White v Director of Military Prosecutions & Anor

[2006] HCATrans 27

[2006] HCATrans 027

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 WEDNESDAY, 7 FEBRUARY 2007, AT 10.02 AM

(Continued from 6/2/07)

Copyright in the High Court of Australia

__________________

GLEESON CJ:   Yes, Mr Solicitor.

CALLINAN J:   Mr Solicitor, I just want to raise something and I raised it only three times yesterday, not with you, but I really want a copy of the legislation in its precise form as applicable at the relevant date, and complete.  Now, I asked for it three times.  Eighty per cent of our work is statutory interpretation and we still do not get the relevant Act in a compiled, contemporary form and we really need them.  Mr Street said he would do it.  I thought what Mr Street handed up was the legislation as at present.  I know I did not raise it with you, Mr Solicitor, but I did ask that the parties agree and we have, in effect, a form of certification of absolute currency and relevance.

MR BENNETT:   It is not always easy, your Honour, to obtain ‑ ‑ ‑

CALLINAN J:   It is hard for us too, Mr Solicitor.

MR BENNETT:   I understand that.

CALLINAN J:   And I would have thought it is work that the Solicitor can do in helping prepare the case. 

MR BENNETT:   I will have it done, your Honour, and made available.

CALLINAN J:   Thank you.

MR BENNETT:   There are five short matters remaining for me to deal with.  I would not expect to be more than 15 or so minutes dealing with them.  The first matter is this, that my learned friend’s submissions deal only with what Justice Kirby described as his Calvinist submission, the absolute submission that there is no qualification at any stage, and our submissions deal with the matter on that basis.

I only say that to explain why we have not dealt in the written submissions with the arguments raised orally about the applicability of the test laid down by Justices Deane and Gaudron which I dealt with orally yesterday.

KIRBY J:   I ought to make it clear that as far as I am concerned my duty is to the Constitution and, the matter having been extended somewhat by the argument yesterday, if you want to say anything about the wider issue that was raised, then this is your chance or you can do so in a note.

MR BENNETT:   Yes.  Your Honour, I think I dealt with it sufficiently yesterday.  I am merely explaining why it is not in our written submissions.  It is worth noting that my learned friend did put the test in a number of different ways.  He never really answered the question Justice Hayne asked him at the beginning of the hearing, except to say that all the matters raised by his Honour were relevant.  Some of my learned friend’s submissions seem to suggest that any duty to act judicially raises the judicial power of the Commonwealth, and of course I do not need to go through the authorities showing that that is not the case. 

Some of his submissions seem to suggest that the more the determinations were carried out in a fair way, involving evidence and submissions and counsel and so on, the more they were likely to be the judicial power of the Commonwealth.  That, in my respectful submission, is not the approach which one adopts.  One does not look to trappings to determine if the judicial power of the Commonwealth is being exercised. 

A member of the public going into the Administrative Appeals Tribunal who is not familiar with law would no doubt assume that he or she was in a court.  A person witnessing a major sitting in a summary manner under the Defence Force Discipline Act might not think that he or she was in a court, but that is not the test and we do not of course suggest that it is.

KIRBY J:   The Administrative Appeals Tribunal is obliged to act with judicial fairness, but that would not be exercising the judicial power at all, would it?

MR BENNETT:   No, your Honour.

KIRBY J:   Therefore, in this so-called distinction between the judicial power and the judicial power of the Commonwealth under the Constitution are the only instances that you can identify of the so‑called judicial power which is not the judicial power of the Commonwealth the Browne and Fitzpatrick exercise of power by the Parliament to try offences against the Parliament, the Territory courts and the military tribunals?

MR BENNETT:   Yes, and I ventured the suggestion about section 121 of the Constitution.

GUMMOW J:   And the Judiciary and Navigation Acts.  That is what the Navigation Act was all about.  It said an advisory opinion statute, no doubt it was judicial power, that is what they do in Canada, et cetera, but it is not the judicial power of the Commonwealth.  That is what the case decided.

MR BENNETT:   Yes.

KIRBY J:   Well, that is judicial activity.  How can it be judicial power unless it derives from a power given by the Constitution?

