White v Director of Military Prosecutions & Anor

[2006] HCATrans 26

[2006] 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.

GUMMOW J:   That is all explained usefully by Justice Jacobs in the Queen of Queensland Case 134 CLR 298 at 326 and following. The giving of an advisory opinion, his Honour says, may well be an exercise of judicial power but it cannot be an exercise of the judicial power of the Commonwealth. So there is a class and a subclass and you are in the subclass.

MR STREET:   Your Honours, we would say that we are in the class that is exclusively judicial and must be dealt with under Chapter III and we say that for this reason.  There must be a category of matter that is exclusively within the domain of Chapter III.  If we seek to identify what that might be, it must be, in our respectful submission, the important exercise of the determination of guilt and the imposition of punishment for an offence.  In our respectful submission, that would be the first and foremost category of what must be an exercise of judicial power.  It may then also entail on matters of tort, contract trust ‑ ‑ ‑

GUMMOW J:   You keep saying “judicial power”.  You mean judicial power of the Commonwealth, do you?

MR STREET:   No, your Honour.  I am dealing, first of all, with the category that your Honour identified.  Your Honour said that there is judicial power and in relation to that category of judicial power there may be matters which can be regarded as judicial power but may not fall ‑ ‑ ‑

GUMMOW J:   State courts and English courts exercise many functions which would answer Justice Jacobs’ description of judicial power, but Chapter III is narrower.

MR STREET:   I understand that, your Honour. 

GUMMOW J:   What makes it narrower?

MR STREET:   What makes it narrower, your Honour, is the, in essence, identification of a matter of a kind that should be exclusively dealt with by a Chapter III‑type court or one vested with jurisdiction under section 77 in respect of a law made by Parliament.

GUMMOW J:   We are then back with the first joint judgment in Tracey, I think.

MR STREET:   No, your Honours.  Can I start, your Honours, with the passage that I would seek to take your Honours to in Boilermakers 94 CLR 269 in relation to this issue of the second implication that one must find to support this exception because when one goes to approximately about point 8 of the way down the page:

But the existence in the Constitution of Chap. III and the nature of the provisions it contains make it clear that no resort can be made to judicial power except under or in conformity with ss. 71-80. An exercise of a legislative power may be such that “matters” fit for the judicial process may arise under the law that is made.

Defence Force Discipline Act is such a law, an offence is one which we would have said falls within such a reference:

In virtue of that character, that is to say because they are matters arising under a law of the Commonwealth, they belong to federal judicial power. But they can be dealt with in federal jurisdiction only as the result of a law made in the exercise of the power conferred on the Parliament by s. 76(ii) or that provision considered with s. 71 and s. 77.

In our respectful submission, the consequence of that reasoning is this, that in this instance we have a law made by the Commonwealth Parliament, the Defence Force Discipline Act. We have a matter that is classically one within that of a judicial process which would require an exercise of judicial power, the determination of guilt and the imposition of a punishment.

HAYNE J:   Guilt of what?

MR STREET:   Guilt of the alleged offence.

HAYNE J:   Namely, a service offence, is it not?  Guilty of an offence as identified under the DFDA, the content of which may be found by reference in the general criminal law but guilt of an offence under the Defence Force Discipline Act, is it not?

MR STREET:   It is.

HAYNE J:   Which takes you back to Justice Dixon in Smith 71 CLR, particularly at 23, where his Honour discusses the apparent exception to Chapter III and says that:

The exception is not real.

It is not real because tribunals enforcing Defence Force discipline are not:

part of the judicial system administering the law of the land.

They are administering Defence Force discipline.

MR STREET:   Your Honour, we respectfully submit that what his Honour, then Justice Dixon, said in that case does not sit with what his Honour said in Boilermakers on pages 269 through to 272, and it is perfectly clear in identifying what might be the subject of judicial process the nexus that he is identifying is an exercise of a legislative power that identifies a matter fit for the judicial process.

Now, once that is identified there is such a matter, then it must be, in our respectful submission, a matter that then falls within section 75 or 76 and in this instance, it is clearly one where under section 76(ii) we say that one must find then a further exception to 76(ii) read into the Constitution, notwithstanding the words “any laws made by the Parliament” to support this exception. In our respectful submission that violates in a fundamental way the text of the Constitution, and it violates the principle that one can only find an implication that is not inconsistent with the express text. The express text flies in the face of such an implication.

Now, your Honours, in our respectful submission, the notion that his Honour Justice Dixon advanced in Cox’s Case 71 CLR, that there was an exception, was developed in the context of this history.  One had in Bevan this Court being presented with an argument in respect of which someone was obviously facing execution in wartime, and the observations made by Justice Starke were made in the context where no argument was presented in relation to Chapter III.  It was not the subject of argument.

His Honour’s development of this exception, founded on the reasoning in Bevan, was not embraced by way of some detailed argument presented before the Court.  Indeed, to the extent relevant, it is clear from passages in Justice McTiernan at 479 in Bevan 66 CLR that there was no argument presented, and the same thing is said by his Honour Justice Williams at 482.  So Bevan was a case in which the argument was not developed, not advanced in relation to work done by Chapter III.

What his Honour Justice Dixon, as he then was, was dealing with in Cox was not a frontal attack to the argument of Chapter III, but an alleged exception in respect of a person who is now a civilian, and the development of the argument did not seek to attack the alleged exception.

It was in those circumstances that his Honour made the observations that it was not a real exception. The proposition that it was not a real exception does not sit, in our respectful submission, with an analysis of the text of the Constitution and the passages that his Honour embraced in Boilermakers at 269 through to 272.

KIRBY J:   I noticed that Mr Smith was charged under the Army Act (Imp) and he was originally sentenced to imprisonment but then that was changed to a sentence of ‑ ‑ ‑

MR STREET:   Execution.

KIRBY J:    ‑ ‑ ‑ detention and discharge from the Defence Forces.  It was for joining in a mutiny in His Majesty’s Military Forces.

MR STREET:   I am sorry, your Honours.  Yes, I put it round the wrong way.  It was, I think, Bevan where it was facing execution.  Bevan was in circumstances where we were at war in 1942 and the context of that was in circumstances where no argument was developed.  So when his Honour the Chief Justice came – Justice Dixon as he then was – to touch the issue in Cox what was presented was not an argument seeking to develop and expand upon the principles of construction of Chapter III or the inconsistency of the exception so found by his Honour Justice Starke with the text of the Constitution or to reconcile the language of section 76(ii) with the so‑called exception or to reconcile the language of section 51 with it or indeed distinguishing the American constitutional text, which his Honour Justice Starke had placed weight on, in embracing those authorities, nor developing any argument identifying the difference between principles to be applied in determining whether a law falls within section 51 and the principles to be applied where one finds that the character of a power is judicial power, whether it is the judicial power of the Commonwealth within Chapter III.

To that extent, in our respectful submission, his Honour’s observations, as to the matter not being a real exception, in our respectful submission, do not sit with the express terms of the Constitution that identifies the vesting of the judicial power under section 71.

KIRBY J:   Are there any reasons of constitutional principle apart from the text and structure? For example, the very important constitutional value which our Constitution has observed and the military have observed of submission to the civilian power and hence to the civilian courts. I mean one can see, for example, the section 80 argument but what other constitutional principles are there that inform and reinforce the argument that you are advancing, apart from the structure, which is your John Calvin argument, which I understand?

MR STREET: Your Honour, we would have said falling within the same squarely is the rule of law and the clear foundation upon the Constitution or the pre-eminence and importance of the rule of law and the finding of an exception of a kind which, in essence, amounts to saying those who serve the Commonwealth under laws made under section 51(vi) are, despite the importance of that, to be deprived of the constitutional benefits that are found in Chapter III and the protections of Chapter III and the public interest underlying Chapter III and the right of appeal, right to an impartial and independent judiciary, are matters which, in our respectful submission, all reflect the application of the rule of law. To find such an exception, in our respectful submission, is difficult to reconcile with the fundamental principles which the Constitution is plainly founded on of the rule of law. It is more than that though your Honours because in essence ‑ ‑ ‑

GUMMOW J:   What do you mean by the rule of law?  Apart from a slogan, what do you mean by its content?

MR STREET: By its content I mean that it is one which ultimately this Court is the bastion of the protection and the interpretation and construction of the Constitution applying legal principles and it is not for Parliament to determine by asserting necessity or asserting matters of policy what the proper interpretation and construction of the Constitution is. What we say has happened ‑ ‑ ‑

GUMMOW J:   We are doing that, so there has been no miscarriage there.  That is why we are here today.

MR STREET:   But, your Honour, we say that in essence embracing the proposition that necessity dictates an exception is permitting Parliament to determine the proper construction of Chapter III and it is permitting a matter of policy by Parliament to determine the construction and interpretation of an implication in Chapter III.

GUMMOW J:   You criticise decisions of this Court for allowing that and you seek leave to reopen them, as I understand it.

MR STREET:   We do.  So to the extent relevant, we say that one has a ‑ ‑ ‑

GUMMOW J:   So your attack has to be on earlier decisions of the Court, not on the hapless Parliament.

MR STREET:   But earlier decisions first of all in respect of which ‑ ‑ ‑

GUMMOW J:   Which fairly enough relies upon what one can see in the Court’s decisions, I suppose.

MR STREET:   But, your Honour, it starts from a decision in respect of which the issue was not argued.  That is Bevan.  The next decision ‑ ‑ ‑

GUMMOW J:   You may be right about that.  I am just trying to get behind your slogan, “rule of law”, that is all.  I think you have done that now.

MR STREET:   If your Honour pleases.

KIRBY J:   Which was the case that was not argued?  It was not argued in Hanbury, it was disclaimed in Aird, but where else was it not argued?  You say it started with ‑ ‑ ‑

MR STREET:   It started with Bevan and in Bevan it was not argued.  In Cox 71 CLR the argument was not a frontal attack to the exception.  Rather it was that the exception should be construed narrowly and not apply to a person who is no longer a member of the Defence Force.  So it did not deal with the question of reconciling whether the exception was well founded. 

Then we have Re Tracey in which the Court really was focused upon the question of what is the scope of section 51(vi).  What it sought to do, in our respectful submission, was address a test as to what might be appropriate for determining whether laws are made within section 51 and from there saying this would be a law within section 51 because it is necessary for discipline; therefore, it must be an exception based on necessity. 

That is the reasoning in essence in Tracey which I will take your Honours to because it was in essence sliding from the scope of the defence power where in respect of determining whether the law was one with respect to that subject matter unquestionably matters of policy may be relevant just as matters of history, but that proposition does not carry through in determining what is the content and structure of Chapter III and what the language of Chapter III in its text mandates and what is the implied prohibition that flows from that structure and text.

KIRBY J:   Can I ask what are the best cases which express the rigorous rule for finding implications in the Constitution?  I think they were referred to in the cases about the implied constitutional freedom of communication but it might be worth getting those cases out or at least referring us to them.

MR STREET:   Your Honour, I think we have referred to them in reply.  Lange and McGinty would be one where we have touched upon it I think in our submissions in reply but, your Honours ‑ ‑ ‑

KIRBY J:   I thought you had quoted Lange for another purpose in reply. 

MR STREET:   I think it does go on to deal with it.  Again, your Honour is quite right, the passage we have cited does not ‑ ‑ ‑

KIRBY J:   But anyway if you can conveniently, at some stage, give a reference to the principle. 

MR STREET:   I will, your Honour.

KIRBY J:   I think the principle is suggested to be the principle of necessity.  It is not enough that it is convenient; it has to be necessary to the constitutional structure.

MR STREET:   But there it is a very different concept of necessity to that discussed in the context of discipline. There it is necessary from the language of the Constitution at its structure and text and no more. In our respectful submission, one must find that implication by looking at that structure and text and there, if one is to find an implication, the first rule must be it cannot be inconsistent with the express text and the express text says judicial power must be.

KIRBY J:   Yes, I understand that argument and you are back to Calvin, but in fact what that argument has done within the Court is then to lead the Court to say, but with the Defence Force and for the purpose of the defence power and particularly in certain times, such as times of war, you have to acknowledge that there is an absolute necessity or the whole thing does not work and, therefore, the grant of power is irrelevant and, therefore, that the judicial power and, a fortiori, the judicial power of the Commonwealth, is not what we are playing with, we are playing with defence discipline.  Then the question becomes, how do you distinguish the defence discipline from the judicial power of the Commonwealth and what are the markers that mark the one off from the other.  That is a subtle exercise.  It is not the absolutism of the text.

MR STREET:   Your Honours, to the extent that one starts to look at this question, we would have said that the defence power, albeit broad, is not one which, if I can go back to my slogan his Honour Justice Gummow focused on, is not one which is itself above the rule of law. One could not under the defence power seek to say, “I will execute people now for cowardice. I’m going to shoot these persons in the field. You are guilty of cowardice and I’m going to shoot you.” One could not, under the defence power, disregard the rule of law and if one cannot disregard the rule of law under the defence power it is not appropriate in the context of the construction of the Constitution not to be in essence giving effect to the content of the express terms, and we focus on the express terms in two respects, not just 71 but 76(ii).

So there are two implications that have to be found, two implications in respect of which it is only the structure of a text from which it must arise and, as I was seeking to advance before, that cannot be advanced simply on the assertion that discipline must necessarily require the exercise of judicial power. 

Why?  What was the fact?  What was the foundation for that assumption?  There was no evidence before the Court in relation to his Honour Justice Dixon in Smith to determine and hold that there was a constitutional fact established that discipline requires the exercise of judicial power.  If that is not ‑ ‑ ‑

CRENNAN J:   Perhaps there is a clue to it in Cox’s Case on page 23 where Justice Dixon says:

To ensure that discipline is just, tribunals acting judicially are essential to the organization of an army or navy or air force.

So the reason why discipline is best exercised by a tribunal which has a judicial character is to ensure that discipline is just.

