Re Tyler & Ors; Ex parte Foley

[1993] HCATrans 346

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IN THE HIGH COURT OF AUSTRALIA

Registry	No C13 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
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 10 NOVEMBER 1993, AT 2.36 PM
Copyright irr the High Court of Australia
Foley(2) 1 10/11/93
MR A.J. BELLANTO, QC:	May it please the Court, I appear

with my learned friend, MR M.L. BRABAZON, for the

prosecutor. (instructed by Sneddon Hall and Gallop)

MR G. GRIFFITH, OC: If the Court pleases, I appear with my

learned friend, MR D.R. BOUGHEN, for the

Commonwealth of Australia. We appear as a party

served to appear under Order 55 rule 12 of the

rules, if Your Honours please. This is a similar

procedure as adopted in Foley, and I think also in

Nolan. (instructed by the Australian Government

Solicitor)

MR L.S. KATZ:  Your Honours, I appear on behalf of the

Attorney-General for New South Wales, intervening

in the interest of the prosecutor. (instructed by

the Crown Solicitor for New South Wales)

MASON CJ:  Mr Bellanto.

MR BELLANTO:  May it please the Court. Your Honours have

our outline of argument, I understand.

MASON CJ: Yes, we have.

MR BELLANTO: Together with a chronology, and some

additional material that will be referred to in due

course.

If the Court pleases. The prosecutor,

Wing Commander Foley, seeks a writ of prohibition

to restrain the respondents, who are members of a

general court martial, appointed under the Defence

Force Discipline Act 1982 from proceeding further

in the trial of the prosecutor for an alleged
offence against section 4 of that Act. Section 47

of the Defence Force Discipline Act is headed

Stealing and Receiving. The offence with which the

prosecutor is charged and which, it is conceded,

falls within the terms of the section if proven, is

essentially one of obtaining a financial benefit

from his employer, the Commonwealth, by deception
with intent to defraud.

Part VII of the same Act makes provision for

the trial and punishment of offences against the
Act by service tribunals comprised of officers of

the relevant service. None of the service

tribunals constituted by the Act is a court. That

complies with Chapter III of the Constitution. Nor

is there any right to trial by jury under the Act.

The Defence Force Discipline Act governs the

conduct of members of the armed forces, described
generally by the shorthand expression "defence

members", which is defined in section 3 of the Act,

and other persons subject to military law,

Foley(2) 2 10/11/93

described by the shorthand expression "defence

civilians".

Part III of the Act creates a range of offences, the majority of which are obvious and

predominantly disciplinary in character, such as

aiding the enemy, mutiny, desertion and

insubordination. Some of the prescribed offences,

however, relate directly to criminal offences.

Sections 46, 47 and 61 create service offences which are directly cognate with criminal offences,

save only that their application is limited to

defence members and defence civilians.

Your Honours had occasion to consider

section 61 in Nolan's case. The only relevant head

of constitutional power under which the respondents
can be authorized to try the prosecutor for this

offence is section Sl(vi).

Like section 61 of the Defence Force

Discipline Act, which was an issue in Nolan, the only relevant nexus between section 47 and the

constitutional head of power is the fact that it

applies to defence members and defence civilians.

In Nolan, Your Honours the Chief Justice and

Justice Dawson held that section 61 and the provisions for trial of an offence against that section by a service tribunal were valid without

qualification. Your Honours Justices Brennan and

Toohey held those provisions valid only because

they could be read down in the manner provided by

section 15A of the Acts Interpretation Act and

Yourr Honours Justice - - -

MASON CJ: What do your contentions say about Bevan and Cox,

previous decisions of this Court?

MR BELLANTO:  In relation to the case of Bevan, can I take

Your Honours to a few lines in the judgment of

Justice Starke, at page 467, point 8, where

His Honour said:

In my opinion the same construction should be

given to the constitutional power contained in

sec Sl(vi) of the Australian Constitution.

The scope of the defence power is extensive,

as is suggested by the decisions of this

Court, and though the power contained in

sec Sl(vi) is subject to the Constitution,
still the words "naval and military defence of

the Commonwealth and the control of the forces

to execute and maintain the laws of the

Commonwealth", coupled with sec 69 and the

incidental power (sec Sl(xxxix), indicate

legislative provisions special and peculiar to

those forces in the way of discipline and

Foley(2) 3 10/11/93

otherwise, and indeed the Court should incline

towards a construction that is necessary, not

only from a practical, but also from an

administrative point of view.

Now, Your Honour, we emphasize the word "necessary"

in that passage and can we take the Court also to a

passage in Cox at page 13, point 8, in the passage

of the Chief Justice, Justice Latham:

Finally, it is contended that, although it was

decided in R v Bevan; Ex parte Elias and

Gordon that the provisions of the Judicature

Chapter of the Commonwealth Constitution do

not prevent the establishment and operation of

courts-martial, that decision was based upon

the nature of the defence power, the necessity

of preserving discipline in the armed forces,

and the functions of a court-martial as what

might be called part of the apparatus of

discipline.

BRENNAN J:  Mr Bellanto, is the substance of your argument

that you wish this Court to reconsider the

decisions in Nolan and the other case?

MR BELLANTO: Yes, Your Honour.

BRENNAN J:  We have had two goes at it so far. Do you want

this to be a third?

MR BELLANTO:  Your Honour, the difficulty is that there is a

division of opinion within the Court and there

appears to be three views and that presents

difficulties as we understand it, for the

administration of this type of power and the

functioning of courts marshal.

Our first point, of course, goes to the

validity of section 47 and that is our primary
submission.	Our second submission goes to the
question of lSA, whether it can be read down.	Our

second submission is that it cannot, and should not

in these circumstances, and we emphasize the

necessity of disciplinary hearing only to serve the

question of discipline of the personnel in

question. If it can be read down, then our third

and final submission is, it should not be - in the
circumstances of this case we do not fit within the
facts of Tracey or Nolan, and that on the facts of

this case on the view taken by Your Honours Justice Toohey and Your Honour, we would be entitled on the

facts of this case to the order we seek. That is
the way we put our three submissions to the Court.

If the Court is loathe to reconsider the issues in Tracey and Nolan then we still say that

Foley(2) 4 10/11/93

on the facts of this case there is not a

substantial link or connection with discipline and

prima facie the appropriate forum is the civil

courts. The fundamental principle in the

Constitution in Chapter III enshrines that right,

and for reasons which we will elaborate upon, that

should not be taken away and there is no necessity

for it to be taken away by a hearing before a

disciplinary tribunal.

TOOHEY J:  Mr Bellanto, when you say that the first of your

propositions is that section 47 is invalid, are you

isolating that section from other sections, or is

the argument one that ranges more widely than

section 47 itself?

MR BELLANTO:	I think it is more widely.
TOOHEY J:	I do not want to take you ahead of your argument,

but just so that I can understand your answer to Justice Brennan.

MR BELLANTO:  Yes, Your Honour, I think there are a number

of sections akin to section 47 which deal with

primarily criminal offences, the only nexus being

status. Perhaps I can come to that in a moment.

