White v Director of Military Prosecutions

[2007] HCATrans 26

[2007] HCATrans 026

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S312 of 2006

B e t w e e n -

ANNE MARGARET WHITE

Plaintiff

and

DIRECTOR OF MILITARY PROSECUTIONS

First Defendant

COMMONWEALTH OF AUSTRALIA

Second Defendant

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 6 FEBRUARY 2007, AT 10.19 AM

Copyright in the High Court of Australia

__________________

MR A.W. STREET, SC:   May it please the Court, I appear with my learned friends, MR D.A. McLURE and MR J.A. HOGAN‑DORAN.  (instructed by North & Badgery)

MR D.M.J. BENNETT, QC, Solicitor‑General of the Commonwealth of Australia:   If your Honours please, I appear with my learned friends, MR T.F.J. BERKLEY and MR S.B. LLOYD, for the defendants.  (instructed by Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Street.

MR STREET:   If your Honours please.  I propose if I may to deal first with some introductory matters and then deal with the constitutional provisions and Chapter III and then turn to the authorities that we seek to say, for reasons that we will develop, should be the subject of leave to overrule the same.

KIRBY J:   I did not hear that last expression – should be the subject of what?

MR STREET:   Should be the subject of leave to overrule the same to the extent necessary.

KIRBY J:   You can take it from me I do not think leave is required.  I take the view that Justice Deane took in Evda.

CALLINAN J:   So do I, actually.

KIRBY J:   If leave is required it means that a majority of the court can prevent commissioned members of the court from discharging their constitutional functions, which cannot be right.

MR STREET:   It is certainly the way in which we understood the earlier cases to in essence be identifying.  Simply the court’s control over its own process in order to ensure that it is not met with arguments that are vexatious and to that extent that is the thrust, as I understand was the underlying principle ‑ ‑ ‑

KIRBY J:   Anyway, it is normally avoided by you asking for it and those who think it is necessary considering it and those who do not think it is necessary passing it by.

MR STREET:   Your Honours, to the extent relevant we seek to both seek leave and accept to the extent that those who are of the view that it is not necessary in this constitutional issue to the extent that the issues are clearly ‑ ‑ ‑

GUMMOW J:   Well, you seek leave to reopen and overrule Evda, do you?  Is that not the first step?

KIRBY J:   That is if it is required and that is the question.

MR STREET:  Your Honour, I have not sought to raise that as a separate question.  To the extent relevant we seek leave and I, to that extent, accept that I must develop an argument to persuade your Honours that the cases as I have said are manifestly wrong and to the extent relevant I will seek to do so.

Your Honours, could I just turn briefly to the first introductory matter?  In this case, we say that there is in fact no issue but that the Defence Force Magistrate or Court Martial under the Defence Force Discipline Act in determining guilt and imposing sentence and punishment is exercising judicial power.  The real issue in this case is whether that judicial power vested in the Defence Force Magistrate or Court Martial by a law made by the Parliament is the judicial power of the Commonwealth.

GLEESON CJ:   Mr Street, what reprint of the Defence Force Discipline Act 1982 should we be using for this purpose?

MR STREET:   Your Honours, I am conscious of - the reprint that your Honours have, I think, is an old version, and your Honours have, I think, also been provided with the 2005 amendment which introduced the Director of Military Prosecutions and a 2006 amendment which, in essence, introduces the Australian Military Court which is, in essence, to come into force in October of this year.

The provisions that are introduced by the 2005 amendment are of the moment because they identify section 103 which is the subject of the application for prohibition in that it provides a power ‑ ‑ ‑

GUMMOW J:   Just a minute, was Act 121 of 2005 in force at the relevant time for you or is it Act 26 of 2005?

MR STREET: Your Honours, I think both those Acts were in force, that is in 2005, at the time the power was exercised or sought to be the subject of prohibition. Your Honours, can I just indicate that the relevant offences, as your Honours would have seen from the background facts, involve offences under sections 61 and 33 of the Defence Force Discipline Act. Under section 61 it picks up, through the Jervis Bay Territory, the Crimes Act (ACT). The relevant offence has a maximum punishment of five years through section 61 and the offence under section 33 has a maximum punishment of imprisonment of six months.

GLEESON CJ:   I am just dealing with a mechanical matter at the moment, Mr Street.  The bane of our existence is getting access, and if we cannot get access who can - getting access to the form of the relevant statute that is before us for consideration.  Is Reprint No 2 the last reprint of this Act?

MR STREET:   I think that is so, your Honour, and what we did was we sought to set out in our submissions the relevant critical provisions which were ‑ ‑ ‑

GUMMOW J:   What do you say are the relevant critical provisions?  That is the problem.

CALLINAN J:   It would be most helpful if we could get a consolidated version of precisely all of the legislation that is capable of being applied or may be relevant.  Really I should not think it would be too much trouble for the parties between them to do that with a definite assurance that what we have is exactly what applied and in totality so that we can put it in context.

KIRBY J:   That presumably means at the time the charges were laid.

MR STREET:   Your Honours, in this case we would have said that the relevant time is probably a bit later.  It is at the time that we sought prohibition to restrain the DMP from in fact referring the matter for trial.

GLEESON CJ:   Reprint No 2 was issued 14 years ago on 31 March 1993.  Is there no more recent ‑ ‑ ‑

MR STREET:   Yes, your Honour, there is.  I have a compilation prepared on 19 December 2006.  I will seek to have a copy of it made and provided to the members of the Court.

KIRBY J:   But is that more up to date than we need?

MR STREET:   No, your Honour.

KIRBY J:   When did you seek prohibition, what date?

MR STREET:   Your Honours, I think we commenced the proceedings in October in this Court.

KIRBY J: Actually, I suppose it is the time when the order is made under the Constitution.

MR STREET:   Yes, your Honours.  To the extent relevant, it is the Act in its current form that is obviously appropriate for the Court to look at.  There is an amendment that is coming into force in October which introduces this Australian Military Court which is obviously of some relevance.

KIRBY J:   Has that been passed through the Parliament?

MR STREET:   Yes, and your Honours have that Bill separately provided.

CALLINAN J:   I will just say it again.  With the concurrence and the agreement of the Solicitor, I would like to see the legislation in its precise and full form exactly applicable at the time.

KIRBY J:   And is your client affected by transitional provisions that would take her into the new so‑called Military Court?

MR STREET:   Not relevantly, your Honour.  If in fact the matter were the subject of decision of this Court, delivered in sufficient time, no doubt the trial would proceed before the existing tribunals.  If in fact it is later ‑ ‑ ‑

KIRBY J:   We will have to look at the transitional provisions because they are often very tricky and they might provide for a case that is caught in between.

MR STREET:   No, your Honours.  It will make no difference in relation to the substance of our arguments, because the substance of our arguments are in essence ‑ ‑ ‑

KIRBY J:   But if the Parliament sets up an entirely separate Chapter III court, independent and impartial in the manner of Chapter III courts, then it would make a huge difference.