MR BENNETT:   Well, your Honour, the question is whether there are exceptions to the implication from Chapter III that matters which involve the exercise of judicial power as defined in the cases which have attempted to define it in broad terms ‑ ‑ ‑

KIRBY J:   Yes, but I am questioning this paradigm, you see.  I mean, on one view, as Sir Anthony Mason has said, what happened in Browne and Fitzpatrick might not pass muster after the Boilermakers’ Case. The Territory courts are federal courts and, therefore, it is not power if it is not – if it is granted under the Constitution, it must be judicial power of the Commonwealth.

MR BENNETT:   Your Honour, that is not what has been suggested in the current line of authority on Territories.  There is, of course, a separate ‑ ‑ ‑

KIRBY J:   It may not, but Mr Street’s submission puts these things on the table, you see.  This is a root and branch submission, so either we deal with it or we do not.

MR BENNETT:   Yes.  Your Honour, all I was going to say about territories power is that the issue is a little confused today because the two most significant Territories are self‑governing Territories and ‑ ‑ ‑

KIRBY J:   Quite.

MR BENNETT:   ‑ ‑ ‑ and different principles apply there because, of course, legislation of the Australian Capital Territory and the Northern Territory is not delegated legislation.  Legislation in relation to the other six Territories may be in a different category because ‑ ‑ ‑

KIRBY J:   They are all constitutional Territories and evidence of that arises from time to time.

MR BENNETT:   Yes.  Well, there is one case your Honours are reserved on at the moment in relation to Norfolk Island, of course.  Now, the second matter I wanted to deal with very briefly was the structure of the Defence Force Discipline Act in relation to the range of bodies that exercise it.  This is set out fairly fully – and I am not going to repeat it – in paragraphs 5 and following of our written submissions. 

The point I wish to make is that there are six levels, in effect – well, three and then some subdivisions of the three.  At the top there were the two types of Court Martial, the General Court Martial and the Restricted Court Martial referred to in paragraph 10 of our submissions, then in the middle one has Defence Force Magistrates and then at the lower level there are three types of summary authority which are described in paragraph 9 of our submissions:  subordinate summary authority, Commanding Officer and superior summary authority.  These involve officers of various ranks making determinations of guilt in relation to service offences and imposing punishments.

They relate, of course, in general to offences of a less serious nature.  The more serious offences are excluded from the summary authority.  I stress that we are not talking about people who do not make their beds properly.  We are not talking about that level of discipline which is not dealt with which is below the various matters dealt with by the Defence Force Discipline Act.  We are dealing with something above that.  But there is a range and a range, of course, of offences ranging from the minor to the serious as there are in the criminal law.  The criminal law extends from parking to murder and has, of course, different methods of dealing with different levels of unlawful activity and the military tribunals are in the same category. 

GLEESON CJ:   Mr Solicitor, I am not inviting you to answer this question now but you might care to answer it in a note within seven days.  As a matter of history, when was it that service offences came to embrace virtually the full range of civil law offences against the criminal law?  As at 1900, for example, was bigamy something that could be a service offence, as we noticed yesterday is the position now?

MR BENNETT:   Yes, I must say bigamy strikes me as something of an anomaly in the list.

GLEESON CJ:   I am just interested to know when and by what legislative process service offences came to be apparently comprehensive and to include not merely things like insubordination or cowardice in the face of the enemy or disobeying a lawful order but everything that is a crime according to the law of the ACT, for example.

MR BENNETT:   I will have that checked, your Honour.

GLEESON CJ:   Thank you.

MR BENNETT:   There may have been some discussion in Alpert on that topic.

GLEESON CJ:   Anyway, do not deal with it now.

MR BENNETT:   No, I will have that checked and I will have a submission.

GUMMOW J:   Mr Solicitor, what is the significance in this context of sections 60 and 61 of the Discipline Act, prejudicial behaviour, section 60?

HAYNE J:   I thought conduct prejudicial encompassed just about anything.

MR BENNETT:   Section 60, I suppose, is the old catch‑all provision, the equivalent of offensive behaviour under the general law and the old offence in ancient Chinese law of doing what ought not to be done.

KIRBY J:   But at least it is anchored in the discipline of the Defence Force.  It is not the whole range of criminal offences to which a person is subject as a citizen.