MR STREET:   Your Honours, to the extent relevant, if it was the exercise of an administrative power, procedural fairness would in essence achieve the similar outcome to the extent of requiring it to be exercised in accordance with dictates of procedural fairness.  In our respectful submission, the leap that is made is that it is the character of judicial power that is necessary for discipline.  That leap in relation to the exercise of judicial power is not the subject of any foundation.  Indeed, the Commonwealth accepts also in its submissions there is no fact in relation to that issue that has been established.  In paragraph 84 his submission is there is no such fact that has been established. 

So, your Honours, we say that to the extent that one starts from a question of principle, yes, it is true that discipline plainly is something that is important for the Defence Force. Yes, it is true that Parliament can enact a code of discipline but that code of discipline is not one that can vest the exclusive subject matter of Chapter III, the judicial power, in bodies that are not appointed under section 72.

GUMMOW J:   We seem to be going around in circles, Mr Street.  I have heard you say that about – well, many, many, times.

MR STREET:   I am sorry, your Honours.

CALLINAN J:   Mr Street, what relevance, if any, does section 68 of the Constitution have that vests the command of the military forces in the Governor‑General? I mean, it is part of the Executive. It is part of the Executive power in a sense. Does that not suggest an implication against you?

MR STREET:   No, your Honour, because that does not give rise to an exercise of ‑ ‑ ‑

CALLINAN J:   It sets the military forces apart from the general community, does it not?  Nobody else is subject to the exclusive command, is that not correct, the exclusive command of the Governor‑General?

MR STREET:   Your Honour, it is obviously fundamental to ensure, although it is described as a titular role, that there is someone who is identified as notionally in command but the fact that ‑ ‑ ‑

CALLINAN J:   It may mean more than that.  I just do not think you can leave it out of the equation as it were.

MR STREET: I accept that it might be embraced within looking at the whole of the Constitution to work out whether there is some exception but we would have respectfully submitted that nothing in that language in section 68 in the separate chapter of Chapter II detracts from the force of what was intended to be achieved by Chapter III.

KIRBY J:   The United States Supreme Court has not embraced so far the notion that the Commander‑in‑Chief of the Military and the President is a separate source of power.  In Hamdan v Rumsfeld they skirted the issue, I think, but it is asserted by the Executive Government in the United States that that is a separate source of power.  It has not been one that has so far been so held in Australia because of the strong British inherited tradition that the military are subject to the civilian power which is a good tradition.

MR STREET:   There are a number of significant differences to the US Constitution to ours and perhaps I might just, in response to your Honour Justice Kirby, touch upon those, if I could go the US Constitution.

CALLINAN J:   Except you have in Article I, section 8, a congressional power “To make Rules for the Government and Regulation of the land and naval Forces”. It actually uses the words “Government and Regulation”. You do not have that in our Constitution, do you?

MR STREET:   No, and we also have in mind “To constitute Tribunals inferior to the supreme Court”.  This is in Article 1, section 8, and the content of what is found in 11, 12 and 16 are in essence of different content.

CRENNAN J:   It suggests that the framers recognised there was a special role for military justice.

MR STREET:   In the context of the US Constitution, they were certainly seeking to address a matter covering its discipline and also provide wide powers obviously in relation to inferior tribunals but, your Honours, in our respectful submission, the significance of this Constitution is that we did not follow these terms and that when one comes back to the start of section 8, “The Congress shall have Power”, that is not expressed to be subject to – in this instance, it would have been subject to Article III or subject to the Constitution. Those words are not found in section 8.

Then we have the further differences that we have in Article II. In section 2, a power given to the President in relation to being the Commander‑in‑Chief, and in paragraph 2 a power in relation to appointment, including vesting “the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments”, content which is not found in our Constitution. To the extent relevant, the opening language of Article III in section 1 is also different in the reference to “and in such inferior Courts as the Congress may from time to time ordain and establish”, and so one has marked distinctions. Then if I can draw your Honours’ attention to the amendment in Article V where in the context of capital or other infamous crime there is an express exception inserted relating to land or naval forces or the militia.

Now, your Honours, in our respectful submission, there is no assistance to be gained in construing our Constitution in looking at the American authorities in the context of the work done by Chapter III or to advance an argument that somehow the American authorities justify such an exception, because the American authorities were not dealing with the express terms that we have in our Constitution: not dealing with section 51, not dealing with section 71, not dealing with section 76.

KIRBY J:   Are you at any stage in your argument going to take us through the Defence Force Discipline Act so that we understand how it impinges on the judicial power?

MR STREET:   Yes, your Honour.  I was going to but I was waiting till I had a copy for your Honours in answer to the request by his Honour Justice Callinan, so I hope to have that shortly.  If I could just continue in the context of the argument we seek to develop, we do respectfully submit that the content of the proposition of what is necessary for discipline is, in our respectful submission, not a constitutional fact and is itself a slogan or a policy and as such it is a policy which is not one which assists the Court in construing Chapter III.

In our respectful submission, we say that the earlier decisions which embrace the argument of it being necessary to find an exception are in substance abrogating the power vested in this Court by permitting Parliament and through assertions of necessity to imply an exception into Chapter III.  In our respectful submission, the necessity for exercise of military judicial power as the Commonwealth is not something that has been established or that this Court should assume for the purpose of the construction of Chapter III.

KIRBY J:   In Lange 189 CLR 520 at 567 the principle of necessity is accepted, necessity deriving from the structure and text of the Constitution. So referring to it is not a slogan, it is an acceptance that a very high bar has to be accepted in order to have the Court hold that, although it is not there in the text, this is a necessary implication.

MR STREET:   But there is a difference, in our respectful submission, between the content of what is necessary for an implication and the assertion of necessity for military discipline that it include judicial power.  That proposition is the one which I was seeking to distinguish, the self‑contained proposition that it is necessary that military discipline requires an exercise of judicial power.

KIRBY J:   But leave aside this case entirely.  Why is it not necessary to the conduct of the armed forces of the Commonwealth at least in time of war and at least in a foreign battlefield and in the heart of battle in the midst of the smoke and so on to have a form of discipline which can extend to the deprivation of liberty?

MR STREET: Because even in the heat of battle in war there are laws of war. The law still applies. To the extent that one commits an offence, that offence must be dealt with according to law. In our respectful submission, it does not permit, because one is in a conflict where the defence power might be being exercised in another theatre, of saying that the rule of law can be abrogated and because of the heat of battle we now do not need to comply with the protections found in our Constitution in relation to Chapter III.

It does not, in our respectful submission, give rise to a foundation for saying there could be no Chapter III court set up in this theatre.  It may be that the theatre is one that does permit in the circumstances a Defence Force Magistrate to attend.  It may be the person has to be detained and brought back to Australia.  But they are not matters that prevent discipline being effective.  The assumption that judicial power is needed for maintaining discipline, in our respectful submission, just has a leap.

KIRBY J:   So can I understand your submission is that certain things can be done in the field by the discipline of the army or military such as reduction in rank, dismissal, confinement to barracks, having to do extra drill and so on?

MR STREET:   Yes, your Honour.

KIRBY J:   But insofar as you are charged with an offence then the defence power will extend and not be contrary to Chapter III that you can arrest and detain the person and, as it were, keep them in detention until they can be transferred to the independent judicial branch?

MR STREET:   Yes, your Honour, and in our ‑ ‑ ‑

GLEESON CJ:   Take an offence that I think was given as an example in the written submissions in this case, stealing perhaps a modest sum of money from another member of the force.  I think the point that was made in the written submissions that that could take on an aspect in circumstances of war or battle completely different from the aspect it might have if it happened in civilian circumstances.

MR STREET:   And there one has an ability to immediately exercise, if desired, administrative power to say you are deprived of privilege, you are reduced in rank, you are dismissed from the Defence Force.  To the extent that your Honour raises that difference, there is a difference.  Stealing on a ship, in the close community on a ship, would be very different from potentially the other services.  So I am not suggesting that there is not a need in circumstances for those who are in the field to be able to exercise discipline but it is administrative discipline.  If you seek to find that someone has committed an offence because they have actually assaulted someone, because they have raped someone, because they have murdered someone, they must be dealt with in accordance with the dictates of Chapter III. 

In our respectful submission, that does no violation to the notion the discipline is something inherent within a controlled defence force.  What it does is distinguishes between discipline and judicial proceedings.  That same distinction that we advance between disciplinary proceedings and judicial proceedings is found in the Geneva Convention provisions to which we gave reference to.  The Geneva Convention itself distinguishes between judicial proceedings and disciplinary proceedings. 

Your Honours, in our respectful submission, it becomes then a question of considering, as your Honour the Chief Justice has posed, what are the scenarios in the field of battle that that would prevent effective discipline being exercised?  Well, if you have committed an offence, I will arrest you.  To the extent that you are engaging the enemy, that is a completely different issue. There one is exercising powers under the rules of engagement and that is a separate issue.  But to the extent that one is actually needing to deal with one’s own members there are wide powers that are available which are administrative and do not violate the intention of Chapter III.  In our respectful submission, that is the major flaw in the leap for this small step, so described, of implication which my learned friend seeks to justify.

Your Honours, can I then turn to the other issue which has been touched upon, and your Honour Justice Gummow raised this earlier in respect of military history.  We do seek to maintain that when one looks at what the legislative regime was at the time of Federation or the history of such tribunals, we respectfully submit that Justice Gaudron was correct in saying that they are matters that are irrelevant to the construction of the protection intended by Chapter III and the work it was intended to do.

KIRBY J:   Where was that said?

MR STREET:   In Nolan at page 497.  Your Honours, looking at the question of military history and what may have been the regime in place at Federation is of no guide to what was the work done or the proper interpretation of Chapter III.

KIRBY J:   But I thought that under the British law, the law of the United Kingdom at the time of Federation, that if an offence happened in a military context within a certain distance of a civilian court it had to be handed over to the civilian court if it was of a civilian character.  I think I referred to that in a footnote in Aird.  Under the Army Act of the United Kingdom, the deference to the civilian power which was so strong after the Cromwellian Revolution that it was reflected in the requirement that the person, though a member of the Defence Force, had to be handed over to the civilian power.  You had better have a look at that because I think that that was the position in the United Kingdom at the time of our Federation, to the extent that it is relevant to look at that. 

GUMMOW J:   The Court of King’s Bench and Queen’s Bench asserted successfully it had jurisdiction in prohibition, did it not?  Once the military disciplinary structure came out of the prerogative after 1689 and became statutory, prohibition became engaged ‑ ‑ ‑

MR STREET:   But section 75(v) does not, in our respectful submission, in its scope deal with justifying this exception and it does not advance it. What does, in our respectful submission, as I have sought to say ‑ ‑ ‑

GUMMOW J:   No, but it indicates the nature of this “exception”, does it not?

MR STREET:   Not at all, your Honour, because section 75(v) is at large and section 75(v) is capable of dealing with where it is an exercise of power that exceeds jurisdiction and to the extent that that is administrative power, it provides a remedy, but that remedy is not a remedy which is exhaustive of identifying what is a judicial power or what in essence in this case should be found to be an exception.

GUMMOW J:   Bevan and Cox are examples, are they not, of 75(v) in this area, the World War II cases?  That is what was happening in this Court.  There was a constitutional point as well, but even if there was not there would be 75(v), would there not, if they strayed outside their statute, these officers of the Commonwealth?  I appreciate you say there has to be more but the point is that these people are not at large and this system is not rampaging at large outside this “rule of law”.

MR STREET:   If that were so, your Honour, one really would find that the content of judicial power found in Chapter III is one which is ‑ ‑ ‑

GUMMOW J:   That is an exercise of judicial power of the Commonwealth also, is it not?  You cannot say it is entirely outside the judicial power of the Commonwealth.

MR STREET: Section 75(v) is.

GUMMOW J:   Exactly.

MR STREET:   But, your Honour, that really just throws up the importance of what is the judicial power and it does not assist in identifying why a matter of alleged guilt of an offence under a law made by the Commonwealth Parliament does not fall within section 76(ii) because it relates to a Defence Force member.  Your Honours, it is an extraordinary proposition which does not seem to have been ‑ ‑ ‑

GUMMOW J:   We have heard you say that many times, Mr Street.

MR STREET:   If your Honour please.

GUMMOW J:   We are not a geological structure, you know, to be worn down by the incessant pressure of the waves.

MR STREET:   Your Honours, can I then just touch one other aspect before I turn to the cases and that is this.  We submit that section 49 is also no true exception to judicial power.  In our respectful submission, there is no exception.  Even if your Honours were to find that section 49 was in some different category, it does not have the same language of “subject to the Constitution” that ones finds in section 51, but we would respectfully submit that an exercise of power by Parliament where Parliament on a resolution votes on some matter is not an exercise of judicial power.  It may be judicial in nature but, in any event, the language is materially different in 49. 

So, your Honour, we say that there is no exception and if there is no exception, in our respectful submission, embracing what his Honour Justice Kirby has said, to the extent that one looks for a principle of necessity, that principle of necessity must flow from the language and text of the Constitution and it must not be inconsistent with the express terms. In our respectful submission, the implications that are required in this case, namely, 71 and 76(ii), are inconsistent with the express terms and therefore cannot arise. They are inconsistent with the implied prohibition which arises out of section 71 and the structure of Chapter III. We rely in that regard on what was said in Boilermakers on page 270 to 272.  Your Honours, can I then turn to the actual decision in Tracey itself.

HAYNE J:   In aid of what proposition, Mr Street?

MR STREET:   I am seeking to make good the proposition that the assumption that the court proceeded on was one which it was necessary for there to be an exercise of judicial power outside Chapter III.  Perhaps I can give your Honours the reference to it rather than take your Honours to it, if that is preferable.  In Tracey 166 CLR 518 at 540, at the bottom of the page, going on to page 541, one has the sentence:

However, the defence power is different because the proper organization of a defence force requires a system of discipline which is administered judicially, not as part of judicature erected under Ch. III, but as part of the organization of the force itself.

Your Honours, we respectfully submit that that has in it an assumption as to the need to exercise judicial power which was not the subject of any established fact.  In that regard we seek to embrace the same type of proposition that was touched upon by your Honours Justice Callinan and Justice Heydon in Alpert where you are identifying that there was no factual foundation for the proposition that was there identified in paragraph 167 in Alpert.