MR STREET: Quite, and that is what was recommended by the Senate Committee but that was not what was done. That recommendation that the Senate Committee made in their Chapter 5 of the report I have referred to in our submissions in‑chief in essence recommended that there be established an Australian Military Court but recommended it be one which is set up under Chapter III. That recommendation was not embraced and the court that has been set up, which you will find in the 2006 amendment, in essence has much of the hallmarks of an endeavour to, as the learned Solicitor‑General has described, embrace propositions of independence and impartiality albeit these relevant personnel that will serve on this court are not in fact appointed under section 72 and it is not a court under Chapter III.

KIRBY J:   So it is federal legislation, calling it a court, but it is not a court under the Constitution?

MR STREET:   That is so, your Honour.

KIRBY J:   That is a very curious beast.

MR STREET: Your Honours, what I will seek to have done in answer to what your Honour Justice Callinan has raised is obtain the legislation this morning in the version that I have identified as at 2006, and I will seek to have copies provided to your Honours in the course of the morning. To the extent relevant the provisions are ones I will take your Honours to when that is provided in light of the observations your Honour Justice Callinan has made, but all I was seeking to identify is that the offences arise under 33 and section 61. Your Honours are familiar with those provisions. There is no issue but that the character of the power that is being exercised to try and determine is judicial power. There are provisions ‑ ‑ ‑

HAYNE J:   You say there is no challenge to that.  Let me examine that premise for a moment.  The Defence Force Discipline Act, as its long title reveals, is an Act relating to discipline.  The fact that there may be erected a structure bearing marked similarities with the curial structure used in the exercise of judicial power for the better, the more effective, the fairer application of discipline, why does it follow inexorably that the system thus created constitutes the exercise of judicial power as distinct, if a distinction is open, from a system for the effecting of discipline in the armed forces?

MR STREET:   Well, your Honour, perhaps, we would submit that there is nothing more classically within the exclusive domain of judicial power properly characterised than the determination of guilt by a trial in respect of an offence and to that extent ‑ ‑ ‑

HAYNE J:   That is a proposition that contains a number of slides which are masked.  You say, “Guilt of offences.”  Relevantly there are service offences, there are offences which are treated as breaches of discipline and the like, but the root of this system is the discipline of the armed forces.  At its root the system is directed to the proposition, “I say to this man, ‘Go’, and he goeth”.

MR STREET:   Your Honours, it is not part of our contention that there cannot be a disciplinary code or should not be a disciplinary code in relation to the armed forces.  Where we divide company with the existing line of authority is that the assumption that it is necessary in respect of a disciplinary code that it embrace an exercise of judicial power and to that extent we seek to make good – and I will seek to develop in the course of the morning if I may – the reasons why it is not necessary to embrace the proposition that judicial power falling within some exception to Chapter III is to be found to be something that should be implied for the purpose of this disciplinary code to justify what is otherwise, in our respectful submission, plainly an exercise of judicial power.

But in further answer to your Honour Justice Hayne could I just include that not only does this power in the present case involve trying an alleged offence, it involves the imposition of a punishment that can include imprisonment.  We would respectfully submit, in those circumstances alone, its character properly identified is one which is a judicial power.  In the context of this case your Honours are aware that the provisions of the Defence Force Discipline Act in essence provide for the application of the rules of evidence.

GUMMOW J:   And for an appeal on a question of law to the Federal Court under Part V.

MR STREET: Yes, your Honours, but to the extent relevant, still dealing with the nature of the power that is being exercised in hearing and determining a charge, it is the rules of evidence that apply. Equally, there is now - and is relevantly in relation to these charges – a Director of Military Prosecutions that advances the prosecution in that context. Further, under section 70 of the Defence Force Discipline Act it is the civilian principles of sentencing that are applied in imposing that punishment.

Your Honours, it is in those circumstances that we start with the premise that in those circumstances that classically falls within the character of being judicial power.  The only question is whether it is the judicial power of the Commonwealth and ‑ ‑ ‑

KIRBY J:   Can I ask, the incorporation of the Jervis Bay criminal law ‑ ‑ ‑

MR STREET:   Picks up the Crimes Act (ACT).

KIRBY J:    ‑ ‑ ‑ is a technique that was referred to in a number of earlier cases.  Under that law would your client, if charged in a civilian court, be entitled – would that be an indictable offence?

MR STREET:   Your Honours, subject to the issue about presentation of an indictment or whether the offence is capable of ‑ ‑ ‑

KIRBY J:   No, I am just asking if your client were charged in the ACT under the criminal law of the ACT or in the Jervis Bay Territory, would she be entitled to elect for jury trial?

MR STREET:   The answer to that is yes, because the offence that she is charged with ‑ ‑ ‑

KIRBY J:   So that bringing the matter before the disciplinary Tribunal robs her of her entitlement as an Australian to jury trial.

MR STREET: Deprived of all the rights under Chapter III, deprived of the benefit of independence and impartiality, deprived of the separation of powers, deprived of the right of section 73.

KIRBY J:   Leave those aside for the moment, it deprives her of one of the very few rights that exists explicitly in the Australian Constitution to jury trial. 

MR STREET:   Yes, your Honour, but could I just add that the reason for that is that the offence is not an offence under the Crimes Act (ACT) or the Jervis Bay Territory, it is an offence created by the Defence Force Discipline Act. It is an offence under section 61. It is an offence by a law made by the Commonwealth Parliament. There is, nonetheless, a provision in the Defence Force Discipline Act that seeks to say that these are not laws of the Commonwealth for the purpose of seeking to excite it outside Chapter III and I will refer your Honours to it when I have the legislation.

KIRBY J:   That sounds like form, not substance.

MR STREET:   Quite. 

CALLINAN J:   Juries are not just for the benefit of accused.  There is also a public interest in there being juries and prosecutions.  Prosecutors have an interest in having juries too.

KIRBY J:   And citizen participation in the criminal process of this country. 

MR STREET:   Public interest in the importance of Chapter III and its application and the separation of powers and the work that was intended to be done by Chapter III.  Your Honours, in this case what my learned friend is seeking to say, and he says it in paragraph 58 of his submissions, that by some small step an implication is to be found that there is an exception to Chapter III.

That foundation of this small step is something that your Honours might have expected to find identified as the basis of the principled foundation for such an implication in my learned friend’s submissions, particularly given the attack in respect of the leave question saying that this is a proposition that has been developed on a principled basis.  Your Honours, nowhere, in my learned friend’s submissions, are the principles upon which this implication, in fact, elucidated and when one comes to the question of this implication ‑ ‑ ‑

KIRBY J:   He relies on the fact that for many years in a number of cases, this Court has found the implication, so you really have to try to displace that and say that that was in error or, at least, as expressed, in the somewhat compromised expression of it in Re Tracey, that it is not sound, that it does not have a sound constitutional foundation.

MR STREET:   Quite, your Honours, and there are a number of bases that I will seek to develop but can I deal with the first ‑ ‑ ‑

GUMMOW J:   What is your preferred model, what do you say would be the framework of legislation for military discipline that would be valid because it complied with Chapter III?  What would the Parliament have to do?

MR STREET:   The Senate Committee recommended that the Australian Military Court be a Chapter III court.  That can be done by a stroke of the pen to create it.  The legislation is already in ‑ ‑ ‑

GUMMOW J:   What, a stroke of the pen?