TOOHEY J: But within that area of offences there is

nothing, I take it, peculiar about section 47.

MR BELLANTO:  No, Your Honour.

McHUGH J: That being so, how can you distinguish the

decision in Nolan as a matter of precedent?

Leaving aside the reasoning, the case is at least

an authority for the material facts of the case.

How do the material facts in Nolan differ from the material facts in this case?

MR BELLANTO:  In Nolan the officer, the service personnel,

mal-performed his duty. There was an act of

commission in forging the relevant forms which went

directly to the duties that he was performing at that time. It was part of his service duties to carry out the type of work that he was doing and,

in the course of that work which went to the heart

of what he was doing within the service, the

offences were committed, whereas on the facts of

this case there is only a tangential link, and the

tangential link is an omission to notify a change

of residence and the details of the change of

residence - sorry, the purchase of a house.	But
that had nothing to do with his duties as an
officer within the air force.	Wing Commander Foley

was a test pilot, and the conduct complained of

here was only tangentially linked to his employment

within the air force.

Foley(2) 10/11/93

Your Honours have the three propositions for

which we contend. If I can go to the first

proposition. We respectfully rely upon what was

said by Your Honours Justices Brennan, Deane,

Toohey and Gaudron in Tracey, and by Your Honours

Justices Brennan, Deane, Toohey, Gaudron and McHugh

in Nolan. The only nexus between an offence under

section 47 and the defence power is that the

accused person must be a defence member or a

defence civilian. In this regard, section 47 is in

exactly the same position as section 61.

Division 5 of Part III of the Act is headed,

Division 5 all apply to defence members, and in some cases to defence civilians, and all with the exception of section 47 which is headed, "Stealing

"Offences Relating to Ships, Vehicles, Aircraft,

and Receiving", and section 46 which relates to

possession of property suspected of being

unlawfully obtained, contains some other specific

nexus with the defence power, either by reference

to the property, the subject of the offence, the

place where the offence occurs or occurrence of the
offence in the course of military operations. For

example, section 48 refers to looting.

But in the case of section 46 and section 47

the offence is entirely unrestricted in time, place
and context. Section 47 effectively restates the
criminal law relating to dishonest appropriation of

property, whether by stealing, receiving or fraud,

and applies that law to defence members and defence

civilians.

For the purposes of analysing its

constitutional validity, it raises issues which are

indistinguishable from those raised by section 61.

We respectfully adopt the conclusion of

Your Honours Justices Brennan, Deane, Toohey,

Gaudron and McHugh that section 61 and the

provisions of Part VII of the defence Force

Discipline Act, given their full meaning and

effect, would be beyond power and invalid unless

they could be read down so as not to exceed the

legislative power of the Commonwealth, either as a

matter of interpretation of that Act or by virtue

of section lSA of the Acts Interpretation Act,

because they would be inconsistent with Chapter III

and section 106 of the Constitution and exceed the

power granted to Parliament by section Sl(vi).

It is appropriate at this point to seek to identify the basis for that conclusion. It is

established by Tracey and Nolan that the power of a

service tribunal to try service offences is

judicial in character. That power belongs and

Foley(2) 6 10/11/93

pertains to the Commonwealth. It is a power which

is of the Commonwealth. Section 51 is expressly made subject to the balance of the Constitution, including section 106 in Chapter III. It is a

fundamental proposition of Australian

constitutional law that Chapter III of the

Constitution is an exhaustive statement of the

manner in which the judicial power of the

Commonwealth is or may be vested.

Can I take Your Honours to a brief passage in the Boilermakers case, (1956) 94 CLR 254, in the

judgment of the then Chief Justice, Justice Dixon.

At page 270 point 5, His Honour said:

its very nature puts out of question the

possibility that the legislature may be at

liberty to turn away from Chap III to any

other source of power when it makes a law
giving judicial power exercisable within the

Federal Commonwealth of Australia.

Two exceptions have been recognized to this

proposition. First, under section 49 of the
Constitution, which establishes the privilege of
the Commonwealth Parliament by reference to

privilege of the House of Commons including, as was

recognized in Richards, the power to punish for

contempt. That is a reference to Richards, Ex

parte Fitzpatrick and Brown, (1955) 92 CLR 157.

This exception is justified by the text of the

Constitution in that the privilege conferred by

section 49 is not expressly subject to Chapter III
and in the light of the constitutional history

relating to the privilege of Parliament in England.

MASON CJ: But do we need to go through all this? After

all, the various views were canvassed in the

previous cases. It is really a question of

applying those views or putting, as it were, an

argument that is designed to establish the pre-

eminence of one of the views.

MR BELLANTO: If Your Honour pleases. Perhaps before I move

on to our second submission, can I leave this

aspect of the argument with asking Your Honour the

Chief Justice to refer to what Your Honour said in

Australian Capital Television Pty Ltd v

Commonwealth, (1992) 177 CLR 106, at page 135

point 2. This follows on from the point that we

would draw from the Engineers' case, 28 CLR 128 at
155 point 2, where Chief Justice Knox and

Justices Isaacs, Rich and Starke said in relation to the constitutional interpretation that:

the ordinary principles of construction are

applied so as to discover in the actual terms

Foley(2) 10/11/93

of the instrument their expressed or

necessarily implied meaning.

In relation to that we invite the Court to go

to page 135 of the judgment in Australian Capital Television Pty Ltd, in the passage of Your Honour

the Chief Justice. That case concerned an implied

doctrine of representative government which was
fundamental to the Australian Constitution and

which was held to operate as a limitation on the

positive powers of the Parliament under section 51.

By contrast, this case concerns the express and

fundamental provision of Chapter III, being

qualified by an implication derived from an

expressly ·subordinate provision of the

Constitution. It therefore follows, a fortiori,

that no such implication will be made unless or to

any greater extent than it is necessary to do so.
The preservation of the territorial integrity of

Australia and the lawful civil order of the

Commonwealth, which are the object of the two limbs

of section 51(6), require that the armed forces be
subject to just discipline, both for the
maintenance of their operational efficiency and to

ensure that they do not threaten or compromise the

civil order which it is their function to protect.

It is this necessity of military discipline

which is the constitutional basis for the judicial

power of service tribunals.

And that relates to the passage that I took

Your Honours to earlier in the cases of Bevan and

Cox. If the necessity of military discipline is

accepted - - -

McHUGH J: Where is this leading us to? Are you seeking to

overrule Nolan and Tracey, or do you intend to rely

on particular parts of those cases? Because,

unless you are intending to seek to overrule those

cases, is there any point in going over this ground
again?	We have been over it twice in the last five
years.

MR BELLANTO: Well, Your Honour, all I can to is invite the

Court to reconsider what was said in those cases.

However, I am mindful of Your Honour's remarks;

perhaps what has been said has been said and it is

set in stone.