GUMMOW J:   The discussion at 542 is incomplete because it does not take into account the entering into the field of prohibition which is discussed in the first edition of Halsbury which is contemporary with the adoption of the Constitution. It is volume 25. The title is “Royal Forces” and it is paragraphs 187 to 192.

MR STREET:   Your Honours, that same proposition, of necessity, still in Tracey at page 545, in our respectful submission, went one step further by, in essence, permitting it to be Parliament’s policy that it legislated to govern the scope of Chapter III, because at 545, at about point 2 of the way down the page – perhaps I will start at the paragraph:

It follows that, if offences against military law can extend no further than is thought necessary for the regularity and discipline of the defence forces . . . this limitation would not preclude Parliament from making it an offence against military law for a defence member to engage in conduct which amounts to a civil offence.  It is open to Parliament to provide that any conduct which constitutes a civil offence shall constitute a service offence, if committed by a defence member.  As already explained, the proscription of that conduct is relevant to the maintenance of good order and discipline in the defence forces.  The power to proscribe such conduct on the part of defence members is but an instance of Parliament’s power to regular the defence forces and the conduct of the members of those forces.  In exercising that power it is for Parliament to decide what it considers necessary and appropriate for the maintenance of good order and discipline in those forces.

Your Honours, it is not for Parliament to determine, as we would seek to put, what is necessary for the purpose of Chapter III.  Yet to pick up the proposition that Parliament has dictated that it was necessary for it to create a regime, as it has sought to do under the 1982 Act, as itself evidencing the conclusion that it is necessary to have an exception, in our respectful submission, is flawed.  It amounts to abrogating that duty vested in this Court.

Your Honours, the same reasoning in the judgment of Justice Brennan and Justice Toohey, as Justice Brennan then was, is found on 571 where at about point 3 of the way down the page:

Any such decision is examinable under s. 75(v) of the Constitution. Section 51(vi) does not support a jurisdiction standing outside Ch. III of the Constitution except to the extent that the jurisdiction serves the purpose of maintaining or enforcing service discipline.

Can I just pause there? That language of purpose is entirely apt and appropriate for determining the scope of section 51 and whether a law made within that purpose, but not, in our respectful submission, appropriate for determining the test to be applied as to whether what is in all its character a judicial power, falls outside Chapter III. To do so is to pick up, in our respectful submission, the policy of Parliament in order to construe the Constitution.

Your Honours, the same proposition in relation to the necessity in their Honour’s judgment of, as he then was, Justice Brennan, Justice Toohey on 573 at about point 8 of the way down the page:

A grant of power to a Ch. III court constituted by judges appointed in conformity with s. 72 of the Constitution to administer justice in the armed services would not be conducive to the efficient execution of the defence power.

Why, what basis?  Why is that a conclusion, in our respectful submission, that can be leapt to in respect of construing Chapter III in its express terms, and to the extent relevant, where it is referred to:

History and necessity combine to show that courts‑martial and other service tribunals, though judicial in nature and though erected in modern times by statute, stand outside the requirements of Ch. III –

that is a flawed premise.  In history, there were not Chapter III courts.  It does not flow.  The first start of the premise just falls away.  The assertion of necessity is nothing more than the same policy slogan repeated, in our respectful submission.  Justice Gaudron at 605 ‑ ‑ ‑

GUMMOW J:   She does not accept your proposition, does she?

MR STREET:   Your Honours, in the later case of 181 in Tyler and in Nolan, I think it is, Justice Gaudron does not embrace there being such a power outside Chapter III, but I will come to that if I may.

KIRBY J:   Is that the position of Justice Deane?

MR STREET:   No, his Honour Justice Deane has a position that is somewhat hard to reconcile because his Honour appears to have approached the issue of whether section 190 in relation to autrefois convict and acquit was inconsistent based on Chapter III, not on the argument that appears to have prevailed in the majority of interfering with the civil jurisdiction of the other courts, of the State courts.  So there is a marked distinction between the reasoning of the majority and Justice Deane in why section 190 was invalid. 

His Honour’s assumption that it was something to do with infringing Chapter III, in our submission, is inconsistent with the reasoning that military judicial power stands outside Chapter III.  So that to the extent that his Honour Justice Deane formulated an exception founded on work done by Chapter III, that sits very oddly with this being the subject of an exception to 71 and 76(ii).

GLEESON CJ:   I thought he had a view that turned on whether or not offences were exclusively disciplinary.

MR STREET:   But, your Honour, he also dealt with this issue of section 190 which was whether or not you could be the subject of a charge again in a civilian court or whether there was an autrefois acquit or convict that arose.  His reasoning on that was one that you could not have.  Section 190 was invalid because it impinged Chapter III.

GLEESON CJ:   Is there any member of the Court in any past cases whose reasoning you adopt for the purpose of your argument?

MR STREET:   Yes, your Honour, I adopt the argument of Justice Gaudron in Tyler 181 CLR.

GUMMOW J:   That will not help you.  That is a service connection test, is it not?

MR STREET:   But her Honour ‑ ‑ ‑

GUMMOW J:   Firstly, it does not extend outside Australia.  That is what her Honour said in Nolan.  She said “in Australia”.  Secondly, she asked herself what the general criminal law is saying.  Thirdly, she asked whether the service offence is substantially “in essence” what is in the general criminal law provision.  You draw a line much higher up the chart than that, do you not?  If you do not, you had better tell us.

MR STREET: No, your Honour, there is no line that I seek to draw. It is drawn by the Constitution and it is a line which I say this Court must give effect to.

GUMMOW J:   I am trying to find out what your submission is, Mr Street.  Is it what Justice Gaudron concluded?  If it is, that is not consistent with what you have told us at 10.15.

MR STREET:   Your Honour, to the extent relevant, what Justice Gaudron did in her ‑ ‑ ‑

GUMMOW J:   What you have said in response to what the Chief Justice put to you about how this matter got here.

MR STREET:   No, your Honour, I am not seeking to cavil with what the Chief Justice raised.  What I was seeking to touch was the argument that Justice Gaudron develops in Tyler ‑ ‑ ‑

GUMMOW J:   She does not develop argument; she writes judgments.  You try and develop arguments.

MR STREET:  To the extent that her Honour was dissenting her Honour touched upon the work done by Chapter III.  In answer to the Chief Justice I seek to embrace that reasoning that her Honour developed in relation to Chapter III and the work done by it.  The same reasoning, in essence, was adopted by his Honour Justice McHugh although he did not develop the argument and it ‑ ‑ ‑

KIRBY J:   My understanding of your submission is that your primary submission is what I call the strict interpretative submission but that you then at about 11.15 said that if need be, having regard to the question that Justice Crennan asked you and that I asked following that, you accept that so far as this offence by this Tribunal prosecuted in this way is concerned it is within the judicial power of the Commonwealth as a fallback position.

MR STREET:   I do advance that without it being a service nexus argument.

GUMMOW J:   Where is it in your written submissions?

MR STREET:   Your Honours, the written submissions, I think, identify the nature of the offence and that will identify the subject of this application.

GLEESON CJ:   You are recorded on page 3 of the transcript of 11 October 2006 as saying:

We do not advance any argument in relation to nexus.  This is not a nexus argument ‑ ‑ ‑

MR STREET:   Your Honour, I just thought I embraced that proposition.

GLEESON CJ:   You said the same thing on page 12 of the transcript and it was on that basis that this matter was referred into this Court and not remitted to the Federal Court.

MR STREET:   Your Honour, I understand that and I do not seek to depart from that.

KIRBY J:   I do not see it as a nexus question.  I see it as a question of what is the exclusive content of the judicial power of the Commonwealth and in determining that and what is discipline, that it falls outside that, then you come into questions of degree having regard to the nature of the proceedings, the nature of the offence, the way the prosecution is conducted, the way the Tribunal operates and so on.  That is a judicial power question.

MR STREET: Your Honours, to make it clear it is the character of the offence under section 33 and under section 61 that I say can be taken into account in determining whether it is judicial power.

GLEESON CJ:   And not the circumstances of this particular conduct by your particular client.

MR STREET:  Yes.

GLEESON CJ:   Because the Solicitor‑General made it clear that if you were relying on that he had evidence he wanted to lead relevant to those circumstances.

MR STREET:   I accept that.

CALLINAN J:   Mr Street, I still have a problem.  Once you accept sufficient service connection – and you do, I think, do you not – then is it not implicit in that that you are accepting that this is a matter of military discipline?

MR STREET:  No.  Not at all, your Honour.  I was not seeking to make such a concession and that would fly in the face of the argument.

CALLINAN J:   No, I know you are not.  That is why I use the word “implicit,” but I do not know whether you can escape it.  If there is a sufficient service connection then is it not necessarily a matter of military discipline?

MR STREET:   No, your Honour.  All I was seeking to say is that it is not an argument where we are seeking to attack the offence as being outside the jurisdictional requirements of the ‑ ‑ ‑

CALLINAN J:   Do you say that military discipline is divisible?  There is some military discipline that may be exercised by a court martial or a non‑Chapter III court but that there is other military jurisdiction or other military discipline that can only be administered in the exercise of federal judicial power. 

MR STREET:   Yes.

GLEESON CJ:   This is the difficulty I have and this is what seems to me to go to the essence of this problem that you are raising, Mr Street.  Your argument is that you can look at an offence as identified by the Defence Force Discipline Act and legislation that it picks up and so forth regardless of the particular individual circumstances of the commission of that offence, and you can say the character of the offence is such that it cannot be dealt with other than pursuant to Chapter III and you say one such offence is indecent assault.

If an act of indecent assault is committed by a commander upon a subordinate on board a submarine in circumstances, for example, that involve hostilities, how can you differentiate between what might be called the disciplinary aspect of dealing with that conduct and the aspect of dealing with that conduct that you say belongs to Chapter III?

MR STREET:   In this way, that that commanding officer on the submarine may have open to him a number of matters which are not the exercise of judicial power.  He may seek, in an administrative capacity, to dismiss the person.  He may seek, in an administrative capacity, to reduce him in rank.  He may seek, in an administrative capacity, to deprive him of privileges.  None of that is of itself necessarily an exercise of judicial power.

If he seeks though to determine that there has been an offence and seeks to impose a punishment applying the principles of the criminal law under the Defence Force Discipline Act then acting under the Defence Force Discipline Act powers as a summary tribunal, he is exercising judicial power.  It may be that in circumstances, in answer to your Honour the Chief Justice, if such an occurrence occurred on a submarine one could easily take the view that I will exercise administrative powers or one could arrest the person and say, “You will be charged when we return to base”.

GLEESON CJ:   Is it the character of the offence as constituting a criminal offence, according to the ordinary criminal law, that differentiates it from, for example, insubordination or turning up on parade improperly dressed?

MR STREET:   It is the character of offence and the process of determining guilt.

KIRBY J:   This gets back to Justice Hayne’s question earlier and he said is it the character of the offence, the nature of the procedures and the kind of punishments that can be imposed, and I think you embraced those three criteria at the beginning of the argument and the combination of all three.

MR STREET:   I do not shy away from that.  I do embrace that.  In answer to your Honour the Chief Justice, if one was not embarking upon purporting to determine the guilt of a person of an offence to impose a punishment under this regime set up under the Defence Force Discipline Act, then it is the case that there are administrative powers that could be exercised by the commanding officer which would achieve discipline.  Our argument is not that one cannot have such a disciplinary code; it is jut that it does not require the exercise of judicial power and the assumption that it does, in our respectful submission, is flawed.

GLEESON CJ:   What makes it the exercise of judicial power is that you are dealing with somebody for an offence that is exactly the same as an offence that could be charged and tried in an ordinary civil court.  That is one thing.  Another thing is that you are imposing upon them a punishment, or the possibility of a punishment, imprisonment, of a kind that would be available to a civil court.

MR STREET:   Yes.

GLEESON CJ:   Is that what makes it an exercise of judicial power?

MR STREET: Yes, your Honour, I would embrace that together with, in this instance, being pursuant to a law made by the Commonwealth in respect of which, as I have sought to say, section 71 and 76(ii) permits the vesting of such judicial power and requires it to the extent relevant in a federal court.

GLEESON CJ:   And it has nothing to do with that argument that the people involved were not in uniform and not on duty.

MR STREET:   I accept that.  Your Honours, if I can, I seek to indicate that the remaining matters I would seek to address are simply the other distinguishing features that we say are relevant in relation to Tyler and then some minor further matters and then I will come back to the structure of the Act, if I may.

KIRBY J:   Of course, the fact that they are not in uniform and not on duty may help to illustrate the mischief from the Constitution’s point of view of extending this notion of discipline so far.

MR STREET:   Yes, your Honour.  I think I have given your Honours a reference, and I think I may have said Nolan.  It is in Re Tracey 166 CLR 518 in the judgment of Justice Gaudron where her Honour at page 598 at about point of 6 refers:

The history of military law and the history of military tribunals, both comprehensively detailed in the judgment of Brennan and Toohey JJ., and the decisions in Bevan and Cox, point inexorably to the recognition within our legal system of a military judicial power in respect of persons subject to military law which is separate and distinct from the judicial power which a sovereign State has in respect of those persons subject to its general laws, the latter being descriptive of the nature of the judicial power comprehended in the expression “[t]he judicial power of the Commonwealth” . . . However, neither history nor the course of judicial decision provides any authoritative basis for the demarcation of the limits of military judicial power, whether by reference to subject‑matter, time, place or circumstance.  The arguments made in the present case do not necessitate a consideration of those limits.

And at 599 at about point 3:

It suffices here to note that Ch. III is premised on the continued existence of State courts (see Constitution ss. 71, 73 and 77) –

If I could turn to Tyler 181 CLR 18, your Honours we say that at page 25 their Honours Justice Mason and Justice Dawson in essence embraced the necessity argument which we seek to say is in essence flawed where they say at about point 7 of the way down the page:

[the proposition] necessarily includes a power to provide for the discipline of the defence forces because naval and military defence demands the provision of a disciplined force or forces.  The system of discipline required for the proper organization of a defence force may, we said, be administered judicially, not as part of the judicature enacted under Ch. III, but as part of the organization of the force itself.