MR STREET:   Well, your Honours some minor amendments may be ‑ ‑ ‑

KIRBY J:   It has to be Parliament’s pen.

MR STREET:   It does indeed.  But, your Honours, to the extent relevant, it is a small step to take to ensure ‑ ‑ ‑

GUMMOW J:   Wait a minute, Mr Street.  You use this expression “Chapter III court”.  That is part of the story.  What would be the nature of the offences and how would they be tried?

MR STREET:   Your Honours, to the extent relevant, the offences ‑ ‑ ‑

GUMMOW J: What I am getting at is section 80 which Justice Kirby has been raising with you.

MR STREET:   I understand that proposition.  To the extent relevant, we would have said the offences are those that Parliament seeks to identify as military offences.  To the extent it seeks to identify those in respect of ‑ ‑ ‑

GUMMOW J:   Were they tried on indictment?

MR STREET:   There may well be circumstances where there will be trial on indictment.

GUMMOW J:   But not always.

MR STREET:   No, your Honour.

GUMMOW J:   What is the distinction?

MR STREET: We would seek to maintain that there must be some content in the application of section 80 which means it cannot simply be in the hands of the prosecutor to determine whether an indictment is presented. The only proper foundation, we would have said, that can be identified is the nature of the punishment that might be imposed. If that is the case, then one must look at the nature of the offences in respect of the imposition of such a punishment. I think there is a provision in the Criminal Code that excises service offences that identifies where indictments might be presented.  I am not sure whether it was six months or two years, but I will take your Honours to it.

GLEESON CJ:   Mr Street, is insubordination a service offence?

MR STREET:   There is certainly an offence in relation to failing to comply with a lawful order.

GLEESON CJ:   Yes.  Repeatedly coming on parade without your buttons done up, would that be a service offence?

MR STREET:   If in fact there is a charge sought to be brought for the failure to comply with a lawful order and that is sought to be heard and determined by a process of trial with punishment to be imposed, that service offence would be a service offence in respect of which it would require, if one is going to exercise such a power to try, judicial power.

GLEESON CJ:   Can a person who is guilty of insubordination find himself or herself on detention for a day?

MR STREET:   Your Honours, to the extent relevant, if detention is sought to be imposed administratively just as in relation to an administrative punishment in the context of attending the parade ground poorly attired, there is a range of administrative punishments, which we have identified in our submissions in‑chief, that might be imposed.

GLEESON CJ:   I just wondered whether putting a person on detention for insubordination would be an exercise of judicial power.

MR STREET:   No, your Honour.  What I sought to say was if one sought to identify that you have committed an offence and I am now going to hear and determine whether that offence has been committed under the regime set up by the Defence Force Discipline Act as a summary authority for the purpose of imposing a punishment on the basis of a conviction, that would constitute the exercise of judicial power but there can be ‑ ‑ ‑

HAYNE J:   So the commanding officer’s defaulters’ parade is not the exercise of judicial power.  Is that what you say?

MR STREET:   To the extent that that is sought to be done in the way of bringing someone onto the parade ground and simply dressing them down, that is not an exercise of judicial power.

HAYNE J:   No, I had in mind the general CO’s parade each morning, each week, each whatever, dealing with service personnel returning to base drunk, returning to base late, not attending to duties, the myriad of discipline problems that emerge in any armed force.  Judicial power exercised by the commanding officer?

MR STREET:   Not where it is an administrative exercise of power, but to the ‑ ‑ ‑

HAYNE J:   Including stoppage of pay, confinement to barracks, cancellation of leave.

MR STREET:   Your Honour, we accepted – and I do not seek to shy away from it – that there is a wide range of administrative powers that might be exercised by a commanding officer, and very reasonably so, to the extent necessary.  That includes dismissal from the Defence Force, reduction in rank, reprimand.  To the extent of deprivation of privileges, that would fall within it, but that is in the context of it being exercised as an administrative power. 

The problem we face here is that this Act purports to vest judicial power in a Defence Force Magistrate and purports to vest judicial power in a Court Martial or a Restricted Court Martial, and to the extent relevant it is the vesting of that judicial power in the context of determining the guilt of a person in respect of an offence complying with the principles applicable to civilian courts in respect of that criminal offence that gives rise to it being, in our respectful submission, judicial power, and then the real question becomes, in our submission, is it the judicial power of the Commonwealth?

In that regard, can I identify that there is perhaps a further matter that I should have addressed in answer to your Honour Justice Hayne.  It is possible that in the exercise of administrative powers one might have a form of detention in a highly disciplined barracks which does not involve any exercise of judicial power in the sense of a determination of guilt of an offence and the imposition of a punishment reflecting the exercise of judicial power.

HAYNE J:   You have mentioned three features which seem together to join in your proposition that this was an exercise of judicial power.  They are the nature of the offence, the nature of the procedures employed and the nature of the punishments exacted.  Do you articulate a proposition that identifies what it is about either the combination of those features or the presence of particular aspects of those features that leads to the asserted conclusion that there is an exercise of judicial power?

MR STREET:   Your Honours, can I deal with it in two ways.  First we say that the fact that the power being exercised is judicial power is in fact supported by the authorities that presently we seek to attack.  They describe it as judicial power.  Secondly, it is the content of it being a determination of guilt in respect of an offence which, in our respectful submission, is classically something that must be the exercise of judicial power, and particularly where there is applied the criminal standard, the rules of evidence, a prosecutor, and to that extent, in answering your Honour Justice Hayne, we respectfully submit it is the parallel nature of this process with the civilian criminal law that gives it clearly the character of being an exercise of judicial power.

CRENNAN J: On that parallel nature, Mr Street, are there protocols in place or Defence instructions pursuant to which section 61 offences are sometimes referred off to the DPP?

MR STREET:   Your Honour, there are sexual offences that can give rise to potentially joint jurisdiction and there, there is usually the course taken that the DPP are invited to pursue it.  If they elect not to, then it is open to the now DMP to pursue such offence, but I think there is a limited category of offences in respect of which that occurs, and it really is the sexual offences.

CRENNAN J:   Would it cover this particular offence, act of indecency?

MR STREET:   Your Honour, I do not believe it does.  I did look at that.

CALLINAN J:   Mr Street, in paragraph 7 of your submissions you point out that the conduct occurred at a private residence at a public hotel and that neither your client nor the victims were on duty or in uniform.  You do not raise any question of absence of sufficient service connection, do you?

MR STREET:   No, I do not.

CALLINAN J:   I just want to be clear.  Well, that is quite irrelevant then, is it not, paragraph 7?

MR STREET:   Indeed, that is so.  Yes, I conceded at the outset when the application was the subject of ‑ ‑ ‑

KIRBY J:   Why do you throw that away?  Even on the tests that have been propounded buy various members of this Court this really is at the borderline, if it is there, of connection with the defence activity.  I mean we have to be very careful here because a lot of a civilians work for the Defence Force and Defence personnel are citizens too.  They have a private life outside their Defence activities.  So I must say I am not at all sure that it is irrelevant that this happened when the plaintiff was in a private place, not in uniform, none of the people were in uniform, in a private room in a public house, and not in a command situation.