MR BENNETT:   Section 61, which of course was discussed in Alpert, is a section which reflects the importance of the military forces obeying the law of the land and deals with that in the context where it is important, as a matter of military discipline, that that be so.  Examples have been given throughout this case of the close relationship between many such offences and military discipline.

GLEESON CJ:   It seems to produce the practical consequence that you have something like a separate justice system of the kind that used to apply to the clergy.

MR BENNETT:   Yes.

HAYNE J:   Both acts to the prejudice of good order and military discipline and the reference to general criminal law trace their roots back at least to the Army Act 1881 and its predecessor, the Army Discipline and Regulation Act 1879.  Whether they are to be traced earlier than that I do not know, but see Re Tracey 166 CLR, particularly at 559 to 560.  We find both references conduct prejudicial, good order and military discipline and the incorporation as a military disciplinary offence of conduct which would be contrary to the ordinary criminal law.

MR BENNETT:   I must confess to some embarrassment about the reference to bigamy.  It seems to be an anomaly no doubt based on some early religious view about the relative seriousness of that offence in relation to other offences.

CALLINAN J:   It might be relevant to pensions, Mr Solicitor, pensions payable to widows and allotments.  You remember ‑ ‑ ‑

MR BENNETT:   It would not, your Honour, because the problem with bigamy ‑ ‑ ‑

CALLINAN J:    ‑ ‑ ‑ soldiers must allot a certain amount of money to their dependants.

MR BENNETT:   Yes.  The problem with bigamy, your Honour, as a serious offence is that the second marriage is void and has no effect on matters of that sort.

CALLINAN J:   Except there might be confusion about it.  That is all.

MR BENNETT:   Yes.  If one separates it from the case where the second partner is defrauded in some way - where of course it can well be imagined to be a much more serious offence – it is hard to see why in the modern day it is regarded as a matter of enormous importance.

GLEESON CJ:   I can think of a time when soldiers used to travel to different parts of the world when it could be a matter of considerable practical importance.

MR BENNETT:   Yes.  It is an historical anomaly and one does not need to ‑ ‑ ‑

CALLINAN J:   Identification of real true dependants might be relevant.

MR BENNETT:   Yes.  Then it would be accompanied with some sort of misinformation given to the military authorities or some sort of imposing on the Commonwealth or defrauding in that sense.  The bigamy itself would not necessarily involve those elements.

KIRBY J:   It is just a question of whether the Defence Force discipline law can import the whole range of offences.  I mean, there used to be an offence in the Crimes Act (NSW) of stealing ornaments from a church altar. I do not know whether that has been picked up and applied to the Defence Forces but it just does not – it seems a bit remote from the interests of the Defence Force.

MR BENNETT:   No doubt it was thought at the time by the pious people who drafted the legislation that the effect of someone committing so heinous a moral offence might well be to make the person one who others would have difficulty working with in a military context.  But it is a historical anomaly and one can dismiss it in that way, in our submission.

GLEESON CJ:   I am not so sure that it is anomalous.  A serving officer with a wife in every port could raise some administrative problems for those in command.

CALLINAN J:   It might be directed particularly at the Navy.

MR BENNETT:   It is hard to see what problems would be raised that would not be raised by having a mistress in every port, bearing in mind that the marriages after the first are totally void and any representation that they were valid marriages would fall under provisions about defrauding.

GLEESON CJ:   Anyway, we do not want to detain you about that.

MR BENNETT:   No, your Honour.  In relation to the question of overruling the line of authority we have prepared a statistical summary showing the number of general Courts Martial, Restricted Court Martial, Defence Force Magistrate hearings, superior summary authority hearings, commanding officer trials and subordinate summary authority trials since the decision in In re Tracey.  The total numbers are quite large.  Your Honours have the document.

Your Honours see there have been 39 general Courts Martial, 167 Restricted Courts Martial and down to 47,906 hearings by subordinate summary authorities and the grand total is of the order of 78,500.  The importance of this is that these are proceedings undertaken in reliance on the correctness of Re Tracey.  No doubt sanctions have been imposed in those cases where there was a finding of guilt and there would be questions about validity if my learned friend were to succeed.  Of course, inconvenience is no answer to constitutional correctness.

