit at law, everyone shall

be entitled to a fair and public hearing by a

competent, independent and impartial tribunal

established by law.

So that my submission is that not only is the

independence of judicial decision making

traditionally protected by the common law, it is

likewise a matter which is protected by Australia's

international obligations and, of course,

Your Honours will be conscious that in light of

Australia's succession to the optional protocol to

the International Covenant on Civil and Political

Rights, the Human Rights Committee constituted

under that international convention, has

jurisdiction to entertain complaints about the failure of Australian laws to comply with that international obligation.

Your Honours in paragraph 15 I have mentioned what, with respect, must be obvious that general

courts martial, in particular, have the power to

make decisions which can adversely affect people's

interests. In the very case with which we are here

concerned it is possible that the prosecutor could

be imprisoned for five years if found guilty.

Likewise I have given the references to the fact

that service tribunals including, of course,
general courts martial, exercise judicial power

whether or not that be the judicial power of the

Commonwealth.

The submission which I make is that the

structure of general courts martial established by

the Defence Force Discipline Act tramples upon the

fundamental value protected by the common law of

independence in the exercise of decision making

when that decision making involves judicial power,

and a convenient place to begin - - -

McHUGH J: This argument would be very powerful if we were

looking at the matter afresh, but you cannot

disregard the history of military tribunals in the

Anglo-Australian world.

MR KATZ:  Yes. Your Honour, I accept that history is a

matter to which the Commonwealth can appeal but, in

my submission, that is the only matter to which it

can appeal in these circumstances.	The question
is - - -

McHUGH J: But it can be a powerful matter when one is

talking about questions of what is reasonable.

MR KATZ:  I do not deny that possibility. It may be that a

convenient response would be simply to quote what

Your Honour Justice Gaudron said in Young's case at

Foley(2) 39 11/11/93

the bottom of page 497 and the top of page 498.

This was directed to a somewhat argument but, none

the less, in my submission, it does provide an

answer.	It may be that I need read no more than
the first two words of it:	"Times change." But
the passage does continue:

Whatever may have been the situation in

earlier times, there is now no insuperable

difficulty in bringing members of the armed
forces stationed in Australia before the

ordinary courts when questions arise as to the

consequence, if any, which the general

criminal law imposes by reason of their

conduct in Australia.

Mutatis mutandis, I say that is the position so far as the independence of general courts martial is

concerned. Whatever may have been the position

earlier as to this matter, there simply is no

difficulty now - at least that is a first step in

my argument; it may not take me all the way. I was

about to begin my reference to the Canadian Supreme
Court case from last year which I refer to in

paragraph 17, the case of Reg v Genereux, which

Your Honours have.

TOOHEY J: Just before you do that, Mr Katz, since the views

expressed by Justice Brennan and myself appear to

be in your sights, as it were, the view that we

expressed in Nolan, for instance, was that the

proceedings were supportable so long as they could

be regarded as substantially serving the purpose of

maintaining or enforcing service discipline. Where

does that fit or not fit into your concept of

reasonable proportionality? In other words, our

approach was to take a section like section 47 and

read it down so that jurisdiction was conferred

only where the nature of the offence was one that

could be seen as relating to service discipline.

proportionality in your argument, or does it fail Does that in itself carry the idea of reasonable to do so?

MR KATZ:  Your Honour, the requirement that a law be

reasonably proportionate in a relevant sense may

wear a great number of different aspects.

Your Honour has focused on one. I am seeking to

focus on a completely different aspect of the
matter. These arguments which I seek to develop

really run in parallel with any other attack which

may be made on the reasonable proportionality of

such a law. There has not previously been any

complaint about the reasonable proportionality of
the relevant provisions of the Defence Force

Discipline Act based on this aspect of the matter.

Foley(2)	11/11/93
McHUGH J:	What do you mean this aspect of the matter?
MR KATZ:	The fact that the mechanisms created for the

enforcement of the liability is not independent.

TOOHEY J:  You mean that is a proposition that stands over

and above the idea of a separate service tribunal?

MR KATZ:  Your Honour, it acknowledges the availability of

such tribunals, but says that if they are to be

used they must have certain qualities for the

purpose, and a primary quality which they must have

if they are to be used, say, in contradistinction

to the ordinary courts, is that quality of

independence of which I am speaking.

TOOHEY J:  And is that a proposition that extends to

offences committed in time of war as well as peace?

MR KATZ:  Your Honour, I have sought to confine my

submissions to the situation presently before the

Court. A charge under section 47(1), a general

matters which I am raising now might not be dealt with entirely differently in times of war, or indeed in respect of offences committed overseas,

court martial, time of peace, offence in Australia.

although I may note that the Commonwealth

Parliament itself would appear to have the view, at

least when one examines section 143 of the Act,

that it is entirely appropriate if these

allegations occur overseas that the matters be

dealt with by the ordinary civil courts overseas.

Your Honours will recall 143 especially from

Ryan's case because it is the reverse image of

190(3) and (5) which were held invalid.

Section 144(3) deals with the case of

non-liability -

to be tried by a service tribunal for a

service offence that is substantially the same

offence -

as a person who has been dealt with before a civil

court. Your Honours see 144(3)(b) treats acquittal

or conviction -

by an overseas court of an overseas offence -

as giving rise to some sort of autrefois acquit or

autrefois convict in a service tribunal just as it

does in respect of offences which occur within

Australia and are dealt with by the ordinary civil

courts of Australia.

Foley(2) 41 11/11/93

I am sorry, I think I deflected myself. To

come back to what the thrust of what Your Honour was putting to me, my submission depends on this

jurisdiction having been conferred in respect of

offences alleged to have been committed in

Australia in times of peace. I do not submit that

the same view would be taken in other areas, and

indeed it comes back - - -

TOOHEY J: But it is an argument, I take it, which you would

urge, irrespective of the nature of the offence,

and irrespective of the degree to which it was

service related?

MR KATZ:	Yes, that is so.
TOOHEY J:	So in other words, it would bring down those

parts of the Defence Force Discipline Act which

purport to confer jurisdiction upon service

tribunals?

MR KATZ:	As presently constituted.
TOOHEY J:	As presently constituted.

MR KATZ: In particular, I am focusing on section 114(2), I

believe it is, which - I am sorry - technically I

am really focusing on section 115 and I realize

that the opening lines of my own written document

are inaccurate in that respect. I am sorry. For

the first time I realize that. My own documents

begins by referring to the purported conferral on a

general court marshal, see 114(1) a jurisdiction to

try a charge of breach.	I was really intending to
mention 115(1).

BRENNAN J:  What is the legal mechanism by which you adapt

these provisions to times of war, to maintain their

validity then but to restrict their validity now.

MR KATZ:  Your Honour, I have not, myself, submitted

anything about their validity in time of war. My

argument does not extend to submitting that they

are invalid in time of war. If the question

were

BRENNAN J:  I appreciate that. I appreciate what you have

said, but is it not a logical extension of what you

have said, that if it be right, it is applicable no

matter what the circumstances, and if that is not a

valid proposition, what is wrong with it?

MR KATZ:  It may be that section 15A would be available for

the purpose of reading the matter down.

Your Honours Justices Brennan and Toohey used it

for those purposes, particularly in Ryan's case.

Foley(2) 42 11/11/93

McHUGH J:  I do not know why you run away from it, because

does not your argument lead inevitably to the

conclusion that the only jurisdiction that the

tribunal has, is in respect of an offence which is

exclusively disciplinary or which is concerned with

the disciplinary aspect of conduct which

constitutes an offence against the criminal?

MR KATZ:  No, it does not, Your Honour.

MCHUGH J: It does not?

MR KATZ:  It applies universally. I had sought to make that

point in answer to a question from His Honour

Justice Toohey.

TOOHEY J: 

On your argument, no service personnel would be

amenable to the jurisdictions of a service tribunal
in respect of any act or omission, unless that
tribunal were constituted in a way that met the

requirements that you have offered?

MR KATZ: 

Yes, that is so.

TOOHEY J: Yes, I understand.

McHUGH J: Well then, your argument goes beyond this case

then, because it would break down a decision - I think it is White's case - concerning the public

service, would it not?

MR KATZ:  No, Your Honour, there is an important difference,

and that is the nature of a punishment which is

capable of being imposed. I mean, Reg v White; Ex

parte Byrnes was distinguished in one of the

earlier cases involving the

Defence Force Discipline Act on exactly the basis

which I am mentioning to Your Honour. At the

bottom of page 537 in Ryan, in the joint judgment

of Your Honour the Chief Justice and Your Honour

Justice Dawson together with Justice Wilson, this

passage appears - I am reading after the reference

to Davison's case -

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 in Reg v White; Ex parte

Byrnes. The Court said:

Foley(2) 43 11/11/93

We think that the so-called fine is nothing

but a mulct to be deducted from s~lary or pay

and we think that the provisions of section
55, in spite of the heading of Division 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.

As to whether or not tribunals constituted under

the Public Service Act are exercising judicial

power, in the sense in which I have been relying on

that notion, it would appear that Ex parte Byrnes

answers the question:  they are not. So my

argument does not deal with such mechanisms for the

enforcement of public service provisions.

McHUGH J: But, if I have understood you correctly then,

your argument would even reject the view of

Justice Deane, Gaudron and myself.

MR KATZ:  Your Honour, as I have done in the written

document, my primary submission is acceptance of

the approach taken by Your Honour, together with

Justices Deane and Gaudron. That view has not

found favour with the other members of the Court

and my submission is directed to a different aspect

of the matter entirely as I suppose, perhaps with

undue bluntness, made plain yesterday. It is an

argument which says, "Assume that these offences
are capable of being dealt with outside the
ordinary courts; assume that they are capable of

being dealt with relevantly by general courts

martial.	None the less, there is something wrong
with the present conferral of jurisdiction on general courts martial. What is wrong with it is	that they are exercising judicial powers - I have
said in a generic sense - which all agree, yet they
do not have that essential characteristic which the
common law recognizes and, indeed, international
law, recognizes as necessary for the exercise of
judicial power.

BRENNAN J:  Why is it that they do not have that

independence?

MR KATZ:  I wanted to introduce that aspect of the matter by

referring to the Canadian Supreme Court case which

approached the equivalent question in Canada within

the last two years. I was to go then to my own

paragraph 17 to introduce my discussion of the case

Foley(2) 44 11/11/93

but, just before I do that, I did not really finish

answering Your Honour Justice McHugh about history.

There was one more thing I wanted to say, and that

was this, that the history of the matter in Canada

is the same as the history of the matter in

Australia, given our common origins. None the

less, history did not persuade the Supreme Court of

Cahada that the independence of courts martial

could be ignored within that constitutional

framework.

Your Honours have a copy of the case. I must

immediately apologize to Your Honours for giving

Your Honours the Dominion Law Reports version. I

did not have available to me the authorized version

at the time I collected - - -

MASON CJ: That is of no concern; we use the Dominion Law

Reports.

MR KATZ:  If I may just give Your Honours the citation in

the authorized reports. It is (1992) Volume 1

Supreme Court Reports 259. Your Honours, the case

involved, if I may just use the Australian
terminology, a defence member charged with a number

of offences: possession of narcotics, possession of narcotics for the purposes of trafficking. He was tried before a general court martial - and that

terminology is identical to the Australian

terminology - he was convicted and his conviction

was set aside by the Supreme Court of Canada on the basis that general courts martial as constituted at the time of his trial were not independent and that

no sufficient justification was shown for the use

of such tribunals, that is to say those of a

subordinate character, in times of peace in Canada.