MR STREET:   Your Honour, essentially that is really a jurisdictional type question, not an invalidity question.  The problem with that type of jurisdictional question ‑ ‑ ‑

KIRBY J:   But is it because ‑ ‑ ‑

GLEESON CJ:   What were you saying, Mr Street?

MR STREET:  That would be a jurisdictional question for the relevant Court Martial or DFM, and there would be a judge advocate who determined the question of law if it was a Court Martial, but that type of jurisdictional argument would in essence be one which would be looked at in applying the principles that have earlier been identified by this Court.  The fact that the victims and the accused are all service members would be likely to give rise to it being found to be within jurisdiction.  So I understand the point that your Honour Justice Kirby is raising, but in essence that is an issue in respect of which, because of the coincidence of identity of Defence members in terms of alleged victims and the alleged accused ‑ ‑ ‑

KIRBY J:   You say victims.  I think they are complainants at this stage.

MR STREET:   Yes.

CALLINAN J:   In any event, we do not have to trouble about it.  It is not a matter you raise.

MR STREET:   No, your Honours, I raise the pure question of whether there exists military judicial power outside Chapter III.  That is the issue that I seek to attack and that is the issue which I seek to develop.

KIRBY J:   Can I just explain why I raise the question.  You are taking what one might say, as I understand it, a total attack.  You say it cannot be Chapter III, therefore it cannot be dealt with in this fashion, but the problem is that whenever the Court has looked at this in the past, different members of the Court have expressed the criterion slightly differently.  Justice Deane took one view, Justices Brennan and Toohey took another view and other Justices took a different view, but there has been a common theme of all of the Justices that there has to be some exception that permits disciplinary offences to be dealt with in the field, for example, at a distance.  Therefore, to define that connection, the Court has in different words sought to say some connection with the defence activities.  If you just sweep that away, then the absolute test may fall foul of everything that all Justices have expressed or tried to express.

MR STREET: We say that the foundation for that exception is fundamentally flawed and misconceived. We say the foundation for that exception violates the express text of the Constitution. We say that the reasoning that has been developed to find such an implication is flawed. Can I just indicate at the outset that what we say is there are no exceptions to Chapter III. In our respectful submission, the notion of an exception to Chapter III has massive problem in terms of, first of all, adherence to the text. When one looks at the language of section 71, it is mandatory, it must be. That judicial power found in section 71 on its face requires compliance.

The implication of an exception to that flies in the face of the express language. More than that, it flies in the face of the accepted constitutional interpretational principles of an implied prohibition from the mandatory language found in section 71. It infringes both principles. If I can take your Honours through, first of all, how we develop the argument referable to the Constitution and then I will develop the argument if I may in the context ‑ ‑ ‑

GLEESON CJ:   Is it right that your argument would be the same if the participants in these events were in uniform on their way into battle?

MR STREET:   Yes, your Honour, in respect of an offence.  We do not challenge the breadth of the defence power.  What we say is though that the scope of the defence power is not something which is found in Chapter III to say the judicial power subject to section 51(vi) is vested in the judiciary.

KIRBY J: Can I put it to you quite bluntly. The problem then presented is that it has been held, in many decisions, that it is inherent in the very character and necessities of granting to the Parliament the power with respect to defence that that will permit the provision of discipline in certain limited circumstances, that that has a long history in British constitutional law and that, therefore, the play on words becomes, what is the judicial power. Therefore, in sweeping aside the issue of the character of the offence you really, in a sense, force courts to look very closely at what is judicial power and then to define it out at judicial power so as not to create the problem with Chapter III and subject to this Constitution.

MR STREET:   Your Honours, in essence, it has been that very type of issue that has deflected the earlier courts from the correct application of principle in construing Chapter III because what has happened is this.  The earlier courts in Tyler and in Tracey have, in essence, approached the question of validity by looking at what is the scope of the defence power and applying principles relevant to determining whether something is reasonably adapted to that defence power.

GUMMOW J:   I do not think that is right at all, Mr Street.  I do not think that does anything near justice to the judgments in those cases. 

MR STREET:   Your Honours, can I seek to identify why we say that. 

GUMMOW J:   You have to explain to us why, as at 1901, what you say was correct, have you not ‑ ‑ ‑

MR STREET:   I understand that, your Honours, and I will seek to do so, but could I just indicate that what we ‑ ‑ ‑

GUMMOW J:   ‑ ‑ ‑ with reference to British and colonial history and, indeed, the military state of affairs in this country in 1900?

MR STREET: Your Honours, we have a number of answers to that but can I just develop, if I may, in answer to what his Honour Justice Kirby has raised, this issue in respect of the breadth and importance of the defence power and, undoubtedly, it was a primary motivator in respect of the compact found in the Constitution. But, ultimately, it is the language of the Constitution that must prevail and it is this Court’s duty, not that of Parliament, to determine the scope of those constitutional ‑ ‑ ‑

KIRBY J: We know all that, but the fact is that courts are practical bodies and the Constitution is a practical instrument of governance that is intended to work in a practical way, including in the field in time of war and the notion of having the full panoply of a Chapter III court sitting in Borneo in the middle of the war is unrealistic and, therefore, the mind then says, “That is not what is meant by ‘subject to this Constitution’ and therefore that is discipline, not judicial power”. That is the way, by play on words, you slip out of absolutism which is what you seem to be embracing.

Constitutional law rarely is absolute, even the separation of powers.  It is not absolute and I just wonder if you have unnecessarily nailed your colours to the mast of absolutism because if you have then that is very difficult to square with the reality of the grant to the Parliament of a defence power which is intended to work, including in the field in Borneo in time of war.

MR STREET: Your Honours, to the extent relevant, we nail our colours as I have identified, but I just indicate this, that what we were seeking to advance is that the earlier cases that have looked at this question of whether there is such an exception have focused on the outset on the scope of the defence power. They have drawn no distinction, in our respectful submission, to what in fact are the different tests applicable to the construction of the Constitution when looking at, first of all, whether something might be reasonably adapted to the defence power, and on the other hand, construing Chapter III and determining what work is done by Chapter III and whether it permits of any exception.

The test to be applied in determining what work is done by Chapter III is not whether or not one can say that a disciplinary code is necessary for the purpose of it being connected to the defence power, and what has happened in the earlier cases is that there has been focus upon what might be reasonably adapted to the scope of the defence power and the leap has been made that because one sees in the scope of the defence power that discipline is necessary, the leap has been made that from that assumption that is relevant to the construction and dictates the construction of Chapter III.

That, in essence, permits, in our respectful submission, an abrogation of the function that was intended to be performed in construing Chapter III because it is not Parliament, in our respectful submission, or the Commonwealth in advancing arguments of necessity which are matters of policy that can dictate the proper construction of the work done by Chapter III.

So that, your Honours, where we start from is that when one goes to the language of the Constitution there is no reason to embrace the proposition that discipline must include an exercise of judicial power, and there is no foundation – going back to your Honour Justice Gummow - from the viewpoint of the legislation that was in existence at the time of Federation or history in that regard – to draw from it some principle relevant to the construction of Chapter III, because Chapter III did not exist at that point of time and the principles may be relevant in terms of history.