Your Honours, can I just pause?  It is perfectly apparent that their Honours have not appreciated, in our respectful submission, the corollary which is that Parliament could not vest that in a Chapter III court if this argument were to be embraced.  Your Honours, the same proposition of necessity is picked up in the joint judgment of, as they then were, Justice Brennan and Justice Dawson – Justice Brennan and Justice Toohey, I think, on page 29 ‑ ‑ ‑

GLEESON CJ:   The view of Justice Deane appears quite clearly on page 34 where he distinguished between offences which are exclusively disciplinary and offences which are not exclusively disciplinary, and he said offences of the former kind, that is, offences that are exclusively disciplinary, are the only offences that can be dealt with by a Court Martial.

MR STREET:   Yes, your Honour.

GLEESON CJ:   So he would have said in the present case, for example, that because the offence alleged is an offence against Commonwealth and State legislation – indecent assault or whatever it is – end of story.

MR STREET:   Yes, your Honour.

KIRBY J:   That seems to be close to Justice Gaudron’s fallback position.

MR STREET:   Yes.  Well, Justice Gaudron at 35 maintained the proposition or the argument I have sought to develop in the first paragraph on page 35.

CRENNAN J:   In the final paragraph she is really expressing the view, is she not, that if service offences have civilian counterparts, as in this case, it is not open to Parliament to confer jurisdiction in respect of them on a military tribunal?

MR STREET:   No, your Honours, we would respectfully submit her Honour was going higher than that in the proposition “must prevail over judicial pronouncements on the subject”.  That sentence really does suggest that her Honour was saying Chapter III must prevail.

CRENNAN J:   Yes, all I was saying is she is indicating what her firm view has been, explaining what she was saying in Nolan’s Case.

MR STREET:   Yes, your Honour.

CRENNAN J:   I am just putting to you that encapsulates what her view has been.  I am not ignoring the first paragraph on page 35.  I am just saying that allows you to summarise what her view has been because I think before you were saying that what you are relying on in this case is Justice Gaudron’s views as expressed earlier than Tyler’s Case – I thought you made that distinction just before ‑ ‑ ‑

MR STREET:   I did, your Honour.

CRENNAN J:   ‑ ‑ ‑ and you were relying on her view as expressed in Nolan’s Case.

MR STREET:   Yes, your Honour.  Your Honours, can I then also refer in Tyler to the statement by his Honour Justice McHugh at 39 in relation to identifying Nolan and Tracey as erroneous, which we seek to embrace.

GLEESON CJ:   So that if a soldier in battle murders his commanding officer he cannot be dealt with by a Court Martial?

MR STREET: He must be dealt with by a court vested with Chapter III power and with the independence and impartiality of judges appointed under section 72.

GLEESON CJ:   By Court Martial I meant to say, not Chapter III court.  He cannot be dealt with by a military court unless it conforms to Chapter III.

MR STREET:   Yes.

HAYNE J:   Thus representing a radical departure from provisions found in the Army Act, the Naval Discipline Act and the like, all of which contain reference to offences which were offences against the general law.

MR STREET:   And all of which had their foundation in times in which Chapter III was not in force and where they were not reconciled with ‑ ‑ ‑

HAYNE J: I understand that, but that brings you directly against, does it not, the considerations to which you were taken earlier out of the reasons of Justices Brennan and Toohey about the radical change effected by the Constitution not adverted to anywhere in the Debates or elsewhere? But we have been over that ground I think more than once perhaps.

MR STREET:   Yes, your Honour.  All I can seek to do is maintain, as I sought to, the express adoption of different language of the US Constitution as overriding any implication of silence and the express language that one then finds when one turns to 71 and 76.  In relation to Nolan 172 CLR 460, could I just give your Honours a reference to what his Honour Justice McHugh said at 499 which was to the effect that:

In my opinion, unless a service tribunal is established under Ch. III of the Constitution, it has jurisdiction to deal with an “offence” by a member of the armed services only if such an “offence” is exclusively disciplinary in character or is concerned with the disciplinary aspect of conduct ‑ ‑ ‑

GUMMOW J:   Does it ever explain what “exclusively disciplinary” means?  What is its content?

MR STREET:   Your Honour, to the extent ‑ ‑ ‑

GUMMOW J:   It seems to be now by those Justices it would be elevated to a constitutional expression, so what is its content?

MR STREET:   Your Honour, we would have said its content is if it is of an administrative character, it can be ‑ ‑ ‑

GUMMOW J:   What does that mean?

MR STREET:   It means it is not an exercise of judicial power of the Commonwealth.

GUMMOW J:   I see.

GLEESON CJ:   But you seem to be moving between the nature of the offence and the manner in which it is dealt with.

MR STREET:   I am seeking to embrace both, in answer to your Honour the Chief Justice.  It is plainly irrelevant to determining whether it is judicial power that one is seeking to try and determine guilt.  Guilt of what?  Guilt of an offence of a law made by the Commonwealth and to impose a punishment.  It is those in combination with the character of the offence that we have here raised nothing to do with the facts.

GLEESON CJ:   Bearing in mind that these Justices on whom you are placing reliance dismissed as irrelevant both the concept of service status and service connection and focused instead upon the character of the offence created by law, eg, indecent assault, it does not matter by whom or where or in what circumstances, then you have to face up to the question of the criteria by which you distinguish between offences which are exclusively disciplinary and offences which are not exclusively disciplinary.  Perhaps we could come back to that at 2.15.

MR STREET:   If the Court pleases.

GLEESON CJ:   We will adjourn until 2.15.

AT 12.44 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ:   Yes, Mr Street.

MR STREET:   Your Honours, if I could come back to the question that your Honour the Chief Justice raised as to what would be an exclusively disciplinary offence, and we would have said it would have three aspects or character:  first, it is one for which there is no civilian equivalent; second, it must pertain to service discipline; and third, it must have no exposure to imprisonment.  We would have said an offence of that kind is an exclusively disciplinary offence.

CALLINAN J:   Do not some disciplinary offences – and I do not want to beg the question – involve military detention?

MR STREET:   Your Honour, I thought I sought to put this morning that detention is not of itself something that might not be able to be imposed administratively by a commanding officer. 

CALLINAN J:   You said “imprisonment” here.  What is the difference between imprisonment and detention?

MR STREET:   I did, your Honour, but there I was seeking to identify something that was exclusively disciplinary and what I was saying was something that gave rise to no exposure to imprisonment.  Administratively, one might have imposed by a commanding officer, as I sought to identify before, reduction in rank, dismissal from the Defence Force.  There may be detention in a disciplined barracks.  That is not the same though as an exercise of judicial power unless one has that imposed by reason of exercise of a determination of guilt pursuant to a statutory power such as one has in the DFDA and that statute permits a legal consequence in the nature of a punishment to be imposed based on that finding of guilt.

GLEESON CJ:   I thought that until quite recently, and it may be still for all I know, but there used to be people in detention out at the Victoria Barracks.

MR STREET:   Your Honour, there are, as I understand it, particular areas where one can be placed in a disciplinary detention environment.  Detention does not lead to automatic dismissal from the Defence Force.  If one is imprisoned it must give rise to dismissal.  If one is dismissed one cannot be detained.  That is the existing system.  All I was seeking to say in answer to your Honour Justice Callinan that I do not seek to say that detention in a disciplined environment may not seek to be imposed administratively, but it cannot be imposed as an exercise of judicial power based on a finding of guilt pursuant to a statutory power to try and determine such guilt and to impose a punishment as a consequence of that finding of guilt.

GLEESON CJ:   So, stealing from another member of the force could be dealt with administratively?

MR STREET:   Yes, your Honour.

GLEESON CJ:   And a period of detention could be imposed?

MR STREET:   Yes, your Honour, but not based on a finding of guilt, and not based on an exercise of the summary trial procedure which attaches a legal consequence to that finding of guilt and permits punishment under the DFDA, so that to the extent that one has a desire to encompass what it is that might be done by the commanding officer to deal with the environment of the theft or on the submarine or in the field or in a theatre of war we say there are a vast array of administrative powers that do not require the exercise of judicial power, patently so.

GLEESON CJ:   Is stealing an example of what Justice Deane would have said is not an exclusively disciplinary offence?

MR STREET:   No, your Honour, I do not accept that, because to the extent that you seek to deal with such a person administratively you may seek to do so.  You may, as a commanding officer, say, “I think you have stolen this and therefore I am going to seek to impose upon you an environment where you are deprived of benefits, but I am not making a finding of guilt pursuant to the statutory power and I am not imposing a punishment based on that finding of guilt, but if I seek to do so”, pursuant to such a procedure where the commanding officer says, “I am going to exercise the statutory powers under the DFDA and I am going to try you for an offence under the DFDA, and I am going to pursuant to that statutory power make a finding of guilt, and pursuant to that further statutory power seek to impose a punishment”, that is an exercise of judicial power.

GLEESON CJ:   May I take you to 181 CLR 34. I think that is the case you were on at the adjournment. Justice Deane, stating in summary form a view that he had expressed at much greater length in an earlier case said that you could not have laws:

providing for the trial and punishment of members of the armed forces for ordinary (in the sense of not exclusively disciplinary) offences ‑

Then in the next paragraph he explains what he means by that:

The alleged offence against s. 47 . . . is not exclusively a disciplinary offence. It is substantially the same as offences under both Commonwealth and State legislation.

In what circumstances would “stealing” be an exclusively disciplinary offence?

MR STREET:   It would not be, your Honour, to the extent that one seeks to deal with it by a process of determination of guilt and imposition of punishment, because it falls foul of the criteria I sought to identify.  My characterisation I sought to put forward of an exclusively disciplinary offence was one which has no civilian equivalent.  To that extent, stealing does and it must pertain to discipline and not give rise to an exposure to imprisonment.  The question of whether the power being exercised by the commanding officer at a specific level in circumstances where he suspects someone has stolen something from someone else is not one which has to be exercised by use of judicial power.  He does not have to engage on a trial process under the DFDA.  He may seek to administratively impose some consequence the same as in R v White which is a disciplinary procedure but not based on a finding of guilt.

GLEESON CJ:   But as I understand, correct me if I am wrong, Justice Deane’s approach in this case, he looked at section 47 of the Defence Force Discipline Act, he said that makes it an offence to dishonestly appropriate property of the Commonwealth. Dishonestly appropriating property of the Commonwealth is an offence against an ordinary civil law of the Commonwealth. Therefore it is not an exclusively disciplinary offence and therefore you can only deal with it pursuant to Chapter III of the Constitution.

MR STREET:   Your Honour, it may be that the ambiguity in the submission I am seeking to put is, in your Honour the Chief Justice’s observation, “seek to deal with it”; deal with it under the statutory powers under the DFDA, yes, it must be dealt with by a Chapter III court.  That is my submission.

Your Honours, can I then turn, if I may, to one other aspect of a decision to which I was referring which was Justice McHugh’s observation in Re Nolan; Ex parte Young (1991) 172 CLR 499 where his Honour made the observation about:

unless a service tribunal is established under Ch. III of the Constitution -

could I just add that it follows from what his Honour has there said that his Honour is assuming, as we respectfully submit is entirely correct, that it must be the case that laws can be made by Parliament which establishes a Chapter III court to deal with such service offences and we would respectfully submit that Justice McHugh to that extent must be embracing such a proposition and that such a proposition flies in the face of the exception that my learned friend seeks to advance. 

Your Honours, can I then turn to the statute, and I think your Honours now have a copy of the Act which has been compiled up to December, which is in front of your Honours.  If I could go to the Act for two reasons.  One was to give your Honours the structure of the legislation as it presently exists to support the argument that we have advanced that this involves an exercise of judicial power and the judicial power of the Commonwealth.

Can I also then develop as I will seek to the new regime that is coming in which is also in the notes to this Act which, we say, is one which shows the Australian Military Court is well capable of being a Chapter III court had Parliament sought to do so and destroys the foundation of any argument to the extent it is advanced that there is some necessity to have something other than a Chapter III court exercising judicial power.

KIRBY J:   Where is this pretended court found?

MR STREET:   If your Honours wish to go to that first, I will do so.  If your Honours go to page 283 of the bundle that your Honours have had handed up, these are notes to the Act and in essence set out the substance of the 2006 Act.

GUMMOW J:   Act number?

MR STREET:   Act No 159 is the one that is set out in the notes but your Honours have been handed up a bundle, I think.  In answer to your Honour Justice Gummow there should be a folder of the ‑ ‑ ‑

GUMMOW J:   I just want to look at the statute.  Where do we start, what section?

MR STREET:   Your Honours, in subsection 3 ‑ ‑ ‑

KIRBY J:   Subsection what?

MR STREET:   Under Schedule 1 to the 159 Act, it is on page 283 of the large bundle that was handed up to your Honours.  Your Honours will see on page 283 there is a reference to Schedule 1.  Under subsection 3(1) one sees a reference to the “Australian Military Court”.  If one goes over the page to 285, your Honours will see the insertion of a division entitled “Division 3” under Part VII of the DFDA, and it provides:

(1)      A court, to be known as the Australian Military Court, is created by this Act . . . 

(1A)    The Australian Military Court is a court of record.

This is a court purportedly established, presumably, your Honours, under the Defence Force power in section 51(vi).

GLEESON CJ:   Section 115(2), what is the significance of that?

MR STREET:   Custodial offences are offences committed by someone in custody so why that exception is provided for ‑ ‑ ‑

KIRBY J:   Where is that defined?

MR STREET:   That is in section 115(2).

KIRBY J:   No, but where is it defined?

MR STREET:   It is defined, your Honours, back in the – page 3, I think.  If one goes back to beginning of the Act it identifies on page 3:

custodial punishment means a punishment of a kind referred to in subsection 68A(1).

GLEESON CJ:   No, “custodial offence”.

MR STREET:   Yes, I am sorry, it is page 62, section 54A.

GUMMOW J:   You have to be “A detainee”.

MR STREET:   Yes.