There were a number of features of the

institutional regime which led Chief Justice Lemar

to conclude that general courts martial did not

have the necessary degree of independence.	I have
mentioned those at the bottom of page 7 of my

submission.

There were really three of them. The first

was the lack of security of tenure for judge

advocates; the second was the risk that judge

advocates and the members of general courts martial

would be affected financially if decisions which

they made either as judge advocates or as members

respectively were disapproved of by their

superiors; and thirdly, the lack of freedom of

general courts martial from external interference

with respect to matters that related directly to

the exercise of their judicial functions.

The very matters which were relied upon by the

Chief Justice of Canada to conclude that general

Foley(2) 45 11/11/93

courts martial did not have the necessary quality

of independence - that was for the purposes of the

Canadian Charter of Rights and Freedoms - are

present in the regime under the Defence Force

Discipline Act. May I deal with them in the order

in which I have just mentioned them. First,

I - - -

TOOHEY J: Just before you do, Mr Katz, at some time, and

some time convenient to yourself, can you tell us

whether, as a result of Genereux case, legislative

changes have been introduced in Canada?

MR KATZ:  Your Honour, it may be easier to deal with it

immediately. In fact, after the trial but before

the hearing of this appeal, amendments were made

and it is said by Chief Justice Lamer that those

amendments apparently resolved the problems. I did

mention to Your Honour that Genereux was sent back

for a fresh trial. I have not, at least on the

materials available to me, been able to discover

whether or not any subsequent fresh trial was held.

It is conceivable, of course, that at a fresh trial

he would take the same point which he took before,

and still succeed because the amendments, in the

view of the Supreme Court of Canada, have not gone

far enough, but there is a clear indication in the

reasons of His Lordship the Chief Justice that the

relevant amendments had gone far enough. It is
really at pages 144 and 145 in the report that

His Lordship refers to the irrelevant changes.

First as to the matter of security of tenure

for judge advocates, which I am about to develop in
the context of the Australian Act, His Lordship
says at 144 at about point 3:

Under news 4.09, Q.R. & O. -

that is Queen's Regulations and Orders:	any officer who may act as judge advocate at a
General Court Martial is first appointed to
the position of a military trial judge for a period of two to four years. In addition,
s 111.22, Q.R. & o., now provides that the
Chief Military Trial Judge, and not the Judge
Advocate General, has formal authority to
appoint a Judge Advocate at a General Court
Martial.

So, that was certainly one change which had

occurred.

The second appears - I am sorry I had not

noticed there were letters on the pages - at 145f,

at which His Lordship says:

Foley(2) 46 11/11/93

I note that the recent amendments to the

Q.R. & O. now prohibit an officer's

performance as a member of a General Court being used to determine his qualification for

a promotion or rate of pay (ss 26.10 and 26.11

Q.R. & 0.) In my view, this is sufficient to

correct this aspect of the deficiencies of the

system under which the appellant was tried.

So that there was significant movement after

the trial at which Genereux had been convicted, and before his appeal was actually heard by the Supreme Court of Canada. Now if I may turn to the relevant provisions of the Defence Force Discipline Act to

establish the position of the judge advocate of a general court martial, that is to say, the person who performs the role of a presiding judge or who would perform the role of a presiding judge in an ordinary civil trial.

No one can be a judge advocate unless he is on

the judge advocates' panel, and appointments to the

judge advocates' panel are dealt with in

section 196(2) of the Act, page 154 of the print.

The power to appoint officers as members of the

judge advocates' panel resides in a chief of staff
but there is no provision which secures an

appointee to the panel against termination of his

appointment. That is to be contrasted, in my

submission, with the provisions which relate to the

Judge Advocate General, and that appears in

section 186. Your Honours will see that the Judge

Advocate General is dealt with in Part XI of the
Act, which begins at page 145 of the print, and

section 179(1) provides for the position of Judge

Advocate General and deals with his qualifications

for appointment, his terms and conditions of

appointment, his remuneration. Then, particularly

section 186, at page 148, provides for termination

of the appointment of the Judge Advocate General by

the Governor-General, who has the power of

appointment:

by reason of the misbehaviour or physical or

mental incapacity.

In other words, the same provisions which relate,

for instance, to Federal judges. There is no such

security of tenure accorded to officers who have

been appointed to the judge advocates' panel.

BRENNAN J:  Is there any power to dispense with their

services?

MR KATZ: There is, Your Honour. It comes about in this

way: 196(2) provides that:

Foley(2) 47 11/11/93

A chief of staff may, by writing signed by

him, appoint officers nominated by the Judge

Advocate General to be members of the judge

advocates' panel.

Section 33(1) of the Acts Interpretation Act provides:

Where an Act confers a power or imposes a

duty, then unless the contrary intention

appears, the power may be exercised and the

duty shall be performed from time to time as

occasion requires.

And then the last step is to rely on what was said

by Lord Penzance in the case of Lawrie v Lees,

(1881) 7 AC 19, and at page 29 His Lordship says

this in the context of construing a statute which

conferred a power on the Lord Chancellor which was

expressed to be a power to make orders from time to

time:

the words "from time to time" are words which

are constantly introduced where it is intended

to protect a person who is empowered to act

from the risk of having completely discharged
his duty when he has once acted, and therefore

not being able to act again in the same

direction. The meaning of the words "from

time to time" is that after he has made one

order he may make a fresh order to add

something to it, or take something from it, or

reverse it altogether.

BRENNAN J: That is perfectly understandable when you are

making rules of court. If you have an order with

regard to discovery and you want to make a

different one, you simply introduce the new one.

The old one has gone.	It is a different thing
altogether appointing people to a panel.

MR KATZ:  Your Honour, the power to make orders which was

conferred on the Lord Chancellor and which was

under discussion in Lawrie v Lees was not a power,

for instance, to make rules of a legislative

character. It was rather a power to make orders in

the management of the affairs of a particular
partnership by reason of the fact that one of the

partners had become mentally incompetent.

BRENNAN J: Sure. Questions of changing of investments, for

example, would obviously be a case. Looking at

196, it seems to me that once an officer is

appointed to a judge advocate's panel, then he is

there until his time as an officer expires and he

ceases to be one.

Foley(2) 11/11/93

MR KATZ:  I can understand that position being taken. In my

submission, as a matter of construction of the

provision the contrary is the case for the reasons

which I have submitted.

BRENNAN J: Well, who has the power of dismissing him?

MR KATZ:	He who has the power of appointing him.
BRENNAN J:	I see.
MR KATZ:	So that implicit within 196(2) is the power to

terminate the appointment of a person appointed to

the panel, that power residing in the relevant

chief of staff.

BRENNAN J: Let me ask you another question: would it be a

valid exercise of that power to dismiss somebody

from a judge advocate's panel because of the way in

which he had comported himself in the course of a

court martial, otherwise than in terms of manifest

impropriety?

MR KATZ:  Unless one were to build in a qualification to the

power of termination that it not occur for

misbehaviour or incapacity, in my submission, it is

rather difficult to build in that qualification in

the - - -

BRENNAN J: Except by saying it is a power which has to be

exercised for the purpose for which it is

conferred.

MR KATZ: Before dealing with that, may I simply remind

Your Honour about the express provisions of

section 186. Where Parliament thought it

appropriate to provide some security for a person

who was appointed to an office it said so. So, in

my submission, that is a matter of significance in

deciding whether or not to read the power to

qualification of the sort Your Honour mentions. disappoint as containing or not containing a

TOOHEY J:  Mr Katz, could I just ask you this: I take it

the argument you are presently presenting would

apply to a general court martial and a restricted

court martial?

MR KATZ:  Your Honour, I do not myself see any material

difference, at least from this present point of

view. As I understand it, the only difference

between the two sorts of courts martial relates to

the size of the tribunal and to the power of

punishment, but I have sought to confine myself to

general courts martial by reason of the fact that

that is the particular body which is the respondent

to the present application.

Foley(2) 49 11/11/93

TOOHEY J:  Does the argument have any application to a

defence force magistrate?

MR KATZ: Again, I make the same answer. There are a number

of matters to which I wish to refer. Some of them

are clearly not applicable to the defence force
magistrate in the same way as they are to courts
martial, but I must confess I have not studied the
provisions of the Act in relation to defence force

magistrates for the purpose of answering

Your Honour's question directly. I really did

focus on the sort of institution which I was

particularly concerned with by reason of the fact
that that was the respondent to the present

application.

TOOHEY J:	It is just that some of the points you are making may not be applicable to defence force magistrates.
MR KATZ:	That is possible but, as I understand it, at least

so far as the position of the judge advocate is

concerned, there is no relevant difference.

MR KATZ:  I am sorry, Your Honour Justice Brennan, I think,

asked me a question which I have not yet answered.

I must apologize for having forgotten precisely

what - - -

BRENNAN J:  I must apologize for having forgotten that you have not answered it -

MR KATZ: Rather than answering Your Honour's question, I

went back to the fact that 186 was expressly in the

Act.

BRENNAN J: Yes, but this was in reference, as I understood

it, to your rejoinder to my question to you about

whether or not the power, if there be a power, to disappoint under 196, would not be limited in its exercise for the purpose for which it is conferred,

and your answer was that that there is an express

comparison to be made.

MR KATZ:  Yes, thank you, Your Honour. There was that

aspect of the matter and there was also the aspect

which I did wish to mention just as a matter of

general principle, that given the context of

appointment of a person in the military to an

office by a superior, one might well conclude that

the office was one to be held at pleasure, rather

like the position in Coutts' case for instance.

That seems to me to carry the matter somewhat

a notion of powers from time to time. I add to

further than if this were some other context than of
that of the military. So, I made the primary

submission which depended on 33(1) of the Acts

Foley(2) 50 11/11/93

that the express security of tenure conferred by section 186 and I add to that further the aspect that we are dealing here with a hierarchical force.

DEANE J:  Mr Katz, is there anything that tells us whether,

if you are on the judge advocate's panel, that is a

full-time occupation if you are a full-time

serviceman?

MR KATZ:  My learned friend says, they are all part-time;

that was certainly my understanding, simply from

knowing friends who are in the military reserve and

who are on the panel.

DEANE J:	They are all part-time - well, we all know that.
MR KATZ:	But I know nothing myself in the Act which deals

with the matter. I am not conscious myself of

anything in the Act which deals with it.

DEANE J:  And there is nothing to guide as to whether it is

appointment for a term?

MR KATZ:  My submission is that it is not for the reasons

which I are given to His Honour Justice Brennan.

DEANE J:  And there is no provision for termination or for

how many people can be on the panel?

MR KATZ:  No, certainly not of the latter; my submission is

that there is implicit provision for termination by

reason of the legislative chain to which I have

referred.

The next point to deal with, in connection

with judge advocates is this:  my first point being

that there is no condition precedent to the

termination of their appointment. The second is

that the choice of a person on the panel to be

judge advocate of a particular general court

martial depends on the will of the convening	authority only, and that appears in section
119(a)(iii), which is page 106 of the print:

A convening authority shall, in an order

convening a court martial:

(a) appoint:

(iii)the judge advocate;

The convening authority is himself an officer appointed by a chief of staff, as appears from section 102, which appears at the bottom of

page 98.

So, a chief of staff selects persons to be on

the panel; in my submission, can remove them from

Foley(2) 51 11/11/93

the panel. Those who are on the panel are chosen
to be judge advocates of any particular court

martial by the convening authority, himself an

officer appointed by a chief of staff.