MASON CJ:  I am not clear in my own mind what you are

wanting us to do in relation to those cases,

Mr Bellanto. From what you have said so far, I

thought you were relying on what you say the

majority of the judges have said in at least one of

those cases.

Foley(2) 10/11/93

MR BELLANTO:  No, Your Honour. We seek to have this Court

find that section 47 is invalid.

MASON CJ: Yes, I follow that.

TOOHEY J: But what, for instance, do you say about

section 61? Just looking at your outline of

argument and grounds upon which the application for
an order nisi is framed, there is no reference that

I can pick up immediately to that section, and that

prompts me to ask, as it prompted me to ask earlier

on, does section 47 have some qualities about it

that cause you to invite the Court to hold that

section to be invalid or does the argument range

more widely than that?

MR BELLANTO:  In relation to section 47, the invalidity of

out because they are the sections that do not really have a nexus other than the status of the

section 47 is based upon the reasons that were

advanced in the previous cases in relation to 61.

person concerned. The other sections appear to go

beyond that and relate to duties and things of that

nature.

McHUGH J: But if there is a principle in Nolan or in Tracey

which would require a conclusion if section 47 was

invalid, should you not be taking us to the

relevant passages which would make out that

principle, rather than taking us to this historical

material which has been ploughed over at least

twice in the last five years?

MR BELLANTO:  Your Honours, all we can do is to rely on what

was said in those cases, and I do not think I can

advance that aspect of my argument any further.

DEANE J:  Your paragraph 5 directly challenges the

correctness of those two decisions.

MR BELLANTO:  Yes. If Your Honour pleases, we advocate the

view of Your Honours Justices Deane and McHugh, as

expressed in those cases, and therefore we would ask the Court to overrule what was said in Nolan and, in the alternative, we adopt the view of

Your Honour Justice Gaudron in Nolan. Then, in the

further alternative, the view of Your Honours

Justices Brennan and Toohey. I will just take the

Court, if I may, to the passages in those cases

that may assist. Your Honours Justices Brennan and

Toohey in Tracey - - -

TOOHEY J:  Mr Bellanto, when you are taking us to these

passages could you identify, or at least make

clear, what it is you are inviting us not to

follow? I mean, for instance, when you take us to

Foley(2) 10/11/93

the judgment of Justice Brennan and myself in

Tracey, is it with a view to inviting the Court not

to follow what was said in that part of the

judgment?

MR BELLANTO:  Yes, Your Honour.

MASON CJ: Well, this is your second preference, is it not?

MR BELLANTO: Third, Your Honour. Can I go to the judgment

of Your Honour Justice Deane. In Tracey,

166 CLR 579, Your Honour Justice Deane referred to

Richards, Your Honour said:

In this distinct and separate existence of the

judicial power ... consists one main

preservative of the public liberty; which

cannot subsist long in any state, unless the

administration of common justice be in some

degree separated both from the legislative and

also from the executive power.

And then, further down in that paragraph

Your Honour referred to the Commentaries of

Blackstone, and then on page 581 point 3

Your Honour said:

Such a claim to exercise judicial power can be

allowed only to the extent that it is

justified as a qualification of the provisions

of Ch III.

And then, on page 582 point 6 - - -

DEANE J:  Mr Bellanto, you have made your point that you

submit that Justice McHugh's and my approach is

right, and that Justice Gaudron's approach is

right. Now, in support of that, is it really

necessary to go through the judgments? I mean the

members of the Court can read them. Does not that

mean really that if you succeed in persuading the

other members of the Court, or some of them to

change their views, that is the end of the case, but if you do not succeed on that point you then

want to demonstrate that on one of the other

approaches you should still succeed. It is a

matter for you. I would have thought it might be

more helpful if you were to go direct to that.

MR BELLANTO:	Thank you, Your Honour.
McHUGH J:	You can at least get this much out of Nolan in

your favour, and that is that having regard to what

Justices Brennan and Toohey said, the power

conferred by section 5l(vi) does not extend to the

making of a law to punish defence members or

defence civilians for their conduct unless the

Foley(2) 10 10/11/93

proceedings taken to punish them can be reasonably

regarded as substantially serving the purpose of

maintaining or enforcing service discipline.

That is the bottom line, you might think, out

of the judgment, then there is the question of
accepting that is the principle that can be gotten
out of it, does it apply to invalidate section 47,

and if so, then we want to hear what the reasons

are. I know it is a fall-back position, but do you

rely on what Justices Brennan and Toohey said in

that particular case?

MR BELLANTO:  Yes, Your Honour. May we then move to the

second proposition that we advance to which we

briefly say the following: if it is accepted that

section 47 and Part VII of the Act as applied to

section 47 are invalid, the question arises whether

those provisions can be read down in accordance
with section 15A of the Acts Interpretation Act so

as not to exceed the legislative power of the

Commonwealth. We respectfully submit that this

question should be answered in the negative,

substantially for the reasons given by Your Honours

Justices Deane and McHugh in Nolan and Your Honour

Justice Deane in Tracey.

First, the Act as drafted discloses a

composite intention that proceedings for an offence

under section 47 should deal with the totality of that offence in its criminal aspects and if there

be any, in its disciplinary aspects. This is

of the penalties provided for offences against the criminal equivalent offences provided by the Act.

revealed by section 190 and section 144 of the Act.

If the basis of jurisdiction is the necessity for military discipline, it should not seek to go

beyond the disciplinary aspect of criminal offences

in circumstances where the alleged offender can

easily and effectively be subjected to the process

of a court of competent civil jurisdiction.

In relation to our third proposition, we say

as follows: if the relevant provisions of the
Defence Force Discipline Act can be read down so as

not to exceed the legislative power of the

Commonwealth, it becomes necessary to determine

whether the respondents have jurisdiction to try

the prosecutor for this particular offence under
the Defence Force Discipline Act as modified or

read down by section lSA of the Acts Interpretation

Act.

The offence with which Wing Commander Foley is

charged is essentially one of obtaining a financial

Foley(2) 11 10/11/93

benefit from his employer, the Commonwealth, by

deception with intent to defraud. It corresponds
with offences against the ordinary criminal law of
the Commonwealth, that is, section 71 of the

Crimes Act, on which section 47 of the

Defence Force Discipline Act appears to be

modelled. The main difference being that

section 71 applies to dishonest appropriation of

property from the Commonwealth by any person, while

section 47 applies to dishonest appropriation of

property by a defence member or a defence civilian

from any person.

The alleged conduct also constitutes an

offence against the criminal law of New South

Wales. Larceny in that State is still essentially

a common law offence and is dealt with by

section 117 of the Crimes Act 1900, of New South

Wales. The offence of obtaining a financial

benefit by deception with intent to defraud is

specifically created by section 178BA of that Act.
Whether he is tried for an offence under section 47
of the Defence Force Discipline Act, section 71 of
the Commonwealth Crimes Act, or section 178BA of

the New South Wales Crimes Act, the guilt or

innocence of Mr Foley will depend on the

determination of two contentious questions of fact,

and they are these: whether he acted with intent

to defraud, and whether the house which he and his

wife bought at Castle Hill had four bedrooms or

three bedrooms and a study.