GUMMOW J:   Wait a minute, Mr Street, what about section 69?  Have you looked at section 69?  You have to say it was more than a transfer of naval and military defence of the colonies, do you not?

MR STREET:   Not at all, your Honours.

GUMMOW J:   You have to say it radically changed in quality and character.

MR STREET:   Your Honours, I think it was just ‑ ‑ ‑

GUMMOW J:   Just a minute.  What do you say, if anything, about covering clause 5?  Have you looked at that?

MR STREET:   Yes, your Honour, I have taken that into account, but could I just seek to identify that ‑ ‑ ‑

GUMMOW J:   Special provision in covering clause 5 about “the Queen’s ships of war”?

MR STREET:   We seek to say, your Honour, that covering clause 5 actually advances the arguments that we have sought to develop in our submissions.  We seek to say that section 69 in the executive power chapter – at least Chapter II - does not advance the issue of construction that arises in relation to Chapter III nor in relation to an implication.  If there is to be found an implication – if I can stand back from a matter of principle ‑ ‑ ‑

GUMMOW J:   What do you think happened when the naval and military defence departments of the colonies were transferred to the Commonwealth under section 69, having regard in particular to what Justices Brennan and Toohey said about that, amongst other people, in Tracey at 166 CLR at 572 to 573?

MR STREET:  Your Honours, the transfer of the defence departments to the extent relevant was obviously a necessary step and understandably from what I have already acknowledged it was a primary factor to provide for the defence of the new federation that there would be a defence power.  But, your Honours, what we say is this, that ‑ ‑ ‑

GUMMOW J:   Without knowing it though, they walked into this pit.

MR STREET:   Your Honours, it does not assist the argument and indeed Justice Gaudron in Nolan said that the history was irrelevant and we embrace what her Honour said in that regard ‑ ‑ ‑

GUMMOW J:   Well, I do not agree with that.

MR STREET:   But your Honours, can we just say why it is the case that to the extent relevant the history does not assist because at this point of time there was no Chapter III power that was in fact in existence and to look at what happened with military tribunals ‑ ‑ ‑

GUMMOW J:   It was debated at the Conventions.  That is what Justice Brennan and Toohey are saying and it would have been a remarkable thing if they silently had in mind all you are saying.  If anything what they had in mind was the United States position, I suppose, in a federal structure, where they have Article 1 tribunals dealing with these matters.

MR STREET:   But no, your Honours, it is because they departed from the United States Constitution in fundamental respects and so to the extent that one says it was silent, no.  We find ‑ ‑ ‑

GUMMOW J:   So you say they departed from United States, a federal structure, they departed from Britain, all without saying anything?

MR STREET:   No, your Honours.  In answer to your Justice Gummow ‑ ‑ ‑

GUMMOW J:   In any of the supporting materials whatever.

MR STREET:   No, your Honour.

GUMMOW J: Was there anything in any of the supporting materials at the time of the adoption of the Constitution which suggests what you are saying as to what was going to happen as a consequence of section 69?

MR STREET: Yes, the departure from the US Constitution by the language found in our Constitution.

GUMMOW J:   With respect to your submissions made today as to the effect of section 69.

MR STREET:   Your Honours, I was seeking to deal with ‑ ‑ ‑

GUMMOW J:   There is nothing, is there?

MR STREET:  No, your Honour.  I do say that the language found in the legislative power in terms of section 51 ‑ ‑ ‑

GUMMOW J: No, no. Surrounding debates and discussions for the adoption of the Constitution.

MR STREET:   But, your Honour – to the extent relevant, I could not find anything in the Debates and I did look at them.

GUMMOW J:   Exactly.

MR STREET: But, your Honours, that does not develop further the issue though that there was a departure nonetheless from the language in the Constitution of the US, fundamental departure in relation to the words in respect of legislative powers subject to the Constitution. Now, the words in section 51 that introduced that qualification are not found in the American Constitution, as your Honour I think has already observed in the course of argument in ‑ ‑ ‑

KIRBY J: I think members of this Court have said from time to time, even if those words were not there you would have to infer them from the structure of the Constitution and the purpose of the separate judicial branch of government.

GUMMOW J:   And from Marbury v Madison which they certainly knew about.

MR STREET:   But, your Honours, there are other fundamental differences in the US Constitution relating to military powers and I will seek to take your Honours to them if I can in a moment.

KIRBY J: They get carried away with the command in chief with their president. That is something – that is an error that we have never embraced. In any case, what was in the minds of the Debates is not, at least so far as I am concerned, something that controls the new beginning which our Constitution involved and the structure of it is very important, especially the separation of the judicial branch.

MR STREET: Your Honours, what we are seeking to develop was that true it is that there may be a need – and we accept it – for the exercise of discipline, but it does not follow that the need for exercise of discipline requires the exercise of judicial power. That is the leap that is made but it is a leap that is made in the context, your Honours, of this small step implication that my learned friend seeks to make good, in respect of which we say implications in respect of the Constitution, if they are to be found, must first of all comply to this principle. They cannot be contrary to the express text.

KIRBY J:   You have said that now four times, but your Calvin-like purity of your principle really overlooks a fact – and perhaps you can reconcile it and I hope that you will express your reconciliation of the fact that the Parliament gave the defence power, it gave it in the context of constitutional history, it gave it in the context of section 69, it intended it to work and it is a fundamental rule of constitutional interpretation that you read the whole document and, therefore, you read section 51(vi) but you also read Chapter III and then you say, “How does that work in the heat of war?  Can we have a jury of citizens brought up to the Solomon Islands in time of war?”  Obviously, we cannot.  Therefore, how do we deal with the practical problem of discipline which is of the very essence of a defence force in time of war?  How do you reconcile that with your Calvin‑pure theory of Chapter III?

MR STREET:   Because it works consistently with the proposition that if there is an offence committed by an individual they can be take into custody.  No one says one cannot detain someone to have them charged.  They can be brought back, as they are, every day to the extent that it arises, to be the subject of a trial in Australia and, to the extent that one might seek to do so, one might have hearings of a Defence Force Magistrate in theatre, but to the extent that there are sought to be the subject matter of a trial for a rape or a charge giving rise to a substantial period of imprisonment, that can be dealt with in Australia.  Indeed, there is no reason to assume that this Australian Military Court, which is set up under the amendment of 2006, is in any different position if it had been a Chapter III court for the purpose of exercising such power in the context of, say, the theatre of war, to the extent that it is required to deal with some offence. 

So, your Honours, we say that the example of the war theatre does not, in any way, justify a departure from Chapter III as being a self‑contained, exclusive and exhaustive identification of judicial power, but there is a further problem that has not been developed and which has not really been recognised in the cases in which this area of issue has arisen and that is this.  Your Honours, accepting, as we would seek to propound, that is the earlier cases seek to support, that this determination of guilt is judicial power, if one assumes that premise at the outset, one then moves to determine what is it that would determine whether it was the judicial power of the Commonwealth. 