DAWSON J:	Why are we concentrating on the judge advocate, because he has a very limited function after all?
He is not the person who decides the case.
MR KATZ:	Your Honour, his role is the equivalent of that of

the trial judge, in a criminal trial, in the sense

that he decides matters of law -

DAWSON J: That is all, and he can advise on sentence, but

the actual deciders are the court martial.

TOOHEY J: In fact, I was becoming a bit uncomfortable as

you spent so much time on the judge advocate, since

I had been one myself at some time with the RAAF,

but it was before the current Defence Force

Discipline Act, so I do not suppose it is likely to

be a source of any concern, is it?

MR KATZ:  Your Honour, my submissions are not directed to

any submission that any of the persons who are

members of the present court martial are in any way

partial in the matter.

TOOHEY J:  No, I appreciate that. I thought I would just

mention it to you.

MR KATZ:	My submission is a structural submission only.
TOOHEY J:	It had not occurred to me that the role of the

judge advocate was going to feature in your

argument in the way that it has.

MR KATZ:  May I refer Your Honour Justice Dawson to

section 134(1) of the Act on page 117:

In proceedings before a court martial, the

judge advocate shall give any ruling, and

exercise any discretion, that, in accordance

with the law in force in the Jervis Bay

Territory, would be given or exercised by a

judge in a trial by jury.

Your Honour may have the view that in the general

scheme of things, that is not a particularly

important function. It may be that judges of

superior courts or district courts, say, in the

State of New South Wales would take a different

view of that matter than Your Honour but, whatever

be the position, that - - -

DAWSON J:  I only had in mind - and I confess that I have

acted as a judge advocate too. It is really that

Foley(2) 11/11/93

the ultimate questions are decided by the court

martial itself, and of course there are occasions

when the judge advocate can take the case away from

the court martial.

MR KATZ:  To the extent that the judge advocate performs a

function in the decision-making process, whatever

that extent may be, my submission is related to his

lack of security of tenure. There is one last

matter to mention in connection with this aspect of

the matter, and that is the aspect which arises by

reason of the power conferred on the convening

authority by section 125(3). That appears at

page 108 in the print and it provides:

Where, at any time after a court martial is

sworn or affirmed the convening authority
considers that, in the interests of justice,

the court martial should be dissolved, the

convening authority shall dissolve the court

martial.

Then subsections (5) and (6) of that section

provide a power in the convening authority to

create a fresh court martial for the purpose of

dealing with the self same matter.

Your Honours, if one were to try to analogize

this situation to the ordinary civilian situation,

one might imagine a situation in which the

Commonwealth Director of Public Prosecution has the power to terminate the appointment of judges of a

New South Wales Supreme Court or District Court; has the power to choose which one of the judges,

presently sitting, he would prefer to hear a
prosecution in which he is involved, and who has

the power, if he considers it necessary in the

interests of justice - and I interpolate, because

of some ruling or decision which he considers not

to be in the interest of justice by a presently

sitting court martial - to terminate the court
martial and start again.	Your Honours if
those - - -

DEANE J:  You have not taken me a step in that submission,

and that is the identification of, is it both the

chief of staff and the convening authority with the

Director of Public Prosecutions?

MR KATZ:  Your Honours, I can say only this that given the

hierarchical structure of the military forces the

analogy is appropriate. A charge will be laid by a

member of the forces who himself is within that

relevant chain of command.

DEANE J: Well now, what section provides for the charging?

Foley(2) 53 11/11/93

MR KATZ:	I believe it is section 87 that the matter beings at. Section 87 deals with summonses and orders in
the nature of summonses -  I am dealing now with
summonses in particular:

Where an authorized member of the Defence

Force -

and then if Your Honour would stop there and go to

subsection (6):

In this section, "authorized member of

the Defence Force" means a member of the
Defence Force, or a mernber ..... included in

class ..... authorized, in writing, by a

commanding officer for the purposes of this

section.

And then one moves from the commanding officer up

to the relevant chief of staff. So, section -

BRENNAN J:	Where is the convening officer?
MR KATZ:	102, Your Honour, is the provision relating to

appointment, at the bottom of page 98.

BRENNAN J: Is a convening authority to be regarded more

with the analogy of a committing magistrate?

MR KATZ:	Your Honour, whatever may be the appropriate
analogy to apply to the position of the convening
authority, one thing can be said with confidence,
he is not the court martial, and the functions which he has, in my submission, deny the
possibility of independence on the part of the court martial however he be characterized,
provided he be external.
BRENNAN J:	I just do not understand how, in the

administration of criminal justice by ad hoc

tribunals - that is ones which are not in constant

session and which may be variously constituted -

you avoid the situation of having an appointed

person to put in operation machinery which results

in court martial sittings.

MR KATZ:	I have drawn Your Honours' attention to the
security of tenure associated with the office of judge advocate general. It is possible to
conceive, for instance, that persons appointed to
the panel as judge advocates would have some security of tenure on the panel, as they appear to
do now in Canada.  It is possible then to
conceive, simply as one alternative, that rather
than such persons being selected for individual courts martial by the convening authority, they
might be selected in rotation. They might be

Foley(2) 54 11/11/93

selected at random, or they might be selected by a

person who is clearly independent, namely the

judge advocate general. Those are three

possibilities which are available in

contradistinction to the present method which, in

my submission, amounts to some person external to

the judging class having power to remove any

person from that class in circumstances, in my submission, which do not guarantee a member of

that class that he will not be removed by reason

of decisions which he has perfectly properly made

in the exercise of the function.

TOOHEY J:  We are still in the area of reasonable

proportionality, are we, Mr Katz?

MR KATZ:  Yes. I am simply seeking, at this stage, to

develop my submission that the existing regime

infringes a fundamental freedom recognized by the

common law, namely, independence in the making of

decisions in the exercise of judicial power. In
aid of that submission I am trying to elaborate

various aspects of the system.

TOOHEY J: And do you rely upon Genereux's case simply by

way of analogy, it being a case under the Canadian

Charter, or do you offer it on some other footing?

MR KATZ:  I offer it by way of analogy but, in my

submission, it is significant that the issue which

was presented to the Supreme Court of Canada was

the question of the independence of the

institutional mechanism created under the Canadian

equivalent.

TOOHEY J: That takes me back to my question a moment ago,

that we are in the area of reasonable

proportionality so far as your argument in relation

to this Act, that is the Defence Force Discipline

Act itself is concerned.

MR KATZ:	Yes.
MASON CJ:	We will adjourn now and resume at 2.15.

AT 12.58 PM LUNCHEON ADJOURNMENT

Foley(2)	55	11/11/93
UPON RESUMING AT 2.17 PM:
MASON CJ: Yes, Mr Katz.

MR KATZ:  Your Honours, there are two matters that I should

mention immediately.	The first is a matter of some
embarrassment.	When I dealt with Polyukhovich's

case and Nationwide News v Wills I dealt with what

Your Honour the Chief Justice said in Nationwide

News v Wills, and not with what Your Honour

Justice Dawson did, the reason being that there

were similarities of approach among those two sets

of reasons. Your Honour's view is different in the

matter, and the thrill of the chase just made me

omit to deal with that aspect.

DAWSON J:	I would not worry, Mr Katz.
MR KATZ:	May I now simply draw attention to the approach

which Your Honour did take in Nationwide News - - -

MASON CJ:  It differed on a point that is not relevant to

the argument you are now presenting, that is,

differed from the view I expressed on a point not

relevant to the argument.

MR KATZ: That would be my submission.

DAWSON J:  And it is a different approach, namely the

purposive power, and the defence power is a

purposive power.

MR KATZ:  That was the point that I especially did want to

make. At page 89 in the first complete paragraph,

in the first three sentences Your Honour makes that

point, and that is the passage that I especially

had wanted to refer to, and I am sorry to say did

forget to refer to before going to the legislation. The second matter is this: Your Honour

Justice Deane asked me about charges.	I did refer
to proceedings by way of summons.	I cannot

remember whether or not I was deflected from

answering, or whether the adjournment intervened,

but in any event may I finish the answer. I did

refer to section 87 dealing with summonses and

mentioned to Your Honour that that provided for an

authorized member of the Defence Force charging a

person with a service offence.	I referred to
87(6), the definition of "authorized member".	To
complete my answer, could I draw Your Honours'
attention to section 89 which deals with arrests

without warrant - that is on page 56 of the print -

Foley(2) 56 11/11/93

and that confers on a member of the Defence Force

arresting without warrant -

a person over whom he has a power of arrest -

and then if one turns to subsection (2) one finds

the method for determining whether or not the

arresting member has a power of arrest over the

arrestee. The matter is set out in subsection (2),

and I will not read it.

The last matter is section 90 which deals with

arrest under warrant which provides for the issue

of a warrant by an "authorized officer".

Your Honours, there is a definition of "authorized

officer" in section 3 of the print on page 2:

"authorized officer" means an officer, or an

officer included in a class of officers,

authorized, in writing, by a chief of staff
for the purposes of the provision in which the
expression occurs.

So that for the purposes of section 90 that definition of "authorized officer" is to be built

in. Then as well, section 86 provides that for the

purposes of the part of which I am now speaking -

"authorized officer" includes a commanding

officer.

So that without any authorization by a chief of

staff, none the less a commanding officer has the

powers conferred under section 90.

Your Honours, I had dealt with the matter

which is set out in paragraph 19 of my written

document on page 8. Those were my submissions as

to the lack of independence of the judge advocate.

My other submissions as to this matter I can, I

hope, make very briefly.

In paragraph 20 I advert to the fact that the

Act confers no protection either on judge advocates

or on members of courts martial against the making

of decisions in matters affecting their

remuneration as officers by reason of their

performance in general courts martial. That

situation is to be distinguished from the

situation, for instance, under the present Canadian

regime in which there is that security, so far as

their remuneration is concerned, afforded to

members of the force who participate in general

courts martial.

BRENNAN J:  What is the risk under the Defence Act? What is

the risk to financial security?

Foley(2) 57 11/11/93

MR KATZ: It is this, Your Honour, that questions of, for

instance, promotion may involve a consideration of

the performance of officers who have participated

in general courts martial. Looked at, I emphasize

again, from a structural point of view - no

submission is made that this has happened - there

is that absence of protection against that matter,

that is performance in general courts martial,

being taken account of.

BRENNAN J: Is that inconsistent with judicial independence?

MR KATZ:  Your Honour, one can only analogize as best one

can given the transitory nature of the particular
mechanism with which we are here concerned, but

certainly the Supreme Court of Canada took the view

that it was significant on the question of

independence and, with respect, I would adopt that

approach.

BRENNAN J: It is a source of some embarrassment if, having

served on a court before one serves on this Court,

one is to say that a performance that one was

responsible for in an earlier court could not

possibly play any part in an appointment to this

Court. I just do not know.

MR KATZ:  Your Honour, I may say that there was one

dissensient in the Canadian case. I am embarrassed

to say I believe that dissentient is a female - I

am not sure - it is Justice L'Heureux-Dube. If

indeed she is a female, Her Honour did focus on

that aspect of the matter and found herself unable

to see the force of the point made by the

Chief Justice by reference to that possibility.