GUMMOW J:   “A detainee” is defined in section 3 as:

a person who is undergoing a punishment of detention in a detention centre -

and a:

detention centre means a place, not being a prison, that is operated by the Defence Force ‑ ‑ ‑

MR STREET:   Just pursuing, if I may, the creation of this military court.  One sees it has jurisdiction subject to 63 “to try any charge against any person”.  It has jurisdiction “to take action under Part IV in relation to a convicted person” and that Part IV deals with the punishments.

KIRBY J:   Does this so-called court have a line of appeal to this Court?

MR STREET:   Your Honours, I think in relation to – well, there would be the 75 ‑ ‑ ‑

KIRBY J:   This looks a little bit like the Bankruptcy Courts in the United States under the US Constitution which are outside Article III.

MR STREET:   Your Honours, I think there is a Defence Force Appeals Tribunal and my understanding is the appeal is to the Defence Force Appeals Tribunal and I understand there are similar amendments to that statute.

GUMMOW J:   Part V of the Defence Force Discipline Appeals Act.

MR STREET:   Yes.  So that it is not an appeal to the Federal Court on all issues or to a ‑ ‑ ‑

KIRBY J:   Here we see the Federal Parliament for the first time, that I am aware, creating a so‑called court which is outside of the line of appeal to this Court.  It is not a very happy development.

MR STREET:   No, but doing so as a direct consequence of the two implications that my learned friend is seeking to advance to Chapter III.

KIRBY J:   There is a “Note 1:” to section 114.

MR STREET:   Your Honours, I should have added this in answer to your Honour Justice Kirby in relation to appeals.  There is a right of appeal from the Defence Force Appeals Tribunal on a question of law to the Federal Court.

KIRBY J:   I am talking about this so-called “Australian Military Court”.

MR STREET:   I understand the force of what your Honour raises.  Your Honour, there is a reference to “Exercise of jurisdiction” in section 116 and relevantly, “Venue” which touches upon matters raised by his Honour the Chief Justice.  It provides that this:

Military Court may sit at any place in or outside Australia.

There is then provision in section 122 for “Constitution of a military jury”.

KIRBY J:   Presumably you could get to this Court under section 75(v) but in the limited cases to which 75(v) applies, given that members of the Federal Court of Australia and the Family Court of Australia are officers of the Commonwealth so certainly members of the so-called Australian Military Court would be officers of the Commonwealth.

MR STREET:   Yes, your Honours.  But we say that when one looks at it, it is pretty clear that the power for the Australian Military Court if it were hearing these charges, the subject of this case, that it would be exercising its judicial power just as it is in the respect of the Defence Force Magistrate or Restricted Court Martial or a Full Court Martial.  Your Honours, section 122 provides for a constitution of a jury.  One will see that there are different classes of offences.  There is a 12‑member jury or a six‑member jury.

KIRBY J:   This is a military jury?

MR STREET:   This is a military jury so this ‑ ‑ ‑

KIRBY J:   Is this a military jury of the kind that was shown in yesterday’s cartoon in the Sydney Morning Herald?

MR STREET:   Your Honour, I am not sure I can ‑ ‑ ‑

KIRBY J:   Do not answer that.

MR STREET:   Your Honours, to the extent relevant though, you will see that it travels beyond what was the structure that your Honours will have identified in the earlier legislation of Restricted Court Martials and a Full Court Martial; Restricted Court Martial being three members, Full Court Martial being five.  The way in which that procedure was undertaken was not that the Court Martial just determined guilt.  The Court Martial actually also imposed punishment.  Here the jury just determines guilt.  But this is the new system to come into force in October and your Honours will see the determination of questions ‑ ‑ ‑

KIRBY J:   Bypassing section 80 of the Constitution of the Commonwealth.

MR STREET:   Bypassing Chapter III and the express terms found therein.

KIRBY J:   Specifically and when it refers to a jury, bypassing section 80.

MR STREET: And, in our respectful submission, inconsistent with section 76(ii). Section 71 ‑ ‑ ‑

HAYNE J:   What is the immediate purpose you have for taking us through these provisions not yet commenced, not applicable in this case?

MR STREET:   Sorry, your Honour.  I thought I sought to identify the same at the outset when I indicated I was going to refer to it for two purposes ‑ ‑ ‑

HAYNE J:   That it is possible to erect a Chapter III court?  Yes.  What is the point you are making, Mr Street?

MR STREET:   That the proposition that there must exist military judicial power outside Chapter III simply cannot be sustained in the light of what is clearly the terms of this statute because it ‑ ‑ ‑

HAYNE J:   This is an attempt, be it good or bad, to do just such a thing.  What is the point of going through the detail other than to make some point of prejudice?

MR STREET:   Not at all, your Honours.  It is legislation that is going to come into force in 2006.

HAYNE J:   Maybe, but I at least will not give an advisory opinion about it, Mr Street.

MR STREET:   I am not seeking to advance an advisory opinion, your Honour.  What I am seeking to do is identify that the notion that one cannot have an exercise of Chapter III power outside – at least one cannot have an exercise of Chapter III power for the purpose of the military, in our respectful submission, does not sit neatly with this.  The argument is not as your Honour Justice Hayne seems to assume that this is a Chapter III Court.  It is not.

HAYNE J:   Exactly so.  It purports not to be, whether that is good or bad.

MR STREET:   Your Honours, to the extent relevant it does arise indirectly in this way, if I can answer your Honour Justice Hayne, and that is by reason of the fact that in the prohibition sought there is an amendment to section 103 so that that is the reason why we would ask for the declaration that we seek in the relief if prohibition were to be granted because otherwise one would have, because of the amendment to 103, the risk of the referral by the DMP through the registrar to the Australian Military Court.

If I could, to the extent relevant, indicate that – we say that there is some relevance to the substance of this legislation in answer to the proposition that has developed that it is necessary to have military judicial power outside Chapter III because when one looks at the nature of what has been attempted here it seems to identify a structure that could happily – and I refer to it as a stroke of a pen. No doubt it requires a few more words than that – be made a Chapter III court because the appointments that one finds under this statute are not pursuant to section 72, or this proposed Bill, and are appointments in respect of which they are some 10 years duration and they are appointments by particular persons not consistent with 72.

Your Honours, can I then come back to the structure of the Act in respect of the power being judicial power, and relevantly, your Honours, can I refer, first of all, to section 3(15) on page 14?  This is the provision that says that:

For the purposes of any law of the Commonwealth –

presumably the Constitution –

other than this Act, an offence against this Act or the regulations shall not be taken not to be an offence against a law of the Commonwealth by reason that it forms part of the law regulating the relationship between the Commonwealth and members of the Defence Force and other persons.

Your Honours, there is a reference – I did not take your Honours to the definitions of “defence member” but relevantly it includes through section 7  “prisoners of war,” as your Honours will have seen, and apart from the “Extra‑territorial operation” referred to in section 9, we then have, “Application of the Criminal Code” referred to in section 10. 

Your Honours, I have referred to the relevant offence, the subject of these charges, in 33 and 61, which we say have equivalent civilian offences so far as the sexual assault is sought to be picked up.  Your Honours, to the extent of ‑ ‑ ‑

GUMMOW J:   A purpose of section 3(15) is to achieve a situation that section 68 of the Judiciary Act does not apply to invest federal jurisdiction in State courts in respect of offences arising under laws of the Commonwealth and no doubt it has other operations, too.

MR STREET:   Your Honour, we would have said its primary operation was to endeavour to take the matter outside Chapter III.  Your Honours, can I then turn to “Punishments” found in Part IV?  One has various scales of punishments and perhaps one ‑ ‑ ‑

GUMMOW J:   The Constitution is not a law of the Commonwealth.  That has been said often enough.

MR STREET:   Your Honour, to the extent that one is seeking to characterise it, it is the same issue that his Honour Justice Hayne raised in respect of “service offence” being something different from a law of the land, and we say to the extent that it is equivalent to a civilian offence, it must be to that extent part of the law of the land.  Your Honours, Part IV identifies punishments that may be imposed by a service tribunal “in respect of a particular conviction and no other conviction”.  So, in other words, the power to impose the punishment is, as I sought to identify, one imposed as a consequence of the finding of guilt.

GLEESON CJ:   What is it that produces the consequence, Mr Street, that if you are convicted and punished under this Act you cannot be then convicted and punished civilly?

MR STREET:   Your Honour, as a result of section 190 – there was a provision in Re Tracey that purported to say you could not be, and that was struck down in Re Tracey.  That was the provision in section 190 ‑ ‑ ‑

GLEESON CJ:   So you say you could be?

MR STREET:   Yes, based on at least the striking down of section 190, but that was the issue in respect of which I sought to say that the reasoning of Justice Deane on the striking down of section 190 was different to that of the majority.  The majority struck down 190 based on it interfering with the jurisdiction of State courts.  Justice Deane approached it on the basis that it interfered in some way with Chapter III, and the submission I was seeking to put earlier was that that does not sit with military judicial power being outside Chapter III.  Your Honour, the scale of punishment ‑ ‑ ‑

HAYNE J:   But as Justice Gummow points out to me, the relationship between the civil and the military power is affected at least by the provisions of section 63 where you need the consent of the DPP to proceed under this Act for certain offences.

MR STREET:   They are what I will call the serious sexual assault offences which her Honour Justice Crennan raised with me.  It is only a small category in respect of which section 63 operates, your Honour.  That is the only area in relation to which one has that consent issue arising.  That is in relation to offences then that the DPP, as I think I said earlier, might seek to pursue it and if the DPP did not then obviously that provides a consent procedure that might permit it to be pursued by the military tribunal. 

The scale of punishment though, your Honours, if I can turn to it, in section 68, as I have said, if one looks at (c) – I would not embrace detention for two years but the concept of detention itself is one that can be imposed administratively; dismissal can be imposed administratively; reduction in rank can be imposed administratively; forfeiture of service for the purposes of promotion can be imposed administratively; forfeiture of seniority can be imposed administratively and consistent with White, but so can fine or reprimand, and restriction of privileges, stoppage of leave, extra duties or drill.

Your Honours, to the extent relevant, there are limits in respect of who may impose various punishments. Can I just take your Honours briefly to that, if it is convenient, in – perhaps I should first of all take your Honours to section 71. Your Honours will see:

(1)A service tribunal shall not impose a punishment of imprisonment on a member of the Defence Force whom it has convicted of a service offence unless the tribunal also imposes on that member in respect of the conviction the punishment of dismissal from the Defence Force. 

(1A)A service tribunal must not impose on a non‑commissioned officer whom it has convicted of a service offence a punishment of detention unless the tribunal also imposes the punishment of reduction in rank to a rank below non‑commissioned rank. 

(2)A service tribunal shall not impose a punishment of detention on a member of the Defence Force whom it has convicted of a service offence if the service member, at the time of conviction, had not attained the age of 18 years.

(3)A service tribunal shall not impose a punishment of detention on a member of the Defence Force whom it has convicted of a service offence if it also imposes the punishment of dismissal . . . 

(4)A service tribunal shall not impose a custodial punishment on a person who is not a detainee. 

(5)A custodial punishment imposed on a detainee shall not extend beyond the period during which the detainee is undergoing punishment of detention in a detention centre.

Your Honours, section 70 picks up the civilian sentencing principles in subsection (1). If one then goes to Schedule 2, one has the punishments that might be imposed by a Defence Force Magistrate which relevantly include dismissal. If I can take your Honours ‑ ‑ ‑

KIRBY J:   I am sorry, you have gone ahead.  Where are you now?

MR STREET:   I am sorry, your Honours.  I jumped ahead to page 250 which was “Punishments that may be imposed”, so that a Defence Force Magistrate may impose the punishment of imprisonment relevantly.

KIRBY J:   Is a Defence Force Magistrate a Federal Magistrate?

MR STREET:   No, and if they were, this issue would not arise, your Honour.  I would not be here.

KIRBY J:   What is the qualification of appointment as a Defence Magistrate?

MR STREET:   I will identify it for your Honour if I can.  I think they are appointed under section 127, your Honour.

KIRBY J:   So we are calling them in the future non‑courts courts and non‑magistrates magistrates.

MR STREET:   Yes, although I would have to say, your Honour, that it is perhaps an anomaly that Federal Court Magistrates are referred to as Federal Court Magistrates as they are plainly Chapter III judges.  Your Honours, going to Schedule 2 on page 250, one has the table of punishments that may be imposed by the Defence Force Magistrate but over the page in Schedule 3 one has the type of punishments that might be imposed by summary authorities.  Again, summary authorities in exercise of a procedure of a finding of guilt and a legal consequence being attached based on that conviction.  Your Honours will see the varying scales of punishments in respect of a superior summary authority or a commanding officer and I do not seek to take your Honours further through that varying scale. 

Can I then just refer your Honours to one or two further aspects in relation to this being judicial power and there being also available administrative steps that can be taken to deal with someone who has committed an offence.  Your Honours, there is a power of arrest in relation to persons who in the field of operation may have committed an offence in the theatre of war in section 89, procedure for arrest warrants under section 90.  Relevantly the power that gives rise to the application for prohibition in this case is the one found in section 103 where the Director of Military Prosecutions may:

(c)request the Registrar of Military Justice to refer the charge to a Defence Force magistrate for trial; or

(d)request the Registrar of Military Justice to convene a general court martial or a restricted court martial to try the charge.

Your Honours, the power of a Court Martial, if one goes to section 114 it identifies the different types of Court Martials, and 115 identifies that:

A court martial has, subject to section 63 and to subsection (1A) of this section, jurisdiction to try any charge against any person.

Then turning, if I may, to a Defence Force Magistrate, the Defence Force Magistrates’ jurisdiction is found in 129:

A Defence Force magistrate has the same jurisdiction and powers as a restricted court martial ‑ ‑ ‑

KIRBY J:   Is the so-called Australian Military Court to take the place of the Courts Martial?  Is that the intent?