In that regard it is clear that from R v Kirby; Ex Parte Boilermakers that identifying whether it is the judicial power of the Commonwealth, one looks to see whether or not it is the subject matter of a law made by the Parliament in respect of which there could be jurisdiction conferred, relevantly under sections 75 or 76, for the purpose a controversy appropriate for determination by an exercise of judicial power.

There can be no doubt, in our respectful submission, that if it is as this law, we respectfully submit, under the Defence Force Discipline Act is made by the Parliament.  The controversy as to whether or not one has committed an offence is one on the face of it which we would have said falls within section 76(ii) but the corollary of the argument advanced by the Commonwealth in these earlier cases is that one has to find a further implication of an exception to section 76(ii) if this exception is real.  How can it be that Parliament could ever vest judicial power in relation to a military offence if in fact this exception is real?  That then requires one to reconcile the language found in section 76(ii) which, in our respectful submission, squarely identifies on the face of it unconfined:

The Parliament may make laws conferring original jurisdiction on the High Court in any matter –
. . . 

(ii)      Arising under any laws made by the Parliament.

The corollary of the argument advanced in the earlier cases and advanced by the Solicitor‑General is that not only do we have to find by implication some exception to section 73 but we have to now also find a qualification in relation to words which, in our respectful submission, on the face of them do not permit of such a qualification. “Any laws made by the Parliament”, is that to be read as any laws except for those dealing with judicial power in the exercise of disciplining members of the military? How does that reconcile with the words of “any laws” and how can that, in our respectful submission, be other than flying in the face of the text?

To find an implication, first of all, in our respectful submission, it must be something that does not violate the text. The consequence of the small step implication that my learned friend has advanced in relation to Chapter III does work beyond simply looking at section 71 and saying we can see reasons why there might be grounds to develop an exception based on a line of reasoning that looks at what might be reasonably adapted for the purpose of section 51 and saying that that reasoning has application to the work done by Chapter III.

To find an implication in respect of Chapter III that qualifies section 76(ii) can only arise from the structure and text of the Constitution, not from any assumption of what military necessity might require. Military necessity, if I can in that regard, is nothing more than a slogan of policy. What may be the subject of military necessity will no doubt vary in accordance with different ideas, but to use the concept that might be relevant to two questions, which I accept it may be relevant, it may be relevant to look at military necessity in the context of policy where one is seeking to determine is a law within section 51(vi) – to that extent a legitimate exercise. But it cannot be, in our respectful submission, a legitimate exercise in relation to judicial power and the work done by Chapter III other than to the extent that one is seeking to identify, as his Honour Justice Hayne raised, the character of the power.

To that extent I understand the force of the argument that in looking at the character of the power to that extent one might look at matters which include matters of policy, but here the character of the power is plainly judicial power.

KIRBY J:   Can I understand that submission.  Is it your submission that whatever may be the doubts about the content of what is judicial power – and leaving aside for the moment what the Court has said about defence discipline – that when you have a case where a person is not on duty, is being in a private environment with other persons who are not on duty and is being prosecuted for an offence which is a civilian offence so identified by cross reference to the ACT and Jervis Bay law that when you have that plus the procedures and so on in the Defence Act that in such a case, whatever may be the general issue, this is an exercise of judicial power?

MR STREET: I would not shy away from that proposition, your Honour, but can I just develop though the reasoning that we seek to advance in relation to the question of finding this small step implication. In our respectful submission, one must find not only an implication that qualifies section 71 – and presumably the words there to be inserted are “excluding the law in respect of discipline of Defence Force members made under section 51(vi) ‑ ‑ ‑

HAYNE J:   Rather than by way of implication, I suspect that the reasoning is sufficiently captured in Tracey 166 CLR 518 in the reasons of Chief Justice Mason, Justices Wilson and Dawson, at page 540 in the last line going over to the first seven lines of page 541, where it will be noted their Honours refer to a duty to act judicially as being a concomitant of the exercise of aspects of the disciplinary power.

As I understand it, the distinction they are drawing is a distinction between something that may oblige the repository of power to act judicially and something that constitutes the exercise of the judicial power of the Commonwealth.  That is to say, the adoption and adaptation of a judicial paradigm of procedure to the resolution of some disputed issues arising in the exercise of and maintenance of Defence Force discipline stands apart from the exercise of the judicial power of the Commonwealth.

MR STREET:   Your Honours, in our respectful submission, they are a series of conclusions founded on an unstated assumption that it is (a) appropriate to find such exception, (b) without addressing the principle basis upon which such an exception should be found, and (c) founded on an assumption of necessity for the exercise of judicial power which is misconceived.

HAYNE J:   No, founded upon the proposition that the proper organisation of a Defence Force requires a system of discipline which is administered judicially, that is, administered with fairness.

MR STREET:   Or just as the Australian Communist Party Case it was necessary, as Parliament asserted, that there be no such organisation in the interests of the people of the Commonwealth.  Your Honours, the assertion of necessity in relation to discipline does not, in our respectful submission, assist in construing Chapter III and finding an implication.  Where it may be relevant – and this is the reason why we say in Tracey the Court has in essence embarked upon an exercise of looking at principles appropriate and relevant to determine whether or not a law has been made with respect to one of the heads of power under section 51.

KIRBY J:   You have to be a bit careful talking about the Tracey Court because there were a variety of opinions.

MR STREET:   I accept that, your Honour.

KIRBY J:   The view that was expressed by the joint reasons of Chief Justice Mason, Justice Wilson and Justice Dawson were not the same as the views expressed by the other Justices.

MR STREET:   No, your Honour is quite right, and I should have identified – perhaps if I can come back to Tracey and I will develop further the necessity argument, but what I was seeking to say in relation to the text and implication argument is that, first of all, we have to find read into Chapter III, and in answer to your Honour Justice Hayne, one still must find some principle basis to justify it falling outside.

The only basis advanced by my learned friend is the small‑step implication.  To find that small‑step implication, presumably we have to give it content.  What are the words that we imply, the words that are necessarily implied as a matter of proper construction of the constitutional test and structure?  When we seek to do that and we stand back, is it to be implied that the judicial power is vested in the judiciary excluding the judicial power that may be exercised under a law made by section 51(vi). 

If so, why not every other head of power under section 51 to the extent of such an exception? But more than that, we now find that not only do you have to insert those words into section 71, one then has to insert a qualification in section 76, any laws made by the Parliament excluding, apparently, laws made in relation to the exercise of judicial power in respect of members of the Defence Force. Two implications are required in relation to Chapter III before we get to the negative or the prohibitry implication arising from Chapter III itself.

Next, we have in the context of finding this implication that is to arise, inserting these words into section 71, to reconcile the fact that in section 51, from which (vi) or with which (vi) plainly has to be read, we find these words “subject to the Constitution”. They are given no work – no work – if one inserts into 71 a qualification that section 71 is subject to section 51(vi).

KIRBY J:   They are given work if you distinguish between the exercise of the judicial power of the Commonwealth and the exercise of military discipline.

CRENNAN J:   That is the point really, that the service tribunals may be judicial in character but it is the range and nature of them that distinguishes them from what is covered by Chapter III.