Your Honour, I do not suggest that that is a

sufficient matter to establish the lack of

independence, but I seek to accumulate the matters

upon which I rely, including the matters already

mentioned and including the matter about to be

mentioned which is in paragraph 21, back to the

convening authority now, who not only selects the

military equivalent of the judge, but as well,

selects the military equivalent of the jury because

the convening authority decides how many members

there will be on the court marshal, subject to a

minimum number of the president plus four, assuming

it is a general court marshal, so the convening

authority chooses the size of the jury, if I can

describe it in that way, and then chooses the

members of the jury as well.

Finally, on this third aspect of the matter,

there is conferred on the convening authority under

paragraph 119(b) a power as well to fix the time

and place for the assembling of the court marshal.

Foley(2) 58 11/11/93

So that, if I may return to my analogy to the

civilian sphere and consider the possibility of

these sorts of powers being conferred on someone

external to the court and, in particular, in my

submission, someone in the equivalent position to

the Director of Public Prosecutions, there is a

power to remove sitting judges from the bench when

it is appointed; a power to assign an individual

judge to the case; a power to choose the size of

the jury; to choose the members of the jury; to fix

the time and place of the trial; to terminate the

trial in mid stream for the purpose of starting

again, and a power to decide on the salaries of the

judges and jurors by reference to their decisions

in particular trials.

In my submission, such a scheme simply fails

fundamentally to exhibit those characteristics of

independence in the making of decisions in the

exercise of a judicial power, as this concededly

is, which is recognized to be a fundamental value

in the common law.

The approach which I have taken to the analysis of the Act really is similar to that which

was relied upon by Chief Justice Lemar in the

Canadian Supreme Court case. It may be that little

would be added now, in the light of my treatment of

the Australian legislation, by reading passages

from those reasons. I have set out at the bottom

of page 7 the various places in the reasons for

judgment at which extracts may be found dealing
with the various matters to which I have referred,
and I have already, in an answer to His Honour

Justice Toohey, mentioned the amendments which

occurred in Canada following the trial of the

appellant in this case, but preceding the hearing

of the appeal in the Supreme Court of Canada.

BRENNAN J:  Mr Katz, there was a time when some federal

jurisdiction was exercised by magistrates' courts

that were constituted by members of the public
service.	Does that throw any light on whether your

argument of proportionality on this ground has

validity or not?

MR KATZ: Well, I must necessarily answer the question in

the negative. It may well be, Your Honour, that
there was a deficiency in the system as it then

stood.

BRENNAN J:	I think most people would agree with that.
MR KATZ:	Yes; I am speaking of a deficiency in a

constitutional sense, in particular; I am sorry, I

did not understand Your Honour when Your Honour

said that to mean in a constitutional sense, but my

Foley(2) 59 11/11/93

submission goes to the length of saying that, yes

that may well be so. I must say that such persons,

particularly thinking of my own state, now do have

that degree of independence guaranteed by statute

which one finds in connection with the superior

courts, but it is certainly the case that they did

not do so until relatively recently, and it is

possible that the view which I have been putting
forward here would be applied to section 68 of the

Judiciary Act, in so far as it had conferred

jurisdiction on such a class of persons.

It is true that no such challenge was ever

made and perhaps if it had been made at the time at

which magistrates were appointed in that way, it would have failed. Again, I can only say, times change and the attitude taken by this Court to

questions of, for instance, reasonable

proportionality, is a feature which would not have

figured prominently in earlier decisions, had they

been made about that aspect of the matter.

Your Honours, I have dealt then with, if I

could put it this way, one side of the scales, my

submission that that was an infringement of a

fundamental value traditionally protected by the

common law. A question then arises as to what is

on the other side of scales, of course, and

Your Honour Justice McHugh has certainly referred

to one thing which is on the other side of the

scales, and that is history. The question is how

far history ought be permitted to prevail over

rationality. But there is another aspect of the

matter as well. It is a matter that I adverted to

briefly before, and that appears in paragraph 22 of

my written document.

The Commonwealth Parliament itself has

disclosed that, from its point of view, there is a

relative lack of necessity in the existing scheme

as presently constituted. Your Honours will recall

that the effect of section 144(3) is to confer on a

person who has been tried, either by a civil court

or an overseas court for an equivalent offence, to

immunize such a person from trial again by a

service tribunal. And one asks rhetorically, "How

much importance does Parliament place on the use of

service tribunals as a mechanism for enforcing its

code of discipline if it is prepared to permit a

person to escape the use of such mechanism if he is

dealt with first by the civil courts or by an
overseas court?" In my submission, that provision
discloses that on the other side of the scales from

the significant infringement is an absence of any

real necessity for the present regime.

Foley(2) 60 11/11/93

Your Honours, that is all that I would wish to

say about the scheme of the Act, and by way of conclusion to this aspect of the submission, I

simply return to the approach which was taken in

the Polyukhovich and Nationwide News cases and

submit that the application of those respective

approaches would lead, in this case, to a

conclusion - if I may simply quote from

Your Honour Justice Brennan in Polyukhovich, for instance - "that the abridging of the freedom in question is not proportionate to the defence

interest to be served by the use of this

subordinate mechanism for the enforcement of

military liabilities".

If Your Honours please, there is a further

alternative submission which appears on page 10 at
paragraph 22 and, unless Your Honours wish me to, I
would not wish to say anything orally about that
submission but, simply, leave the matter as it
appears in the written document.

If Your Honours please, those are my

submissions.

MASON CJ:  Thank you, Mr Katz. Mr Solicitor for the

Commonwealth.

MR GRIFFITH:  May I hand the Court our submissions.

MASON CJ: Thank you. Yes, Mr Solicitor.

MR GRIFFITH:  Your Honours Justice Brennan and

Justice Toohey in Tracey at page 568 referred to my

submission as one:

colourfully put on behalf of the Commonwealth

that if the Parliament has power to cast the
legislative net, the fact that the net catches

more fish than the Parliament is entitled to

take is irrelevant.

And Your Honours' answer to this, which we accept

as apt - Your Honours went on to say further in the

same paragraph, at 568 point 2:

To adopt the fishing metaphor, the power to

cast the legislative net depends on the mesh

of the net.

Your Honours, here we have two characters who

participated in Tracey and Nolan back again fishing
in the same waters, one might say, although, in
this case, Mr Katz has a fishing role which

previously was more that of a supporter.

Foley(2) 61 11/11/93

But our position, to accept Your Honour's

answer to our submission in Tracey, is to say that

Tracey mesh on its first cast in Tracey and also in Nolan.

what has happened, when one reads and then

If we could put it that way, we landed two

justices. I had better not press the analogy too

far by saying we got the biggest two.

MASON CJ:  You had better not describe the catch, at any

rate.

MR GRIFFITH: Landed on our side of the count, if

Your Honour likes. We then had another trawl,

still with a lawful mesh, in our submission, and we

landed another two.	I will not talk about size,
but there they were.	So we had then four, and at

that stage we had to stop.

BRENNAN J:	The word "gullible" comes to mind, Mr Solicitor.
MR GRIFFITH:	Your Honour, we hope that if a fish is

gullible and landed, it cannot be recast in the

waters to be trawled for again by others of my

learned friends who come fishing on the third

occasion.	We accept that at that stage we had to
stop.	The effect of Your Honours' decision was to

fix the size of the lawful mesh. Three fish had

gone away and, as my learned friend opened up in

his opening yesterday before lunch rather

colourfully, we must respond by accepting that we

could not catch them then. We say the size of the

mesh that we are allowed has been fixed, so they

have got away and we cannot pitch another trawl, as

it were, to expect to recover them on the basis of

our submissions to be put on this third occasion

before the Court.

So in effect, there was a ruling which

Your Honours refer to in Nolan at page 477 as the

highest common factor in the judgments in Re

Tracey. That ruling of course was one which has

been accepted to the point that now my learned

friends have come along, particularly my learned
friend, Mr Katz, applies to the Court to in effect

vary the size of the mesh - more or less, as we

understand his submission, to prohibit fishing.

What my learned friend seems to say is that there can be no more fishing, not because, as we

understand it, this is jurisdiction which he says

is to be exercised only pursuant to a court

constituted under Chapter III, but until the

mechanisms of procedure and hearing by way of

courts martial fit certain unspecified

characteristics which he identifies by reference to

recent Canadian authority determined, as he admits,

Foley(2) 62 11/11/93

on the basis of the Canadian Charter of Rights and

Freedoms.

Now, in the case of the determination of the

Court in the two earlier decisions, the highest

common factor was accepted and one sees what we

submit is the result of an acceptance of that in

the document DI(G)PERS45-1, which appears at

page 116 and following of the application book. My

learned friend took the Court to page 116 in the
closing remarks of his submissions. But, what one

sees in that document, having referred to the

problem which arises for solution, paragraph 3

indicates:

The aim of this instruction is to provide

military commanders with guidance on the

policy and procedures to be observed in

relation to the exercise of jurisdiction under

under the ordinary criminal law.

the DFDA with respect to offences committed in equivalent

Then follows a summary of the limits of

jurisdiction and an attempt to define cases where

it is inappropriate for the DFDA jurisdiction to be

exercised.	One sees that in the next page, 117,
down to paragraph 9.	And then on page 118 there

are procedures to make what is determined "Initial

Determination of Jurisdiction" for notification

procedures to civil criminal law authorities in

cases where military jurisdiction is exercised, and

then, a procedure is laid down, particularly at

paragraph 12 and following, for cases assessed as

civil or where civil jurisdiction is unclear, and

one can see the basic mechanism here as one whereby

what is called for is for there to be, one sees, as

an initial process under paragraph 12, consultation

with the:

civil prosecuting and police

authorities ..... as to the desirability of

investigating and prosecuting the alleged

offence as a civil offence.

If there is then a determination for the civil

prosecuting and police authorities to continue

handling the matter well then that proceeds under

this ruling, and the defence mechanisms do not

proceed further.

Where there is instances where, as determining

it, local civil police decide not to take action,

and that decision is to be confirmed in writing,
then the civil procedures are regarded as not being

relevant and the matter falls back to be determined

Foley(2) 63 11/11/93

by reference to the procedures under the DFDA Act.

So, one can see, we would submit, that what has

been determined as the highest common factor in the

decisions of this Court is something which is

reflected in this notification for guidance, which

does have the effect of a close relationship
enabling the civil procedures basically to prevail

if they come to be exercised.

One must here, perhaps, have regard to what

was said as part of the decision of the Supreme

Court in Relford, this is at 401 US 367, where the

Supreme Court referred to:

The distinct possibility that civil courts,

particularly nonfederal courts, will have less

than interest, concern and capacity for all

cases that vindicate the military's

disciplinary authority within its own

community.

One of course cannot be surprised that even on

notification procedures that are provided for under

this document, which appears at page 116 and

following, that in many cases, particularly of

obvious service connection, one can expect little

interest from the civil prosecuting authorities and

the matter naturally lies to be determined under

the provisions of the DFDA Act.

The view taken by Your Honours

Justices Brennan and Toohey is of course that the

relevant provisions of the Discipline Act are

valid, that jurisdiction may only be exercised by

the service tribunal in cases where the exercise

can reasonably be regarded as substantially serving

the purpose of maintaining and enforcing service

disciple. So it is accepted, as Your Honours said

at page 570 in Tracey, that:  In the application of this test, much

depends on the facts of the case and the
outcome may depend upon matters of impression

and degree, especially on the needs of service

discipline.