MR STREET:   Your Honours, I sought to identify that it is a different regime.  It is a fundamentally different regime because the existing Court Martial procedure is one where the members of the Restricted Court Martial or Full Court Martial determine both guilt and punishment and they are not the same number and the role of the judge advocate is identified through this legislation in providing advice on legal matters to that Court Martial, but the Australian Military Court will operate in relation, as I understand it, to charges that are laid after its commencement on 1 October but that there is a transitional provision that is referred to in the amending Act which means that if your Honours were not to determine this matter before 1 October we would have said that there is a – if your Honours determined it after 1 October, we have sought to refer to the Defence Force Magistrate or Restricted Court Martial or Court Martial, we would have said that it is necessary because of the potential for that to come into force to make the declarations if we are right in relation to the relief we seek.

GLEESON CJ:   I think you can assume we will determine the case before Justice Callinan leaves us.

MR STREET:   Your Honours, in relation to trial by summary authority, just dealing with the summary authorities that could pick up the commanding officer.  If I can just draw attention to section 130, it again provides a power to “try a charge in accordance with the following provisions” and relevantly, your Honours, there is an election procedure in section 131, which I do not think I need to take your Honours through, but could I take your Honours to section 132 that provides the procedure as to what is to occur at a Court Martial where an accused pleads not guilty in terms of proceeding to determine and make a conviction and then to take action under Part V if the court finds that person guilty under section 132(1)(f) and (g).  In relation to a Defence Force Magistrate, the procedure for trial is substantially equivalent.  It is in section 135(1) and, again, conviction and punishment, based on conviction, is identified in subsection (1)(f) and (g).

Your Honours, they are the only matters I seek to refer to in the statute.  Your Honours, could I hand up the 1973 Working Paper and at the same time can I also hand up a copy – and I apologise for the writing that appears on it – of Chapter 5 of the Senate Committee Report.

CALLINAN J:   Mr Street, I wanted to ask you about that.  What has its relevance and admissibility got to do with Mr Harry Evans?  You refer to that in paragraph 50 of your submissions.

MR STREET:   Your Honour, we seek to rely upon the ‑ ‑ ‑

CALLINAN J:   I know why you seek to rely on it.  What has it to do with Mr Evans?

MR STREET:   Your Honour, he sought to write to say one cannot use it.  He wrote to the ‑ ‑ ‑

CALLINAN J:   Did you tell him you were going to try to use it or something?

MR STREET:   Yes, your Honour, and we said we would seek to use it in accordance with the Acts Interpretation Act.

CALLINAN J:   Why did you consult him?

MR STREET:   Your Honour, to the extent relevant, we did not consult him.  He wrote to us.  He wrote to us and we wrote back saying ‑ ‑ ‑

CALLINAN J:   He must have heard about it.  What triggered his letter?

MR STREET:   Your Honour, I have no idea.  We received a letter from him indicating that there was ‑ ‑ ‑

CALLINAN J:   What has he got to do with trying to dictate what this Court will receive or not?

MR STREET:   Your Honours, to the extent relevant, what we sought to identify was that it was a matter for this Court and we sought to identify that in the correspondence in answer but, your Honours, to the extent relevant, it is one where the Commonwealth does appear to advance some argument of it not being relevant to the construction of the issues.

CALLINAN J:   That is a matter for the Commonwealth.  It has nothing to do with Mr Evans.  He is the Clerk of the Senate.  He does not make binding rulings about what courts can receive and cannot receive.

MR STREET:   Your Honours, I hand up the 1973 Working Paper and the Senate Committee Report.  Can I just indicate in relation to the Working Paper ‑ it is perhaps a matter of some pride for those in the Navy – it appears on paragraph 5 that the history giving rise ‑ ‑ ‑

GUMMOW J:   What is this issue under section 16 of the Parliamentary Privileges Act?  You have raised that in your submissions.

MR STREET:   Your Honour, we simply seek to have recourse to Chapter 5 in relation to the arguments we seek to develop in respect of the invalidity and to that extent we would have said we are entitled to have recourse to it.  Can I deal first with the working paper.  It identifies that it was a Navy initiative in relation to paragraph 5, putting together a working party to try and produce a uniform disciplinary code consistent with practices that have developed in both the United States and Canada.  It was in essence this working party that started in 1965 that gave rise eventually to this report in 1973 and a draft version of the 1982 Act.

Your Honours, the significance of referring to it is this, that it is apparent that when one sees the subject matter in part that is referred to in the structure to the draft that it reflects substantially a similar content of what was ultimately found in the Act as it was passed.  The significance of it is this, that there was no discussion in this working paper that gave rise to the draft of the kind which one might find in this Law Reform Commission discussing the implications of Chapter III and why this would be a jurisdiction that could be imposed and whether it would be judicial power or administrative power and why there was such an exception. 

So that to the extent relevant what gave rise to this statute was not something that reflected a focus by those that initially drafted the other proposed legislation on the work that was done by Chapter III in the context of constitutional impediments to vesting judicial power in non‑Chapter III bodies. 

Your Honours, to the extent relevant, can I then just briefly refer to the Chapter 5 which is in the committee’s report.  It identifies in paragraph 5.16, page 80, various matters that came before that committee proposing through, in this instance, a reference to the JAG putting forward a proposal, point 3, to:

establishing a military bench of the Federal Magistrates Court, or attributing appropriate status and perceived independence under the auspices of Chapter III of the Commonwealth Constitution –

and then identifying a potential alternative that might fall outside and identifying on the next page, 81 judicial appointments compliant with Chapter III.

KIRBY J:   Who is JAG?

MR STREET:   The Judge Advocate General.

KIRBY J:   This is a report of a Senate committee.  You have not favoured us with the names of the members of the committee or whether this is unanimous or ‑ ‑ ‑

MR STREET:   No, your Honours, it is referred to in the explanatory memorandum to the Bill that is now the 2006 amendment.

KIRBY J:   I am not contesting you putting this forward.  With the other document, that of the working party, the names of the signatories are at the end of it, whereas I do not know who produced this or whether it is a unanimous report of the committee or a divided report or what sort of weight should be given to it.

MR STREET:   Your Honour, to the extent relevant, it appears to be one that was unanimous in the recommendation that it made about a Chapter III court.  One finds recommendations, I think, advanced – and I will take your Honours through to them – in paragraph 592 and following.

KIRBY J:   So it is a unanimous report of the Foreign Affairs Defence and Trade References Committee of the Australian Senate?

MR STREET:   Yes, your Honour, and in answer to your Honour, the recommendation, if one goes to Recommendation 19:

The Permanent Military Court to be created in accordance with Chapter III of the Commonwealth Constitution to ensure its independence and impartiality.

So its recommendation appears to be unanimous.  All I was seeking to do was to identify the material that gave rise to it.  There is a reference in paragraph 5.25 to the live issue of the constitutional validity in relation to judicial power outside Chapter III touched upon.  It is touched upon further in 5.35 in relation to this Court and it is one which identifies ‑ ‑ ‑

GUMMOW J:   What is the cogency of all of this, Mr Street?

MR STREET:   Your Honour, it goes to the question of leave to reopen. It goes to whether there is in this area of the interpretation of the Constitution an issue that this Court should entertain and it is clearly one, in our respectful submission, that throws up that there is not just the observations that have been made by this Court or in the footnote in the decision of Vasiljkovic that throws up a further factor to be taken into account as to whether this Court should revisit those earlier decisions.  To that extent, your Honours, if I could just give your Honours a reference to it – I will not take your Honours to each of the other paragraphs, but there is a reference to increasing fusion overseas in paragraph 5.47 in respect of the

independence and impartiality of the courts and the trend that has been adopted there.  There is a reference to those trends further in paragraphs 5.82 and 5.83, and 5.92 is the conclusion that gives rise to proposing Chapter III courts that is picked up in the recommendation I have referred to.

Your Honours, I do not wish to say any more than is in our written submissions in relation to section 16. To the extent relevant, your Honours, we do seek such leave as I sought to identify and in relation to relief, for the reasons I have referred to, there is an amendment in the 2006 Act that amends the section 103 to replace the referral by the Registrar‑General to a Restricted Court Martial or to the Defence Force Magistrate to the Australian Military Court and that is the reason why we seek also the declaratory relief. If the Court pleases.

GLEESON CJ:   Thank you, Mr Street.  Yes, Mr Solicitor.

MR BENNETT:   If the Court pleases.  I will deal first with the service connection issue, then with the constitutional provisions and their interpretation, thirdly, with the reasons why this is not part of the judicial power of the Commonwealth and, fourthly, a number of miscellaneous matters.

GLEESON CJ:   I thought it was the service connection non-issue.

MR BENNETT:   Yes, it is, your Honour.  That is what I am dealing with.  Your Honours, in my respectful submission, paragraph 7 of my friend’s submissions should not be there.  They should be ignored basically for the reasons given by the Chief Justice in the course of argument.  The point is that there was an express eschewal by my learned friend of relying on the proposition that the facts of this case did not satisfy the service connection test.  In other words, there is a concession that if the service connection test applies, if it is the relevant test, this case is within it.

We refrained, in reliance on that, from reading an affidavit which has been filed in this Court.  It is the affidavit of Monica Louise De Martin of 6 October 2006.  We refrained from reading that.  That affidavit goes to the issue and is concerned with showing a service connection.  That not having been read in reliance on the concession it is simply not open to my learned friend to submit that if that is the relevant test that this case does not fall within it.

GLEESON CJ:   Mr Street says it is not the relevant test.  Like adopting the same point of view as Justice Gaudron in a case he referred to earlier, he says you do not ask whether there is service status and you do not ask whether there is service connection.  You look at the nature of the offence.

MR BENNETT:   Yes, I understand that, your Honour.  That is another reason why the proposition is irrelevant.  I simply remind your Honours of that and invite your Honours to strike paragraph 7 from my friend’s submissions.  It should not be regarded or taken into account at all because we have been denied the opportunity to rebut, to put matters of confession and avoidance in relation to those matters.

KIRBY J:   But that is the key to it. You have been denied the opportunity in relation to those matters pertinent to this case, but that does not prevent our, as it were, speculating about the range of matters to which these offences on your theory of the Constitution can extend, including offences of people in private situations and civilian circumstances and exercising their ordinary rights as citizens.

MR BENNETT:   That is so, your Honour.  As part of argument of course that can be looked at, as it always can.  If your Honours were concerned about the possibility of this case being decided contrary to Re Judiciary and Navigation Acts on a nonexistent basis or on an artificial basis and because of the absence of evidence on that subject, if that were to concern your Honours we would ask your Honours to relist the matter so I could seek leave to read that affidavit.  That affidavit would demonstrate the justifiability of my learned friend’s concession and remove any suggestion that it is an academic issue being decided. 

That having been abandoned, one has to ask what is my learned friend’s submission as to where the line is drawn?  He starts with the absolute proposition and he says he looks at the Boilermakers implications from Chapter III which we have not sought to challenge as such in this case and then he says, “These are implications. There is nothing express providing an exception. Therefore, the implications are absolute”. In my respectful submission, that is a non sequitur. When one implies something in the Constitution one needs to examine what exactly one implies and what one implies may well have exceptions or qualifications.

GLEESON CJ:   Is the implication for which you contend based on necessity?

MR BENNETT:   No, your Honour.  That is one of the factors which has led to it – necessity in a broad sense of the word, not in a literal sense of the word – but it is certainly not the primary matter ‑ ‑ ‑

GLEESON CJ:   The reason I asked that question was this.  If it were said that the maintenance of a defence force requires a military justice system separate from Chapter III, would it be relevant for us to look at what goes on in other parts of the world today in relation to military justice?

MR BENNETT:   Yes, it would, and in fact I will be giving your Honours some references in that regard, but we put ‑ ‑ ‑

KIRBY J:   What do you say is the test then if it is not necessity? I thought necessity was the principle that normally the Court does require to stave off unneeded implications that are not there in the text of the Constitution.

MR BENNETT:   Your Honour, we start by saying ‑ ‑ ‑

KIRBY J:   It surely cannot be convenience?

MR BENNETT:   One does not get to that question, one simply has to construe the words “judicial power of the Commonwealth” and in construing those words one excludes Parliament imprisoning for contempt, one excludes the military justice system, one excludes Territory courts, one excludes various things and there are different reasons why different things are not regarded as within those words.

KIRBY J:   If excluding the “military justice system”, expanding that to civilian members of the Defence Force, which is many thousands of people, means that you end up with a so‑called military court, as under the legislation, then you can take it from me I am not prepared to read that into just the words “judicial power of the Commonwealth”.

MR BENNETT:   Your Honour, the question whether the military justice system is capable of excluding from Chapter III matters affecting civilian defence personnel is not an issue which arises in this case.  It may or may not require different rulings, and it is a matter for the future, but if that were a problem it would so clearly be severable that it would not matter in this case.  One can simply set that aside as a matter to be determined when and if it arises.

KIRBY J:   Yes, but the value of Mr Street’s mentioning it is that it does show the direction in which we seem to be moving once we move away from a vigilant adherence to the separation provided by the constitutional structure.

MR BENNETT:   Your Honour, when one looks at the words “the judicial power of the Commonwealth” one looks among other things at what has traditionally been regarded as in that category, and that excludes certainly the three things I have referred to; the Territory courts which are not part of the federal system, as was said in Eastman and a number of the earlier cases dealing with them; the exception of R v Richards; Ex parte Fitzpatrick and Browne, and we would submit, matters certainly so far as military personnel are concerned ‑ leaving aside the question of how far it extends to defence civilians – the military discipline of such persons.  Those matters have traditionally not been dealt with in the ordinary courts of the land.  They are not matters which are relevantly part of the judicial power of the Commonwealth as defined in Chapter III.

KIRBY J:   Would that permit the Parliament on that theory to create under the defence power a military tribunal to deal with people in an overseas island on the basis that they are alleged to be terrorists?  I mean, this is the thing.  We have to look down the years in this Court and consider where the proposition you advance leads.

MR BENNETT:   Your Honours, the proposition I advance says nothing about that question.  That falls squarely within the area of the Court not answering questions which do not arise, because there are totally different considerations which would affect that.

GUMMOW J:   Section 7(1) of the Discipline Act says that:

This Act (including the regulations and the rules of procedure) applies to, and in relation to, prisoners of war as if prisoners of war were members of the Defence Force and also defence members.