MR STREET:   Your Honours, to the extent relevant we say that once one has a law made by the Commonwealth Parliament and one has a matter of a kind that would be exclusively within the domain of judicial power as a matter of character then the consequence is that the work done by Chapter III is to mandate that if it is within 75 and 76 it must be determined by an exercise of judicial power and you cannot fall outside it.  That is what, in our respectful submission, Chief Justice Dixon and the Court said in Boilermakers some nine years or so after Cox where Chief Justice Dixon had then expressed, as a Justice of the Court, a different view.  But can I take your Honours to ‑ ‑ ‑

KIRBY J:   Just before you do that, Justice Crennan’s question really identifies what for me is the subtlety of this question that your absolutism does not really tackle, and that is it is the range, variety and identity of the matters that are brought into the area of military discipline that may contradict the suggestion that this is truly military discipline and thus within the exception to the exclusion of the judicial power of the Commonwealth.  When you start prosecuting people for civilian type offences provided by civilian criminal law in civilian circumstances and depriving them of the right that would otherwise in civilian circumstances attach the right to trial by jury, which is an important right, then the question arises, does this really come within the exception or is it really the exercise of the judicial power of the Commonwealth though pretending to be military discipline? 

MR STREET:   Your Honours, we would respectfully submit that in this case in respect of the offence under section 33, which has a corollary with an offence in the Crimes Act (ACT) of assault, and the offence under section 61 that picks up the provision of section 60, it falls into that category, but, your Honours, can I just ‑ ‑ ‑

GLEESON CJ:   When you say “that category”, what is the exception which you acknowledge?  The question you were asked was based on the existence of an exception.  What is the exception?

MR STREET:   My primary submission, as your Honours will appreciate, is that there is no such exception.

GLEESON CJ:   What is your secondary submission?

MR STREET:   My secondary submission to the extent relevant would be that I would embrace what his Honour Justice ‑ ‑ ‑

GLEESON CJ:   What do you mean by “to the extent relevant”?  I thought you said twice in the original proceedings in this matter there is no nexus argument, there is no connection argument.

MR STREET:   I understand that, your Honour.  Would your Honour just excuse me one moment?

GLEESON CJ:   And you understand also that when this matter was listed for hearing I asked whether there were any additional facts relevant to the Court’s decision and I was told that there were not because there was no nexus argument.

MR STREET:   I understand that, your Honour.

GLEESON CJ:   The Solicitor‑General having made it clear that if there had been such an argument he would have wanted to adduce evidence concerning the relationship between the alleged complainants and your client.

MR STREET:   Your Honour, I was not seeking – and to the extent relevant, I would sit with the concession that I have made – to advance a nexus argument.  I was seeking to advance an argument as to the scope of judicial power referable to the argument that his Honour Justice Kirby was raising.  To the extent that there may be, in answer to your Honour Justice Crennan, matters that might fall into a category that involve some insignificance in the nature of the offence a breach of a general order in relation to attending on a parade ground in respect of being properly dressed, it may be as an alternative that one might find such an issue because of the character of the offence not reflecting any offence in civilian law might in its determination of guilt not fall within the judicial power.  But here we have an offence of a kind that does mirror offences found in civilian law.  Here we have a determination by trial of guilt of that offence which we say must be an exercise of judicial power and it is an exercise of judicial power in respect of a matter that we say, applying the principles identified in Boilermakers’ Case, is vested in respect of this type of matter in a Chapter III court.  Can I just take your Honours briefly ‑ ‑ ‑

KIRBY J:   Do we have enough facts relating to the nature of the offence?  There was an affidavit which was filed and apparently before us, so can we take it that that affidavit, which has not been objected to or which has not been the subject of cross‑examination, can be accepted as a statement of relevant facts?

MR STREET:   Your Honours, I certainly understood it was before you.  I concede and I ‑ ‑ ‑

GLEESON CJ:   We know it is not.  The affidavit that the Solicitor‑General was relying on is not before us.  There is a different affidavit before us.

KIRBY J:   There is an affidavit by the plaintiff which is at page 10 and following.

MR STREET:   Your Honour, I do not seek to advance an argument based on the facts.

GLEESON CJ:   But we know from the transcript that there was another affidavit that was going to be relied on if there was a nexus argument.  It was not relied on and it is not before us.

MR STREET:   No, your Honours, I accept that.

KIRBY J:   But I am a very simple Judge.  I read my record and the record contains pages 10 to 12.  It is the record of the Court.  It is before me and it makes certain statements such as:

5.I say at the time of the alleged offences I was not in uniform, nor was I on Commonwealth property, nor was I on duty.

6.I say . . . the alleged victims were not in uniform, were not on duty and were not on Commonwealth property.

It sets out certain matters concerning the mode of prosecution and the levels of imprisonment and how that comes before to affect her and so on.  So I will assume, unless I hear to the contrary, that that is the record.  That is the normal thing we do.  It has not been objected to.  As far as I am concerned it is the statements of the facts that I will accept.

MR STREET:   Your Honours, can I address this issue that I was seeking to touch upon in relation to what might be the critical issue that your Honour Justice Crennan has identified, that is, what is the judicial power of the Commonwealth?

GUMMOW J:   No, there are two steps, Mr Street.  The first is what is judicial power?  Judicial power is a broader concept than the judicial power of the Commonwealth.  Do you accept that?

MR STREET:   I accept that.

KIRBY J:   Yes, but we are told you go to the Jervis Bay, that takes you to the ACT, if it were charged in the ACT, it would be an indictable offence, and why does that not therefore indicate that this is an indictable offence that you are circumventing, manner, substance and form?

MR BENNETT: Because, your Honour, it is an offence of a type and in a category which falls outside the judicial power of the Commonwealth for the reasons I have been giving. Section 80 is limited in quite a number of ways. Bernasconi, of course, started the limitation of it by holding that it did not apply to territories and since then it has been held in a line of cases that it only applies if the prosecutor chooses to use indictments.

KIRBY J:   You say it is optional at the behest of the Commonwealth?  Is that your submission?

MR BENNETT: Yes, your Honour, that is the effect of the authorities on section 80.

KIRBY J: That is a most unpersuasive interpretation of the Constitution.

MR BENNETT: Your Honour, I have argued that in other cases involving section 80 and the Court has upheld it. It is of significance that during the Convention Debates there was an amendment moved to make it clear that section 80 would apply to offences above a certain degree of severity rather than on indictment. Mr Isaacs, as he then was, gave the example of a Commonwealth Act which made murder a summary offence and the amendment was rejected. It was rejected in the face of it being put clearly to the Convention that the effect of it was that the Commonwealth could, by making any offence not indictable, avoid section 80.

KIRBY J: Yes, but it was then reified and appears in section 80 of the Constitution and we are not locked into what those people thought they were doing in 1890.

MR BENNETT:   No, your Honour, but it is one of the factors that one looks at in construing the provision.  The words of course are absolutely clear.  The words say, “The trial on indictment”.  The words are not, “The trial of a serious offence” or “of an offence above a certain level of penalty”.