When one has offences such as under section 47

of the Discipline Act, which have common law and

civil law equivalents, we would suggest to the
Court that an approach of an earlier Canadian

decision, that of Mackay v The Queen, is a useful reference point to indicate what attitude a court

should have in respect of dealing with offences

which do have civil law equivalents. That was a

Bill of Rights case rather than, of course, a

Charter of Rights case, and there were several

Foley(2) 64 11/11/93

concurring judgments, but if I could take the Court

to the concurring judgment of Justice McIntyre at

page 426, with which Justice Dixon concurred.

His Honour there said at page 426 point 2:

The question then arises: how is a line to be

drawn separating the service-related or
military offence from the offence which has no

necessary connection with the service? In my

view, an offence which would be an offence at

civil law, when committed by a civilian, is as

well an offence falling within the
jurisdiction of the courts martial and within

the purview of military law when committed by

a serviceman if such offence is so connected

with the service in its nature, and in the

circumstances of its commission, that it would

tend to affect the general standard of

discipline and efficiency of the service.

Then His Honour, and we would accept this, says:

I do not consider it wise or possible to

catalogue the offences which could fall into

this category or try to describe them in their

precise nature and detail.

His Honour also observed, at page 426, that on what he referred to:

on an admittedly different constitutional

basis, this approach has been taken in

American courts.

And here again, where we have a different

constitutional basis in Australia, we do suggest to

the Court that the approach, if not the basis which

in His Honour's decision was underpinned by the

legislative Bill of Rights in Canada, is one which

vindicates the relevant principle which one sees as

the thread, particularly in the judgment of

Your Honours Justice Brennan and Justice Toohey in

Tracey and in Nolan. His Honour

Mr Justice McIntyre said earlier, at page 424:

that the emergence of a body of military law
with its judicial tribunals has been made
necessary because of the peculiar problems

which face the military in the performance of

its varied tasks.

And His Honour, there, took the view the Canadian

Bill of Rights would not be infringed provided:

that the rights of the serviceman at civil law

should be affected as little as possible

Foley(3) 65 11/11/93

considering the requirements of military

discipline and the efficiency of the service.

It is, perhaps, not for us to submit to

Your Honours, particularly Justices Brennan and

Toohey, whether this is the equivalent of the test

which Your Honours postulated, but we do submit to

the Court that this is a useful expression for the

nature of inquiry.

Now, of course, this has been relied upon by

my learned friend, Mr Katz. The position under

Canadian authority is now diverged and reliance on particular charter rights, and Your Honours have

been sufficiently taken to the detail of the

approach of the court's judgment, the leading

judgment by Chief Justice Lamer and the basis under

the charter for His Honour taking particular views

as to the appropriate constitution, not as a court

under the equivalent of Chapter III, but the

constitution and military tribunals under military

disciplinary laws to establish a relevant status of

independence but, of course, not one that which in

any way could be suggested to be an equivalent of

Chapter III court independence which would be

required in the case of exercise of federal

judicial power under Chapter III.

We would suggest that the approach illustrated

by the decision of Justice McIntyre in MacKay is

one which is very much along the same lines of the

common denominator approach, if we can term it

that, which one gets when one attempts a synthesis

of the results in Tracey and in Nolan.

On that basis, having regard, as we submit is

the appropriate approach to the particular

circumstances of the case, we submit that the

present case argues very much in favour of court

martial jurisdiction. We refer to the common

factors in paragraph 2 of our outline with Nolan

itself, and indeed, the substantial difference

between Nolan and the circumstances here seems to
be that here it is alleged that there was a failure

to lodge a document which would have disentitled

the prosecutor to continue payments of an

allowance, rather than the offence as occurred in

Nolan of lodging a document which was false in a

material particular.

BRENNAN J: But that is not the offence in respect of which

the application for prohibition is made, is it?

MR GRIFFITH:  Your Honour, it is one of the circumstances of

the offence.

BRENNAN J:  One of the circumstances?

Foley(2) 66 11/11/93

MR GRIFFITH:  Yes, but we submit that the factors which we

have listed in paragraph 2 of our submission are as

present in Nolan as they are here, and indeed,

Your Honour Justice McHugh yesterday - I think it appears at page 13 of the transcript - referred to

the factors there. I think Your Honour identified

three factors which we read as substantially

embracing the matters covered by our listing in

paragraph 2 as indicating similar circumstances of

service connection.

In our submission here, this is a fairly clear

to the circumstances here, particularly in respect
of the offence alleged under section 47 of the
Discipline Act, matters which go to establish

case.	We have listed in paragraph 3 by reference
service connection.	Your Honours Justices Brennan

and Toohey did refer to the 12 factors which are

listed in Relford, (1971) 401 US 365 which, if

satisfied, establish lack of service connection,

and although Your Honour said that lists such as

those may be useful in certain cases, we submit

here that one can say with some confidence that on

any view there is sufficient service connection.

Indeed, we have found no example, and none has been

put before the Court in argument, of either

pre-Solorio, (1987) 483 US, or pre-Charter or Bill

of Rights Canadian precedents which would have

regarded an offence such as this as being outside

service jurisdiction. We say there are obvious

aspects of service connection which we list.

Indeed, when one looks at the United States

authority pre-Solorio, for example, it is really

the clear cases like O'Callahan, (1969) 395 US 258,

when there is absolutely no service connection,

where the United States Supreme Court have

indicated the view that there is for that reason no

relevant service jurisdiction.

It may be that the absence of apposite

authority is a reflection upon the circumstance

that it is really only the obvious cases such as

O'Callahan, where there is clearly no service connection, which have been held constitutionally outside service connection when one has regard to the early United States authority before Solorio.

Our submission is that not only is Nolan authority

for the result here; we submit that this is a clear

result having regard to the particular facts.

TOOHEY J:  Mr Solicitor, just by way of information, does

this temporary rental allowance derive purely from

some administrative scheme that the services have

introduced, or does it have a statutory basis?

Foley(2) 67 11/11/93

MR GRIFFITH:  Your Honour, it does have a statutory basis.

May I hand to the Court a bundle of materials which

make the connection between the Defence Act and

this particular scheme. The cover sheet is an

attempt quickly to summarize the substance of the

supporting documentation. I think it is perhaps

sufficient if I just refer the Court briefly to the

covering sheet on the assurance that the attached

documents establish each of the matters.

One starts with section 58B of the Defence Act

which empowers the minister to make determinations

relating to the payments of allowance or benefits.

Such a determination was made by determination 0503 which is attached. Administration of the Act is

undertaken by the secretary of defence, and

implementation of a ministerial determination by

the secretary occurs by means of a defence

instruction under section 9A(2) of the Act.

Determination 0503 was implemented by

instruction 0503 which is attached as part of the

manual of salaries and conditions for the permanent

forces. This is known as Indman 0503.

We do have the relevant volume in its relevant

form in Court, if the Court desires us to leave one

with the registry, but we are not - unless my
learned friends request it, we do not think it is

necessary for the Court to have the two volumes of

that instruction. This document, being a defence

instruction, is a general order within the meaning

of the Defence Force Discipline Act 1982.	So we
believe that the answer to Your Honour Justice Toohey's question - and I think

Justice McHugh raised it yesterday - is yes, for

the reasons here stated.

We would suggest, although we feel it is not

necessary here, that in this case the learned judge

advocate at page 112, by reference, one would

suppose, to the general order appearing at page 116

and following, to which I have already taken the

Court, found sufficient service connection. Our

primary submission is that this finding is plainly

correct, but we would say that the Court should by

analogy, in the ordinary cases, for example, of

fact finding in cases of applications for

prerogative writs in connection with industrial

relations matters, when there are results -
jurisdiction depending on matters of fact attach

weight to the decision of the finder of fact in the

first instance, but we do not wish to take that

submission too far other than to refer to the part

of the transcript on pages 112 and 113 where that

finding is made by reference to the facts.

Foley(2) 68 11/11/93

If we turn then to the arguments presented -

perhaps if I can pick up a description of two of

Your Honours - to part of the Commonwealth

submissions in earlier cases, to the colourful

submission of my learned friend, Mr Katz. We would

not be inclined to rely upon the second limb of
section Sl(vi) as here providing any relevant
support for disciplining defence forces. But, of

course, we say at once that is a matter of no

consequences.

Three of Your Honours, including the

Chief Justice and Justice Dawson, and also

Justice Wilson in Tracey, at page 540, said:

so much is necessarily comprehended by the

first part of s Sl(vi) for the reason that the

naval and military defence of the Commonwealth

demands the provision of a disciplined force

or forces.

And we suggest that, in substance, Your Honours

Justice Brennan and Toohey seem to agree with that

approach.

So, it is submitted that a law providing for

disciplinary aspects for the armed forces falls

squarely within the ambit or, if one likes it, the

purpose of the defence power. It falls directly

within the purposes of defence and, we say, for the

reasons simply stated by Your Honours the

Chief Justice and Justice Dawson as just referred

to. The law, of course, to fall within the defence

power, under section 5l(vi), should be for the:

object of ..... conduct, advancement, and
discharge of the nation's ..... military

defence -

to use the expression of Your Honour Justice Deane

in Richardson 164 CLR 308.

It is our submission that provided that a

provisions can reasonably be regarded as

appropriate and adapted to the carrying out of an

object or purpose within a purposive power such as

defence, the choice of legislative means is for the

Parliament, and not the Court, and authority as to

this is sufficiently set out at Tracey at page 567

to page 568.

It may be that a law is not appropriate and

adapted to a purpose if there is not a reasonable

proportionality between the purpose and the means

which the law embodies for achieving or procuring

that purpose. But this, we submit, really raises

the question of whether a Commonwealth law

Foley(2) 69 11/11/93

providing for the trial of service members, for

service offences, by a service tribunal is

appropriate and adapted for the purpose of "the

conduct, advancement and discharge of the nation's
naval and military defence", and whether there is a

reasonable proportionality between the purposes and the means, which the law embodies, for achieving it

or procuring it.

Now, stopping at that point, of course, there

could be, perhaps we could say, much to be said for

the view expressed by Justice McHugh that absent

the weight of history, one can see some basis for

making arguments by reference to inherent freedoms

and entitlements to the advantage of the ordinary

procedures of the criminal law to take a particular

view as to whether or not it was regarded as within

purpose to provide a mechanism which did not fully

reflect, say, Chapter III obligations and

requirements.

But, this aspect of history is one of which

the Court was taken to at great length in Tracey

and also reinforced, picked up as it were, in

Nolan, and a matter where, without us again taking

the Court through that historical context which is,

I think, summarized sufficiently, particularly in

the judgment of Your Honour the Chief Justice and

Justice Dawson, one sees a mechanism of service

discipline which is established and regarded and

accepted by a decision of this Court as not merely
appropriate and adapted, but also within power

under the Constitution.

Now, so far as my learned friend Mr Katz's

submissions are concerned in seeking to break new

ground, perhaps this is one of the better cases for

him to seek to do so, because his argument is based

upon a purposive power, rather than the usual run

of powers under section 51, which are not

purposive. But, even in that situation, my learned

friend is taking up this original route, in our

submission, in respect of a matter which has already been considered and reconsidered and

determined by a decision of this Court. We have

referred to what Your Honours the Chief Justice and

Justices Dawson and Wilson said at page 540 in

Tracey, and Your Honours went on at page 545 in

Tracey to say - and that is at the first paragraph

commencing near the top of page 545:

if offences against military law can extend no

further than is thought necessary for the

regularity and discipline of the defence

forces ..... this limitation would not preclude

Parliament from making it an offence against

military law for a defence member to engage in

Foley(2) 70 11/11/93

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 as

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.