KIRBY J:   Think of the inconvenience that followed the Boilermakers’ Case.  It was enormous.

MR BENNETT:   Or Re Wakim.

GUMMOW J:   There was legislation after the Boilermakers’ Case.

MR BENNETT:   Yes, there was after Re Wakim, too, of course, as your Honours know.

KIRBY J:   It did not deflect the Court from the Boilermakers’ decision.

MR BENNETT:   No, but it is a factor to be borne in mind when someone comes and seeks the overruling of a line of settled authority in this Court.  It is not, of course, conclusive and I do not suggest for a moment it is.

The fourth matter is this.  I wanted very briefly to show your Honours the provisions that my learned friend is talking about in relation to the new Australian Military Court.  My learned friend relies on these provisions as showing, “Oh, look, it’s not inconvenient or impractical at all to have Chapter III judges deciding these things.  A stroke of the pen could make judges of this Court Chapter III” and he puts that as reducing the force of the argument from necessity or practicality which is used in support of the established position in this Court.

KIRBY J:   That is one way.  The other way he put it was that it shows what your next step is, against which the Court should hold the line of Boilermakers.  You have to look ahead.  I have said this to you many times.

MR BENNETT:   One would have thought it was a progressive step not a regressive step to have a tribunal of this nature.

KIRBY J:   Courts outside Chapter III are very, at least as far as I am concerned, a very problematic development.

MR BENNETT:   Yes, although, your Honour, under the legislation appeals go from it to the Defence Force Disciplinary Appeal Tribunal, thence on questions of law to the Federal Court and then to this Court if it were to be necessary, so there is an appellate structure of that type.

There are precautions taken in relation to the membership of the court, for example, the rule that a member of the court cannot receive any promotion while a member of the court but receives one automatic promotion of one rank after being on the court for five years.  So there cannot be any incentive to decide cases in a particular way.

It is worth pointing out that if my learned friend is right, before 1977 it would have been necessary for military tribunals to have been people who were appointed for life.  The logical conclusion of what he submits is that the majors and lieutenant‑colonels and others who administered the various forms of summary jurisdiction involving the determination of criminal guilt and the imposition of punishments would have needed to have life

appointments, something which would hardly have been in the contemplation of those who were responsible for the Constitution.

KIRBY J:   That is no doubt why there was so much vesting of federal jurisdiction in State courts at that time.  Once that amendment was adopted, more Federal Courts grew and it is just a matter of assigning it to the appropriate court.

MR BENNETT: Your Honour, there are various views of course about that particular constitutional amendment but it is there and it – but it does not affect the argument in this case except to show that it is a consequence which sits with some difficulty. Even the age of 70 sits with some difficulty in relation to the various officers exercising summary jurisdiction. Might I have leave in the list of matters I will have a document prepared on to just show your Honours what the ages were for military retirement at the time of the Constitution and today to ‑ ‑ ‑

GLEESON CJ:   Yes, certainly.

MR BENNETT:   There is of course today – and one assumes then – a sliding scale of retirement based on rank.

KIRBY J:   It does not really create a problem if you adopt Justice Deane’s approach and that is that true administrative disciplinary offences can be dealt with in a summary fashion by specific military bodies, but insofar as it is the general law and general offences, they have to go to the general courts.  That is part of the submission of the military to the civilian power.  It is true that it is then difficult sometimes to decide on what side of the line the offence falls, but that is a very common problem in constitutional adjudication.

MR BENNETT:   The difficulty, as I put yesterday, is that many criminal offences, some minor, some major, have a very significant disciplinary consequence and one needs to be able to deal with them in a manner appropriate to the way the military is organised and the way it is acting.  My learned friend has given us this morning a one‑page submission which deals with a number of cases discussing the meaning of the words “judicial power of the Commonwealth”.  We have not had an opportunity to go through those, although many of them are familiar cases, and I seek leave to include that in the subsequent submissions which would be provided.  Those are our submissions if the Court pleases.

GLEESON CJ:   Yes, Mr Street.

