White v Director of Military Prosecutions

This case concerned a constitutional challenge brought by Ms Anne White, a member of the Royal Australian Navy, against the Director of Military Prosecutions. Ms White had been charged with seven "service offences" under the *Defence Force Discipline Act 1982* (Cth). Six of these charges alleged conduct outside the Jervis Bay Territory that constituted a "Territory offence" under the *Crimes Act 1900* (ACT), while the seventh alleged assault. Ms White denied these charges, and the dispute centred on whether the Director could constitutionally prosecute these offences before a service tribunal, or whether such trials required the exercise of the judicial power of the Commonwealth under Chapter III of the Constitution. The High Court of Australia was required to determine the constitutional validity of the provisions of the Act that allowed for the trial of these service offences by military tribunals.

The central legal issue before the High Court was whether the trial of service offences, particularly those based on civilian criminal law such as the alleged indecency and assault, by Defence Force magistrates or courts martial constituted an exercise of the judicial power of the Commonwealth, thereby requiring adherence to Chapter III of the Constitution. The Court had to consider whether the *Defence Force Discipline Act 1982* (Cth) validly conferred jurisdiction over such matters to service tribunals, or if these offences should instead be tried by the independent courts established under Chapter III. This involved an examination of the nature of "service offences" and the extent to which they could be distinguished from ordinary criminal offences triable by the civil judicature.

A majority of the High Court, in joint reasons from Gummow, Hayne, and Crennan JJ, with separate concurring judgments from Gleeson CJ, Callinan, and Heydon JJ, found that the challenge to the constitutional validity of the provisions in question succeeded on the second argument advanced by the plaintiff. The Court reasoned that defence personnel, as citizens, are entitled to have disputed charges of serious criminal conduct resolved before independent courts operating within the Judicature and outside the Executive. The majority concluded that the Act should be restructured to confine the exercise of "military justice" outside the civil courts to properly defined disciplinary offences, while remitting all other contested offences to the independent courts established under Chapter III of the Constitution. The application was dismissed with costs, but this outcome was accompanied by the significant finding that the provisions allowing for the trial of these types of offences by service tribunals were constitutionally invalid. Kirby J dissented.