KIRBY J:   That was enacted in a day when it was thought to be unthinkable that the Commonwealth would circumvent the protections of the section by charging serious crimes not on indictment.

MR BENNETT:   With respect, your Honour, they say the exact opposite in the Debates because that example, the example of murder being a summary offence, is the very example they debate.

KIRBY J:   Yes, but those who voted for it thought it was completely unthinkable that the Commonwealth would act in such a dishonourable way.

MR BENNETT:   Well, your Honour, the alternative view is that they took the view that the Commonwealth should be able to determine that and the ‑ ‑ ‑

KIRBY J: That writes the section out of the Constitution, and that cannot be its proper interpretation. Anyway, I am only repeating what Justice Dixon, Justice Evatt, Justice Deane and many of my most distinguished predecessors have said.

MR BENNETT:   Well, your Honour, there is a line of authority which says what I have said and, in my respectful submission, that is the current law in this Court.

GLEESON CJ:   It is dealt with by Justices Brennan and Toohey in Tracey 166 CLR 518 at 578 to 579.

MR BENNETT:   Yes.  Well, with respect, I put that passage in support of the argument.  In relation to Evda Nominees, may I just say this, that ‑ ‑ ‑

KIRBY J:   I noticed there in section 42 it provided for proceeding as indictable offences on offences that carried six months imprisonment.  Apparently that has been changed.  At 578, point 7, section 42 of the Act.

MR BENNETT:   Yes, and their Honours go on to explain that:

The argument proves too much. If s. 42 relates only to the procedure in Ch. III courts, it has no relevance to the exercise of the power of service tribunals: if the qualifying phrase in s. 42 does not apply to service offences, neither does the substantive provision. None of the service offences created by the Discipline Act is an indictable offence, and s. 80 of the Constitution has no application.

So the problem did not arise in that form.

KIRBY J: That is in a view of section 80 that reads it out of the Constitution. It is not a view that I will ever accept.

MR BENNETT:   It is only peripherally relevant in this case, of course, but it is a view which, as I say, I submit has been and is the current law in this Court.

KIRBY J: It is relevant if you are looking at an extreme case, at least if you will value jury trial, as the Constitution does.

MR BENNETT:   I suppose if one were taking the argument from practicality the requirement of a jury would make it even more impractical.

KIRBY J:   Not really.  You remove the person from the front or from the military establishment and you deal with them as a citizen.

MR BENNETT: Your Honour, section 80 of course goes on to say:

every such trial shall be held in the State where the offence was committed, and if the offence was not committed within any State the trial shall be held at such place or places as the Parliament prescribes.

That is a fair indication of the sort of thing that section 80 was concerned about. It was not primarily concerned at all with the question of military matters.

KIRBY J:   The offence in this case occurred in a State.

MR BENNETT:   In this case it did, yes, your Honour.  Now, in relation to Evda I just want to make this submission, that even if the Court did not apply the Evda rule – and we submit it should be applied, but even if the Court did not – the John Case indicates very clearly the matters that would be taken into consideration in deciding whether to overrule a prior decision.  Evda is concerned, of course, with liberty to make the submission, as is John, but if Evda did not apply, the factors in John would still apply in relation to the decision to overrule.

We would submit that those factors, for the reasons given in our submissions, indicate fairly clearly why this line of authority ought not to be overruled.

There are a number of miscellaneous matters I wanted to deal with.  Justice Crennan asked about the question of who prosecutes when something is an offence under both the civilian law and military law.  We have handed to your Honours one of the defence instructions which is called “Defence Instructions (General)” of 17 February 1999.  In paragraph 9 of that document on page 3, in relation to the decision to prosecute, it is put that there are cases where it would be more convenient for the matter to be dealt with by State authorities and the considerations the prosecutor should take into account, not an exhaustive list of considerations, but the issue is discussed and it is apparent that this document, which amounts of course to subordinate legislation, does deal with the problem in practice in a practical and commonsense way.  It makes the point, for example, that one case where clearly it should be dealt with by the civil authorities, not the military authorities, is where the alleged offence is driving under the influence of alcohol and various other ‑ ‑ ‑

KIRBY J:   I do not see why that is clear.  If you are driving under the influence of alcohol on the front, I could imagine quite strong reasons why that should be very disruptive to military discipline.  It just goes to show how artificial that distinction is.

MR BENNETT:   It is not an absolute bar.

KIRBY J:   I am just responding to your suggestion that was a clear case.

MR BENNETT:   Well, in most cases, your Honour.  I suppose if one was driving at the front under the influence of alcohol, it might be ‑ ‑ ‑

KIRBY J:   Driving a tank, say.

MR BENNETT: Yes, your Honour, it is not an attractive thought. The question of parliamentary privilege, it is not really necessary for your Honours to consider it in this case because the purpose for which my learned friend seeks to use the document is one which is so irrelevant and so unhelpful to any case that it just does not really matter either way. He is not using it to construe any legislation enacted by the Parliament. He is not suggesting that the amendments subsequent to the report are in some way to be construed by reference to it. That is not the purpose of it. He is simply saying here is an opinion by responsible people as to how the Constitution should be interpreted and I show the High Court that in much the same way as I might show it the opinion of a professor in a law review article.

In a sense, that is very much part of the mischief to which section 16 is directed, the use of the opinions of the parliamentarians to influence the court. But, in my respectful submission, the document is just of no conceivable relevance or assistance from any point of view, that this is not the case to analyse either the constitutionality or the interpretation of section 16 of the parliamentary privilege legislation.

KIRBY J:   Do you agree that it was a unanimous report of the Senate Committee?

MR BENNETT:   Your Honour, my friend has not demonstrated any of those matters.  I do not know if it was or was not, which itself rather illustrates the pointlessness of referring to it.  It is just not a document that is going to assist the Court in coming to its decision.

KIRBY J:   The mind starts wondering as to why, if it is a unanimous committee report, it was not accepted, instead this so‑called Military Court created.

MR BENNETT:   Yes.

KIRBY J:   It does not look like a good precedent nor like something that will finish there.

MR BENNETT:   Yes, and my learned friend relies on it in his submissions.  He uses the phrase “it explodes the argument based on

necessity”.  It disagrees with it.  I am not quite sure why that gives rise to the word “explodes” but it ‑ ‑ ‑

KIRBY J: But it does suggest that a view by this Court that what is ventured here is impermissible under the Constitution in the tradition of the Boilermakers’ Case would not cause many tears in the Parliament.

MR BENNETT:   Your Honour, in my respectful submission, whether it would or would not is not a relevant criterion for this Court to take into account.  We have given in our submissions reasons why the document is not of any assistance.  I see your Honours it is 4.15.

GLEESON CJ:   How long do you think you will require to complete your argument?

MR BENNETT:   I would think not long, your Honour.  I would think something under half an hour.

GLEESON CJ:   We have another substantial case following this, so we want to be reasonably certain of finishing this by 11.15.  If we resume at 10.00, will that be clear enough, Mr Street?

MR STREET:   Yes, your Honours.  At the moment I do not think I would be beyond 15 minutes.

GLEESON CJ:   All right, we will adjourn until 10 o’clock tomorrow morning.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 7 FEBRUARY 2007