MR STREET:   If the Court pleases.  Your Honours, can I just deal with the matters that my learned friend touched upon today first and then I will
come to summarise the primary matters I would seek to touch upon from yesterday.  In relation to the last submission in respect of life appointments, that does not follow at all as creating a problem, it only arises if one was exercising the judicial power of the Commonwealth and, as we have sought to put, it is only in the context of seeking to try and determine offences pursuant to a law made by the Commonwealth that that arises. 

Your Honours, to the extent that my learned friend referred to the transitional provisions and perhaps I should refer to this in the light of your Honour Justice Hayne’s comment yesterday, could I just add that - this is the 2006 Act in respect of the Australian Military Court – it does have a potential application through sections 257 and 258 giving rise to a position where if in fact this matter was tried before a Court Martial but no punishment imposed, it could then be referred to the AMC ‑ ‑ ‑

GUMMOW J:   You are referring to item 256A on the Schedule ‑ ‑ ‑

MR STREET:   Sorry, Schedule 1, Part III, there is section 257 ‑ ‑ ‑

GUMMOW J:   They are not sections, Mr Street.  Anyhow, it is item 257.

MR STREET:   Yes, sorry, your Honour, items 257 and 258.  Effectively, what they do is they mean if in fact a trial has taken place before commencement not punishment, then punishment must be referred to the AMC if it was before a DFM and likewise with a Court Martial in 258.

Your Honours, can I then turn to the matter that my learned friend handed up which was the list of hearings.  Could I just draw to your Honours’ attention one major omission.  If it were suggested that there were a large number of hearings which gave rise to imprisonment, one might give some weight to some argument of a consequence that might flow in terms of the plaintiff’s argument.  This does not identify at all that there are many, any, persons serving – there obviously are one or two – but the number of hearings in which imprisonment has been imposed has not been provided.  This is irrelevant.  All this identifies is a list of potential administrative punishments that might equally have been imposed administratively.  It does not assist the Court in drawing any conclusion in relation to some consequence in respect of the applicant’s arguments.

GLEESON CJ:   I notice that the legislation distinguishes in places between detention and imprisonment.  What is the difference?

MR STREET:  I sought to identify that difference yesterday.  Detention is a form of disciplined barracks where it is a highly disciplined environment where someone is, in essence, the subject of rehabilitation.  They are not sent to detention to dismiss them from the service.  They are sent to detention for the purpose of trying to ensure that they are capable of being rehabilitated back into the service.

GLEESON CJ:   Well, prisons these days are called correctional centres.

MR STREET:   It is not really something we would say is a correctional centre.  It is defined in section 3 but to the extent that your Honour raised it that is the reason why we distinguish between detention and imprisonment.  That is the fundamental distinction, in answer to your Honour Justice Hayne’s proposal, in relation to this being a procedural fairness exercise.  Procedural fairness in the exercise of tribunals does not give rise to someone facing the consequence of imprisonment and does not give rise to imprisonment being a consequence imposed pursuant to a law of the Commonwealth. 

When we come to identify whether this was judicial power of the Commonwealth, what we respectfully submit is material in answer to what your Honour Justice Hayne raised in respect of a procedural fairness regime consistent with a judicial paradigm, is that that is a paradigm which might be applicable to exercise of administrative powers to try and ensure procedural fairness.  They never involve though a determination of guilt such as found in section 131 and section 135 for the Defence Force Magistrate and the Court Martial.

There is there a finding of guilt, conviction, imposed by the Act – no discretion on the Court Martial or Defence Force Magistrate to hear it.  They must determine the charges.  The matter here in this case arises from the charges that have been laid, charges laid under a Commonwealth Act.  Those charges give rise to a controversy which require application of a legislative provision determining guilt and convicting.

HAYNE J:   As it happens, the charges laid against your client concern events in Australia.  The discipline of the Defence Forces must take account, must it not, of the possibility, not to say probability, of deployment of those forces overseas?

MR STREET:   Quite so, your Honour.

HAYNE J:   To make a contravention of the general criminal law now, as found in the ACT that happens to be the reference point, a service offence may have a number of consequences, may it not, one of which would be the avoidance of arguments about the territorial reach of that criminal law, does any Australian criminal law apply to conduct by Australians on deployment in some foreign country?  It may, it may not.  This avoids that argument.  But, also, it ensures that the Defence Forces comply, whether in the jurisdiction or out of the jurisdiction, with standards set by the civilian authority with respect to behaviour of civilians.