MR BENNETT:   Yes, it does, your Honour.

KIRBY J:   Yes, but the Defence Force can include all sorts of new personnel and anyway that is just in the Act.  I have sat here 11 years this day and the lesson I have learned is that you always have to look to what the next step is like a great game of constitutional chess.

MR BENNETT:   Your Honour, that depends on the proposition being advanced.  The proposition being advanced is not merely because something is a military tribunal it can do anything and affect any citizen including people outside the military, outside Chapter III.  Whether it can or cannot in particular cases would depend on the facts of those cases, but that is not the proposition being advanced here.  The proposition being advanced here is the application of military justice to members of the Defence Forces.  The questions your Honour asked ‑ ‑ ‑

HAYNE J:   The expression “military justice” carries with it a deal of resonances that may need to be explored.  At its root it seems to me there are three propositions:  a defence force must be disciplined, that is the nature of the Defence Force; (2) the discipline applied within the Defence Force must be applied with procedural fairness.  See the frequent references to acting judicially; (3) procedural fairness has been treated legislatively as requiring in more serious cases close approximation to the judicial paradigm of fair procedures.  But the particular elaboration of that, as I understand it, according to your submission, does not yield the conclusion that the adoption of that judicial paradigm equals the application or the exercise of the judicial power of the Commonwealth.

MR BENNETT:   Precisely, your Honour.  It does not.

HAYNE J:   Now, the moment you use expressions like “military justice,” questions of who is subject to it emerge.  See for example 7(1), “Prisoners of war”.  Why do we get to any of those questions in this case?

MR BENNETT:   We do not, your Honour, but, with respect, that is my submission.

GLEESON CJ:   On your submission, could the Parliament legislate for a comparable system in relation to the Australian Federal Police?

MR BENNETT:   There would be some different considerations there, your Honour.  There would be different historical considerations - certainly different international precedents and analogies.  There would be some factors which would indicate the desirability of it and some which would indicate the undesirability of it.  There are a range of matters but my arguments would say nothing about that question.

KIRBY J:   Yes, but we have to test your argument, you see, against where the next step lies.  What is your answer to the Chief Justice’s question?  Do you disavow the possibility that non-Defence Force personnel (however that may be defined) because it is already extended to civilian employees, that they could be caught up, as, for example, the Australian Federal Police, or, for example, counter-terrorist officers or the other personnel whom the Executive Government might say need their own system outside the independent courts?

MR BENNETT:   Your Honour, those examples involve certainly situations where mere, if I can use the phrase compendiously, “professional discipline” could be created outside Chapter III because that is not part of the judicial power of the Commonwealth in the sense used so that ‑ ‑ ‑

KIRBY J:   You say it can be done – it could be done?

MR BENNETT:   So far as discipline is concerned, yes.  So far as criminal law is concerned there may well be different lines to be drawn.

GLEESON CJ:   That is why I asked the question, a comparable system here.  We know that in New South Wales the police have their own disciplinary system.  There are police integrity commissions and bodies like that but I am not talking about a purely disciplinary system.  I am talking about a system comparable to this system.  I mean, barristers have their own disciplinary system.

MR BENNETT:   Yes.

CALLINAN J:   Except you do have in the Constitution in (vi) a reference to control or for:

control of the forces to execute and maintain the laws of the Commonwealth.

So you do have reference to that in exactly the same paragraph as you have reference to “naval and military defence”.

MR BENNETT:   Yes, there would be a question of the application of the second part of placitum (vi) and the reconciliation of that with Chapter III which involves totally different questions to those involved in this case.  It is certainly no part of my argument that there is any logical extension in that direction and the factors I will be putting almost universally would not apply to the Australian Federal Police.  A decision on this case, on the arguments which we are putting, would say nothing about that case if it were to arise.

KIRBY J:   That is not how the law develops. The law develops by analogy to earlier cases and that is why one has to get the principle clear lest another little exception to the broad rule of the structure of the Constitution becomes a foundation for something in the future and I must say I have to tell you that I have not seen the military court – so-called military court before today - but having seen it I do not think it is a matter of prejudice, I think it is a matter of warning, a warning of where we are going outside the independent courts.

MR BENNETT:   Your Honour, the factors which I will be putting in relation to the judicial power of the Commonwealth not extending to this area are factors based on history, particularly the history in the Australian colonies, in England, in the United States, on analogies from other countries and on general matters of that sort and the rather than any “a priori” argument that it is convenient to create an exception, let us do so. Of course, I rely on the line of authority on this case which in reliance on both “a priori” arguments and the history and the structure of the Constitution have said that the words “judicial power of the Commonwealth” do not include the application of the military justice system where it involves offences committed by members of the Defence Forces.

KIRBY J:   You accept that it is judicial power but not judicial power of the Commonwealth?

MR BENNETT:   Yes, your Honour.

KIRBY J:   So there is a judicial power under our Constitution which is not the judicial power of the Commonwealth but can be provided for by the Parliament so the Parliament could create bankruptcy courts outside Chapter III just as has been done in the United States.

MR BENNETT:   No, I do not submit that, your Honour. 

KIRBY J:   Would that not follow though from your logic?

MR BENNETT:   No, your Honour. 

KIRBY J:   There is a power to make laws with respect to bankruptcy.  It exists in the United States, special little area, you do not need all that paraphernalia of the federal courts and you certainly do not want to have too many appeals to the High Court because they are very busy.

MR BENNETT:   And there is no historical basis for that being treated separately. Indeed, there is no greater reason for treating bankruptcy separately than divorce or any of the other powers in section 51. I do not put this on the basis of some superiority of section 51(vi) or anything in section 51. I simply put it on the historical construction of words in the Constitution, “the judicial power of the Commonwealth”, and that traditionally did not include court martialling of officers of the Defence Forces.

My learned friend puts the line in a number of different places in the course of his argument but none of them seem to stand up.  He starts by saying certain things are just administrative and they are all right.  If the sergeant‑major orders you to run around the parade ground three times because your bed was not properly made, that is administrative and that is all right and that is outside this.

The problem with that submission is that when one looks at the legislation here, there is a range of tribunals and sanctions but all of them involve the Tribunal, usually a superior officer, making a finding of guilt, determining guilt and imposing a punishment for it, so one cannot simply say that at some level it is on one side of the line or another.

The same applies to the distinction drawn by two Justices of this Court, which my learned friend has referred to, about cases where the offence happens also to be an offence under the general law and cases where it does not.  It is easy to give examples, and some were given in questioning, of matters which are offences under the general law, but which clearly have a far greater disciplinary significance than they do as offences under the general law.

If a soldier at the front line were to pick the pocket of the soldier next to him one can imagine all sorts of problems to the war effort and to the discipline of the armed forces.  The same applies of course to theft where one has a small group of people in a confined situation, as on a submarine or a ship. 

It also has to be acknowledged that the very lowest levels of discipline, the sergeant-major dealing with the recruit who has not made his bed properly, are outside the Defence Force Discipline Act.  They are dealt with quite separately.  We are dealing with things above that level.

The Chief Justice gave the example of someone who at the military front kills a commanding officer.  That is a fairly obvious one and there are numerous other ones.  One can imagine a sexual assault in the frontlines being of enormous disciplinary significance, very possibly on the facts of much great significance than its criminal law significance.

KIRBY J:   But that would be normally taken into account by a court.  If a court is looking at punishment of a person you look at any relationship of trust or responsibility or circumstance.  That is the very type of thing that courts take into account in dealing with the severity of an offence.

MR BENNETT:   Yes, but the problem is the practicality of dealing with it.

KIRBY J:   Well, if it is murder they are not going to stay very long in the front.

MR BENNETT:   No.  No, they are not.  But there was a problem with the witnesses.  In my respectful submission, it is very difficult in these cases to say merely because some event which is highly inimical to military discipline happens to be a civilian offence as well therefore the considerations which make it desirable that it be heard by a Court Martial on the spot disappear.  In my respectful submission, that is not a useful line.  Now, my friend then says that the Boilermakers implications on which he relies are express requirements of the Constitution and therefore I believe ‑ ‑ ‑

GUMMOW J:   The Boilermakers’ Case assumes an understanding of the content of the judicial power of the Commonwealth in the first place.

MR BENNETT:   It does, your Honour.

GUMMOW J:   It assumes your first argument has been gone through.

MR BENNETT:   It does.

GUMMOW J:   It is simple really.

MR BENNETT:   Even the first ‑ ‑ ‑

KIRBY J:   Is that quite right because the Boilermakers’ Case destroyed a national court which had been in position since 1904 and therefore it was not just business as usual.  It was establishing a new and stronger and sterner principle in 1956 and it caused a great deal of disruption when it did.

MR BENNETT:   Yes.  A lot of that had to do with whether arbitral functions were judicial quite apart from drawing the lines that it drew.  But the important point about the Boilermakers implications is that they are just that. Section 71 says:

The judicial power of the Commonwealth shall be vested in a Federal Supreme Court –

et cetera. It does not say it is forbidden for the Parliament to vest a body which is not a court established under this chapter with judicial power. It does not say that. That is an implication drawn from the structure of the Constitution and from the positive in section 71. The same arises when my learned friend says that section 76(ii) is an express provision of the Constitution. Section 76 merely gives the Parliament the power to make laws conferring jurisdiction on this Court and through section 77 other courts, in certain types of case. Any requirement that it cannot do so to anything other than a Chapter III court is an implication from that, not implication from the positive. It is not an express provision.

Where one is finding implications one is entitled to look at the whole of the surrounding provisions and the milieu in which the Constitution was enacted, and part of that is the reference to “The judicial power of the Commonwealth” in section 71 and that in turn involves saying what were the things that were regarded as judicial power at the relevant time and one thing that clearly would not have been is Parliament convicting for contempt of Parliament, and another is a member of the Defence Forces being dealt with by a court‑martial. Indeed, as we know, there is a third example with Territory courts, for slightly different reasons ‑ ‑ ‑

KIRBY J:   That is not universally accepted.  I do not accept that.  I regard Territory courts as federal courts.  They are created under federal legislation.

MR BENNETT:   Yes, but that, your Honour, is not, with respect, the majority view that has prevailed to date. Another example might be this, to take a hypothetical one. If one looks at section 121 of the Constitution about “New States” and the terms and conditions that could be imposed, it would be open to the Commonwealth in creating a new State to create as part of the same legislation a supreme court for that State. Such a court clearly would not exercise a “judicial power of the Commonwealth” except to the extent, except like any other State supreme court you could have particular things referred to it. It would not be a Chapter III court as such, although it would be created by the Parliament and created by the Parliament pursuant to the Constitution. That is a more remote example, but it ‑ ‑ ‑

KIRBY J:   Would that hypothetical court have a line of appeal to this Court?

MR BENNETT:   It would, your Honour, because of section 70 – well, no, under section – yes, under section 73(ii) this court has jurisdiction to hear appeals from “the Supreme Court of any State” and that would be the Supreme Court of ‑ ‑ ‑

GUMMOW J:   The definition of “State” in covering clause 6 would bring in the new State and all its elements including its Supreme Court.

MR BENNETT:   Yes, it would, your Honour, but in the hypothetical I have put, the Commonwealth creates that court as part of the legislation creating that State in much the same way as the Supreme Courts of the States were created under colonial legislation and carried over by the provisions of section 106.

KIRBY J:   What do you say is the provision of section 73 that provides for appeals from Territory courts to this Court on the theory you propound? It is not the original jurisdiction of this Court, it is not a State court, and you say it is not a Federal Court and it is certainly not the interstate commission?

MR BENNETT:   It is a court which is capable of exercising federal jurisdiction.

GUMMOW J:   That is what we have said, is it not?  I thought so.

MR BENNETT:   This was discussed in ‑ ‑ ‑

KIRBY J:   Eastman, I think, and other cases.

MR BENNETT:   Yes, the case from the Australian Capital Territory, not Falkiner, the other one.

KIRBY J:   Hermes, was it?

MR BENNETT:   Yes, Falkiner’s Case discussed the question of appeals from Territory courts to this Court, and there were a number of other issues involved in that situation. There also may be a question of whether “federal court” in section 73(ii) is confined to the courts created under section 71 with the requirements of section 72, but we do not need to decide those issues at the moment. All I am submitting is the very limited proposition that there are cases where this Court has held that the restrictions of Chapter III do not apply because the particular body does not exercise “The judicial power of the Commonwealth” as defined in section 71. Those words have been read as having a more limited meaning than that my learned friend would give them.

KIRBY J:   That is, I suppose, what you say is the case of this so‑called military court that we have been made aware of?

MR BENNETT:   Yes.  Your Honour, that has not come into existence yet.

GUMMOW J:   There will be a debate at some stage about how you can create something – a court of record - otherwise than through section 71.

KIRBY J:   That is where you want to take us.  Do not think we have not noticed.

MR BENNETT:   Those matters do not arise today.

KIRBY J:   You say they do not arise but I repeat at least it is my view that you always have to test propositions by where they lead, what their logic is.  Immanuel Kant taught that.  It is just basic logic.

MR BENNETT:   Yes.  Your Honour, most of the arguments which I am putting would apply to the Australian Military Court, but certainly ‑ ‑ ‑

GUMMOW J:   It also is partly to be manned by existing Chapter III judges, is it not?

MR BENNETT:   I do not know the answer to that question, your Honour.

GUMMOW J:   There is a section in there, is there not?

MR BENNETT:   I think there may be.  We would regard it as just irrelevant to this case.  We have not examined it for the purpose of our submissions.

GUMMOW J:   I hope someone has examined it.

KIRBY J:   They get 10 year appointments.

CALLINAN J:   I think they can be promoted, can they not?