The offence with which he stands charged is

essentially criminal in character although it has a

service connection in that his entitlement to

temporary rent assistance arose from his employment

in the air force; and secondly, the funds from

which the benefit was paid belonged to the

Commonwealth and were under the control of the

defence services; and thirdly, the person

allegedly deceived was the commanding officer of

the administrative support squadron at

Richmond.Wing Commander Foley has also been charged

with a purely disciplinary offence under section 29

of the Act which is not the subject of any

application for prohibition.

This case differs from Tracey and Nolan in

that the criminal conduct alleged against

Wing Commander Foley was not the mal-perforrnance of

his own service duties. Tracey concerned a staff

sergeant who was charged with making a false entry

in a service document, namely, a movement

requisition, with intent to deceive, and a related

charge of being absent without leave which was the

apparent object of the falsification of the

movement requisition. Nolan concerned a staff

Foley{2) 12 10/11/93

sergeant who was charged with falsifying a service

document, namely, a pay list, in the course of

carrying out his duties as unit pay representative

for his squadron, and with relying on the falsified

document to obtain pay to which he was not

entitled.

Both charges related to dishonest and criminal

conduct in the performance of the soldiers' duty as
soldiers, and although the falsification charges
correspond to charges under the ordinary criminal

law, the fact that they constituted mal-performance

of the very duties for which the soldiers were

employed resulted in the disciplinary significance

of that conduct overshadowing its criminal

significance.

The misconduct alleged against

Wing Commander Foley is, in essence, that when he

and his wife bought the house at 58 Yaringa Road,

Castle Hill, he dishonestly continued to receive rent assistance from the air force in relation to the accommodation of himself and his family in a rented house at Glenhaven outside the Richmond Air

Force Base where he was employed. The alleged

dishonesty related to his receipt of a benefit

consequent upon his employment. It related to the

performance of his service duties in an incidental

sense in that he was obliged to give written notice

of the purchase of the house at Castle Hill for the

purposes of the TRA, the temporary rental

allowance, and his failure to give that notice in

written form is the subject of the disciplinary

charge under section 29. The overwhelming

character of the alleged dishonesty, which is the

subject of the defrauding charge, is criminal

rather than disciplinary.

McHUGH J: Well, you say that, but there are disciplinary

all, he received this money as the result of his	factors that you cannot get away from. First of
service, and secondly, he was a serviceman.
Thirdly, the rental scheme was administered by the
service. There were general orders in place
concerning the administration of the scheme and, if
he is guilty of this conduct, it involves a
deception of other members of the forces, including
his commanding officer. Now, why is that not
enough to give it a service connection if you
reject the view of Justices Deane, Gaudron and
myself in the earlier cases?

MR BELLANTO: Well, we do not deny there is a service

connection, we concede a service connection;

however, fundamentally there is a requirement that

citizens be tried before the courts, and unless

there is a necessity to take that right away, that

Foley(2) 13 10/11/93

should be a fundamental right of any citizen.	Now,
the fact that he happens to be an air force

personnel and there is a service connection, which we say is tangential to his duties as an air force

personnel, is not sufficient to draw away from him

his fundamental right to be tried by a jury.

McHUGH J:  On that basis then, Nolan and Tracey were wrongly

decided, were they?

MR BELLANTO:  Depending on which view one takes. The

functioning of service tribunals is an exception to

Chapter III and, as an exception to Chapter III, has to be strictly confined. For the reasons that we have attempted to advance, this is the sort of

case where a citizen's right to be tried by a jury
of his peers should be adhered to and given weight

to. Perhaps the primary reason that was given by

the judge advocate for finding, as he did, at

page 112 of the appeal book, was exemplary to set

an example to other service personnel in relation

to this type of conduct. In answer to that, we say

what better example could one have to deter this

conduct, if it existed, than to have somebody tried

before the civil courts and that has two benefits.

One is that he is being tried by his peers, people

drawn from the wider community, and he also has the

independence of the judiciary.

McHUGH J: Yes, I know, but that is the result of a

particular process of reasoning, but what is the

principle on which you determine whether the

Defence Force's Tribunal has jurisdiction in these

matters?

MR BELLANTO:  I suppose, in answer to Your Honour, the real

focus here is on the forum. We say unless there is

an absolute necessity for military justice, the

forum should be in civil courts. It is the

emphasis on the forum -

McHUGH J: Is the enforcement of service discipline a

necessity?

MR BELLANTO:  In some circumstances it would have to be,

yes, but for disciplinary offences and not - - -

McHUGH J: Purely disciplinary offences?

MR BELLANTO:  We would say yes but, if not, disciplinary

offences that have a criminal component, but

primarily disciplinary. Essentially the Act itself

covers a wide range of offences. Of course, if you

take into account section 61, it covers almost the

full criminal calendar. For obvious reasons, we

say that that should not be so. Our primary point

is that it really is confined to discipline. If

Peabody(2) 14 10/11/93

there is a criminal component, it is only of a

limited context. For example, if a service

personnel assaults his superior officer, it is a

criminal - - -

McHUGH J:  I understand that, but that view rejects Nolan,

does it not? Nolan cannot stand with that view.

MR BELLANTO:  Your Honour, we simply repeat what we said

earlier in relation - - -

TOOHEY J: But what would you say about an offence framed in

terms of section 47 but involved the stealing of

property by one serviceman of another serviceman's

property?

MCHUGH J:  On the base.

MR BELLANTO: Well, we would say that that should be dealt

with by the criminal courts, although in all cases

it is a matter of degree where, as I think

Your Honour identified in Nolan, it is a matter of

degree where you draw the line. But the object

seems to be to set an example from a deterrent

point of view and we say, for those reasons, there

is no good reason why that sort of conduct could

not be dealt with in the civil courts, the example

being clear that it will not go unpunished.

TOOHEY J: Yes, illustrations do not always help, but I was

just trying to see how far the argument went. Does it go so far as to say that there is no combination

of facts that could justify section 47, or a charge

under section 47, on your approach?

MR BELLANTO:  Our primary point is that there probably are

not any and our fallback position is that, if there

are, the disciplinary component must loom large.

BRENNAN J:  I suppose stealing penicillin from a regimental aid post in sight of the enemy in time of way would

have something to say for it, would it not?

MR BELLANTO:  It would, Your Honour, yes. I suppose that

would be the most extreme example and then one

moves down the ladder from there. One can also

offer an example, I suppose, if an employee of the

Commonwealth Bank took money or defrauded the bank

in some way, they would be dealt with in the normal

civil courts and there really, in times of peace

where the services employ many hundreds of people,

a bit like in a bureaucracy, it is difficult to

justify why a person in the circumstances of this

case should be denied trial by a jury and a person

who is working in the Commonwealth Bank, for

example, would be tried by a jury, if that person

was to defraud the bank of moneys.