Your Honours Justices Brennan and Toohey

expressly consider the question of whether the
relevant provisions of the Discipline Act are
appropriate and they remain in, one can say, the

same terms in material effect presently for the

purpose of consideration here, but Your Honours

considered whether those provisions were

appropriate and adapted to a purpose within

section Sl(vi), and Your Honour said at page 568:

It can readily be seen that, in some

circumstances, the discipline of the defence
forces would require the enforcement of a code

of conduct appropriate to a defence member in

the Australian Capital Territory so that, in

those circumstances, section 61 can be seen to

be appropriate and adapted to the securing of

discipline in the sense which section Sl(vi)

of the Constitution dictates. On the other

hand, in different circumstances, section 61
would embrace cases which have no relevant

connexion with service discipline.

Having reached that conclusion, we would

submit that section Sl(iv) authorizes the making of

a law which empowers a service tribunal to try

service offences if the exercise of jurisdiction is

limited to cases where proceedings can be regarded

as substantially serving the purpose of maintaining

or enforcing service discipline. It is our

submission that Your Honours have, in effect,

determined the very point which my learned friend,

Mr Katz, seeks the Court to examine afresh, as it

were, unburdened either by the aspects of history,

which we say are a relevant factor in determining

Foley(2) 71 11/11/93

the results, and unburdened by the circumstance

that the Court has already considered these matters

and Your Honours determined within that context, we

submit that such laws in the form of the Discipline

Act are within power.

Now, it may be accepted, as Your Honour the

Chief Justice said in Nationwide News, that in

determining whether the test of reasonable

proportionality is satisfied, the Court may have

regard to adverse consequences unrelated to the achievement of the object, particularly if they

infringe what might have been referred to in

Nationwide News as "fundamental values

traditionally protected by the common law". But it

is our submission that Your Honours Justice Brennan

and Justice Toohey did address this question.

Your Honours referred in Tracey, at page 572 to

573, of the existence of a competent civil court as

jurisdiction can conveniently and appropriately be

invoked to hear and determining a corresponding

civil offence as a factor arguing against trial by

court martial.

Having done that, none the less, at pages 488

to page 489, Your Honours found that even though

the alleged offences there under section 61 might

have been charged as offences under the law of

South Australia, in this case:

it can reasonably be said that the maintenance

and enforcement of service discipline would be

served by proceeding on all charges against

Sergeant Young before a service tribunal.

In Polyukhovich, Your Honour Justice Brennan was,
of course, considering section 9 of the War Crimes

Act and that, of course, had the particular

circumstances to which Your Honours were referred

by my learned friend, Mr Katz, when he read from

page 592 to page 593 in 172 CLR, and it is suffice

to say that Your Honour was, in that particular

circumstance, able to take a view of the

non-attachment or support of the defence power for

the particular law. But what Your Honour, in

effect, did, it would seem, in our submission to

the Court, is that Your Honour regarded those

particular provisions as not appropriate and

adapted to serve defence purposes for the reasons

which Your Honour gave. We submit that this

passage says nothing as to the matters which have

resulted in the particular proceedings, both in

Tracey and in Nolan, being regarded by

Your Honours - particularly Justice Brennan, if I

could say that - as being within power.

Foley(2) 72 11/11/93

There are obvious matters of difference, of

course. The Defence Force Discipline Act

obviously, we submit, is adapted to serving a

defence purpose quite separate from how one might

regard a law which has the effect of

retrospectively punishing a particular class of

persons. There is nothing retrospective in the

Defence Force Discipline Act, there is nothing

discriminatory in it, although of course there is

particular legislation dealing with service

personnel who may commit offences.

It has already been noted that Your Honour

Justice Toohey agreed with Justice Brennan in the

Polyukhovich case. My learned friend relied also

upon the judgment of Your Honour the Chief Justice

in the political advertising case. Of course,

Your Honour in that case at 177 CLR, particularly

at pages 132 to 135, found, as Your Honour

summarized at page 140:

Freedom of communication ..... is so

indispensable to the efficacy of the system of

representative government for which the

Constitution makes provision that it is necessarily implied in the making of that provision.

In this case, by contrast, the question might be

asked whether the trial of service personnel for

service offences, which are also civil offences, is

inconsistent with any principle which is so

indispensable to the vindication of a

constitutional right for which the Constitution

implicitly makes provision, that it should be

regarded as being beyond power.

It is our submission that the answer is no.

The separation of judicial power of course is a

principle explicit in the structure of the

Constitution but, as explained by five of

Your Honours in Tracey, courts martial do not

exercise the judicial power of the Commonwealth

under Chapter III, even if they do exercise

judicial power with a duty to act judicially.

so, perhaps as Your Honour Justice McHugh

correctly observed in the course of intervention

this morning, it is the history of courts martial

which go to contradict any argument based, we would

submit, upon the structure of the Constitution

itself, particularizing from Chapter III, which

rebut any original attempt to construct, as my learned friend sought by reference to Canadian

authority which in turn was a development built on

the Canadian Charter of Rights and Freedoms, to

construct implicitly a principle which my learned

Foley(2) 73 11/11/93

friend seeks not to argue, as was the case with, we

would suggest, three of Your Honours for the

application of Chapter III to the exercise of

military jurisdiction.

But my learned friend's submission seemed to

be directed more for the construction of new
principles to lay down as a minimum mechanism for

the structure of military tribunals providing for the three matters which he listed in paragraph 17 of his contentions and enlarged upon, and of course

based upon the extracts of the judgment of the

Chief Justice of the Supreme Court of Canada.

Your Honour, I think it was Justice Toohey,

this morning, referred to the question of the

calling out of the forces. I hope it was

Your Honour Justice Toohey, but none the less I

will answer the question, and Your Honour there is

some assistance in the provisions of the

Defence Act as to that question of calling out of

the forces. There is a provision under section SOD

dealing with calling out of emergency forces.

There is a provision under section SOE dealing with

calling out of reserve forces in times of war or

defence emergency, but the closest equivalent to

the provision such as Mr Katz referred to from the

George Washington Act would seem to be section 51

of the Defence Act, and that provides that:

Where the Governor of a State has

proclaimed that domestic violence exists

therein, the Governor-General, upon the

application of the Executive Government of the

State, may, by proclamation, declare that

domestic violence exists in that State, and

may call out the Permanent Forces and in the
event of their numbers being insufficient may
also call out such of the Emergency Forces and

the Reserve Forces as may be necessary for the

protection of that State, and the services of

the Forces so called out may be utilized

accordingly for the protection of that State
against domestic violence.

And there is a proviso:

that the Emergency Forces or the Reserve

Forces shall not be called out or utilized in connection with an industrial dispute.

I think from recollection the occasion of the

Hilton bombing might have been one occasion when

there was an exercise of the power to call out the

regular forces, not the emergency forces. The

"emergency forces" are defined in the definition

Foley(2) 74 11/11/93

section 4 on page 2 of the reprint, as is "time of

emergency" defined by that section.

I am indebted to my learned friend to indicate

that that provision was an original provision as

section 51 in the 1903 Act.

So, for those reasons it is our submission

that whilst my learned friend's submissions may
indicate a basis of further submissions to the

Court in other constitutional cases which may arise

in issues other than dealing with the defence power

and military discipline, they do not provide - and

I am pressing it too far, but we would put it, the bait, the lure to attract one of four of

Your Honours to, as it were, move to a position

which would associate with the result already one

which is predicated upon judgments given on two

occasions by three of Your Honours. But, of

course, in situations such as this, somewhat

similarly, as we presented submissions to the Court

on the question of Your Honours' judgments in

Street's case, it is appreciated by those who make

submissions to the Court that there is a limit upon

which one may not - perhaps one should not say

safely, but cannot with the view to much assist the

Court go, because these issues have been fully argued before the Court two times, and now we have

had the third occasion of a refreshing new view

but, in a sense, we would submit, treading upon the

same ground and it is a matter where the Court must

obtain a result as it has in the previous two

occasions when these matters have been litigated.

We would observe, of course, that it might be

suggested that my learned friend appearing for New South Wales, of course, appears for a jurisdiction where one cannot say that the Chapter III rights or

even equivalent rights apart from Chapter III for

purity of the exercise for judicial power are

established. That might have two consequences. It

could well be that if the exercise had to be

exercised by a criminal court in New South Wales, a

non-military court, it could quite constitutionally

be exercised by a court other than the court that

satisfied either Chapter III or satisfied the

requirements that Chief Justice Lemar required as

appropriate with respect to the Canadian

Convention.

But, that observation is possibly somewhat by

the by. This is a case involving the question of

what is required by the Constitution of the

Commonwealth and it is our submission, for the

reason stated, that the result of this Court's

determination on two occasions does apply so as to

reach a result here in the particular circumstance

Foley(2) 75 11/11/93

which is clear, namely, there is jurisdiction. If

the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Yes, Mr Bellanto.

MR BELLANTO: If the Court pleases, my learned junior,

Mr Brabazon, will deliver the case in reply.

MR BRABAZON:  If Your Honours please, may I hand up some

written submissions. I should say at the outset

that these do travel beyond a case in reply, but we

have spoken to our friend, the Solicitor-General

for the Commonwealth, and if Your Honours are
agreeable to that course, I would seek leave to say

something about them subject to his right to reply

further so far as I raise new matter.

Your Honours, we make fundamentally three propositions in the outline. Since the fishing

metaphor has been adopted on all sides hitherto, we

would say that the first proposition is directed

primarily to Your Honours the Chief Justice and

Mr Justice Dawson and also, in a sense, to

Your Honours Justice Brennan and Toohey; that the

second proposition is directed to Your Honour the

Chief Justice and Justices Brennan, Dawson and

Toohey, and that the third proposition which we

make in the alternative is premised on the

assumption that the law is as was stated by

Your Honours Justices Brennan and Toohey in Tracey

and in Nolan.

In relation to the first proposition, the Solicitor-General for the Commonwealth has taken

Your Honours to the judgment in Tracey at page 545

which is also our starting point. We take it to be

common ground that offences against military law

can extend no further than is thought necessary for

the regulation and discipline of the Defence Forces

for the purpose of the defence of the nation. In

relation to that, Your Honours have concluded that	that fact permits Parliament, in effect, to make it	an offence for defence members to engage in conduct
contrary to the civil law; and section 47 of the
Defence Force Discipline Act is a law of that
character.

Secondly, to provide that all such offences

can be tried by a service tribunal and that,

without qualification, by reference to Chapter III

of the Constitution, assuming of course that the

accused person is a member of the defence forces.

Turning to the nature and the purpose of the

power conferred by section 5l(vi),	the nature of
the disciplinary power is twofold:	firstly, it
comprises the power to prescribe a	code of conduct

Foley(2) 76 11/11/93

or standards to be observed; and secondly, the

ability to confer judicial power to try and to

punish such offences. The first power, the

rule-making power, is exercised, among others, by

section 47 of the Act and the second is exercised

by Part VII of the Act, which sets up service

tribunals and provides that they can try all

service offences. The purpose of both such powers

is the maintenance and enforcement of military

discipline in the defence forces.

What we hope to attract Your Honours to

reconsider is the conclusion that the power to make rules for the conduct of the defence forces carries

with it, in all cases, the power to prescribe that

offences against them should be tried by a service

tribunal specifically, and that on the assumption

that service tribunals operate outside Chapter III

of the Constitution.

