Re Tyler & Ors; Ex parte Foley

Wing Commander Foley sought a writ of prohibition from the High Court of Australia to prevent a general court martial, constituted under the *Defence Force Discipline Act 1982* (Cth), from proceeding with his trial. The charge against Foley was for an alleged offence under section 47 of the Act, which concerns stealing and receiving, and was described as obtaining a financial benefit from the Commonwealth by deception with intent to defraud. The respondents were the President and members of this general court martial.

The central legal issue before the High Court was the constitutional validity of the *Defence Force Discipline Act 1982* (Cth) in so far as it provided for the trial of defence members and defence civilians by service tribunals, which were not courts, for offences that were cognate with ordinary criminal offences. Specifically, the court had to consider whether the Act, and particularly section 47, could be supported by the constitutional power to make laws with respect to the naval and military defence of the Commonwealth (section 51(vi) of the Constitution), and whether the provisions for trial by service tribunals complied with Chapter III of the Constitution, which pertains to the judicial power of the Commonwealth.

The court's reasoning, as indicated by the submissions, would likely have involved an analysis of the nexus between the offences created by the Act and the constitutional head of power. This would include considering whether the fact that the offences applied only to defence members and defence civilians was sufficient to bring them within the scope of section 51(vi). The court would also have had to determine whether the service tribunals constituted under the Act were courts within the meaning of Chapter III, and if not, whether the Act's provisions for trial by such tribunals were constitutionally permissible. The court's prior decision in *Nolan's case*, concerning section 61 of the same Act, would have been a significant point of reference in this analysis.