Foley(2) 15 10/11/93

We would say that prima facie criminal, as

distinct from disciplinary offences, should be

tried in the ordinary courts, and we adopt the
reasoning of Your Honour Justice Gaudron, expressed

in Nolan's case upon this point, and that accords

with Blackstone, which I think Your Honour has a

short passage from the Commentaries in book 1 at

page 400.

the necessity of order and discipline in an

army is the only thing which can give it

countenance; and therefore it ought not to be

permitted in time of peace, when the king's

courts are open for all persons to receive

justice according to the laws of the land.

Of course, in response to Your Honour

Justice Brennan, we concede jurisdiction in time of

war, I think there is no doubt about that.

Your Honours Justices Brennan and Toohey said in Tracey - we adopt what Your Honours said in

Tracey at page 570 point 3 to 570 point 5, after

referring to the constitutional objectives of

section 5l(vi) and Chapter III and section 106.

Your Honours at page 570 point three said:

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.

In Tracey and Nolan there was no question but

that a civil court of competent jurisdiction was

conveniently available. What was ultimately

determinative, in Your Honours' view, was the

appropriateness of that court, and Your Honours'

conclusion that the offences in question called for

prosecution before a service tribunal because of

their character as mal-performance of service duty

called for service discipline.

I refer the Court also to what Your Honour

Justice Deane said in Tracey at pages 579 to 581

dealing with the importance of the separation of

powers to preserve the rule of law and the

corresponding rights of citizens to due process.

We also respectfully adopt what Your Honour

Justice Gaudron said in Nolan at 497 point 2:

By reason of the interests which the

judicial process protects, that process is

properly to be seen as partaking of the same

fundamental importance as the democratic

process. For that reason, it is necessary

that the power which is exclusively judicial

Foley(2) 16 10/11/93

and, thus, can be exercised in accordance with

the judicial process only by courts as named
or indicated ins 71 be jealously guarded

against the possibility of usurpation.

The interests which the judicial process

protects are both public and private. The public

interests are the doctrine of separation of powers

itself, the rule of law, and the maintenance of an

open, just and free society. Corresponding to them

and indispensible to their existence are the

private rights of citizens in relation to judicial

proceedings.

The two principal means by which Chapter III

protects the civil rights of citizens, and thereby

also the rule of law, are the independence of the
judiciary who, it may be inferred, are expected to

act independently and judicially, and secondly, the

right to trial by jury conferred by section 80.

Can I take the Court at this stage to a

passage in the United States case of Reid v Covert,

354 US 1 at page 36, with respect to the passage

there that emphasizes the disadvantages of courts

martial and the independence of the judiciary.

MASON CJ: But are you not reverting back to your first

argument which is designed to prevail upon us to

accept the views of Justice Deane and

Justice Toohey rather than the second branch of

your argument?

MR BELLANTO:  No, Your Honour. If we fail on our first

argument and on our second argument, then we are

proceeding on the assumption now that if

section 15A can read it down - Your Honours, at 36

the court referred to some of the disadvantages of

a court martial. I do not propose to read the full

passage, but we adopt what was therein said at 36

down to 37. If the prosecutor in this case is tried for

the offence which is the subject of these
proceedings before a court martial, he will be

deprived of the right, as the case may be, not only

in respect of the judicial independence of his

judges but also by being deprived of his right to

trial by jury. That is so whether the right is

seen as a substantive right or a procedural one.

At this stage we propose to make some brief

submissions in relation to section 80 in relation to trial by jury. Section 80 of the Constitution

does not expressly require that any offence or

class of offences be prosecuted on indictment.

Foley(2) 17 10/11/93

Referring to this omission, Chief Justice Barwick

in Spratt v Hermes, (1965) 114 CLR 226, said:

What might have been thought to be a great

constitutional guarantee has been discovered

to be a mere procedural provision.

A view which had first been expressed by this Court by Justice Higgins in R v Archdall and Roskruge; Ex

parte Carrigan and Brown, (1928) 41 CLR 128, at

pages 139 to 140.

With respect to those decisions and judgments,

we, with respect, submit that the contrary view

expressed by Justices Dixon and Evatt in R v

Federal Court of Bankruptcy; Ex parte Lowenstein,

(1938) 59 CLR 556, is to be preferred.	The
relevant passage in that case is at 580 to 583.	I
think I need only to take Your Honours to the conclusion reached in that case at page 583.

McHUGH J: But what has it got to do with this case?

Section 80 only applies to a trial on indictment.

MR BELLANTO: Yes, Your Honour. Well, we are really - - -

McHUGH J: If you were in the defence force's jurisdiction,

then section 80 has got nothing to say. If you are

outside it, well it still has nothing to say, has

it, that is relevant to this argument?

MR BELLANTO:  It is only relevant to the fact that the

Constitution recognizes the right to trial by jury

and we adopt Your Honour Justice Deane's view of

the position with respect to the interpretation of

section 80 and we really only refer to it to

emphasize that it is a right in the Constitution

and it is a right that the prosecutor would have if

this case was dealt with by the civil courts and a

reason why it should be dealt with by the civil
courts.	We take it no further than that,

Your Honour.

DEANE J:  Mr Bellanto, if your client were charged in the

civil courts, what would be the applicable

statutory provision?

MR BELLANTO:  178BA of the New South Wales Crimes Act.

McHUGH J: That is the New South Wales Crimes Act so

section 80 has got nothing to do with it.

MR BELLANTO:  No, although the Criminal Procedure Act in

New South Wales, section 31, gives him the right to

trial by jury.

McHUGH J: Yes, of course.

Foley(2) 18 10/11/93

DEANE J: Is there an applicable provision of the

Commonwealth Crimes Act?

MR BELLANTO: Section 71.

DEANE J: What, that deals with obtaining property from the

Commonwealth, does it?

MR BELLANTO:  Yes. Section 71 is virtually word for word

with the section under which Mr Foley has been

charged as at the moment.

DEANE J:  Why do you say the appropriate section is the

New South Wales section, rather than the

Commonwealth section?

MR BELLANTO: 

Only by analogy.

TOOHEY J: 

One of the difficulties that we have if we are in

the area of determining whether the offence, in the
circumstances, is sufficiently service related is

that we do not have a great deal of information

about this scheme, do we?  We are told in the

judgment of the judge advocate that it is a service
related scheme. Is it purely administrative or

does it find its source in some legislation?

MR BELLANTO: 

My understanding is that it is administrative.

TOOHEY J: There are a few acronyms in the judge advocate's

decision that I cannot even begin to understand.

MR BELLANTO: I think TRAs - - -

TOOHEY J: Well, I understand that one, but I thought there

was one other one that started with an - - -

MR BELLANTO:	Admin.
TOOHEY J: - - - an "A", and had several letters following

it. If they are not relevant, well, there is no

need to worry about them, but if we are in the area

of determining whether the offence is sufficiently

service related or not, it may be that we should

know something about these matters.

MR BELLANTO:  Yes. If Your Honour will just give me a

moment. Your Honour, we do have some information

that may assist, but not in a form that can be

readily handed up.