MR STREET:   But, your Honour, in our respectful submission, it goes much further than standards of conduct and that is one flaw.  The second flaw in that regard is that it is not the case that it is necessary to impose a provision extending the law of the land overseas through the Defence Force Discipline Act.  That can be done through the Crimes Act.  It can be done and has been done in respect to the crimes at sea legislation by the Commonwealth.

HAYNE J:   I am not saying it cannot be done otherwise, but I am saying that a longstanding, not to say very longstanding purpose of defence force regulation, reflected in the 19th century legislation, was to ensure that the Defence Forces, then of Britain, were liable to sanction for conduct that if performed at home would have been a criminal offence.

MR STREET:   Your Honour, what we would have said is that in recognising that there is force in what your Honour has said, the application of a concept of military forces obeying the law of the land falls fairly within the same content as his Honour Justice Dixon was referring to, as he then was, in R v Cox 71 CLR 23 in seeking to identify a distinction between disciplinary courts on the one hand and civilian courts. His distinction was not applying the general law of the land. What section 61 does is applies the general law of the land, whether it applies it here or overseas.

Can I just add this in answer to your Honour Justice Hayne’s example about the difficulty with dealing with matters from the historical content in relation to matters overseas.  It was not the case historically back at the turn of the century that we had the means of transport that we now have today.  One could not repatriate people in the way we can today from a theatre of operation.  If one was at sea, one did not have the means of communication and the means to provide for facilitating the type of hearings that might take place.

When we take that into account, the fact that military courts and civilian courts were not collocated is partly because of those constraints in respect of transport and communication.  It is not appropriate, in our respectful submission, to therefore deduct from the fact that they were separate entities dealing with the discipline at that time that that is a matter which assists in determining whether or not this is judicial power outside Chapter III.

Your Honours, we did prepare a list in relation to the argument which I touched upon yesterday and my learned friend really has not answered, which is why this so‑called exception, where he has eschewed his implication proposition but an exception apparently to the content of judicial power, does not offend section 76(ii).  As I have sought to say in respect of section 76(ii), the words “any laws” would have to be read down in respect of the matter that might be picked up through a Commonwealth law.  That requires a second implication and, in our respectful submission, an implication that could not be justified.  That, by reason of the charges laid under this Act that it must be a matter falling within section 76(ii), must be patented.

The consequence of the learned Solicitor‑General’s arguments in relation to this exception is that Parliament could not vest judicial power of the Commonwealth to determine a service offence even if it does, like sections 15B, 16B and section 20, give rise to life imprisonment.  In other words, the proposition is that Parliament could not provide and vest in this Court under section 76 or under section 77 jurisdiction to determine that type of matter because it is a disciplinary offence.  That would be an extraordinary consequence, your Honours.  Could I hand up to your Honours copies of the list of authorities that we seek to refer to in respect of that inconsistency under section 76(ii).

GUMMOW J:   We went through this last week, Mr Street.

MR STREET:   Your Honours, simply for completeness, if I may.  Your Honours, there is a further inconsistency that arises ‑ ‑ ‑

KIRBY J:   Could I ask you, what is the strongest case since Boilermakers where Boilermakers has been applied?

MR STREET:  In Re Wakim.  Could I just pick up what your Honour Justice Gummow said in relation to In re the Navigation Act.  In re the Navigation Act I embrace the proposition that it did identify that what would have been involved was judicial power but what is ‑ ‑ ‑

HAYNE J:   Yes, I notice you do not give the reference in this.  It is at page 264.

MR STREET:   I am sorry, your Honours.  But to the ‑ ‑ ‑

GUMMOW J:   Nor do you give a reference to the Queen of Queensland Case either, which I referred to yesterday, the judgment of Justice Jacobs.