MR BENNETT:   Turning to the historical matters that are relevant to the exclusion of military discipline from the judicial power of the Commonwealth the – I will not take your Honours through the historical material which is set out in the various judgments of this Court, your Honours have been referred to it extensively.  It is worth noting that in the United States prior to the Fifth Amendment a very similar problem arose as arises in this case.  The Fifth Amendment has an express exclusion in relation to cases arising in the land or naval forces or in the militia, but the problem is deeper than that because one has section 8 which provides that Congress has power to make rules for the government and regulation of the land and naval forces and then Article III:

Section 1.     The judicial Power of the United States, shall be vested in one supreme Court –

a section obviously very similar to section 71. The issue was discussed in the well‑known case of Dynes v Hoover 61 US 65 (1857). There is only one passage I need to remind your Honours of in that case and that is the statement at page 79 where, after referring to the various constitutional provisions which include the provision about “The President shall be commander‑in‑chief” and certain of the amendments, at the fourth line:

These provisions show that Congress has the power to provide for the trial and punishment of military and naval offences ‑ ‑ ‑

GUMMOW J:   What is the citation of Dynes?  Someone in your team should not hand up these things without the citation on the front. 

MR BENNETT:   Yes, I am sorry, your Honour.

GUMMOW J:   What is the volume in the United States reprint?  Anyhow, go on Mr Solicitor.

GLEESON CJ:   In that passage there is reference to:

provide for the trial and punishment of military and naval offences in the manner than and now practiced by civilized nations -

Do you see that?

MR BENNETT:   Yes.

GLEESON CJ:   I wanted to ask you this.  From one of the references Mr Street took us to in the present Defence Force Discipline Act I see that an offence that can be dealt with under the Act is bigamy.  I was going to ask you whether, in the practice of civilised nations as at 1857 or 1900, a topic like bigamy was something that might be the subject of a service offence?

MR BENNETT:   I cannot answer that, your Honour. 

GLEESON CJ:   We looked at this in Alpert and noticed that going back to Roman times, rape by members of armed forces, understandably, is something that has been dealt with as a service offence. 

MR BENNETT:   Yes, there are obvious reasons for that.  I must confess to being surprised myself by the reference to bigamy.

CALLINAN J:   It might have implications for pay and allotment to wives.

MR BENNETT:   Yes.

GLEESON CJ:   It could have implications for personal safety.

MR BENNETT:   The volume number is volume 61 although it is also volume 20 of Howard’s Reports.

GUMMOW J:   Thank you. 

MR BENNETT:   The important point is that in delivering the judgment of the court, Justice Wayne said “the two powers are entirely independent of each other” and it is that line of thinking which, we would submit, informs this area of discourse.

The position today is different in various countries in the world.  There is a book your Honours may find useful published by the International Commission of Jurists called Military Jurisdiction and International Law.  That discusses the nature of military jurisdiction in a very large number of countries and we have handed up to your Honours a part of that at pages 164 to 168 which discusses constitutions and military justice.

KIRBY J:   What year is this publication.

MR BENNETT:   I am told 2004, your Honour.  The book is, of course, largely concerned with a different area of discourse which is the question of human rights violations and questions of immunities and questions of dealing with soldiers for human rights violations and so on, but the section on constitutions and military justice demonstrates that there are a large number of international models for dealing with the problem which faces the Court today.  At page 165 at a quarter of the way down the page the authors say:

Virtually all countries of the world which have written constitutional legislation use those constitutions or constitutional laws to regulate the ordinary legal system.  Nevertheless, that is not the case for military jurisdiction and many countries with military courts do not regulate military jurisdiction in their constitutional legislation.  So, for example, even though their legal systems provide for military courts, the Constitutions of Cambodia, Slovakia, Hungary, Lithuania, and Romania contain no clauses on the question of military justice. 

Then there are discussions of the Dominican Republic and Tunisia at greater length.

KIRBY J:   This is all very interesting but as Lord Mansfield pointed out 200 or more years ago the British never adopted the approach that continental Europe did that the military were outside entirely the civilian courts. It is all part of the English notion that followed the Cromwellian revolution that the military power was subject to the civilian power and therefore the fact that other countries have done it this way is really not to the point. Mr Street is right, surely, to say we have to look at our Constitution with its very particular historical background and its strong division of powers in the structure which this Court emphasised in 1956 in the Boilermakers’ Case.

MR BENNETT:   Yes.  Ultimately that is the question, your Honour, but we are construing the words “judicial power of the Commonwealth” in 1900 and to some extent more recently ‑ ‑ ‑

KIRBY J:   You say 1900.  We did not do that in Sue v Hill and lots of other cases.  As far as I am concerned that is a chimera.

MR BENNETT:   That is why I was going on to say, your Honour, and for the purposes certainly of denotation and connotation distinctions much more recently.  It is therefore of interest to see that there is not a universal approach that military justice is just treated as part of the general system, even constitutionally.  Now, it goes on to say at the bottom of page 165:

Other countries have clauses on military jurisdiction in their constitutions.

It refers to Luxembourg, Latvia, Egypt, Mali and Niger, Bulgaria, Laos, and Vietnam.  Then there is a lengthy discussion I will not trouble your Honours with about Equatorial Guinea.  Then the next paragraph says:

A significant number of States have military jurisdiction established in their constitutions –

and gives the examples of Ireland and Brazil.  Then, finally, on page 167 there are some constitutions that draw a distinction between strictly military and non-military offences and examples of those are Cape Verde, El Salvador and Honduras.  While I do not propose to take your Honours to it ‑ ‑ ‑

GLEESON CJ:   I thought I read somewhere in an article that at the moment in Germany they do not have a separate military justice system.

MR BENNETT:   That may well be a reaction against the ‑ ‑ ‑

GLEESON CJ:   It may be, but if it is true does it have any bearing on the question of necessity?

MR BENNETT:   Your Honour, we do not put necessity as an absolute in the sense that my learned friend sets it up as to attack it.  We do not put it on that basis.  The fact that there are so many models is itself an indication that one can treat things in different ways.  The book goes on, if your Honours wish to obtain it or wish me to provide copies, on pages 169 to 379 to discuss 30 different countries around the world and analyse the structures of the military.

GUMMOW J:   I am beginning to understand why Justice Scalia gets irritated when these sort of things are put to his court.

MR BENNETT:   Well, I am not going any further than that, your Honour.  It is simply to illustrate that there is nothing novel or surprising in the proposition ‑ ‑ ‑

GUMMOW J:   Anyhow, as I understand it, you are not implying anything; you are just construing the phrase “judicial power of the Commonwealth”.

MR BENNETT:   Yes.

GUMMOW J:   It is not a question of making a necessary implication; it is a question of construing those words, partly, at least by reference to the history.

MR BENNETT:   Yes, your Honour, and that is the basic way we put it.

KIRBY J:   Yes, but the problem we have to keep our eye on is that the danger of giving too wide an interpretation to “judicial power of the Commonwealth” or too narrow an interpretation is that that has consequences for all the courts that you can establish under federal power which are outside Chapter III and do not have a line of appeal to this Court and are not, therefore, the subject of the supervision of this Court, save under section 75(v).

MR BENNETT:   Your Honour, it would be hard to find another power in section 51 which would have any historical basis for the exception we rely on in this case.

KIRBY J:   In the view of some it is not necessary to have historical basis, you can have a functional basis, but if you are tying yourself strictly to the historical basis of the defence forces as traditionally composed then you have already overstepped the mark because that never included the civilian employees.

MR BENNETT:   Your Honour, the civilian employees, as I have said, are a separate question, a separate and severable question which simply would not be decided or assisted by the decision in this case.  Defence civilians, I should say, your Honour, as defined in the Act is a much narrower class than civilian employees. We are not talking about the ‑ ‑ ‑

CALLINAN J:   It would have included Mr Parker, would it not, in Parker v Commonwealth?  Was he not on board the Voyager just as a person assisting the Navy?  I think he was an engineer, was he not?  It does not matter for present purposes but I think the definition would probably extend to him.  He just had the misfortune to be at sea at the time of the collision.

MR BENNETT:   Yes.  It has to be a person who:

(a)with the authority of an authorized officer, accompanies a part of the Defence Force that is:

(i)     outside Australia; or

(ii)     on operations against the enemy; and

(b)has consented, in writing, to subject himself to Defence Force discipline while so accompanying that part of the Defence Force.

So it is a fairly narrow extension.

CALLINAN J:   What about embedded journalists?

MR BENNETT:   That would depend on whether they have consented in writing under that section.

CALLINAN J:   Whether they signed up or not.

KIRBY J:   They would have to sign up to be embedded.

MR BENNETT:   It has to be with the authority of an authorised officer outside Australia or in an operation against the enemy.  It is a narrow definition.

GUMMOW J:   The fact is that, looking at one of Clode’s books, the particular one on military and martial law published in 1872, page 82, it is pretty clear that under that Mutiny Act 1689 and the following legislation camp followers were subjected to the articles of war otherwise they would be stirring up mutinies and so on.

GLEESON CJ:   They would be nuisances.

GUMMOW J:   Yes, that is right.

CALLINAN J:   I think a lot of this legislation was probably provoked by the Indian mutiny too.

GUMMOW J:   There were a lot of camp followers too.

MR BENNETT:   Yes, I am sure there were, your Honour.  I should say the position in Germany is dealt with at pages 277 to 281 of the work to which I have referred.

KIRBY J:   Does the German federal constitution have a separation of powers doctrine like Boilermakers or not?  If not, it really is not relevant to be looking at the Europeans.  The Europeans always did things differently.  The British had a very strong view about civilian control.

GLEESON CJ:   What was the British position as at 1900?

MR BENNETT:   There were military tribunals which were able to deal with a range of matters.

GLEESON CJ:   I thought I also saw somewhere that the Australian Defence Forces well into the 20th century just followed the British pattern.

MR BENNETT:   Yes.

HAYNE J:   The Army Act and the Naval Discipline Act applied, did they not?

MR BENNETT:   Yes, I think that is so.

KIRBY J:   But was there not a provision in the Army Act that if the offence was an offence triable civilly and occurred within a certain radius of a court town it had to proceed in the civil courts?

MR BENNETT:   I think there may have been an exception to that effect in one of the pieces of legislation.  I have seen something similar to that.  There was also, of course, the question of British control of Australian forces overseas, as Breaker Morant discovered to his cost. 

HAYNE J:   Forgive me if I observe, Mr Solicitor, in a military case that we seem to be marking time at the moment.  Can we advance?

MR BENNETT:   Yes, your Honour, if I could just answer the question about distance from towns.  That is referred to in Re Tracey; Ex parte Ryan in the judgment of Justices Brennan and Toohey at pages 560 where their Honours set out section 41 of the Army Discipline and Regulation Act 1879.

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

MR BENNETT:   I would think something under an hour, your Honour, but I would not expect to finish this afternoon. Your Honours also should be aware that in India, section 33 of the Constitution contains a specific exclusion from their equivalent of Chapter III in relation to the members of the armed forces and the maintenance of discipline and so on, and there is a case applying that section, which I will just give your Honours the reference to. It is Ram Sarup v Union of India AIR (52) 1965 Supreme Court 247.  The case does nothing more than say that that section applies and has the effect that the guarantees otherwise present are not present in relation to a Court Martial of the armed forces, but that, of course, is the direct application of a direct provision in the Indian Constitution.

KIRBY J:   That is a bit against your argument though, is it not, because it indicates that where, at least in the case of India which borrowed a number of provisions from our Constitution, they thought it should be dealt with, they dealt with it explicitly.

MR BENNETT:   Your Honour, it is not against me because the Indian Constitution, of course, is much later than ours, so it is not something which one would have had regard to in 1900. I simply refer to it to demonstrate that as late as 1948 and thereafter in at least one other major Federation with a separation of powers it was thought appropriate to treat it as separate. One could equally argue that the framers of that Constitution assumed that it was implicit in ours.

KIRBY J:   They did not.  They were not willing to rely on your implied doctrine.  They thought it was necessary to spell it out.  Anyway, let us not tarry over it.

MR BENNETT:   Anyway, it does not really take it any further.

GUMMOW J:   It is important though, is it not, to consider the 19th century British legislation?  It applied by paramount force, it seems to me.

MR BENNETT:   Yes, it did.

GUMMOW J:   That was one of the matters for debate even in 1940 in Bevan or Cox or one of those cases.

MR BENNETT:   Yes.  Now, in relation to the desirability of maintaining a system, a separate system of military justice, there are a number of reasons for it.  The first is that there is a general slide, as one would expect, from matters which are solely matters of military discipline to matters which are also the concern of the civilian authorities but which have a significant effect on military discipline.

These matters can arise on naval vessels, in war zones, in various bases overseas and at all sorts of places where it is essential for military discipline that they be dealt with quickly and efficiently and preferably without moving witnesses away from the place where they are engaged in activities. 

KIRBY J:   Of course the other general slide that we see, and it has been referred to in articles commenting on this power, is a general slide away from the principle of the Boilermakers’ Case and the separation and vigilant protection of the judicial power.  That is the other slide we have to watch.

MR BENNETT:   Your Honour, the problem with the Boilermakers’ Case was that it did what your Honour described my learned friend as doing earlier and that is taking an absolute principle to its absolute illogical conclusion with the result that every time one confers a power, if one applied Boilermakers literally, one would have to get right the answer to the question, “Is this or is this not the judicial power of the Commonwealth?”  If you then allocate that power the wrong way, either to or not to a Chapter III court, one has done so invalidly. 

GUMMOW J:   No, but the answer to that in practical terms has been the development that Sir Isaac Isaacs saw in Munro of the functional line of cases.

MR BENNETT:   Yes, the chameleon doctrine.

GUMMOW J:   Exactly. 

KIRBY J:   Are you challenging the Boilermakers doctrine.

MR BENNETT:   No, your Honour, I do not need to in this case.  One day I may.  But we do make the point, relevant to your Honour’s question about the slide, that the effect of the chameleon doctrine is that Boilermakers has much less operation, except in the extreme cases, because one can characterise powers of a large range of types as being powers which are administrative if conferred in an administrator and judicial if conferred on a Chapter III court.

KIRBY J:   Why is not depriving a citizen of a jury trial right, one of the few that is expressed in the Constitution in Chapter III, an extreme case?

MR BENNETT:   It is not, your Honour, because that only applies if one chooses to make it indictable and 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