TOOHEY J: But can you tell us whether it is purely

administrative, that is, the TRA scheme~ whether it

is entirely service related, and that I take to be

the position from the material that we do have, and

whether there is any relevant statute.

Foley(2) 19 10/11/93

MR BELLANTO:  I can tell Your Honour that it is a scheme and

it is available to service personnel of all ranks.

BRENNAN J:  You bear the onus of showing that the proposed

exercise of jurisdiction is invalid, do you not? You are applying for prohibition?

MR BELLANTO:  Yes, Your Honour.

BRENNAN J: So, if the question should be, "Is this

prosecution related to the maintenance of

discipline of the armed forces?", the onus is on

you to show that it is not. Is that correct?

MR BELLANTO:  As we are the moving party, I would expect

that would be correct, although our argument really
starts from the other premise: we are only subject

to service discipline if there is a necessity for

it. So we say, prima facie, we should be before

the civil courts, unless there is a disciplinary

necessity for us to be taken before the service

courts.

McHUGH J: But there is a statute which says that your

client can be charged before a military tribunal;

you have got to invalidate the statute.	So why is
not the onus on you?

MR BELLANTO: Well, I think as we are the moving party, I

think we must accept that we do have an onus in

these circumstances. Can I move on to make this

observation: we respectfully conceive that the

fundamental difference between Your Honours

Justices Deane, Gaudron and McHugh and Your Honours

Justices Brennan and Toohey, does not lie in the

legal principles limiting the power of Parliament

to confer jurisdiction on service tribunals outside

Chapter III, but in the consequences of the

application of those principles.	As Your Honours
page 484 point 8:

Justices Brennan and Toohey said in Nolan at In some circumstances conduct amounting

to a service offence -

that is equivalent to a criminal offence -

calls for proceedings to be taken before a
service tribunal in order to maintain or
enforce service discipline; in other

circumstances, it does not.

The principle was expressed in detail by

Your Honours in Tracey at pages 569 to 570 and that

in determining whether particular proceedings can

reasonably be regarded as serving that purpose,

Your Honour said it is important to consider

Foley(2) 20 10/11/93

whether the jurisdiction of a competent civil court

can conveniently and appropriately be invoked to
here and determine a corresponding civil court

offence. Therefore, the question is not whether a prosecution of the offence will serve the needs of

military discipline, but whether the needs of

military discipline call for the proceedings to be

taken before a service tribunal instead of a

criminal court. We say the focus is on the forum.

If it is accepted that a service tribunal

cannot be given jurisdiction to deal with the

non-disciplinary aspects of criminal conduct in

Australia in times of peace and civil order, it is

not necessary to inquire further. But if it is

held that those general aspects of an offence can

be made justiciable before a service tribunal

outside Chapter III of the Constitution, it is
necessary to consider the constitutional limitation
of the defence power in relation to the prosecution

of the particular offence charged.

So far as the disciplinary offence of

breaching a general service order is concerned,

there is no constitutional impediment to that

charge being determined by a service tribunal. So

far as the criminal equivalent charge is concerned,

however, the specific disciplinary benefit adverted

to by the learned judge advocate raises the

question of the adequacy of ordinary criminal

proceedings to remind other defence members of the

seriousness and potential consequences of criminal

conduct such as that with which

Wing Commander Foley is charged. We refer

Your Honours to the application book at page 112 where the ruling appears at marginal note 25:

However, in this case the instituting of service disciplinary proceedings at RAAF base,

Richmond, in respect of a serious offence

allegedly involving misappropriation of

member to comply with a lawful general order,	service property through failure of a defence
and committed in circumstances of relevance to the effective operation of an internal defence force scheme, and the subsequent prosecution
of such charge on the base, will I consider substantially serve the purpose of maintaining
and enforcing service discipline, particularly
because of the opportunity that course will afford for other defence members to be
reminded of the seriousness and potential
consequences of the type of conduct which, if
proven, occurred in this case.

This, with respect, accurately identifies the

disciplinary purpose to be served by having the

Foley(2) 21 10/11/93

offence prosecuted. It is a purpose which can

equally well be served by prosecution in a criminal

court.

For these reasons, the Supreme Court of New

South Wales and the District Court of New South

Wales are civil courts exercising ordinary criminal

jurisdiction which are available and competent to

try the corresponding criminal charges. Secondly,

there is no practical impediment to their

exercising that jurisdiction over the prosecutor;

thirdly, the quality of process and of decision

making in the civil courts cannot be objected to as

inferior to service tribunals. If anything, the

contrary is true for the common law has long

regarded trial by jury as the most reliable as
determining the guilt or innocence of persons

accused of serious offences. Fourthly, the effect

on discipline and morale if Wing Commander Foley is

convicted by a criminal court will be precisely to

remind defence members of what the learned judge

advocate described as "the seriousness and
potential consequences of the type of conduct
which, if proven, occurred in this case" and to

provide an example that such conduct will not be

tolerated at any level within the service rank

hierarchy.

The cases decided under the Constitution of the United States of America are of little

assistance in an Australia content, and unless the

Court requires consideration of those cases, we do

not propose to go to those authorities. They have

been well canvassed in the cases of Tracey and

Nolan.	Those are our submissions, if the Court
pleases.

MASON CJ: Yes, thank you, Mr Bellanto. Mr Katz.

MR KATZ:  If the Court pleases, may I inquire whether

Your Honours have a copy of my written submissions?

MASON CJ: Yes, we have.

MR KATZ:  Thank you. I should begin by telling Your Honours

first what I hope my learned friend, the

Solicitor-General, will not achieve and then,

secondly, what I hope I will achieve. As to the

former, I hope that he will not persuade

Your Honours Justices Deane, Gaudron and McHugh to

depart from the positions which Your Honours took

in Nolan. As to what I hope to achieve, I hope to

persuade at least one of Your Honours - - -

MASON CJ: Which one?

Foley(2) 22 10/11/93

MR KATZ:  It would be invidious to select one, Your Honour,

but I wish bluntly to explain what I do hope to

achieve in that respect. I, first of all, seek to

persuade Your Honours Justices Brennan and Toohey

that Your Honours were in error in a particular

respect in the first of two cases, that is Tracey;

Ex parte Ryan - - -

MASON CJ: Justice Dawson and I can take a back seat, can

we?

MR KATZ:  Having got that out of the way, then the next

aspect of the matter is to persuade, first of all,

Your Honours Justices Brennan and Toohey, that if
Your Honours were to approach this piece of

legislation in the same way as Your Honours

approached the War Crimes Act, Your Honours would
reach a different view as to the proper

characterization of the conferral of jurisdiction to try service offences on general courts martial,

and then, secondly, I hope to persuade

Your Honour the Chief Justice and

Your Honour Justice Dawson that if Your Honours

approached the matter in the way in which

Your Honours did in Nationwide News v Wills, likewise Your Honours would come to a different
view than formerly as to the validity of the

conferral of jurisdiction on service tribunals to

hear charges of matters like section 47.