In coming to that conclusion, Your Honours

relied heavily on a series of English and colonial

legislation, which is referred to in the judgment

in Tracey at pages 542 and 543, the Army Act of

1881 can, in a sense be taken as a starting point,

because it was the imperial statute in force at the

time and contains section 41 which is materially

similar to section 61 in our Act and which provided

for trial by service tribunals of offences under

that section.

The separation of powers was then, and is now,

in English constitutional law, a principle of

constitutional law and a principle of government,

rather than a requirement of the positive law.	The
separation of powers in England was largely a matter of historical practice and administrative

arrangement; it had some legislative aspects to it,

such as the act of settlement but, in many

respects, the separation of powers was effected by

practice rather than by positive law.

The Army Act of 1881, we would submit, and

other similar statutes, were consistent in their

operation with the separation of powers because, so

long as service personnel were not tried by

military courts for service offences which were

equivalent to civil offences and which could be
tried in the ordinary civil courts, assuming those
courts to be available, then no question of the

infringement of the principle of separation of

powers arose.

Your Honours Justices Brennan and Toohey

considered the history of military law and military

tribunals exhaustively in Tracey, and we

respectfully adopt the essence of Your Honours'

Foley(2) 77 11/11/93

analysis of that matter. At pages 562 to 563 of

that judgment, Your Honours summarized the essence

of that analysis.	On page 563 at about point 4,
Your Honours said:

naval and military law thus created not only a

system for punishing breaches of the laws

peculiarly applicable to those forces -

that is to say, specifically disciplinary offences

like mutiny -

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.

We respectfully adopt that as a statement of the

operation of separation of powers under the English

arrangements at that time.

BRENNAN J: There was not too much separation about it, was

there?

MR BRABAZON:  The separation of powers in England was

something that always in a sense had to be fought

for. Blackstone, when he speaks of the separation

of powers, often uses normative language.

Sometimes he says that this is the situation;

sometimes he says this should be the situation, which highlights the character of separation of powers under that system as something which was a

principle of government and in a sense, I suppose,

historically at risk.

Could I take Your Honours to the Boilermakers

case, (1956) 94 CLR 254, in particular at page 267.

MASON CJ:	What are we going to that for?
MR BRABAZON:	Your Honour, when the Federal Constitution of

Australia was enacted, the nature of the separation

of powers was converted from a principle of

government to a requirement of positive law.

MASON CJ:	To the extent that it is in the Constitution.
MR BRABAZON:	Yes, Your Honour.
MASON CJ:	You do not need to go to the Boilermakers case

for that, do you?

MR BRABAZON:  It has a bearing on the status and

significance of the statutes which obtained under

other systems, other constitutions. The joint

Foley(2) 78 11/11/93

judgment of Chief Justice Sir Owen Dixon and

Justices McTiernan, Fullagar and Kitto at the

bottom of page 267 says:

In a federal form of government a part is

necessarily assigned to the judicature which

places it in a position unknown in a unitary

system or under a flexible constitution where

Parliament is supreme.	A federal constitution
must be rigid.

Their Honours go on. They also quote from what

Justice Inglis Clark said at page 277 of their

judgment where he, writing extrajudicially, said:

"Therefore the distribution of governmental

functions which is made by the Constitution of
the Commonwealth of Australia is not an

innovation upon British constitutional

practice; but the provisions of the

Constitution of the Commonwealth which

distributively and categorically vest the

legislative, the executive, and the judicial

powers in three separate organs of government,

impose upon the legislative authority of the

Parliament of the Commonwealth a legal

limitation which does not exist in regard to

the Parliament of any other portion of the

British Empire."

The point, Your Honours, which we seek to make

by that is that the existence of statutes which, in

their terms, were wide enough to vest general

jurisdiction in service tribunals to hear, try and

determine all service offences, those statutes

existing under flexible constitutions in which

Parliament was paramount, or unitary constitutions,

do not indicate what the separation of powers

requires under our Constitution because of that

fundamental difference.

The principle of separation of powers could be

achieved administratively in those constitutions.

It must be achieved by positive law in ours;

indeed, it is achieved by positive law in ours

because of the character of our Constitution as

positive law. We use that to seek to attract

Your Honours, the Chief Justice and Justice Dawson,

to reconsider the conclusion that those historical

statutes have great significance in interpreting

what is required by the separation of powers in

Australia.

McHUGH J:  Is not the difficulty with your argument that in

Tracey all the majority judges took the view that

military tribunals do not exercise the judicial

power of the Commonwealth?

Foley(2)	11/11/93
MR BRABAZON:	The majority judges in Tracey, as we

understand it, Your Honour, held that so long as

military tribunals remain within the limits that

the Constitution sets for them the power that they

exercise is not classified as being the judicial

power of the Commonwealth, which is not entirely

the same thing because, in a sense, the

distribution of judgments starts at one end, as

they stand with Your Honour the Chief Justice and

Justice Dawson, saying that as long as the accused

is a defence member then Parliament has power to

make laws for their conduct equivalent to the
criminal law, and to provide for their trial by

service tribunals, and that takes them outside

Chapter III.

Your Honours Justices Brennan and Toohey do

not go all the way with that because Your Honours

say that that power has to be read down, in effect,

by the requirements of Chapter III as to the

separation of powers and as to the civil rights

which it confers.

BRENNAN J: Where do we say that Chapter III makes you read

it down? Where do you derive that from?

McHUGH J: In fact they say the opposite, do they not, at

572 in their judgment at about point 6 on the page,

starting:

However, the imposition of punishments by

service authorities as for the commission of

criminal offences in order to maintain or

enforce service discipline has never been

regarded as an exercise of the judicial power

of the Commonwealth.

MR BRABAZON: Yes, Your Honour, we accept that. Could I

answer what Your Honour Justice Brennan asked me

because it also contains the answer to what

Your Honour Justice McHugh asks. At pages 569 to

570 of Tracey, Your Honours referred to the two

sets of constitutional objectives to be reconciled,

namely, those under section 5l(vi) on the one hand,
and section 106 of the Constitution and

constitutional history on the other hand.

If section 61 of the Defence Force Discipline

Act and Part VII of that Act were read together and given their natural textual meaning, the

consequence would be the same as what His Honour

the Chief Justice and Justice Dawson have decided.

As we understand Your Honours' judgment,

Your Honours have interpreted that ordinary statute

as not travelling beyond what is authorized by the

Constitution, and in that sense Your Honours have

given the statute a meaning which is less than its

Foley(2) 80 11/11/93

plain words would otherwise accommodate. In a

slightly different fashion, Your Honour

Justice Gaudron held that the statute was valid

because it could be read down in accordance with

section lSA of the Acts Interpretation Act, which

is perhaps another way of doing the same thing,

although in the circumstances not with exactly the

same result. That is what we mean by saying that

Your Honours have given the power a meaning which

is read down by Chapter III.

To demonstrate further what we mean by that,

if ours was a Constitution without the separation

of powers and it contained a grant of power in
terms of section Sl(vi), that grant of power would

undoubtedly authorize legislation of the nature of

section 47 and section 61 of the Defence Force

Discipline Act plus Part VII of that Act, read

without qualification or the limitation which

Your Honours introduce at page 570.

BRENNAN J: That might be open to argument because that

would say that the defence power extended to

exposing members of the Defence Force simply on

that account to service tribunals, although the

exercise by service tribunals of jurisdiction thus

conferred would serve no defence purpose.

MR BRABAZON:  Could I deflect that question a little, Your

Honour, and go to what Your Honours say at page

570:

To achieve these objectives, civil

jurisdiction should be exercised when it can

conveniently and appropriately be invoked and

the jurisdiction of service tribunals should

not be invoked except for the purpose of

maintaining or enforcing service discipline.

That dichotomy introduces and, with respect,

reflects a primacy which Your Honours have

recognized the preordinate jurisdiction that is of

the civil courts and the protection of civil rights

which they assure.

Whether the prosecution is brought in a

service tribunal, taking the facts of this case, or
before the ordinary courts for an offence, let us
assume against section 71 of the Crimes Act, the
prosecuting authority is still the Crown and if it

should be the case that the Crown has the choice in

which forum to proceed, to that extent the

preordinacy of the civil courts is compromised.

BRENNAN J:  Now, we can read what is in these judgments for ourselves?

Foley(2) 81 11/11/93

MR BRABAZON:  Yes, Your Honour.

BRENNAN J: Where are you taking us now, in point of reply

or by way of new development?

MR BRABAZON:  Your Honour, I do not wish to say anything

further in relation to paragraph (g) of the first

section of our submissions as Your Honours have

read it. Turning to the second submission, which

is directed primarily to Your Honours
Justices Brennan and Toohey and to Your Honour the

Chief Justice and Mr Justice Dawson, if a civil

offence can conveniently and appropriately be dealt

with, that is by a civil court, we submit that a

military court cannot try an equivalent service

offence, and that for a number of reasons.

At page 477 of Nolan, Your Honours

Justices Brennan and Toohey observed, at about

point 7 of the page, that:

The basic point of division in Re Tracey does

not relate to the content of the civil
offences which section 61(1) translates into

service offences -

and I interpolate that is the rule-making aspect of
the disciplinary power under section Sl(vi) of the

Constitution -

but to the jurisdiction of service tribunals

to try them.

That is to say, to the judicial power that arises

under that section.

At page 484 of the same judgment, Your Honours

discussed the test of validity of the Discipline

Act and said, at about the middle of the page:

In our view, as expressed in Re Tracey,

the relevant power conferred by section Sl(vi)

does not extend to the making of a law to

punish defence members and defence civilians

for their conduct unless the proceedings taken

in order to punish them can reasonably be

regarded as substantially serving the purpose

of maintaining or enforcing service

discipline.

That is the proportionality principle. And

Your Honours referred to Andrews v Howell and then

said:

In some circumstances conduct amounting

to a service offence calls for proceedings to

be taken before a service tribunal in order to

Foley(2) 82 11/11/93

maintain or enforce service discipline; in

other circumstances, it does not.

That power can only be conferred on a military

riourt outside the civil judicial system if it does

not infringe Chapter III or section 106, and the justification for exempting military courts from the requirements of that chapter is that they serve

a purpose which is necessary for the protection of

the lawful civil order of the Commonwealth, which

includes the judicial system, from external attack

and internal disruption; that is, the maintenance

of military discipline in the armed forces.

Our submission focuses on the distinction

between the effect of trial before a service
tribunal and of trial in a civil court where the

offence in question is a service offence equivalent

to a criminal offence, not a specific disciplinary

offence. If the purpose of military discipline can

be adequately served before a trial in a civil

court of competent jurisdiction, then we submit

that there is no reasonable justification for

having a military court try the corresponding

service offence, and that is so whether the

distinction is drawn between offences committed in

Australia in time of peace and those committed overseas or on active service or in time of civil

disruption, such that the civil courts cannot effectively exercise their authority. In the

historical analysis of Your Honours

Justices Brennan and Toohey and, indeed, in what is

said by Blackstone, it is the availability of the

civil courts which is the touchstone.

It is also the case if the distinction is

relevantly drawn between civil offences as such,

and their specifically disciplinary aspects, which

is the approach that was taken by Your Honours

Justices Deane and McHugh.