MR STREET:   To the extent that your Honour referred to In re the Navigation Act as being judicial power but not judicial power of the Commonwealth, in our respectful submission, the reason for that was not that there was not a law of the Commonwealth.  It was because there was not a matter.  There was not a matter falling within section 76(ii).  Here there is a matter and if there is a matter by reason of the charges pursuant to law of the Commonwealth, in our respectful submission it would be extraordinary that this is beyond the power of Parliament because of this exception to confer on this Court or a court under section 77 jurisdiction in respect of a disciplinary offence giving rise, as I have said some of them do, to life imprisonment.  Your Honours, the other matter that ‑ ‑ ‑

KIRBY J:   I cannot see how it can be judicial power in the Australian context if you cannot do it under the Constitution. It is just not a power.

GUMMOW J:   The States would be rather shocked to think that what their Supreme Courts have been doing is not judicial power even though it could not be the judicial power of the Commonwealth.

KIRBY J:   We are talking about federal laws here.

MR STREET:   Your Honour, the proposition I was seeking to make was that ‑ ‑ ‑

GUMMOW J:   States exist under the Constitution, otherwise they would be colonies.

MR STREET:   I follow that, your Honour, but the proposition though flows out of the argument that service discipline offences involving what my learned friend has conceded is the exercise of judicial power fall outside Chapter III. 

GUMMOW J:   Anyhow, I am going to plug on with the Judiciary and Navigation Act, Mr Street.

MR STREET:   If your Honour pleases.  Your Honours, can I just add to the ‑ ‑ ‑

HAYNE J:   Where the rejection of the distinction was categorised by the majority as untenable.

MR STREET:   Your Honour, I am not sure that I follow the reference to the distinction but if I could just maintain the ‑ ‑ ‑

HAYNE J:   Read page 264, Mr Street. 

GUMMOW J:   Which you referred to yesterday.

MR STREET:   Your Honours, can I just add in relation to the proposition that it is plainly the case that it was judicial power, leave aside whether it was judicial power of the Commonwealth apart from the concession of my learned friend, that is what this Court said in Re Tracey at 540.  That is what in essence is implicit in what his Honour Justice Dixon was saying in relation to his proposition in R v Cox at 23, but he was seeking to distinguish it because of the nature, in our respectful submission, of the disciplinary offences somehow not falling within laws of the Commonwealth.

Your Honours, to the extent that one has this exception that is sought to be advanced, one has to be also able to reconcile it with two other provisions within the Constitution that assume that there will be processes of conviction and imprisonment pursuant to laws of the Commonwealth. Section 120, in relation to imprisonment in respect of Commonwealth offences, assumes that the States will provide their prisons for the purposes of imprisonment so this offence under section 61 in respect of which my client is charged would give rise to imprisonment under section 120.

If there is an exception to Chapter III, presumably one reads back in somehow the reference to “service offences” in respect of section 120 in respect of imprisonment. It would be odd that the draftsmen of the Constitution ever contemplated that you could have imprisonment in respect of the law of the Commonwealth that was not an exercise of Chapter III power. The same proposition arises in respect of disqualification of members of Parliament under section 44(ii) where one speaks of conviction and sentence in respect of Commonwealth laws.

It would be odd in the extreme that that would not embrace imprisonment and sentence of a kind arising under a defence force discipline hearing of the kind here involved under the Defence Force Magistrate hearing trial and determination and/or under a court martial.  If one is looking for textual support for the proposition that there could only have been one judicial power of the Commonwealth that was contemplated in respect of conviction and sentence, in our respectful submission, both sections 44 and 120 advance that argument.

To the extent that my learned friend sought to say that the chameleon doctrine assists the argument that he seeks to advance, in our respectful submission, it fails at the outset by reason of the concession that it is judicial power.  The chameleon doctrine does not assist my learned friend in this case.  But further than that, in this case, by reference to the discussion in Federal Commission of Taxation v Munro 28 CLR 178 this is something that would be clearly and distinctively pertaining to the branch of judicial power, conviction and punishment.

It is, in my respectful submission, at the very height of what must be something classically and clearly and distinctively pertaining to that branch of government in respect of conviction so that it is not one which we would have said for that reason could fall outside the characterisation of being the judicial power of the Commonwealth.

My learned friend in essence moved away from necessity yesterday as being a foundation for this exception.  Once necessity falls away, in our respectful submission, one is left with a proposition that somehow it is to be extracted from history.  In relation to the proposition that history may support the need for a separate power, we sought to identify that the fact that the military courts were not collocated with civilian courts or heard at the same time was a matter of consequence of transportation and communication at that time. 