Now, may I begin with the first matter and

that is the aspect of the earlier reasons of

Your Honours Justices Brennan and Toohey in Tracey;

Ex parte Ryan. There was no majority view on the

significance of the second limb of section Sl(vi)
of the Constitution for the validity of the
relevant provisions of the Defence Force Discipline

Act. May I take Your Honours to the relevant

passages. First, there is a passage in the reasons
for judgment of Your Honour the Chief Justice and

Justices Wilson and Dawson. It appears at
page 540, at about point 5.	Your Honours said
this:

Although the Australian Constitution does not

expressly provide for disciplining the defence forces, 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. Notwithstanding
that it might be thought that the second

clause of s Sl(vi) is relevant to the question of military discipline by reason of the phrase

"the control of the forces" we doubt whether

that is so. It seems to us that the content

of that phrase relates to the work of law

Foley(2) 23 10/11/93

enforcement. It is not the ordinary function

of the armed services to "execute and maintain

the laws of the Commonwealth".

May I contrast that approach with an approach

taken by Your Honours Justices Brennan	and Toohey,
beginning at the bottom of page 563.	Your Honours
said this:

The Parliament has legislated to provide

for a permanent navy and a standing army and

air force in times of peace as well as in

times of war. As the creation of a military

jurisdiction to discipline army personnel has

been regarded since the first Mutiny Act to be

the essential concomitant of the raising and
keeping of a standing army, the power

conferred bys Sl(vi) to provide for a

permanent defence force prima facie includes a

power to create a military jurisdiction to

discipline members of that defence force.	The
traditional jurisdiction to discipline
military personnel has two aspects.	The first

is an authority to compel military personnel

to conduct themselves in a manner which is

conducive to efficiency and morale of the

service; the second is an authority to punish

military personnel who transgress the ordinary

law of the land while acting or purporting to

act as military personnel. These two aspects

of the traditional jurisdiction are reflected

in the two limbs of s Sl(vi).

And Your Honours referred again to the second limb

of section 5l(vi) and its significance at the

bottom of page 569, and at the top of page 570.

Your Honour Justice Gaudron, likewise, in the

first of the two cases, placed emphasis on the

second limb of section 5l(vi) rather than the

first. May I give Your Honours a reference to

that. Perhaps I ought to refer to two passages.

First, at the top of page 597, immediately

following the citations, Your Honour said:

Section 5l(vi) of the Constitution confers two

distinct but related legislative powers. The

notion of purpose has different focal points

for the different powers conferred. The

purpose attached to the power conferred by the

first part of s 5l(vi) is defence. The

purpose attached to the power conferred by the
second part of s Sl(vi) is "control of the

forces".

Then at page 600 at about point 5, if I may begin

in the line in the middle of the middle paragraph

Foley(2) 24 10/11/93

which begins with the word, "conferred bys 51",

the relevant proportion is the sentence next

following in which Your Honour said relevantly:

the present matter ..... falls for answer by a

determination of the extent of the power to

legislate with respect to the control of the

forces, it not having been suggested that any

circumstance presently engages the first part
of the power conferred bys Sl(vi) so as to

authorize any provision of the Act as it

applies to a defence member that is not
authqrized by the second part.

As I understand Your Honour Justice Gaudron's

reasons in the second case, Your Honour's reasoning

is not affected in any way if my submission be

correct that the second limb of section Sl(vi) does

not bear on the topic of military discipline. But,

my submission is that the approach of Your Honours

Justices Brennan and Toohey may well be altered if

my submission be correct.

My submission is that the doubts expressed by

the Chief Justice and by Justices Wilson and Dawson

were correct and that the second limb of Sl(vi)

does not bear on the subject of military

discipline. My particular submissions in that

respect begin at paragraph 3 at the bottom of

page 2. For that purpose I refer to the model for

this as so many other things, namely the American

Constitution. Your Honours, may I also inquire

whether Your Honours have a bundle of additional

materials?

MASON CJ: Yes, we have.

MR KATZ:  Your Honours, the first of the additional

materials contains the relevant provisions of the

American Constitution. If I may spend a moment

directing Your Honours' attention to those,

Your Honours see a number of clauses of article 1,

section 8, of the American Constitution, all of

which confer powers to make laws on Congress. The

first four of the clauses - I believe someone has

written in handwriting beside a number of them,

clause 11 and so on - clauses 11 through 14 deal

with what is often referred to as the war powers,

and Your Honours will see in particular clause 12:

To raise and support Armies .....

To provide and maintain a Navy;

To make Rules for the Government and

Regulation of the land and naval Forces;

Foley(2) 10/11/93

Then follow two other clauses which deal with the

militia. In particular, Your Honours see

clause 15. This is a power conferred on the

Congress to make laws:

To provide for calling forth the Militia to execute the Laws of the Union, suppress

Insurrections and repeal Invasions;

Then clause 16, if I may read it:

To provide for organizing, arming, and

disciplining, the Militia, and for governing
such Part of them as may be employed in the
Service of the United States, reserving to the
States respectively, the Appointment of the

Officers, and the Authority of training the

Militia according to the discipline prescribed

by Congress -

Your Honours, these militia clauses carry a rather

antique air but, in my submission, clause 15 is

clearly the source of the second limb of Sl(vi) in

our own Constitution. I may simply, as a matter of

interest, tell Your Honours that although clause 15

has not been the subject of any discussion in the
American Supreme Court for many years now,

clause 16 was the subject of a decision as recently

as 1990 in which an issue arose as to the ability

of governors of the various States to veto the use

of State militias outside America. Your Honours,

in paragraphs 4 through 7 of my submissions - -

TOOHEY J: Just before you leave those provisions of the

American Constitution, what precisely is the

meaning of "militia" in those provisions?

MR KATZ:  Your Honour, it was understood then, no doubt as

it was and as I understand it is still understood

in our own terminology, as a force of

non-professional soldiers; the citizen soldier as

opposed to members of a standing army - persons who

were available for the purpose, for instance, of

defence but whose occupations were ordinary civil

occupations and who were used for that purpose only

in case of emergency.

One sees references to militia and volunteer

forces, for instance, in imperial legislation of the 19th century. In colonial Australia, all of

the various colonies had their own militias and

there was colonial legislation regulating them.	I
can tell Your Honour the name of the New South Wales one: it was the Volunteer Force Regulation
Act of 1867.

Foley(2) 26 10/11/93

TOOHEY J: Are you attributing the same meaning in Australia

that the term bore, or bears, in the United States?

MR KATZ:	Your Honour, I do but, of course, the word
"militia" does not appear in the second limb of
Sl(vi).
TOOHEY J:	You say that the word "control of the forces to

execute and maintain the laws of the Commonwealth",

that limb came from clause 15.

MR KATZ:  Yes, Your Honour. The differences are these:

first that the power to make laws in the American

Constitution was one with respect to the calling

forth - or as it later became known, and is known
now the "calling out" - of a particular type of

certain laws, but also to the

armed force. Secondly, the difference is that the execution of

maintenance of certain laws, and as to that I will
make a submission later. And the third difference,

presently, is that instead of using the term

"calling forth" or "calling out", the second limb

of the Australian provision uses the word

"control".