Civil prosecution of a civil offence that

corresponds to a service offence serves the needs
of military discipline in a number of ways. First, by reminding defence members of their obligation to

obey the law and, secondly, certainly by

demonstrating that nobody is above the law. If

civil prosecution is practicable, we submit that it

cannot reasonably be argued that military

discipline requires a military prosecution, that

is, when the elements of the offence that one is
dealing with are essentially equivalent to a civil

offence, such as the stealing offences.

We respectfully adopt what Your Honour

Justice Gaudron said about that in Nolan's case at

Foley(2) 83 11/11/93

page 498 at point 5 of the page.	Your Honour
observed that:

so far as the forces are standing forces in

Australia, neither the authority of persons in

command nor the discipline of those forces is,

in any way, dependent upon the participation

of military authorities in the administration
of ordinary criminal justice.

To allow military prosecution in such circumstances would effectively give the Crown an

option to proceed by military or civil prosecution.

MASON CJ:	Mr Brabazon, I do not want to stop you, but what you are putting is really no more than a rehearsal
of the arguments that have been considered by
members of the Court in the earlier cases, a matter
that was pointed out to Mr Bellanto when he opened
the case.
MR BRABAZON:	Yes, Your Honour. At this point, Your Honour,

the distinction that we seek to draw is to bring a

focus to bear upon the distinction between civil

prosecution and military prosecution as it bears

specifically upon military discipline.

MASON CJ: Yes, but that was a matter that was well before

the Court in the earlier cases.

McHUGH J: There are two decisions of the Court. Now, I

asked some questions yesterday and I still have not

got an answer as to really what you are seeking to

do. Do you want the Court to overrule those decisions? Or do you want the Court to apply some

principle from them? Or do you want the Court to

distinguish the actual decisions so far as the

material facts of the restrictive cases are

concerned? What is the prosecutor's basic

submission?

MR BRABAZON:  The prosecutor's basic submission,

Your Honour, is that the decisions in Nolan and

Tracey should be rejected and that the approach of

Your Honours Justices Deane and McHugh, in those

cases, should be adopted as the appropriate law,

and that the matter is not finally determined,
substantially for the reasons given by Your Honour

Justice Deane in Nolan's case. In the alternative,

the second submission would necessarily involve a

rejection of the results in Tracey and Nolan and

that is that an offence, which is a service offence

equivalent to a civil offence, should not be tried

by a military tribunal, either in Australia in
peace time or, to put it perhaps another way, when

there is a civil court of competent jurisdiction

Foley(2) 84 11/11/93

that can effectively exercise its authority over

the matter.

McHUGH J:  Do you not need leave to challenge the two

decisions, and why should you be given leave to

challenge them?

MR BRABAZON:  Yes, we do need leave to challenge them, and

the reason that we advance in support of an

application for leave is that, firstly, that the

matter is not finally determined for the reasons
given by Your Honour Justice Deane in Nolan's case,
since which, we respectfully submit, that nothing
material has changed. Secondly, because the range

of opinions in the Court does not give a

satisfactory, workable, highest common factor

because of the divergence of opinion on, in a

sense, the two matters: one is the extent of power
under section Sl(vi) of the Constitution, and the

second matter is the extent of the requirements of

Chapter III and the separation of powers.

One view that has been taken of the matter is

to adopt the approach of Your Honours

Justices Brennan and Toohey. The difficulty with that approach is the difference in operation that

it accords to Chapter III of the Constitution and

in particular what amounts to the effect of reading

down of the power given substantially under

Part VII of the Defence Force Discipline Act.

McHUGH J: But leaving aside the reasoning, which I think is

obviously different from judge to judge or groups

of judges, are not the decisions at least authority
for this proposition, that a charge is validly

within the jurisdiction of the military tribunals

if it involves the conduct of a defence member in

the performance of his duty, if it is alleged that

he has acted dishonestly, has failed to perform his

duties and has done something which is contrary to
good order and discipline of the forces.	Are they

not the common material facts in the two decisions?

MR BRABAZON:  They are common facts in the two decisions.

McHUGH J: If that is the case, why are those decisions not authority for that proposition, that is what I put to you?

MR BRABAZON:  In the judgment of the Chief Justice and

Justice Dawson, a number of those particular facts

were ultimately not elements in what Their Honours

decided.

McHUGH J:  I know, but it is like Dennis Hotels. You have

got a diversity of reasoning, but it is authority

Foley(2) 85 11/11/93

for something. It is the same with these cases, is

it not?

MR BRABAZON:  The third proposition, Your Honour - I

mentioned the first two - I should finish off by

saying that the third proposition is that Nolan and

Tracey can be distinguished from this case and that

the facts of this case do not warrant, on the view
taken by Your Honours Justices Brennan and Toohey

in Nolan and Tracey, military prosecution.

MASON CJ: But, Mr Brabazon, we have had the benefit of

hearing arguments along these lines in two previous

cases. We do have the benefit of this outline of

what is in truth a new case that you are

presenting, new only in the sense that it was not

put in this form in-chief. Do you think it is

worthwhile spending any more time developing it in

oral argument, because it is here?

MR BRABAZON: 

Your Honour, I shall move to say something in

relation to what was said by our friends, Mr Katz
and the Solicitor-General for the Commonwealth.

Your Honour Justice McHugh raised the question of history with Mr Katz and in relation to that

matter you said that the argument he put forward

would be powerful if the matter were being argued

afresh.  We respectfully submit that when the

history is rightly seen in light of the nature of

the separation of powers as it existed under the

English Constitution and when that is -

McHUGH J:  He was not dealing with separation of powers. He

was dealing with the characterization of the law

under Sl(vi).

MR BRABAZON:  Yes, Your Honour. The characterization of the

law is - at that point he was dealing with the

question of proportionality, and whether the law is

proportional to the object depends among other

things on the nature of the rights and interests

that are affected by it, and where those rights and

interests are matters that are protected by

fundamental and express provisions of the

Constitution, such as Chapter III, then those matters are relevant to the question of

proportionality. The fact that the civil rights

that are attached to the separation of powers

became matters of positive law in Australia in

1901, in our submission, affects the way that that
history falls to be interpreted.

Your Honour Justice Toohey asked Mr Katz where does the question of the support of service

discipline fit in relation to the proportionality

argument. In answer to that we would say that it

Foley(2) 86 11/11/93

must be considered relative to the options

available, that is to say, the option of civil

trial and the option of trial by a service

tribunal. If civil trial would adequately serve

the needs of military discipline in a particular

matter, then that fact indicates, in our

submission, that it is not reasonably proportional

to the needs of the defence of the Commonwealth to

have that offence tried by a military tribunal.

TOOHEY J: But that sounds like a different proportionality

argument to the one that Mr Katz advanced. I am

not clear whether you are - I assume you are not

disowning Mr Katz' submissions?

MR BRABAZON:  We adopt what Mr Katz has said, if Your Honour

pleases.

TOOHEY J: But the argument of reasonable proportionality I

thought, as developed by Mr Katz, was that there

are certain fundamental rights which this

legislation impugns, and it does so unnecessarily

and in a way that is unreasonably proportionate to

the objectives the Constitution seeks to serve.

MR BRABAZON:  Yes, Your Honour, we say all that.

TOOHEY J: But, it just seemed to me that you are advancing

a rather different proportionality argument.

MR BRABAZON: In that case, Your Honour, I have not

expressed myself clearly enough.

TOOHEY J: But, if it is that argument that Mr Katz

advanced, is it not enough to say that you adopt

it?

MR BRABAZON:  We say all that, but we do say something

further which is not inconsistent - which is

consistent with what he said - and that is when one

is looking at the reasonable proportionality of a

measure one has to consider the options available.

One cannot consider a measure in the absence of the

background law. If the background law provides a

means by which military discipline can be

adequately achieved without infringing those basic

rights, in this case by a civil trial for a civil

offence, then that indicates, in our submission,
that a provision which takes away those rights is

not reasonably proportional to the end that it

seeks to serve because it, in a sense, takes away

rights from a person without adding to the

achievement of the object of constitutional power.

Your Honour Justice Brennan asked what legal

mechanism could be adapted, in effect, in lieu of

what is there at present, in order to give effect

Foley(2) 87 11/11/93

to the limitations for which Mr Katz argued. In

answer to that, Your Honour, a number of general

approaches would be possible. One is expressly to

say in the Defence Force Discipline Act that in

relation to particular offences - - -

BRENNAN J:  The problem is not one of how would you draft an

Act; the problem was, with the Act that you have

got, how do you give it the operation, which is

confined in the way which Mr Katz was advocating,

but yet would have full operation in times of war

overseas.

MR BRABAZON:  One way would be - and this is an alternative

submission because it is contrary to our primary

submission which adopts the view expressed by

Justice Deane and Justice McHugh - to read the

provision down in accordance with section lSA of
the Acts Interpretation Act to say that, in effect,

the constitutional criteria are adopted as the

measure of jurisdiction. That is something that

has effectively been done in other statutes, such

as the Trade Practices Act, where the

constitutional definition of trading and financial

corporations is adopted as a statutory criterion.

It is, in effect, the approach that Her Honour

Justice Gaudron adopted.

Further to what Mr Katz said - he focused on

the right to trial by an independent tribunal - the
prosecutor will also be deprived, if he is tried

under the defence legislation, of a trial by jury.

Without labouring the point, Your Honours, that is

a matter which has great importance in the common

law and in our own history, and the right to trial

by jury was not easily won. The list of

authorities which we have handed up includes an

article that Doctor Bennett wrote in volume 3 of

the Sydney Law Review, which discusses that matter

in terms of Australian history.

Secondly, at point 17 of his submissions, in

discussing Genereux, the Canadian case, one of the
issues relied on by that case was the risk that

judge advocates and members of general courts

martial would be adversely affected financially as

a result of making decisions in those capacities

which may be disapproved of by their superiors.

MASON CJ: That was covered by Mr Katz.

MR BRABAZON:  Your Honour, the convening authority in this

case is a gentleman who is an air vice-marshal;

that is to say, his rank is superior to the ranks

of the members of the court martial. I think

Your Honour Justice Brennan also asked about

whether there was any significance in the risk of

Foley(2) 88 11/11/93

abuse of power in relation to the constitution of

courts martial. The way that that risk is treated

was discussed in Wilcox Mofflin, (1952) 85 CLR 488

at page 522, which was a section 92 case. At
page 521 and over the page to 522, Justices Dixon,

McTiernan and Fullagar said:

In any case an actual purpose of interfering

with inter-State transactions would be beyond

the limits of the discretion. It is true that
the legal remedies, which probably come down
to mandamus, may not afford an entirely

satisfactory protection against abuse of

power. But these are matters that must be

taken into account, if it is suggested that

s 7 is invalidated because the board's

discretion may be used in such a way that a
substantial interference with inter-State

transaction will result.

Finally, Your Honours, we would say that in

this case the needs of service discipline,

particularly as identified by the judge advocate in

this case, namely, the exemplary purpose and the

salutary purpose, exemplary to make an example of

someone to show that no one is above the law, and

salutary to remind defence members of their

obligations, will be met by a trial before a judge

and jury, and that that method of trial is in no

way inadequate to achieve that result in comparison

with a military trial. Those are our submissions,

if Your Honours please.

MASON CJ:  Thank you, Mr Brabazon. Do you want to say

anything in reply, Mr Solicitor?

MR GRIFFITH:  The Commonwealth is of the view that the Court

would not be assisted by further submissions.

MASON CJ:

The Court will consider its decision in this

matter.

AT 4.15 PM THE MATTER WAS ADJOURNED SINE DIE

Foley(2) 89 11/11/93