It does not follow that it was not judicial power that in fact was being exercised where guilt was being determined.  There may have been in respect of historical disciplinary hearings matters that could have been dealt with administratively but, to the extent that there was a determination of guilt and imposition of punishment by Courts Martial at the turn of the century, that was an exercise of judicial power.  If it was an exercise of judicial power, how does history then advance that not being the judicial power of the Commonwealth when we come to the legislation found in the Defence Force Discipline Act?

Your Honours, to the extent that Justices Brennan and Toohey, as he then was, in Tracey at 572 to 573 suggest that it would have been extraordinary at the turn of the century to leave the Defence Force without power to maintain discipline of the kind they had been exercising, that makes an assumption and collides both the concept of judicial power being exercised to determine guilt and all other forms of discipline.  There is no basis for saying, as their Honours said in that passage, that one would have been left without authority to maintain discipline.  One would have had all the administrative powers and, as I have sought to say, including up to detention and/or one can have the position of enforcing an offence by arrest.

It does not follow that at the turn of the century, if one applied the principles that we seek to advance, that there was some deprivation of those in control of the Defence Forces to be able to perform their functions.  Your Honours, so far as the proposition of impracticality is advanced, as we have sought to identify, there are powers of administrative nature that could have been exercised and today plainly can be.  Your Honour, the further point made by Justice Brennan, as he then was, and Justice Toohey was that this was a radical change and a further argument to try and support, historically, reason why this would not be judicial power of the Commonwealth in respect of this military judicial power. 

Your Honours, the Compact introduced many radical changes but to the extent that the proposition that radical change in some way implies that it would be adverse to have a Chapter III court exercise judicial power in respect of service offences, that cannot possibly be sustained.  It could not possibly be inimical to the good discipline of the Defence Force to have a Chapter III court exercise its jurisdiction in respect of service offences that give rise to the exposure to imprisonment.  In those circumstances, in our respectful submission, the further ground that was identified by Justice Brennan and Justice Toohey in Re Tracey falls away as having content to justify this exception and, in our respectful submission, there is no other basis to find such an exception. 

Your Honours, my learned friend made reference yesterday to the words “control of” in section 51(vi).  The “control of” language, in our respectful submission, cannot give rise to a foundation for saying that this would be judicial power.  The matter that your Honour Justice Callinan touched upon yesterday in respect of the transfer of the departments in section 69 is picked up by section 52(ii) and it uses the language “control of”.  If “control of” was capable of justifying judicial power as an exception, it would then be an exception for each of those other departments so transferred.

Your Honour, it was also touched upon yesterday, the reference to Defence civilians being deployed under the Defence Force Discipline Act, just so that your Honours are aware of it.  Doctors, for example, are regularly obtained from civilian employment as a need to be deployed and, indeed, there are certain well‑known performers that have been made Defence civilians for the purpose of attending places like East Timor.

KIRBY J:   It was suggested at the end of yesterday that this only applies to those civilians who are embedded in actual military operation.  Is that correct?

MR STREET:   Your Honours, on deployments every day there are civilian doctors deployed that are Defence civilians because we do not have enough doctors in the Defence Force.  So, your Honours, to the extent that it is suggested that Defence civilians is some narrow category, that is not so.

CALLINAN J:   But they sign up, do they not, Mr Street?

MR STREET:   Yes.

CALLINAN J:   So they are volenti in effect.

MR STREET:   Yes.  There was a notable performer whose first name was Kylie that attended East Timor in that regard.  Your Honours, can I then just

indicate that we maintain that my learned friend has not, in our respectful submission, advanced in any event the reason why the alternative submission that we put that the Act is invalid to the extent that it permits the service tribunals we identify to determine guilt and impose punishment in respect of offences that have a civilian equivalent and carry a punishment of imprisonment and that that must be, pursuant to the powers under the DFDA, an exercise of judicial power.  If the Court pleases.

GLEESON CJ:   Thank you, Mr Street.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute in Court No 2.

AT 10.54 AM THE MATTER WAS ADJOURNED