McHUGH J: But the words "calling out" were used in the 1891

draft in the Australian - - -

MR KATZ:  I have set that out in paragraph 4, Your Honour,

in fact if I may take Your Honour to that,

paragraph 4 on page 3. I have set out the form in

which the provision originally appeared. At that

time it not only related to the execution and

maintenance of the laws of the Commonwealth, but

went further and provided in relation to the

execution of the laws of any State or part of the

Commonwealth. That disappeared in the 1897

version, as I mention in paragraph 5. Then, during

the course of the 1897/98 convention some

inconsequential changes were made to the first

limb, and as to the second limb the words "calling

out" disappeared and the word "control" was

substituted.

Now, the way in which that occurred I mention

in paragraph 7 of my submission. The position is

that it was a change made among 400-odd changes by

the drafting committee at the very heel of the

hunt. On 16 March 1898 the drafting committee, of which Mr Barton was the chairman, proposed a great

number of amendments, one of which was this, and

Your Honours, I think, have among the materials

that I have handed up what Mr Barton had to say at

page 2439 in the Melbourne convention debates, in

the middle of the second column, practically

opposite Mr Higgins name, Mr Barton was describing

Foley(2) 27 10/11/93

what had been done by the drafting committee and

said:

Honourable Members will see that the Drafting

Committee have bestowed a very great deal of

labour upon the Bill in the limited time in

which it has been permitted them to make such

alternations in mere form as seemed to them to

be advisable in this final stage.

As I mention also in paragraphs 4 through 7,

not a word of debate was uttered in either of the conventions about the significance, either of the

first limb or of the second limb of section Sl(vi).

BRENNAN J:  Mr Katz, can I just interrupt you for a moment,

seeing that I am one of those that you are seeking

to persuade on this.

MR KATZ:  Yes.

BRENNAN J: Let it be assumed that your historical analysis

demonstrates that control of the forces in Sl(vi)

is intended to relate to a chain of command at a

time when the forces are involved in the execution

of the general laws of the Commonwealth, and does

not relate to the conduct of military forces in

accordance with the law of the land. Let that be

assumed.

MR KATZ:	I did not understand the distinction which
Your Honour was making latterly.

BRENNAN J: If there be none I do not understand your point.

I will try it another way. If the proposition is

that the words "control of the forces to execute

and maintain the laws of the Commonwealth" relate

to the legislative creation of a chain of command

over the armed forces when they are called upon to execute and maintain the laws of the Commonwealth,	rather than to relate to legislation which governs
the obedience by members of the armed forces to the
laws of the Commonwealth.

MR KATZ:  Your Honour, that is not -

BRENNAN J: That is not your point?

MR KATZ: That is not my point.

BRENNAN J:	I am sorry.
MR KATZ:	My point is this, Your Honour; if I may express it
in this way. There was concern that the executive
which had the control of an armed force would be
able to use that armed force in unacceptable ways
domestically, and in order to ensure that that

Foley(2) 28 10/11/93

could not occur, the Parliament or, in the

American context, the Congress, was given a power

to legislate to prescribe the circumstances in

which the executive power might choose to use an

armed force - not for its essential function of
external defence, but rather for a subsidiary

function of executing and maintaining the ordinary

laws of the land, a situation in which a military

force might be used to supplant the ordinary civil

administration.

That was the concern and, of course, as

Your Honours Justices Brennan and Toohey pointed

out, especially in your reasons in Ryan's case, the

concern about the standing army and the concern

about the intrusion of the army into ordinary

civilian life was something which was very

powerful, especially in the constitutional setting

in the late 18th century. It may be thought, I

suppose, that perhaps the second limb of Sl(vi) is

just another one of those examples where the

Australians perhaps copied something from the

American Constitution which was not strictly

speaking necessary to be done. However that may

be, the submission is that what was involved was a

conferral on the legislative power of an ability to
control the executive power in the use of armed

force for a traditionally civilian function.

BRENNAN J:  I understand it better now. Let me assume then

that the second limb of Sl(vi) gives no support to
the question of the obedience by members of the

armed forces to the ordinary laws of the land.

That is none the less an essential part of military
discipline, as the joint judgment is at pains, I
would have thought, to point out. All that it

means is that it must have fallen under the first

part of paragraph 6 rather than under the second.

MR KATZ:  I do not deny that for a moment, Your Honour; in

fact I embrace it. My concern is simply to submit

that in so far as Your Honour's reasoning was

affected by the view that reliance could be placed

on the second limb, with respect it was an error;

that is the extent to which the submission goes.

TOOHEY J:	So you only want us to recant in part, do you?
McHUGH J:	You want to pull down the foundations?
BRENNAN J:	You want a confession but no avoidance?
MR KATZ:	I want to make Your Honours more receptive to the

second part of my argument.

BRENNAN J:  I see.

Foley(2) 29 10/11/93

TOOHEY J: Could I just ask you a question with a view to

paving the way to that objective. Are you
suggesting that the word "forces" in section Sl(vi)
of the Constitution is simply the counterpart of

"militia" in the American Constitution?

MR KATZ:  No, certainly not, Your Honour. There was not any

context between the permanent forces and the
reserve forces, the militia forces, the volunteer
forces, and certainly a difference is that in the idea of a sharp segregation in the Australian the use of any military force, whether regular forces or volunteers.

TOOHEY J:  I just wondered, because you, as it were, put

emphasis on clause 15 of the American Constitution

and contrasted it with the earlier clauses that

refer to armies and navies.

MR KATZ:  I did, only for this reason, Your Honour, that if

one follows through the history of Sl(vi), one sees

that clause 15 is the source. Rather than calling

forth, one had calling out, then changed to control

but simply at the last moment with a view not to

changing the substance of the matter at all, and

one has the reference to executing the laws of the union or executing and maintaining the laws of the

Commonwealth.

TOOHEY J: Yes, I understand, Mr Katz.

MR KATZ: Your Honour, I see the time.

MASON CJ: Could I ask you, Mr Katz, how long you think it

will take to deliver your argument, because we will

not be able to continue until 11.45 tomorrow

morning.

MR KATZ:  I understand that, Your Honour. If it is not too

greedy I would like to have another, say, three

quarters of an hour.

MASON CJ: There would be no difficulty about that.

Mr Solicitor?

MR GRIFFITH: 

I expect to be fairly short on the primary

argument, Your Honour, but I still have to hear
Mr Katz as to his, if I could call it second rather

than secondary, argument. It would be no longer,

Your Honour, certainly no longer.

MASON CJ:  We should have plenty of time tomorrow. The

Court will adjourn until 11.45 am tomorrow.

AT 4.17 PM THE MATTER WAS ADJOURNED

UNTIL THURSDAY, 11 NOVEMBER 1993

Foley(2) 30 10/11/93